Australian Capital Territory
Smoking (Prohibition in Enclosed Public Places) Regulation 2005
Subordinate Law SL2005-21

The Australian Capital Territory Executive makes the following regulation under the Smoking (Prohibition in Enclosed Public Places) Act 2003.
Dated 2 September 2005.
Simon Corbell
Minister
Katy Gallagher
Minister

Australian Capital Territory
Smoking (Prohibition in Enclosed Public Places) Regulation 2005
Subordinate Law SL2005-21
made under the
Smoking (Prohibition in Enclosed Public Places) Act 2003

    
    
Contents
	Page

Part 1	Preliminary
	1	Name of regulation	1
	2	Commencement	1
	3	Dictionary	1
	4	Notes	1
Part 2	Enclosed public places
	5	Purpose of pt 2	2
	6	The basic rule—covered and 75% or more enclosed	2
	7	Meaning of covered	3
	8	Meaning of 75% or more enclosed	3
	9	How to work out the closed area—walls	4
	10	How to work out the closed area—overhead cover	5
	11	How to work out the open area—walls	6
	12	How to work out the open area—overhead cover	6
Dictionary		7

Part 1	Preliminary
1	Name of regulation
This regulation is the Smoking (Prohibition in Enclosed Public Places) Regulation 2005.
2	Commencement
This regulation commences on 1 December 2006.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Dictionary
The dictionary at the end of this regulation is part of this regulation.
Note 1	The dictionary at the end of this regulation defines certain terms used in this regulation, and includes references (signpost definitions) to other terms defined elsewhere in this regulation.
For example, the signpost definition ‘covered—see section 7.’ means that the term ‘covered’ is defined in that section.
Note 2	A definition in the dictionary (including a signpost definition) applies to the entire regulation unless the definition, or another provision of the regulation, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
4	Notes
A note included in this regulation is explanatory and is not part of this regulation.
Note	See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 2	Enclosed public places
5	Purpose of pt 2
	(1)	The Act prohibits smoking in enclosed public places and creates offences that give effect to that prohibition.
	(2)	The object of the Act is to promote public health by minimising the exposure of people in enclosed public places to environmental smoke.
	(3)	Under the Act, an enclosed public place is a public place, or part of a public place, that is enclosed as prescribed by regulation (see the Act, dictionary).
	(4)	The purpose of this part is to set out what makes a place enclosed for that definition.
6	The basic rule—covered and 75% or more enclosed
A place is enclosed if—
	(a)	it is covered; and
	(b)	it is 75% or more enclosed.
Note 1	Under this definition, any part of a place that is not under cover is not enclosed.  However, the Act requires an occupier of premises to take reasonable steps to prevent smoke from the premises entering an enclosed public place—see s 8A (Offence by occupier—permitting smoke into enclosed public place from another part of premises) and s 9 (Offence by neighbouring occupier).
Note 2	Place includes part of a place (see dict, def place).
7	Meaning of covered
	(1)	A place is covered if it is under a ceiling, roof or other structure or device (whether fixed or moveable) that prevents or impedes upward airflow (an overhead cover).
Examples of other structure or device
1	awning
2	skylight
3	umbrella
	(2)	If an overhead cover (or part of an overhead cover) is moveable, the area under the overhead cover (or the part of the overhead cover) is covered at a particular time only to the extent that the overhead cover is present at that time.
Example for s (2)
An awning attached to a wall can be extended to a point 2m from the wall or a point 4m from the wall.  If the awning is extended to the 2m point, the area under it to that 2m point is covered.  If the awning is extended to the 4m point, the area under it to that 4m point is covered.
Note	An example is part of the regulation, 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).
8	Meaning of 75% or more enclosed
A place is 75% or more enclosed if the open area of the walls and overhead cover of the place that opens directly to the outside air is 25% or less of the sum of—
	(a)	the total closed area of the walls and overhead cover of the place; and
	(b)	the total open area of the walls and overhead cover of the place.
9	How to work out the closed area—walls
	(1)	This section sets out how to work out the closed area of the walls of a place.
	(2)	The closed area of the walls of a place is the surface area of the walls that form part of the boundary of the place.
	(3)	A wall includes any door, window or other structure or device (whether fixed or moveable) that prevents or impedes lateral airflow.
