2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

Part 1.1 Corrections Management Act 2007 26

Part 1.2 Liquor Act 1975 26

Part 1.3 Road Transport (Public Passenger Services) Regulation 2002 28

2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

An Act to amend the Smoking (Prohibition in Enclosed Public Places) Act 2003, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Smoking (Prohibition in Enclosed Public Places) Amendment Act 2009.

(1) This Act commences on—

(a) 1 December 2010; or

(b) if, before 1 December 2010, the Minister fixes another day by written notice—the day fixed.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) However, if this Act has not commenced within 15 months beginning on its notification day, it automatically commences on the first day after that period.

(3) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

This Act amends the Smoking (Prohibition in Enclosed Public Places) Act 2003.

Note This Act also amends the following legislation (see sch 1):

• Corrections Management Act 2007

• Liquor Act 1975

• Road Transport (Public Passenger Services) Regulation 2002.

An Act to prohibit smoking in certain public places, and for other purposes

This Act is the Smoke-Free Public Places Act 2003.

The object of this Act is to promote public health by minimising the exposure of people to environmental smoke—

(a) in enclosed public places; and

(b) in outdoor eating or drinking places; and

(c) at underage functions.

2 a pipe (including a hookah, water pipe or bong)

(3) However, a person does not smoke if the person holds or has control over a smoking product for the purpose only of extinguishing it or removing it from—

(a) an enclosed public place; or

(b) an outdoor eating or drinking place; or

(c) an underage function.

(4) For this Act, each of the following is a smoking product:

(a) a tobacco product;

(b) a herbal product;

(c) any other product that is designed for smoking.

(1) A person commits an offence if the person smokes in an enclosed public place.

Maximum penalty: 5 penalty units.

(2) An offence against this section is a strict liability offence.

(1) A person commits an offence if—

(a) the person smokes in an enclosed public place; and

(b) an inspector, or the occupier of the place, directs the person to stop smoking in the enclosed public place; and

(c) the person contravenes the direction.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person does not commit an offence against this section if—

(a) the direction was given by an inspector who is not a uniformed police officer; and

(b) when asked by the person, the inspector does not produce the inspector’s identity card for inspection.

(1) The occupier of an enclosed public place commits an offence if a person smokes in the enclosed public place.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) The occupier does not commit an offence against this section if—

(a) the occupier was not aware, and could not reasonably be expected to have been aware, that the person was smoking in an enclosed public place; or

(b) the occupier directed the person to stop smoking in the enclosed public place and the person contravened the direction.

(1) The regulations may prescribe requirements in relation to the display of ‘no smoking’ signs in enclosed public places.

(2) The occupier of an enclosed public place commits an offence if—

(a) a ‘no smoking’ sign is required by regulation to be displayed in the enclosed public place; and

(b) the sign is not displayed as required by regulation.

Maximum penalty: 5 penalty units.

(3) An offence against this section is a strict liability offence.

(1) A place is an outdoor eating or drinking place if—

(a) it is a public place (other than an enclosed public place); and

(b) people at the place may consume food or drink provided from an on-site service; and

(c) either—

(i) the place is licensed premises; or

(ii) tables and chairs are provided by the on-site service for use by people consuming food or drink at the place.

1 an area containing tables and chairs on a footpath outside a cafe or takeaway food shop

2 an outdoor area at a shopping centre, surrounded by food outlets, containing tables and chairs at which food or drink purchased at the outlets may be consumed

3 an area containing tables and chairs, and bounded by hoardings or planter boxes, that is around a food caravan at a sporting ground

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, a place is an outdoor eating or drinking place only while—

(a) food or drink is being provided, or is available to be provided, at the place from an on-site service; or

(b) food or drink provided from an on-site service is being consumed at the place; or

(c) clearing or cleaning related to the provision of food or drink in the place is being done.

(3) Food or drink is taken to be provided from an on-site service whether it is—

(a) served to a person in the outdoor eating or drinking place by or for the person conducting the on-site service; or

(b) taken by a person from the on-site service for consumption in the outdoor drinking or eating place.

(4) In this section:

food or drink service means a business, or an enterprise of a commercial, charitable or community nature, that sells food or drink.

on-site service, in relation to a place, means a food or drink service at the place.

provide, food or drink, includes distribute, give or sell the food or drink.

(1) A person commits an offence if—

(a) the person smokes in an outdoor eating or drinking place; and

(b) the place where the person smokes is not a designated outdoor smoking area.

Maximum penalty: 5 penalty units.

(2) An offence against this section is a strict liability offence.

