Smoking in Cars with Children (Prohibition) Act 2011

The central concept is “smoke”, defined in s 6 in two dimensions: the substance (smoke from an ignited tobacco or herbal product, or vapour from an activated personal vaporiser or vaping good) and the conduct (direct inhalation of the smoke or vapour, or holding or controlling a smoking product while it is ignited or activated). The definition is deliberately broad: holding a lit cigarette or an activated vape pen in a vehicle with a child present is enough, even if no inhalation occurs. This eliminates any need to prove that the person actually breathed in the smoke or vapour. “Smoking product” is defined non‑exhaustively as a tobacco product, a herbal product, a personal vaporiser or a vaping good (s 6(3)). The terms “herbal product”, “personal vaporiser”, “tobacco product” and “vaping good” are signposted to definitions in the Tobacco and Other Smoking Products Act 1927, meaning changes to that Act automatically affect this Act unless the dictionary says otherwise.

The second key concept is “child”: a person under 16 years old (dictionary). The Act does not use a lower age threshold; any child under 16 triggers the offence. The evidentiary presumption in s 7(3) is a critical operational shortcut: a police officer’s observation of apparent age is taken as proof, subject to rebuttal by the defendant. This reduces the burden on the prosecution in practice and makes it harder for a defendant to argue that they honestly believed the child was 16 or older without documentary evidence.

The third concept is the spatial scope: the vehicle must be “on a road or road related area”. These terms are not defined in this Act but are imported from the Road Transport (General) Act 1999. “Road” typically includes any public street, highway, bridge, footpath and the like. “Road related area” includes car parks, service stations, and other areas open to or used by the public for driving, parking or travelling. The effect is that the prohibition extends well beyond public roads to include many private but publicly accessible spaces, such as shopping centre car parks and petrol station forecourts. However, purely private land that is not a road related area (for example, a residential driveway that does not form part of a road) may fall outside the Act, though the boundary can be uncertain without reference to the Transport legislation.

The fourth concept is “vehicle”: it adopts the definition of “motor vehicle” from the Road Transport (General) Act 1999, but expressly excludes a motorcycle and a campervan that is parked and set up as a place for living or sleeping. A standard car, van, SUV, ute, or truck therefore falls within scope. Motorcycles are entirely exempt, and a campervan is only exempt when it is both parked and “set up” (not merely stationary). The exemption does not apply while the campervan is being driven or while it is parked but not arranged for habitation.

The fifth concept is strict liability for both the primary offence (s 7(2)) and the failure to comply with police requirements (s 8(3)). The Act does not impose absolute liability; the Criminal Code’s general principles apply, including the defence of reasonable mistake of fact (Criminal Code s 22). A defendant who honestly and reasonably believed the child was 16 or older, or who did not know they were holding a lit product, may raise that defence, but bears the evidential burden of pointing to evidence supporting the mistake.

The primary class of affected persons is anyone aged 16 years or older who is present in a motor vehicle on a road or road related area and who smokes or holds a lit or activated smoking product while a person under 16 is also in the vehicle. Because the Act does not restrict the offence to the driver, any passenger aged 16 or older can be liable. This means a parent, relative, family friend, or even a hired driver who uses tobacco or vaping products in the presence of a child commits an offence, regardless of whether they are the vehicle’s owner or controller.

Drivers are indirectly affected even if they do not smoke: they are subject to a coercive police power to stop the vehicle, produce their driver licence, and state their name, date of birth and home address (s 8(1)(a)). Failure to comply with these requirements is a separate offence. A driver who does not smoke but who allows a passenger to smoke in the vehicle with a child present does not commit the primary offence themselves, but they must still cooperate with police if stopped. This creates a compliance burden for all drivers who carry children and passengers who might smoke.

Police officers are the enforcement arm. They must form a reasonable suspicion that an offence under s 7 has been committed before exercising the powers in s 8. Reasonable suspicion requires some objective basis - a police officer cannot stop a vehicle randomly under this Act. Once that suspicion is formed, however, the powers are relatively broad: they can require the driver to stop and produce a licence, require the suspected smoker to stop smoking and provide name, date of birth and home address, and require any person carrying an identification document to produce it. No power of search or seizure is provided under this Act, nor can police force entry into the vehicle beyond directing the driver to stop.

