c
AUSTRALIAN CAPITAL TERRITORY

Smoke-free Areas (Enclosed Public Places) Act 1994     No 63
Republication No 4A
As in force on 30 November 2000
Includes all amendments up to Act 2000 No 53

Prepared by the ACT Parliamentary Counsel’s Office
This republication is not an authorised republication for the Legislation (Republication) Act 1996.
As in force on
30 November 2000
	c
AUSTRALIAN CAPITAL TERRITORY

Smoke-free Areas (Enclosed Public Places) Act 1994
CONTENTS
	Page 

	1	Name of Act	1
	2	Definitions for Act	1
	3	Object of Act	2
	4	Meaning of smoke	3
	5	Smoke-free areas	3
	6	Register	4
	7	Application for certificate of exemption	4
	8	Grant of certificate	4
	9	Annual fees	5
	10	Conditions of certificate of exemption	6
	11	Duration of certificates of exemption	6
	12	Revocation of certificate of exemption	6
	13	Inspectors	7
	14	Powers of inspectors	7
	15	Offences by smokers	8
	16	Offence by occupier	8
	17	Responsibility of neighbouring occupier	9
	18	Obstruction of inspectors	9
	19	No right to smoke	10
	20	Review of decisions	10
	21	Notice of decisions	10
	22	Fees	10
	23	Regulation-making power	10
schedule	12
	ENDNOTES
	1	About this republication	13
	2	Abbreviation key	13
	3	Table of legislation	14
	4	Table of amendments	14
	5	Table of earlier republications	15
	6	Table of renumbered provisions	16
	7	Penalties in this republication	16