(1) A person commits an offence if—

(a) the person smokes in an outdoor eating or drinking place; and

(b) the place where the person smokes is not a designated outdoor smoking area; and

(c) an inspector, or the occupier of the place, directs the person to stop smoking in the outdoor eating or drinking place; and

(d) the person contravenes the direction.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

(3) A person does not commit an offence against this section if—

(a) the direction was given by an inspector who is not a uniformed police officer; and

(b) when asked by the person, the inspector does not produce the inspector’s identity card for inspection.

(1) The occupier of an outdoor eating or drinking place commits an offence if—

(a) a person smokes in the outdoor eating or drinking place; and

(b) the place where the person smokes is not a designated outdoor smoking area.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(3) The occupier does not commit an offence against this section if—

(a) the occupier was not aware, and could not reasonably be expected to have been aware, that the person was smoking in an outdoor eating or drinking place that was not a designated outdoor smoking area; or

(b) the occupier directed the person to stop smoking in the outdoor eating or drinking place and the person contravened the direction.

(1) The occupier of an outdoor eating or drinking place must ensure that ‘no smoking’ signs are prominently displayed at the place.

Maximum penalty: 20 penalty units.

(2) The occupier of an outdoor eating or drinking place that is not licensed premises must ensure that tables and chairs provided by the on-site service for use by people consuming food or drink at the place are clearly identified by either or both of the following:

(a) a plan displayed at the place;

(b) signs or markings on the tables and chairs.

Maximum penalty: 20 penalty units.

(3) An offence against this section is a strict liability offence.

(1) This section applies to—

(a) premises in relation to which a club licence under the Liquor Act 1975 is in force; and

(b) premises in relation to which a licence under the Liquor Act 1975 is in force authorising the sale of liquor for consumption on the premises, and that are used principally for that purpose.

a pub or tavern

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The licensee of the premises may designate part of the licensed outdoor area of the premises as an area in which drinking and smoking is allowed (a designated outdoor smoking area) by displaying a notice near the area—

(a) stating that the area is a designated outdoor smoking area for this Act; and

(b) stating that a person under 18 years old is not permitted in the area; and

(c) stating that a smoking management plan for the premises is available for inspection at any time; and

(d) including a diagram that sets out the limits of the area.

(3) There may be more than 1 designated outdoor smoking area at the premises.

(4) The parts of the licensed outdoor area of the premises that may be designated outdoor smoking areas are—

(a) any part (an off-gaming area) that—

(i) is adjacent to a gaming area and accessible only from a gaming area; and

(ii) was part of the licensed outdoor area of the premises on 1 November 2009; and

(b) up to 50% of the total area of the licensed outdoor area of the premises that is not an off-gaming area.

(5) Each designated outdoor smoking area must have a buffer on its perimeter wherever it is adjacent to other parts of the outdoor area of the premises ordinarily accessed by patrons.

(6) A buffer must be—

(a) a screen or wall that is impervious to smoke and at least the height prescribed by regulation; or

(b) an area at least 4m wide where patrons are not allowed to eat, drink or smoke, half of which must be taken from the area that would otherwise form part of the designated outdoor smoking area.

(7) A designated outdoor smoking area—

(a) must not be adjacent to an entrance to the premises (unless it is an off-gaming area); and

(b) must be in a position that minimises smoke from the area entering any part of an outdoor eating or drinking place that is not a designated outdoor smoking area.

(8) A licensee of premises must not designate a part or parts of the licensed outdoor area of the premises under subsection (2) otherwise than in accordance with this section.

Maximum penalty: 50 penalty units.

(9) An offence against this section is a strict liability offence.

(1) The licensee of premises at which there is a designated outdoor smoking area must give the commissioner notice of the designated outdoor smoking area within 14 days after the day the licensee designates the outdoor smoking area.

Note If a form is approved under s 21 for this provision, the form must be used.

Maximum penalty: 50 penalty units.

(2) An offence against this section is a strict liability offence.

(1) The licensee of premises at which there is a designated outdoor smoking area must ensure that, in the designated outdoor smoking area—

(a) there are no people under 18 years old; and

(b) there is no food or drink service; and

(c) no food is consumed; and

(d) no entertainment is offered or directly accessible; and

(e) there are no gaming machines.

Maximum penalty: 50 penalty units.

Note For where gaming machines may be located, see the Gaming Machine Act 2004.

(2) An offence against this section is a strict liability offence.

(3) The licensee does not commit an offence against this section in relation to a contravention of subsection (1) (c) if the licensee was not aware, and could not reasonably be expected to have been aware, that food was being consumed in the designated outdoor smoking area.

(4) In this section:

entertainment includes television (for example, televised sporting events), but does not include public announcements or recorded music.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies to premises at which there is a designated outdoor smoking area.

(2) The occupier of the premises commits an offence if the occupier fails to take reasonable steps to prevent smoke from the designated outdoor smoking area entering any part of an outdoor eating or drinking place at the premises that is not a designated outdoor smoking area.