Children are the intended beneficiaries, but they bear no legal liability themselves. The Act does not impose obligations on children, and a person under 16 cannot commit the primary offence even if they are smoking. This creates a gap: a 15‑year‑old smoking with an infant sibling in the back seat is not covered by this Act, though other laws (such as laws prohibiting sale or supply of tobacco to minors) might apply.

Vehicle owners and operators may face indirect costs if vehicle use is restricted. For example, taxi, rideshare or hire‑vehicle drivers must ensure no passenger smokes while a child is present, or risk the inconvenience of police stops and the potential for their passengers to be fined. Businesses that operate vehicles for transporting children - such as school bus operators or childcare transport - may need to educate drivers and passengers about the prohibition. However, the Act does not impose a duty on drivers to prevent smoking; only the smoker is liable.

The vaping goods amendment in 2025 broadened the affected class to include all users of personal vaporisers and vaping goods. Persons who switched from combustible cigarettes to vaping products in the belief that the Act only covered smoking tobacco are now within scope, so their compliance burden has increased.

Legal professionals, driver licensing authorities, and providers of driver education must also understand the Act to advise clients and update training materials.

The central duty is the prohibition in s 7(1): a person aged 16 or older must not smoke in a vehicle on a road or road related area when a child under 16 is in the vehicle. This is a negative duty - it requires refraining from a specific activity. The duty is breached by any act that falls within the definition of “smoke”: direct inhalation or holding/controlling an ignited or activated smoking product. There is no requirement that the person intended to smoke or that they knew a child was present; strict liability means the act alone is sufficient, subject only to the defence of reasonable mistake of fact.

A related duty arises under s 8(2): a person must comply with a lawful requirement made by a police officer under s 8(1)(a) or (b). These requirements are: for the driver, to stop the vehicle and produce the driver’s licence, and to state the driver’s name, date of birth and home address; for a person suspected of committing the s 7 offence, to stop smoking and to state their name, date of birth and home address. Failure to comply is an offence with a maximum penalty of 20 penalty units ($3,200). Note that the duty does not cover the requirement under s 8(1)(c) to produce an identification document if carrying one. There is no separate offence in this Act for refusing to produce an ID document, though the person might still be required to produce it under other laws.

The Act also imposes a duty on police officers to have reasonable grounds for suspicion before exercising any of the enforcement powers (s 8(1) opening words). This is a procedural safeguard, but it is not separately enforceable by a private person; any challenge would likely arise in a prosecution.

Rights of persons subject to the Act are limited. A person accused of the s 7 offence has the right to raise a defence of reasonable mistake of fact under the Criminal Code. For example, if the defendant reasonably believed the child was 16 or older based on their appearance, documentation or the child’s own representation, they may avoid liability. However, the defendant bears the evidential burden: they must point to evidence that could raise a reasonable doubt about their knowledge. Additionally, under s 7(3), the defendant may adduce evidence to rebut the presumption that the child was under 16. That is not a defence but a procedural right to contest a key element.

There is no right to refuse to answer police questions about identity, since the Act explicitly requires stating name, date of birth and home address. The common law privilege against self‑incrimination is not expressly preserved in the Act, and strict liability offences typically override it for identity questions. A person who gives false particulars may be charged under the Criminal Code for providing false or misleading information, which carries its own penalties.

The primary penalty is 50 penalty units for the offence in s 7(1). At the republication date, a penalty unit for an individual is $160, making the maximum fine $8,000. This is a substantial financial penalty, well beyond a typical traffic infringement, reflecting the legislative policy of deterring smoking in enclosed spaces with children. For a corporation (though unlikely to be charged under s 7 because it requires a natural person to smoke), the penalty unit is $810, giving a maximum of $40,500. However, s 7 only applies to a person who is 16 years or older, so a corporation cannot commit the primary offence directly. The s 8(2) offence (non‑compliance with police) does not specify an age limit, so it could theoretically apply to a corporation if a corporate officer fails to comply, but in practice it will be enforced against individuals.

Both offences are strict liability (s 7(2) and s 8(3)). The prosecution does not need to prove that the defendant knew the child was under 16, intended to smoke, or was aware of being on a road. The actus reus alone is sufficient. The only usual defence is reasonable mistake of fact under the Criminal Code. The burden is on the defendant to raise evidence of the mistake; the prosecution then must disprove it beyond reasonable doubt.

The evidentiary presumption in s 7(3) significantly eases enforcement: a police officer’s observation that a person in the vehicle appeared to be under 16 is prima facie proof of age. This is a powerful tool because age disputes are often difficult to resolve at the roadside. If the defendant claims the child was actually 16 or older, they must produce evidence - such as a birth certificate or passport - to rebut the presumption. Without such evidence, the court will find the child was under 16.