Examples of other structure or device
1	moveable panel
2	shutter
3	blind
	(4)	If a wall is moveable, the wall forms part of the boundary of a place at a particular time only to the extent that it forms part of the boundary of the place at that time.
Example
A café has retractable panels along one of its boundaries.  If the panels are completely closed, their whole surface area is counted.  However, if the panels are 3/4 open, only 1/4 of their surface area is counted.
	(5)	However, a door or window that forms part of the boundary of the place must be treated as part of the closed area of the walls of the place even if it is open.
	(6)	For subsection (2), the surface area of a wall is the actual surface area (inside the place) of the solid surface of the wall.
Example
A restaurant has a courtyard with a metal slatted screen forming part of its boundary wall.  The actual surface area of that part of the boundary wall is the surface area (inside the place) of the slats.  The area of the gaps between the slats is part of the open area of the wall (see s 11).
Note	An example is part of the regulation, 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).
	(7)	For subsection (6), a wall made of flyscreen, shadecloth or canvas is taken to have a solid surface.
	(8)	In this section:
wall includes part of a wall. 
10	How to work out the closed area—overhead cover
	(1)	This section sets out how to work out the closed area of the overhead cover of a place.
	(2)	The closed area of the overhead cover of a place is the area of the vertical projection (inside the place) of the overhead cover.
Examples
1	A bar has a sloping ceiling.  The closed area of the ceiling is worked out as the area of the projection onto a horizontal plane (the ‘plan view’) of the ceiling, not the (larger) surface area of the ceiling itself.
2	A beer garden has a wooden lattice overhead cover.  The closed area of the overhead cover is worked out as the area of the projection onto a horizontal plane (the ‘plan view’) of the wooden lattice itself.  The area of the gaps in the lattice is part of the open area of the overhead cover (see s 12). 
Note	An example is part of the regulation, 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).
	(3)	For subsection (2), an overhead cover made of flyscreen, shadecloth or canvas is taken to have a solid surface.
	(4)	In this section:
overhead cover includes part of an overhead cover.
11	How to work out the open area—walls
	(1)	This section sets out how to work out the open area of the walls of a place.
	(2)	The open area of the walls of a place is the total of the minimum areas required to fill—
	(a)	each gap in any parts of the walls that do not have, or are not taken under section 9 (7) to have, solid surfaces; and
	(b)	each gap between parts of the walls; and
	(c)	each gap between the walls and the nearest point of the overhead cover; and
	(d)	each gap between the walls and the nearest point of the floor.
Example
See example to section 9 (6).
12	How to work out the open area—overhead cover
	(1)	This section sets out how to work out the open area of the overhead cover of a place.
	(2)	The open area of the overhead cover of a place is the minimum area required to fill any gaps in the vertical projection (inside the place) of the overhead cover.
Example
See example 2 to section 10 (2).
	(3)	For subsection (2), an overhead cover made of flyscreen, shadecloth or canvas is taken to have a solid surface.

Dictionary
(see s 3)
Note 1	The Legislation Act contains definitions and other provisions relevant to this regulation.
Note 2	For example, the Legislation Act, dict, pt 1, defines the following term:
·	for.
Note 3	Terms used in this regulation have the same meaning that they have in the Smoking (Prohibition in Enclosed Public Places) Act 2004 (see Legislation Act, s 148.)  For example, the following term is defined in the Smoking (Prohibition in Enclosed Public Places) Act 2004, dict:
·	public place.
75% or more enclosed—see section 8.
closed area—
	(a)	of a wall, means the closed area worked out for the wall under section 9; and
	(b)	of an overhead cover, means the closed area worked out for the overhead cover under section 10.
covered—see section 7.
enclosed—see section 6.
floor includes ground.
open area—
	(a)	of a wall, means the open area worked out for the wall under section 11; and
	(b)	of an overhead cover, means the open area worked out for the overhead cover under section 12.
overhead cover—see section 7 (1).
place includes part of a place.
wall—see section 9.

Endnotes
1	Notification
	Notified under the Legislation Act on 8 September 2005.
2	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2005