Maximum penalty: 50 penalty units.

Note The occupier also commits an offence if smoke from the premises enters an enclosed public place on the premises (see s 8A).

(3) An offence against this section is a strict liability offence.

(1) A smoking management plan is a document, prepared for premises at which there is a designated outdoor smoking area, stating how smoking is managed at the premises with the aim of reducing harm from environmental smoke at the premises.

(2) A smoking management plan must include—

(a) a diagram of the premises that identifies—

(i) the designated outdoor smoking area; and

(ii) the buffer for the designated outdoor smoking area; and

(iii) the location of the notice mentioned in section 9F (2); and

(b) a statement of how the exposure to environmental smoke will be minimised; and

(c) a description of the training given to workers about the requirements of this Act; and

(d) a description of how the prohibition on food or drink service in designated outdoor smoking areas will be managed; and

(e) anything else prescribed by regulation.

(3) The licensee of premises at which there is a designated outdoor smoking area must—

(a) prepare and keep up-to-date a smoking management plan that complies with this section; and

(b) make the smoking management plan available for inspection on request.

Maximum penalty: 50 penalty units.

(4) An offence against this section is a strict liability offence.

(1) In this part:

underage function means a function that—

(a) has as its principal purpose the provision of live or recorded music (for listening to, dancing to or both); and

(b) is predominantly organised for people under 18 years old; and

(c) is open to the public or a section of the public (with or without payment); and

(d) takes place in an area or premises other than a private residence.

1 a blue light disco

2 a live band performance organised for students at a secondary school

3 a lakeside dance party organised for under 18 year olds only

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) In working out whether a function is predominantly organised for people under 18 years old, each of the following must be considered:

(a) the name of the function;

(b) the nature of the body or person who is the organiser of the function;

(c) the ways used to publicise the function;

(d) who the function is publicised to;

(e) ticketing arrangements for the function (if any);

(f) anything else prescribed by regulation.

Note Section 9M (1) (b) requires any tickets issued for an underage function to state that smoking is prohibited.

Smoking is prohibited at an underage function.

(1) The organiser of an underage function must ensure that—

(a) ‘no smoking’ signs are prominently displayed at the function; and

(b) any ticket issued for the function includes a statement that smoking is prohibited; and

(c) a public announcement that smoking is prohibited is made at the beginning of the function.

Maximum penalty: 20 penalty units.

(2) The organiser of an underage function must—

(a) give a direction to stop smoking to any person who smokes at the function; and

(b) give a direction to immediately leave the function to any person who continues to smoke in contravention of a direction given to the person under paragraph (a).

Maximum penalty: 20 penalty units.

(3) Subsection (2) (a) does not apply if the organiser was not aware, and could not reasonably be expected to have been aware, that the person was smoking at the function.

(1) A person commits an offence if—

(a) the person smokes at an underage function; and

(b) an inspector, or the organiser of the function, directs the person to stop smoking at the function; and

(c) the person contravenes the direction.

Maximum penalty: 10 penalty units.

(2) A person does not commit an offence against this section if—

(a) the direction was given by an inspector who is not a uniformed police officer; and

(b) when asked by the person, the inspector does not produce the inspector’s identity card for inspection.

If an inspector believes on reasonable grounds that a person is smoking in contravention of the Act, the inspector may direct the person to stop smoking.

(1) For this Act, an inspector may—

(a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment); and

(b) at any time, enter premises with the occupier’s consent.

(2) However, subsection (1) (a) does not authorise entry into a part of premises that is being used only for residential purposes.

(3) An inspector may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.

(4) To remove any doubt, an inspector may enter premises under subsection (1) without payment of an entry fee or other charge.

An inspector must not remain at premises entered under this part if the inspector does not produce his or her identity card when asked by the occupier.

(1) When seeking the consent of an occupier of premises to enter the premises under section 13 (1) (b), an inspector must—

(a) produce his or her identity card; and

(b) tell the occupier—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused.

(2) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment (an acknowledgement of consent)—

(a) that the occupier was told—

(i) the purpose of the entry; and

(ii) that anything seized under this part may be used in evidence in court; and

(iii) that consent may be refused; and

(b) that the occupier consented to the entry; and

(c) stating the time and date consent was given.

(3) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier.

(4) A court must find that the occupier did not consent to entry to the premises by the inspector under this part if—

(a) the question arises in a proceeding in the court whether the occupier consented to the entry; and

(b) an acknowledgment of consent is not produced in evidence; and

(c) it is not proved that the occupier consented to the entry.