Enforcement powers are exercised by police officers who suspect on reasonable grounds that an offence under s 7 has been committed. Reasonable suspicion is a lower threshold than belief but still requires some factual basis: a police officer cannot stop a vehicle arbitrarily under this Act. Once the suspicion is formed, the powers are broad. The police officer may require the driver to stop and produce their driver licence, and to state their name, date of birth and home address (s 8(1)(a)). The police officer may also require the suspected smoker to stop smoking and to state their name, date of birth and home address (s 8(1)(b)). Additionally, the police officer may require any person in the vehicle who is suspected of committing the offence to produce an identification document if they are carrying one (s 8(1)(c)). “Identification document” includes an Australian or foreign driver licence, a proof of identity card under the Liquor Act 2010, a passport, a student card, or any document that contains a photograph and states the person’s name and date of birth (s 8(4)).

Failure to comply with a requirement under s 8(1)(a) or (b) is itself an offence with a maximum penalty of 20 penalty units ($3,200). Note that failure to produce an identification document under s 8(1)(c) is not separately penalised under this Act, though other laws could apply if false information is given.

The Act does not specify how fines are collected; presumably they are enforced under the ACT’s general fines and penalties framework, which may include infringement notices (on‑the‑spot fines) or court‑imposed penalties after a prosecution. The presence of a maximum penalty of 50 penalty units suggests the offence is serious enough to warrant court attendance, but infringement notices might be issued for lower‑level strict liability offences.

The Act does not operate in isolation; it is embedded within a web of ACT legislation. Section 5 expressly provides that the Criminal Code 2002 (ACT) chapter 2 applies to all offences against the Act. This incorporates general principles of criminal responsibility, including the definition of conduct, the fault elements for non‑strict liability offences (though none are relevant here), and the defence of reasonable mistake of fact. The Criminal Code also defines terms such as “intention”, “recklessness”, and “strict liability”, which are used in interpreting the Act.

The Legislation Act 2001 is foundational: it defines “penalty unit” (s 133), provides rules for definitions and notes (s 155, 156), and governs the republication and editorial changes to the Act. Section 4 of the Smoking in Cars Act notes that notes are explanatory only and not part of the Act, a standard provision derived from the Legislation Act.

The Road Transport (General) Act 1999 supplies several critical definitions via signpost references in the dictionary: “road”, “road related area”, “driver”, and “motor vehicle”. The scope of the prohibition therefore varies depending on how those definitions are interpreted under the Transport Act. For example, if the Transport Act expands “road related area” to include certain types of private land (such as a service station forecourt), the smoking prohibition will apply there. Any future amendment to the Transport Act’s definitions would automatically affect the reach of the Smoking in Cars Act.

The Road Transport (Driver Licensing) Act 1999 defines “driver licence”, which the police will rely on when requiring production under s 8(1)(a). An “Australian driver licence” or “external driver licence” under that Act is the required document.

The Tobacco and Other Smoking Products Act 1927 is the source of definitions for “herbal product”, “personal vaporiser”, “tobacco product”, and “vaping good”. Amendments to that Act - for example, adding new types of products to the definition of “personal vaporiser” - will automatically affect what is caught by “smoke” in s 6 of the Smoking in Cars Act. This is an efficient drafting technique but means that changes in the primary tobacco regulation spill over into the car smoking prohibition without any public debate specific to vehicles.

The Liquor Act 2010 provides a reference for proof of identity cards (s 210), which are included in the list of identification documents under s 8(4). This cross‑reference is narrow and unlikely to cause practical issues.

The Act does not create any civil liability or affect existing common law duties. A person injured by second‑hand smoke in a vehicle could still bring a negligence action independently, but the Act does not provide a statutory right of action. It also does not override other smoking restrictions - for example, the general prohibition on smoking in enclosed public places under the Tobacco and Other Smoking Products Act 1927 - but reinforces them by targeting the specific environment of a moving vehicle.

Federal laws, such as those regulating tobacco advertising or product standards, are not affected by this Act.

The Act was originally enacted as A2011‑40, notified on 1 November 2011. The name and commencement provisions came into effect immediately, and the substantive provisions (sections 3‑8 and the dictionary) commenced on 1 May 2012. Since then it has been amended by three later Acts.

