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Smoking bans in licensed venues

From 2 July 2007, the Smoke-free Environment Act 2000 bans smoking in enclosed public areas of licensed venues. The smoke free legislation is administered by NSW Health.

Will any exemptions apply to the complete ban?

The international private gaming area of Star City Casino is exempt from the smoking bans. This exemption has been granted in line with interstate casinos, and will be reviewed annually and abolished when interstate casinos ban smoking in equivalent areas.

How is 'enclosed' determined?

The Smoke-free Environment Regulation 2000 provides guidelines on how to determine what is an enclosed public place, and when a covered outside area is considered to be substantially enclosed for the purposes of the Smoke-free Environment Act 2000. A copy of the regulation can be found on the NSW Health website.

What penalties apply under the Smoke-free Environment Act 2000?

Section	Offence Description	Who Can Be Fined	Maximum Penalty
7	A person who smokes in a smoke-free area	Smoker	$550
8	A person who smokes in a smoke-free area	Occupier* Natural person Body corporate	$1,100 $5,500
9	Failure to display a no-smoking and other prescribed signs (if any) as required	Occupier* Natural person Body corporate	$550 $2,750
10	Failure to take reasonable steps to prevent the spread of smoke into smoke-free areas of premises.	Occupier* Natural person Body corporate	$1,100 $5,500
19 (1)	Obstructing, resisting or attempting to obstruct an inspector in the exercise of the inspectorÕs functions under the Act	Person	$550
19 (2)	Impersonating an inspector	Person	$550

* 'Occupier' is defined under the Act as a person having the management or control, or otherwise being in charge, of premises or part of the premises.

What penalties apply under the Smoke-free Environment Regulation 2000?

Clause 9(1) Offence: Facilitating smoking in an enclosed place as a result of doors or windows not being locked fully open for the entire hours of operation on each day during which smoking is allowed in the enclosed place

Who can be fined? If the occupier is natural person the maximum penalty is $550. If the occupier is a body corporate the maximum penalty is $2750.

Who enforces the smoke-free legislation? Environmental Health Officers based in public health units of NSW Health enforce the smoke-free legislation. These officers monitor compliance, investigate complaints and make inspections.

What penalties apply under the liquor, club and casino laws?

To assist venues in managing the smoke-free laws, the Liquor Act 1982, the Registered Clubs Act 1976 and the Casino Control Act 1992 give venues the power to exclude a patron from the venue if that person smokes in a smoke-free area. If a patron fails to leave when asked, they are liable to a $550 on-the-spot fine or a maximum penalty of $5500.

Cigarette vending machines

Under the Public Health Act 1991, cigarette vending machines can only be located in:

a restricted area of a hotel
a bar or poker machine area in a registered club, or
a staff amenity area in any premises.

It is possible for a minors function authority to operate in a restricted area. One of the conditions of this authority requires these machines to be removed from the area whilst a function for under 18s is underway in the area.

There are also requirements about placing health warning signs on cigarette vending machines, with fines for the owners and lessees of the machines. If your cigarette vending machines are located in smoke-free areas, make sure no-smoking signs are placed in prominent positions to reinforce that smoking is not allowed.

For more information visit the NSW Health website.

Frequently asked questions

Do venues have obligations regarding the spread of smoke from outdoor smoking areas into enclosed spaces?

Yes — venue management must take reasonable steps to prevent smoke from spreading into no-smoking areas. Fines of up to $5500 apply if smoke is allowed to penetrate enclosed spaces where smoking is banned.

What are the occupational health and safety requirements?

Section 21 of the Smoke-free Environment Act 2000 ensures that in areas where smoking is allowed, employers are not discharged from the other legal obligations, such as occupational health and safety obligations to employees and patrons. It is suggested that employers refer to the Occupational Health and Safety Act 2000 and/or contact WorkCover for more information.

Can I promote outdoor smoking areas?

Care needs to be taken when promoting outdoor smoking areas in newsletters or by other external means. NSW Health advises that ”advertising of newly constructed areas with express and repeated reference to the ability of patrons to smoke in these areas is considered to be a clear breach of the legislation”. Penalties of between $5,500 and $44,000 apply under the Public Health Act 1991.

Where should non-smoking signs be placed?

These signs must be clearly visible to patrons and displayed in a way that would reasonably allow a person entering a particular area of the premises to be quickly alerted to the fact that it is a non-smoking area.

Where can I obtain non-smoking signs?

Signs are available free of charge from the NSW Health Better Health Centre on 9879 0443. As long as signs meet legal requirements, proprietors can make signs to suit the decor of their premises at their own cost.

Where can I obtain more information for venue staff?

An information kit to educate staff and patrons is available from the NSW Health website.

Are there places not affected by the Smoke-free Environment Act 2000?

The Smoke-free Environment Act 2000 bans smoking in enclosed public places, and so does not apply to places such as private homes, residents’ bedrooms in boarding houses or hostels, rented guestrooms in hotels, hostels and motels and public places that are not enclosed - such as alfresco areas or open courtyards.
Note - this list is not exhaustive.

What if I have no access to an outdoor area for smoking?

In considering what changes can be made to your venue to accommodate patrons who wish to smoke you should contact your local council, or visit the Department of Local Government website for information about DAs, using footpaths, alcohol free zones and other local issues. www.dlg.nsw.gov.au

Is smoking banned in alfresco dining areas?

The Smoke-free Environment Act 2000 does not ban smoking in outdoor dining areas. Smoking bans only apply to enclosed public areas. However some venues may voluntarily choose to adopt a non-smoking policy in their outdoor areas. Others may choose to make half their outdoor dining area non-smoking. It is suggested that licensees contact their local council to check if there are any no-smoking by-laws in their local government area in regard to outdoor alfresco dining areas.

How does a member of the public make a complaint about smoking in non-smoking areas?

In the first instance, you should complain directly to the venue licensee or secretary/manager. Alternatively, you can contact your local public health unit, or the Tobacco and Health Information Line on 1800 357 412, or email tobacco@doh.health.nsw.gov.au to obtain more information or make a complaint. A list of public health units can be found in the White Pages.

Need more information? Contact NSW Health

For questions about the Smoke-Free legislation and what it means for licensed venues:

contact the Tobacco and Health Information Line - 1800 357 412
or email tobacco@doh.health.nsw.gov.au
visit the NSW Health website
contact your local public health unit (contact details are available in the White Pages)

To order more No Smoking signs and other resources call the NSW Better Health Centre - 9879 0443 or download an order form from the NSW Health website.

The Smoke-Free Environment Act 2000 and the associated regulations are available from the NSW Health website.