(1) An inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises or anything on the premises:

(a) inspect or examine;

(b) take measurements or conduct tests;

(c) take samples;

(d) take photographs, films, or audio, video or other recordings;

(e) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector’s functions under this Act.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(2) A person must take all reasonable steps to comply with a requirement made of the person under subsection (1) (e).

Maximum penalty: 10 penalty units.

(1) An inspector may require a person to state the person’s name and home address if the inspector suspects on reasonable grounds that the person is committing or has just committed an offence against this Act.

(2) The inspector must tell the person the reason for the requirement and, as soon as practicable, record the reason.

(3) The person may ask the inspector to produce the inspector’s identity card for inspection by the person.

(4) A person must comply with a requirement made by the inspector under subsection (1) if the inspector—

(a) tells the person the reason for the requirement; and

(b) complies with any request made by the person under subsection (3).

Maximum penalty: 10 penalty units.

(1) An inspector who enters premises under this part with the occupier’s consent may seize anything in the premises if—

(a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and

(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.

(2) An inspector who enters premises under this part (whether with the occupier’s consent or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—

(a) the thing is connected with an offence against this Act; and

(b) the seizure is necessary to prevent the thing from being—

(i) concealed, lost or destroyed; or

(ii) used to commit, continue or repeat the offence.

(3) Having seized a thing, an inspector may remove the thing from the premises where it was seized to another place.

(4) A person commits an offence if—

(a) the person interferes with a seized thing; and

(b) the person does not have an inspector’s approval to interfere with the thing.

Maximum penalty: 10 penalty units.

(5) An offence against this section is a strict liability offence.

(1) As soon as practicable after an inspector seizes a thing under this part, the inspector must give a receipt for it to the person from whom it was seized.

(2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt, secured conspicuously, at the premises where the thing was seized.

(3) A receipt under this section must include the following:

(a) a description of the thing seized;

(b) an explanation of why the thing was seized;

(c) the inspector’s name, and how to contact the inspector;

(d) if the thing is moved from the premises where it is seized—where the thing is to be taken.

(1) In this section:

person means an individual.

Note See the Criminal Code, pt 2.5 for provisions about corporate criminal responsibility.

representative, of a person, means an employee or agent of the person.

state of mind, of a person, includes—

(a) the person’s knowledge, intention, opinion, belief or purpose; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

(2) This section applies to a prosecution for any offence against this Act.

(3) If it is relevant to prove a person’s state of mind about an act or omission, it is enough to show—

(a) the act was done or omission made by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b) the representative had the state of mind.

(4) An act done or omitted to be done on behalf of a person by a representative of the person within the scope of the representative’s actual or apparent authority is also taken to have been done or omitted to be done by the person.

(5) However, subsection (4) does not apply if the person establishes that reasonable precautions were taken and appropriate diligence was exercised to avoid the act or omission.

(1) The commissioner may approve forms for this Act.

(2) If the commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

• commissioner for fair trading

commissioner means the commissioner for fair trading.

designated outdoor smoking area—see section 9F (2).

gaming area—see the Gaming Machine Act 2004, dictionary.

herbal product—see the Tobacco Act 1927, dictionary.

outdoor area, of premises, means any part of the premises that is not an enclosed public place.

outdoor eating or drinking place—see section 9A.

smoking management plan—see section 9J.

tobacco product—see the Tobacco Act 1927, dictionary.

underage function—see section 9K.

(h) the licensee has allowed people to smoke in a part of the licensed premises that is an enclosed public place or an outdoor eating or drinking place (other than a designated outdoor smoking area);

(i) the licensee has failed to take reasonable steps to prevent smoke from another area occupied by the licensee entering an enclosed public place or an outdoor eating or drinking place (other than a designated outdoor smoking area);

(1) It is a condition of a permit that the permit-holder must not allow people to smoke in a part of the premises for which the permit is issued that is an enclosed public place or an outdoor eating or drinking place.

(b) whether the permit-holder has allowed people to smoke in a part of the premises for which the permit is issued that is an enclosed public place or an outdoor eating or drinking area;

designated outdoor smoking area—see the Smoke-Free Public Places Act 2003, section 9F (2).

enclosed public place—see the Smoke-Free Public Places Act 2003, dictionary.

outdoor eating or drinking place—see the Smoke-Free Public Places Act 2003, section 9A.

smoke—see the Smoke-Free Public Places Act 2003, section 5B.

• section 41, note 1

• section 52 (2), note

• section 119 (1), note 2

• section 148 (3), note

• section 202 (1), note 2

• section 211 (3), note

• section 274 (1), note 1

• section 286 (2), note

• section 289 (3), note

Presentation speech made in the Legislative Assembly on 2009.

Notified under the Legislation Act on 2009.

For the latest republication of amended laws, see www.legislation.act.gov.au.