The first amendment was the Justice Legislation Amendment Act 2016 (A2016‑7), which came into effect on 29 August 2016. This made a single amendment to s 8 (enforcement powers of police officers), but the precise nature of the change is not detailed in the amendment history; it likely adjusted the structure of the police powers.

The second amendment was the Smoke‑Free Legislation Amendment Act 2016 (A2016‑20), which commenced on 1 August 2016. This was a more substantial change: it substituted the heading of s 6 (from “Meaning of smoke” to something else? The amendment history shows “s 6 hdg sub A2016‑20 s 18”, meaning the heading was substituted). It also amended s 6 by adding references to personal vaporisers and vaping? Actually the amendment history says “s 6 am A2016‑20 ss 19‑21”. Later the same Act inserted a definition of “personal vaporiser” into the dictionary (s 23) and substituted the definition of “smoking product” (s 24). It also omitted the definitions of “herbal product” (s 22) and “tobacco product” (s 25) from the dictionary, presumably because they were now signposted to the Tobacco and Other Smoking Products Act 1927. So the 2016 amendment broadened the Act to include personal vaporisers (e‑cigarettes) and rationalised the dictionary by removing redundant definitions.

The third amendment is the most recent: the Tobacco and Other Smoking Products (Vaping Goods) Amendment Act 2025 (A2025‑8), which commenced on 18 April 2025. This substituted the entire s 6 (meaning of smoke) to expressly include vapour from an activated personal vaporiser or vaping good. It also removed the dictionary definitions of “personal vaporiser” and “smoking product” that had been inserted in 2016 (amdt 1.8). The effect is that the current s 6 is self‑contained, defining smoke and smoking without relying on dictionary signposts for those terms, though it still refers to the Tobacco Act for the meaning of “personal vaporiser” and “vaping good”. This amendment reflects the rapid growth of vaping and the government’s desire to close the loophole for vapour products.

The amendment history shows no penalties or enforcement provisions have been altered. The penalty unit value changes over time under the Legislation Act, but the act itself has not amended the number of penalty units for either offence.

The republished Act does not cite any court decisions, and the amendment history contains no references to cases overturning or interpreting the legislation. This suggests that the Act has generated little reported litigation in the ACT. Several factors contribute to this. First, both offences are strict liability, which reduces the range of available defences and makes contesting a charge more difficult. Second, the evidentiary presumption for age (s 7(3)) further narrows the grounds on which a defendant can resist a prosecution. Third, the maximum penalty of 50 penalty units is significant but not enough to typically trigger an appeal to the Supreme Court; most contested matters would be heard in the Magistrates Court. Fourth, police may issue infringement notices rather than laying charges, which would not produce a published judgment.

Any litigation that has occurred is likely to have focused on interpreting the scope of “road” or “road related area”, or on whether the vehicle was a “motor vehicle” or fell within the exclusions for campervans or motorcycles. Disputes over age under s 7(3) might also arise if the defendant produces evidence that the child was actually 16 or older, but this would be a factual determination unlikely to be appealed.

The two waves of amendment (2016 and 2025) indicate that legislative attention was directed at expanding the substance coverage rather than addressing judicial interpretations. This suggests that any interpretive gaps were resolved by the legislature rather than the courts.

Lawyers advising clients on the Act should be aware that there are no authoritative ACT judgments on the meaning of “smoke”, “child”, or the enforcement powers. The safest course is to rely on the plain text of the Act and the external definitions from the Transport and Tobacco Acts. If a dispute does reach court, it would be a matter of first impression for the ACT Magistrates Court.

Strict liability does not mean absolute liability, but the practical burden on a defendant is still heavy. The defence of reasonable mistake of fact is available, but the defendant must point to evidence supporting the mistake. For example, if a passenger pulls out a lit cigarette and you believed they were 25, you may still be liable if you had no reasonable basis for that belief. If the child’s age is in doubt, the s 7(3) presumption means the prosecution only needs to show that the child appeared under 16. You will be convicted unless you adduce credible evidence of their actual age (such as a birth certificate or passport). If the child does not have ID on them, this can be very difficult.

The definition of “smoke” in s 6(2) catches holding or controlling a lit or activated smoking product, even if you are not actively inhaling. If a cigarette is burning in the ashtray while you drive with a child, you are smoking for the purposes of the Act. Similarly, holding a turned‑on vape pen - even if you are not puffing - is enough. This expands the prohibitive zone considerably.

