Smoke-free Environment Regulation 2007

His Excellency the Lieutenant-Governor, with the advice of the Executive Council, has made the following Regulation under the Smoke-free Environment Act 2000.

REBA MEAGHER, M.P.,Minister for Health

1 Name of Regulation

This Regulation is the Smoke-free Environment Regulation 2007.

2 Commencement

This Regulation commences on 1 September 2007.

Note—

This Regulation replaces the Smoke-free Environment Regulation 2000 which is repealed on 1 September 2007 under section 10 (2) of the Subordinate Legislation Act 1989.

3 Definition

(1)  In this Regulation:

the Act means the Smoke-free Environment Act 2000.

(2)  Notes included in this Regulation do not form part of this Regulation.

4 Signs displayed in smoke-free zones

(1)  For the purposes of section 9 (1) of the Act, signs that are clearly legible and contain each of the following are prescribed:

(a)  the smoking prohibited symbol (or an equivalent symbol) with a diameter of at least 90 mm,

(b)  the words “NO SMOKING” in letters of at least 20 mm in height,

(c)  a reference to the name of the Act,

(d)  the words “Penalties may apply”.

(2)  For the purposes of section 9 (1) of the Act, the prescribed manner of displaying signs within a smoke-free area is:

(a)  in such numbers, and

(b)  in positions of such prominence,

that they are likely to be seen by a person at a public entrance to, or within, the area.

(3)  In this clause:

smoking prohibited symbol means the symbol designated in the Australian Standard entitled AS 1319—1994, Safety signs for the occupational environment to indicate where smoking is prohibited.

5 Exemption from requirement to display signs

In accordance with section 9 (2) of the Act, any public place:

(a)  in respect of which persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted, and

(b)  in which persons do not usually smoke,

is exempt from section 9 (1) of the Act.

6 Guidelines for determining what places are enclosed

(1)  The provisions of this clause prescribe guidelines in relation to determining what is an enclosed public place and when a covered outside area is considered to be substantially enclosed for the purposes of the Act.

(2)  A public place is considered to be substantially enclosed if the total area of the ceiling and wall surfaces (the total actual enclosed area) of the public place is more than 75 per cent of its total notional ceiling and wall area.

(3)  The total notional ceiling and wall area is the sum of:

(a)  what would be the total area of the wall surfaces if:

(i)  the walls were continuous (any existing gap in the walls being filled by a surface of the minimum area required for that purpose), and

(ii)  the walls were of a uniform height equal to the lowest height of the ceiling, and

(b)  what would be the floor area of the space within the walls if the walls were continuous as referred to in paragraph (a).

(4)  The following are to be included as part of the total actual enclosed area:

(a)  any gap in a wall or ceiling that does not open directly to the outside,

(b)  any door, window or moveable structure that is, or is part of, a ceiling or wall, regardless of whether the door, window or structure is open (other than the area of any locked-open door or window),

(c)  the area of any locked-open doors or windows, but only that part of the total area of all such doors and windows that exceeds 15 per cent of the total notional ceiling and wall area.

(5)  A gap in a wall or ceiling that opens directly to the outside (other than a gap caused by a door, window or moveable structure being open) is not to be included as part of the total actual enclosed area.

(6)  A gap, door, window or moveable structure required to be included as part of the total actual enclosed area is to be included as if the wall or ceiling were continuous and the gap, or the space occupied by the door, window or moveable structure, were filled by a surface of the minimum area required for that purpose.

(7)  In this clause:

ceiling includes a roof or any structure or device (whether fixed or moveable) that prevents or impedes upward airflow.

locked-open door or locked-open window means a door or window that opens directly to the outside and is locked fully open (that is, secured in its fully open position by means of a key operated lock).

moveable structure includes a retractable awning, umbrella or any other moveable structure or device.

wall includes any structure or device (whether fixed or moveable) that prevents or impedes lateral airflow.

7 Requirement to keep doors and windows locked open

(1)  The occupier of an enclosed public place who facilitates smoking in that place (in reliance on clause 6) as a result of doors or windows being locked fully open is guilty of an offence unless the doors or windows concerned are kept locked fully open for the entire hours of operation of the place on each day during which the occupier facilitates smoking there.

Maximum penalty:

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

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

(2)  The hours of operation of a place are the hours during which the place is open as a public place.