Smoke-free Environment Act 2000

This Act is the Smoke-free Environment Act 2000.

This Act commences on a day or days to be appointed by proclamation.

The object of this Act is to promote public health by reducing exposure to tobacco and other smoke, as well as aerosol or vapour (whether or not containing nicotine) generated by vaping goods, in certain public places.

In this Act—

certificate of authority means a certificate of authority referred to in section 14.

commercial outdoor dining area has the meaning given in section 4A.

Director-General means the Director-General of the Department of Health.

enclosed public place means a public place that has a ceiling or roof and, except for doors and passageways, is completely or substantially enclosed, whether permanently or temporarily.

exempt area has the meaning given by section 11.

exercise a function includes perform a duty.

function includes a power, authority or duty.

inspector means an inspector appointed under section 14.

non-tobacco smoking product has the same meaning as in the Public Health (Tobacco) Act 2008.

occupier of premises or a part of premises means a person having the management or control, or otherwise being in charge, of those premises or part.

outdoor public place means a public place that is not an enclosed public place.

public place means a place or vehicle that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise).

smoke means use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or vaping good that is generating, whether or not by burning—

smoke, or

an aerosol or vapour.

smoke-free area means a smoke-free area under section 6 or 6A.

tobacco product has the same meaning as in the Public Health (Tobacco) Act 2008.

vaping goods has the same meaning as in the Therapeutic Goods Act 1989 of the Commonwealth.

vehicle means a train, bus, tram, aeroplane, taxi or hire car, or ferry or other vessel.

In this Act, commercial outdoor dining area means an outdoor public place that is—

a seated dining area, or

within 4 metres of a seated dining area on premises that are licensed premises under the Liquor Act 2007 or the premises of a restaurant as defined in that Act, or

within 10 metres of a place at a food fair where food is sold or supplied for consumption at the event, with a food fair being an organised event at which the principal activities are the sale or supply of food for consumption at the event and the consumption of that food.

A seated dining area is an area in which seating is provided and in which food that has been purchased and served on plates or packaged for immediate consumption is consumed. The seating must have been provided by the occupier of the premises where the food is purchased or by the operator of the business from which the food is purchased.

An area is only a seated dining area when food is being consumed there or is available to be purchased and consumed there.

An area is not a seated dining area if the area is designated as not being for the consumption of food by the display within the area of signs complying with the regulations.

The occupier of an area designated for the purposes of subsection (4) as not being for the consumption of food must take reasonable steps to ensure that the consumption of food does not occur in the area.

Maximum penalty—

10 penalty units, in the case of a natural person, or

50 penalty units, in the case of a body corporate.

In this section, food does not include drink.

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

Every enclosed public place is a smoke-free area for the purposes of this Act.

Schedule 1 contains a list of examples of enclosed public places that are smoke-free areas (irrespective of the name by which the particular place is known).

An enclosed public place is not a smoke-free area if it is an exempt area (see section 11).

An outdoor public place is a smoke-free area for the purposes of this Act if it is any of the following places (or part of any of those places)—

a place that is within 10 metres of children’s play equipment but only if the children’s play equipment is in an outdoor public place,

a swimming pool complex,

an area set aside for or being used by spectators to watch an organised sporting event at a sports ground or other recreational area, but only when an organised sporting event is being held there,

the platform of a passenger railway or light rail station,

a ferry wharf,

a light rail stop (with light rail stop to include any area where persons queue or gather when waiting at a light rail stop),

a bus stop (with bus stop to include any area where persons queue or gather when waiting at a bus stop),

a taxi rank (with taxi rank to include any area where persons queue or gather when waiting at a taxi rank),

a place that is within 4 metres of a pedestrian access point to a building (as provided by subsection (2)),

a commercial outdoor dining area,

a place at a public hospital, health institution or health service under the Health Services Act 1997 that is designated as a smoke-free area by a by-law or regulation under that Act and notified by signs displayed in, or at an entrance to, any such area,

any other outdoor public place that is prescribed by the regulations as a smoke-free area.