The exclusion for campervans is narrowly drafted: the vehicle must be both “parked” and “set up as a place for living or sleeping”. If you are in a campervan that is stationary but not set up - for example, you have just parked and have not yet deployed the awning or laid out bedding - the exemption does not apply. The same vehicle when being driven is fully within scope. The exemption does not cover other recreational vehicles like caravans or motorhomes that are not “campervans” under the definition? The term is not defined in this Act, so it will take its ordinary meaning.

Motorcycles are entirely excluded from the definition of “vehicle”. This means a person can smoke on a motorcycle with a child riding pillion, on a road, and not commit an offence under this Act. However, other laws (such as the road rules requiring a motorcycle rider to have both hands on the handlebars) may effectively prevent smoking anyway.

The Act does not create an offence for a person under 16 who smokes with a child present. A 15‑year‑old smoking a cigarette in a car with a younger sibling does not commit an offence under this Act, even if the sibling is an infant. Police could potentially refer the matter to child protection services, but not enforce this specific law.

The police requirement under s 8(1)(c) to produce an identification document is only enforceable if the person is “carrying an identification document”. If they are not carrying one, they cannot be required to produce it, and the failure to produce it is not an offence under s 8(2) anyway (only failures under (a) and (b) are penalised). So a person can simply say “I don’t have any ID on me” and suffer no penalty under this Act. However, if they then give false details, they risk a charge under the Criminal Code for providing false information.

The penalty unit values are set by the Legislation Act and change over time. At the republication date, 50 penalty units equals $8,000, but that could increase if the unit value is raised. This means the real financial penalty can rise without any amendment to this Act.

Private land that is not a road or road related area is outside the Act. However, many driveways in the ACT may be considered part of the road or road related area if they are publicly accessible or form part of the carriageway. The boundary is not defined in this Act, so police and courts will look to the Transport Act.

The simplest compliance strategy is never to smoke or vape inside any motor vehicle when a person under 16 years old is present, regardless of where the vehicle is located. Even if the vehicle is on private land, avoiding smoking in front of children is the safest practice, because the boundaries of “road related area” can be uncertain and the consequences of getting it wrong are a fine of up to $8,000. For those who wish to rely on legal exclusions, careful attention to the definitions is essential.

If you are driving a vehicle that is a campervan, ensure it is both parked AND set up for living or sleeping before you smoke. That means the vehicle must be stationary and physically arranged for habitation - for example, the bed set up, the living area established. If you are only stopped for a short break, the exemption likely does not apply.

If you are riding a motorcycle, the Act does not prohibit smoking with a child. However, be aware that road rules may still forbid a rider from smoking if it impairs control of the motorcycle. The exemption only applies to the smoking offence, not to other traffic laws.

If you are a passenger, you are equally liable. Do not assume the driver is the only person who can be fined. If you are caught smoking while a child is present, you face the same penalty.

When stopped by police, comply promptly with any requirement under s 8(1)(a) or (b). Stop the vehicle if you are the driver, produce your driver licence, and state your name, date of birth and home address. If you are suspected of having smoked, stop smoking immediately and state your name, date of birth and home address. Failure to do so is a separate offence with a $3,200 maximum penalty. If you are carrying an identification document, you should produce it when asked; although no penalty under this Act applies for refusing, refusing may escalate the situation and could lead to other charges.

If you are charged with the s 7 offence and believe you have a defence, gather evidence immediately. For example, if the child is actually 16 or older, obtain a copy of their birth certificate or other official ID to present to the court. If you made a reasonable mistake of fact (for instance, someone handed you what you believed to be a herbal cigarette that was actually tobacco), obtain statements and any packaging that supports your belief. Note that the evidentiary presumption works against you, so you cannot simply claim the child looked 16; you need tangible evidence.

If you use a vaping device, be aware that the 2025 amendment brings you fully within the offence from 18 April 2025 onwards. There is no grace period. If you purchased a vape thinking it was not covered, you are now liable.

For businesses that operate vehicles used to transport children, such as school transport services or childcare centres, the best practice is to implement a zero‑tolerance policy: no smoking or vaping in any vehicle, by any person, at any time. Although the Act does not impose an obligation on the driver to prevent passengers from smoking, having a clear policy and enforcing it will reduce the risk of children being exposed and of the driver being inconvenienced by police stops.

Finally, keep in mind that penalty units can increase without notice. The $8,000 maximum fine is a snapshot at the republication date; check the current penalty unit value if you need accurate financial exposure.