Tobacco Act 1987

If smoking occurs in an outdoor drinking area, in contravention of section 5C(1), the occupier of the area is guilty of an offence and liable to a penalty not exceeding 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 under subsection (1) if the accused proves that the accused did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

the accused could not reasonably be expected to have been aware that the contravention was occurring; or

the accused—

requested the person contravening to stop smoking; and

informed the person that the person was committing an offence.

If a person smokes in an outdoor drinking area in contravention of section 5C(1A), the occupier of the outdoor drinking area is guilty of an offence.

It is a defence to the prosecution under subsection (3) if the occupier of the outdoor drinking area proves that the occupier of the outdoor drinking area—

could not reasonably be expected to have been aware that the contravention of section 5C(1A) was occurring; or

the contravention of section 5C(1A) occurred during a period of 3 months starting on the day that the outdoor dining area was first used as an outdoor dining area.