As in force on
30 November 2000
	c
AUSTRALIAN CAPITAL TERRITORY

Smoke-free Areas (Enclosed Public Places) Act 1994
An Act to prohibit or restrict smoking in enclosed public places, and for other purposes
1 	Name of Act
 	This Act is the Smoke-free Areas (Enclosed Public Places) Act 1994.
2 	Definitions for Act
	In this Act:
Note 	A definition applies except so far as the contrary intention appears (see Interpretation Act 1967, s 11G).
determined fee means the fee determined by the Minister under section 22 for the purposes of the provision in which the expression occurs.
drug means a substance that is specified in Schedule 1 or 2 to the Drugs of Dependence Regulations. 
enclosed, in relation to a public place, means a public place that has a ceiling or roof and is, except for doors and passageways, completely or substantially enclosed by walls or windows.
equipment means mechanical ventilation and airconditioning equipment.
licensed premises means—
	(a)	premises licensed under the Liquor Act 1975, being premises where liquor is served; or
	(b)	premises licensed under the Casino Control Act 1988;
other than any part of those premises that is a restaurant.
occupier, in relation to an enclosed public place, means a person having the management or control, or otherwise being in charge, of that place.
public area means—
	(a)	in relation to licensed premises—the part of the premises normally frequented by patrons, other than a corridor, stairway, lift, toilet, lobby or waiting area; and
	(b)	in relation to a restaurant—the part of the restaurant set aside for the consumption of food or drinks by patrons.
public place means a place which the public, or a section of the public, is entitled to use or which 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 body, or otherwise).
register means the register established and maintained under section 6.
restaurant means a public place or part of a public place used primarily for the consumption of food or non-alcoholic drinks purchased on the premises that—
	(a)	is within enclosed licensed premises; or
	(b)	in the case of a public place—is enclosed.
smoke—see section 4.
3 	Object of Act
	The object of this Act is to promote public health by reducing exposure to environmental smoke caused by the smoking of tobacco and other substances prepared for human consumption.
4 	Meaning of smoke
(1) 	In this Act:
smoke includes—
	(a)	directly inhale or puff the smoke of an ignited substance prepared for human consumption (including a substance containing a drug or tobacco, a herb or other plant matter); and
	(b)	hold or have control over such a substance while it is ignited. 
(2) 	For paragraph (a) of the definition of smoke, a person directly inhales if the smoke is inhaled through a device designed for the inhalation of smoke by a smoker.
Examples
1	A cigarette-holder. 
2	A pipe (including a water pipe or bong).
5 	Smoke-free areas
(1) 	Smoking is prohibited in an enclosed public place.
(2) 	Without limiting the generality of subsection (1), smoking is prohibited in any part of premises or a place of a kind described in Part 1 of the Schedule that is an enclosed public place (irrespective of the name by which the particular premises or place is known).
(3) 	Subsections (1) and (2) do not apply to a restaurant or part of licensed premises in respect of which a certificate of exemption has been granted under section 8 to the extent that the certificate exempts the restaurant or part from the operation of those subsections.
(4) 	Subsections (1) and (2) do not apply in relation to—
	(a)	a part of premises of a kind specified in Part 2 of the Schedule at the times or in the circumstances so specified in relation to that part; or
	(b)	a prescribed enclosed public place at the times or in the circumstances prescribed in relation to that place.
(5) 	Regulations made for the purposes of paragraph (4) (b) take effect—
	(a)	at the expiration of 90 days after the day on which they are notified in the Gazette; or
	(b)	as provided in the regulations;
whichever is later.
(6) 	In this section:
certificate of exemption does not include a certificate that is under suspension.
6 	Register
	The Minister shall establish and maintain a register to be known as the register of exempted premises.
7 	Application for certificate of exemption
(1) 	The occupier of a restaurant or licensed premises may apply for a certificate of exemption in respect of the restaurant or a specified part of the licensed premises.
(2) 	An application under subsection (1) shall be—
	(a)	in a form approved by the Minister; and
	(b)	accompanied by the determined fee.
8 	Grant of certificate
(1) 	On receiving an application in accordance with section 7 and subject to this section, the Minister shall—
	(a)	if the application relates to a restaurant—grant a certificate for the restaurant; or
	(b)	if the application relates to part of licensed premises—grant a certificate of exemption for that part.
(2) 	The Minister shall not grant a certificate under paragraph (1) (a) unless—
	(a)	satisfied that the restaurant to which the application relates is fitted with equipment capable of maintaining air quality in accordance with Australian Standard 1668.2; and
	(b)	the occupier agrees to allow inspectors to—
	(i)	regularly inspect the equipment; and
	(ii)	monitor air quality within the premises.
(3) 	The Minister shall not grant a certificate under paragraph (1) (b) unless—
	(a)	satisfied that the part of the premises to which the application relates—
	(i)	is not greater than 50% of the public area of the premises; and
	(ii)	is a clearly defined area; and
	(iii)	is within premises that are fitted with equipment capable of maintaining air quality in accordance with Australian Standard 1668.2; and
	(b)	the occupier agrees to allow inspectors to—
	(i)	regularly check the equipment; and
	(ii)	monitor air quality within the premises; and
	(c)	the determined fee has been paid.
(4) 	Where the Minister grants a certificate of exemption under this section, he or she shall enter the details of the exemption in the register.
9 	Annual fees
(1) 	An occupier of a restaurant or licensed premises shall, on or before the first and second anniversary of the grant of a certificate of exemption, pay to the Territory the determined fee.
(2) 	Where a fee payable under subsection (1) is not paid in accordance with that subsection, the certificate is, by virtue of this subsection, suspended.
(3) 	A suspension under subsection (2)—
	(a)	takes effect on the day after the anniversary of the grant of the certificate on or before which the fee should have been paid; and
	(b)	ceases when the annual fee is paid or the certificate is cancelled, whichever first occurs.
(4) 	The Minister may cancel a certificate that has been suspended by virtue of subsection (3) for a period of not less than 3 months.
(5) 	The Minister shall not cancel a certificate under subsection (4) unless, at least 1 month before doing so, he or she gives to the occupier of the relevant restaurant or licensed premises a written notice stating that, unless the determined fee is paid, the licence may be cancelled on or after a specified day.
10 	Conditions of certificate of exemption
	The conditions of a certificate of exemption are as follows:
	(a)	the premises exempted under the certificate shall at all times be fitted with equipment capable of maintaining air quality in accordance with Australian Standard 1668.2;
	(b)	air quality in the premises shall comply with Australian Standard 1668.2;
	(c)	the occupier shall keep such records, in relation to the equipment on the premises, as are specified on the certificate of exemption and relate to maintenance on and the operation of the equipment;