A pedestrian access point is an entrance to or exit from a building for use by pedestrians, but does not include—

an entrance to or exit from a building that is used only for residential purposes (including a boarding house and a building in a caravan park), or

an entrance to or exit from a building that is used partly for residential purposes and partly for other purposes if the entrance or exit concerned is used solely for entry to or exit from that part of the building that is used for residential purposes, or

an emergency exit that is locked to entry.

It is a defence to a prosecution for the offence of smoking in a smoke-free area that is a light rail stop, bus stop, taxi rank or within 4 metres of a pedestrian access point to a building if it is established that the accused was smoking only while passing through the smoke-free area and did not remain in the smoke-free area while smoking.

The regulations may exempt a specified outdoor public place or class of outdoor public places from being a smoke-free area under this section.

A person must not smoke in a smoke-free area. Maximum penalty—5 penalty units.

A person who performs in a theatre or other performance space does not commit an offence under this section by smoking during the performance if smoking is a necessary part of the performance.

It is a defence to a prosecution for an offence under subsection (1) if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the place in which the person was smoking was a smoke-free area.

If a person smokes in contravention of section 7 in any of the following smoke-free areas, the occupier of the smoke-free area is guilty of an offence—

any enclosed public place,

a commercial outdoor dining area.

Maximum penalty—

10 penalty units, in the case of a natural person, or

50 penalty units, in the case of a body corporate.

It is a defence to a prosecution for an offence under subsection (1) if the defendant establishes that neither the defendant nor any employee or agent of the defendant provided (otherwise than by sale) any ashtray, matches or lighter (or other thing that could facilitate smoking) in the smoke-free area concerned and that—

neither the defendant nor any employee or agent of the defendant knew, or could reasonably be expected to have known, that the person concerned was smoking in the smoke-free area, or

as soon as the defendant or any employee or agent of the defendant became aware that the person was smoking in the smoke-free area, the defendant (or that employee or agent of the defendant)—

required the person to stop smoking in the smoke-free area, and

informed the person that the person was committing an offence by smoking in the smoke-free area, and

if the person continued to smoke after having been required to stop, required the person to leave the smoke-free area.

A requirement under subsection (2) (b) (iii) that a person leave a smoke-free area—

does not affect any liability (whether arising under an Act, contract or otherwise) of the person to pay for any food or beverage supplied to or ordered by the person (whether or not it has been consumed), and

may include a requirement that the person satisfy, or make arrangements for satisfying, any such liability before the person leaves the smoke-free area.

The occupier of a smoke-free area must not fail to display within that area the signs (if any) prescribed by the regulations, in the manner (if any) prescribed by the regulations.

Maximum penalty—

5 penalty units, in the case of a natural person, or

25 penalty units, in the case of a body corporate.

The regulations may exempt any public place, or class of public place, from subsection (1).

The following outdoor public places are exempt from subsection (1)—

a place that is within 10 metres of children’s play equipment,

a sports ground or other recreational area, unless the regulations otherwise provide in a particular case or class of cases,

a light rail stop,

a bus stop,

a taxi rank,

a place that is a smoke-free area because it is within 4 metres of a pedestrian access point to a building.

The Director-General may enter into arrangements with any government or local government agency or body for the display of signs relating to smoking in an outdoor public place that is exempt from subsection (1) and in respect of which the government or local government agency or body is the occupier.

If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the smoke-free area must take reasonable steps to prevent smoke caused by smoking in the other parts of those premises from penetrating the smoke-free area.

Maximum penalty—

10 penalty units in the case of a natural person, or

50 penalty units, in the case of a body corporate.

If a smoke-free area forms a part of premises in which smoking is elsewhere allowed, the occupier of the other parts of those premises in which smoking is allowed must take reasonable steps to prevent smoke caused by smoking in those other parts from penetrating the smoke-free area.

Maximum penalty—

10 penalty units in the case of a natural person, or

50 penalty units, in the case of a body corporate.

The Minister may issue guidelines from time to time as to what constitutes reasonable steps to prevent the penetration of smoke into smoke-free areas.

An occupier who, in relation to premises or a part of premises, complies with any guidelines in force for the time being under subsection (3) is to be considered as having taken all reasonable steps as referred to in subsections (1) and (2) in relation to those premises or that part.