	(d)	inspectors are allowed to—
	(i)	regularly inspect equipment on the premises; and
	(ii)	monitor the air quality within the premises; and
	(iii)	inspect the records referred to in paragraph (c);
	(e)	if the certificate relates to a restaurant—smoking is prohibited in not less than 75% of the public area of the restaurant.
11 	Duration of certificates of exemption
	Subject to this Act, a certificate of exemption ceases to have effect at the expiry of the period of 3 years after its grant.
12 	Revocation of certificate of exemption
(1) 	The Minister may revoke a certificate of exemption if satisfied on reasonable grounds that—
	(a)	the occupier to whom the certificate was granted has not complied, or is not complying, with a condition of the certificate; or
	(b)	the premises to which the certificate relates do not comply with a condition of the certificate.
(2) 	Where a certificate is revoked under subsection (1), that revocation takes effect on the day on which the occupier granted the certificate is given notice of the revocation in accordance with paragraph 20 (b).
(3) 	Where a certificate of exemption is revoked, the Minister shall amend the register accordingly.
13 	Inspectors
(1) 	The Minister may, by instrument, appoint persons to be inspectors for the purposes of this Act.
(2) 	An inspector shall perform such duties as the Minister directs for the purpose of promoting compliance with this Act and the regulations.
(3) 	The Minister shall issue to each inspector an identity card that specifies the name and appointment of the inspector and on which appears a recent photograph of the inspector.
(4) 	A former inspector shall not, without reasonable excuse, fail to return his or her identity card to the Minister.
Maximum penalty (for subsection (4)):  1 penalty unit.
14 	Powers of inspectors
(1) 	Subject to subsections (2) and (3), an inspector has power to do all things necessary or convenient to be done in the performance of his or her duties.
(2) 	For the purpose of performing his or her duties, an inspector may at all reasonable times enter an enclosed public place that he or she is not, but for this subsection, entitled to enter.
(3) 	An inspector who enters an enclosed public place pursuant to subsection (2) is not entitled to remain in that place if, on request by the occupier of that place, the inspector does not produce his or her identity card.
(4) 	Where an inspector has reason to believe that a person is committing or has committed an offence against this Act or the regulations, he or she may, on producing his or her identity card—
	(a)	if the person is contravening section 15—direct the person to cease the contravention; and
	(b)	require the person to furnish his or her name and usual address.
15 	Offences by smokers
(1) 	A person must not smoke in an enclosed public place if smoking in the place is prohibited by subsection 5 (1) or (2).
Maximum penalty:  5 penalty units.
(2) 	It is a defence to a prosecution under subsection (1) if the defendant establishes that he or she held or had control of the ignited substance prepared for human consumption for the purpose only of extinguishing or removing it from the enclosed public place (or, if smoking is prohibited in a part of the enclosed public place, removing it from that part of the place).
(3) 	A person who is contravening subsection (1) must not, without reasonable excuse, fail to comply with a direction to cease the contravention given by—
	(a)	an inspector; or
	(b)	an occupier of the enclosed public place, or the part of such a place, where the contravention is occurring; or 
	(c)	an employee or agent of such an occupier.
Maximum penalty:	5 penalty units.
16 	Offence by occupier
(1) 	If a person contravenes subsection 15 (1), an occupier of the enclosed public place, or the part of such a place, where the contravention occurred commits an offence.
Maximum penalty:	10 penalty units.
(2) 	It is a defence to a prosecution under subsection (1) if the defendant establishes that he or she did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention of subsection 15 (1) occurred and that—
	(a)	he or she was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or
	(b)	he or she—
	(i)	requested the person contravening to stop smoking; and
	(ii)	informed the person that the person was committing an offence; or
	(c)	the person who contravened subsection 15 (1)  held or had control of the ignited substance prepared for human consumption for the purpose only of extinguishing or removing it from the enclosed public place (or, if smoking is prohibited in a part of the enclosed public place, removing it from that part of the place).
(3) 	An occupier of an enclosed public place shall not, without reasonable excuse, fail to display, in the prescribed manner (if any), the prescribed signs within that place.
Maximum penalty:	5 penalty units.
(4) 	Where smoking is prohibited in a part of an enclosed public place, the occupier shall not, without reasonable excuse, fail to take reasonable steps to prevent smoke from penetrating that part from another part of the public place where smoking is not prohibited.
Maximum penalty:	10 penalty units.
17 	Responsibility of neighbouring occupier
	The occupier of premises where smoking is not prohibited under this Act shall not, without reasonable excuse, fail to take reasonable steps to prevent smoke from those premises from penetrating premises where smoking is prohibited under this Act.
Maximum penalty:	10 penalty units.
18 	Obstruction of inspectors
(1) 	A person must not, without reasonable excuse, fail to comply with a requirement under paragraph 14 (4) (b).
Maximum penalty:  5 penalty units.
(2) 	A person must not, without reasonable excuse, hinder or obstruct an inspector in the performance of his or her functions under this Act or the regulations.
Maximum penalty:	50 penalty units, imprisonment for 6 months or both.
19 	No right to smoke
	Nothing in this Act shall be construed as creating or preserving the right of a person to smoke in an enclosed public place.
20 	Review of decisions
 	Application may be made to the administrative appeals tribunal for review of a decision of the Minister—
	(a)	under subsection 8 (1) to refuse to grant a certificate of exemption; or
	(b)	under subsection 12 (1) to revoke a certificate of exemption.
21 	Notice of decisions
(1) 	The Minister must—
	(a)	for a decision under subsection 8 (1)—give notice in writing of the decision to the applicant; or
	(b)	for a decision under subsection 12 (1)—give notice in writing of the decision to the occupier of the premises to which the certificate relates.
(2) 	The notice must comply with the code of practice in force under subsection 25B (1) of the Administrative Appeals Tribunal Act 1989.
22 	Fees
(1) 	The Minister may determine fees for the purposes of this Act.
(2) 	The determination may provide for a relevant fee to be calculated by reference to a formula having as a component the area of the public place for which the fee is payable.
(3) 	The determination is a disallowable instrument.
23	Regulation-making power
(1)	The Executive may make regulations for this Act.
(2)	Without limiting the generality of subsection (1), the regulations may make provision for—
	(a)	the displaying of signs within enclosed public places relating to smoking; and
	(b)	the content, dimensions and location of those signs; and
	(c)	the requirements to be observed by occupiers of enclosed public places to facilitate compliance with this Act and the regulations; and 
	(d)	penalties, not exceeding a fine of 10 penalty units, for offences against the regulations.

	SCHEDULE	(See s  5)
PART 1—EXAMPLES OF PREMISES OR PLACES IN THE PUBLIC PARTS OF WHICH SMOKING IS PROHIBITED
1	shopping centres, malls and plazas
2	restaurants, cafeterias and other eating places
3	clubs
4	schools, colleges and universities
5	professional, trade, commercial and other business premises
6	community centres or halls and places of worship
7	theatres, cinemas, libraries and galleries
8	omnibuses, taxis and boats
9	hostels, nursing homes and other multi-unit residential premises
10	hotels and motels
11	sporting and recreational facilities
PART 2—PLACES EXEMPTED AT CERTAIN TIMES OR IN CERTAIN CIRCUMSTANCES
	place	time or circumstance	
1	a stage or performance area (other than an area that includes members of the public)	if the smoking is by a performer during a performance	
2	a common area of a hotel, motel, hostel, nursing home or other multiple-unit residential premises other than—
	(a)	a common area consisting of a lobby, hall, stairway, elevator or dining area; or
	(b)	any area in premises that are licensed premises	if a similar area of a comparable standard in which smoking is not permitted is provided	

ENDNOTES
1	About this republication
This is a republication of the Smoke-free Areas (Enclosed Public Places) Act 1994 as in force on 30 November 2000.  It includes all amendments made to the Act up to Act 2000 No 53.
Amending and modifying laws are annotated in the table of legislation and table of amendments.  However, any current modifications are not included in the republished Act but are set out in the endnotes.
This Act has been renumbered.  See the table of renumbered provisions for details.
The Parliamentary Counsel’s Office currently prepares 2 kinds of republications of ACT laws:  authorised printed republications to which the Legislation (Republication) Act 1996 applies and unauthorised electronic republications.  The status of a republication appears on its cover and is indicated by its republication number.
A republication number without a letter (eg 1, 2, 3 etc) indicates that the republication is an authorised printed republication.  A number with a letter (eg 1A, 1B, 1C etc) indicates that the republication is an unauthorised electronic republication.
Section 13 of the Legislation (Republication) Act 1996 authorises the Parliamentary Counsel, in preparing a law for republication, to make textual amendments of a formal nature which the Parliamentary Counsel considers desirable in accordance with current legislative drafting practice.  The amendments do not effect a substantive change in the law.
In preparing this republication, amendments have not been made under section 13.
Not all amendments made under section 13 are annotated in the table of amendments.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
2	Abbreviation key
Key to abbreviations in tables

am = amended
amdt = amendment
ch = chapter
cl = clause
def = definition
dict = dictionary
div = division
exp = expires/expired
Gaz = Gazette
hdg = heading
ins = inserted/added
LR = Legislation (Republication) Act 1996
mod = modified
No = number
notfd = notified
o = order
om = omitted/repealed
orig = original
p = page
par = paragraph
pres = present
prev = previous
(prev...) = previously
prov = provision
pt = part
r = rule/subrule
reg = regulation/subregulation
renum = renumbered
reloc = relocated
R[X] = Republication No
s = section/subsection
sch = schedule
sdiv = subdivision
sub = substituted
SL  = Subordinate Law
sp = spent
*  = SL unless otherwise stated
† = Act or Ordinance unless otherwise stated

3	Table of legislation
Act†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Smoke-free Areas (Enclosed Public Places) Act 1994	1994 No 63	5 Oct 1994	ss 1-4:  5 Oct 1994
s 5:  6 Dec 1994 (see Gaz 1994 No S211)
remainder:  5 Oct 1994 (see Gaz 1994 No S211)		
Smoke-free Areas (Enclosed Public Places)  (Amendment) Act 1994	1994 No 92	2 Dec 1994	6 Dec 1994	—	
Smoke-free Areas (Enclosed Public Places)  (Amendment) Act 1997	1997 No 21	29 May 1997	6 June 1997	—	
Statute Law Revision (Penalties) Act 1998	1998 No 54	27 Nov 1998	ss 1 and 2:  27 Nov 1998
remainder:  9 Dec 1998 (see Gaz 1998 No 49 p 1078)	—	
Smoking Products Legislation Amendment Act 2000
	2000 No 53	5 Oct 2000	pt 4 (ss 13-17):  5 Oct 2000	—	
4	Table of amendments

Provision	How affected†

title	sub 2000 No 53 s 14
s 1	sub 2000 No 53 s 13 sch 2
hdg to s 2	sub 2000 No 53 s 15
s 2	orig s 2 om 2000 No 53 s 13 sch 2
	(prev s 3) am 1994 No 92; 1997 No 21; 2000 No 53 s 15
	renum 2000 No 53 s 17
s 3	ins 2000 No 53 s 16
s 4	sub 2000 No 53 s 16
s 5	am 1994 No 92
ss 7, 8	am 1994 No 92
s 9	(prev s 8A) ins 1994 No 92
	renum 2000 No 53 s 17
s 10	(prev s 9) am 1994 No 92
	renum 2000 No 53 s 17
s 11	(prev s 9A) ins 1994 No 92
	renum 2000 No 53 s 17
s 12	(prev s 10) renum 2000 No 53 s 17
s 13	(prev s 11) am 1998 No 54; 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 14	(prev s 12) renum 2000 No 53 s 17

s 15	(prev s 13) am 1998 No 54
	sub 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 16	(prev s 14) am 1994 No 92; 1998 No 54; 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 17	(prev s 14A) ins 1994 No 92
	am 1998 No 54
	renum 2000 No 53 s 17
s 18	(prev s 15) am 1998 No 54
	sub 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 19	orig s 19 om 2000 No 53 s 13 sch 2
	(prev s 16) renum 2000 No 53 s 17
s 20	(prev s 17) sub 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 21	orig s 21 am 1994 No 92
	exp R4 (LR s 15 (1) (o) (iv))
	(prev s 18) am 1996 No 51
	sub 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
s 22	orig s 22 ins 1997 No 21
	exp R4 (LR s 15 (1) (o) (iv))
	(prev s 19A) ins 1994 No 92
	sub 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
hdg to s 23	(prev s 20) sub 2000 No 53 s 17 sch 2
s 23	(prev s 20) am 1998 No 54; 2000 No 53 s 13 sch 2
	renum 2000 No 53 s 17
sch	am 1994 No 92; 1997 No 21

5	Table of earlier republications
Amendments to	Cut-off date	Republication number	
Act 1994 No 92	6 December 1994	(1)	
Act 1997 No 21	31 December 1997	(2)	
Act 1998 No 54	1 March 1999	(3)	
Act 2000 No 53	30 November 2000	4	

6	Table of renumbered provisions
as made by Act 2000 No 53 s 17 
Previous	Renumbered as	Previous	Renumbered as	
3		2	14A		17	
8A		9	15		18	
9		10	16		19	
9A		11	17		20	
10		12	18		21	
11		13	19A		22	
12		14	20		23	
13		15			
14		16			
7	Penalties in this republication
The penalties in this republication have been revised in accordance with the Interpretation Act 1967, s 63.  The value of a penalty unit for an offence against this Act at the date of publication is, therefore—
	(a)	if the person charged is an individual—$100; or
	(b)	if the person charged is a corporation—$500.
See Interpretation Act 1967, s 33AA for additional information.

©  Australian Capital Territory 2000

The Copyright Act 1968 (Cwlth) permits certain reproduction and publication of this legislation.  For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Government Printer, c/o Information Management and Libraries, Department of Urban Services, ACT Government, GPO Box 158, Canberra City ACT 2601.