Smoke-Free Public Places Amendment Act 2016 (ACT)

Case

Smoke-Free Public Places Amendment Act 2016

A2016-17

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

4            Offence to smoke at underage function in contravention of directionSection 9N (2), new note  2

5            New part 2C  3

6            InspectorsSection 10 (2), new note  10

7           Dictionary, note 2  10

8            Dictionary, new definitions  10

9            Further amendments, new note  10

10Magistrates Court (Smoke-Free Public Places Infringement Notices) Regulation 2010
Schedule 1, new items 12A to 12F  11

Smoke-Free Public Places Amendment Act 2016

A2016-17

An Act to amend the Smoke-Free Public Places Act 2003, and for other purposes

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

  1. Name of Act

    This Act is the Smoke-Free Public Places Amendment Act 2016.

  2. Commencement

    This Act commences on the day after its notification day.

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

  3. Legislation amended

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

    NoteThis Act also amends the Magistrates Court (Smoke-Free Public Places Infringement Notices) Regulation 2010 (see s 10).

  4. Offence to smoke at underage function in contravention of direction
    Section 9N (2), new note

    insert

    NoteThe defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58).

  5. New part 2C

    insert

Part 2CSmoking prohibited at declared smoke-free public places or events

9ODeclaration of smoke-free public place or event

(1)The Chief Minister and Minister may jointly declare that a public place or event is a smoke-free public place or event (a declared smoke‑free public place or event).

NotePower to make a statutory instrument (including a declaration) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

(2)Before making a declaration, the Minister must consult with the community, including people or organisations that would be directly affected if the declaration is made.

(3)In deciding whether to make a declaration, the Chief Minister and Minister must consider the following matters:

(a)the frequency with which the public place or event is visited by children or families;

(b)the number of people likely to be present at the public place or event;

(c)whether the declaration will promote a more supportive  environment for people who have, or are trying to, quit smoking;

(d)whether the declaration will help reduce people’s exposure to smoking-related harms, including environmental tobacco smoke;

(e)the outcome of community consultation;

(f)any identified costs and benefits of establishing the area as smoke-free, including economic and business impacts;

(g)measures to promote compliance.

(4)A declaration may—

(a)state that ‘no smoking’ signs must be displayed at the public place or event; and

(b)set out requirements for the signs.

NoteRequirements for ‘no smoking’ signs may also be determined under s 9P.

(5)A declaration may also—

(a)provide that an area may be designated in which smoking is allowed at the public place or event; and

(b)set out requirements for the area.

Examples—requirements for designated smoking areas

1size, location and number of areas

2words and images that may be displayed in the area

3erection of partitions or barriers to prevent the penetration of smoke into areas that are not designated smoking areas.

Note 1Requirements for designated smoking areas are also set out under s 9Q.

Note 2An 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).

(6)A declaration is a disallowable instrument.

NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(7)If the Chief Minister is also the Minister, another Minister must make the joint declaration under subsection (1) with the Chief Minister.

9PSignage

(1)The Minister may determine requirements in relation to the display of ‘no smoking’ signs at a declared smoke-free public place or event.

Examples—requirements for display of signs

1     size, location and number of signs

2     words and images that may be displayed on signs

NoteAn 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)A determination is a notifiable instrument.

NoteA notifiable instrument must be notified under the Legislation Act.

9QRequirements for designated smoking areas

(1)This section applies if a declaration under section 9O provides that an area may be designated in which smoking is allowed at a declared smoke-free public place or event.

(2)The occupier or manager of the public place or event may designate an area at the public place or event as an area in which smoking is allowed (a designated smoking area) by displaying a notice near the area—

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

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

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

(3)Unless otherwise stated in the declaration, there may be more than 1 designated smoking area at the public place or event.

(4)A designated smoking area—

(a)must not be adjacent to an entrance to the public place or event; and

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

(5)The occupier or manager of the public place or event must not designate an area under subsection (2) other than—

(a)in accordance with this section; or

(b)as required by the declaration.

Maximum penalty:  50 penalty units.

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

9RObligations of occupier or manager—things not allowed in designated smoking area

(1)The occupier or manager of a declared smoke-free public place or event at which there is a designated smoking area must ensure that, in the designated 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.

Maximum penalty:  50 penalty units.

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

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

NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

(4)In this section:

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

NoteAn 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).

9SOffence by occupier or manager—permitting smoke from designated smoking area to enter another part of public place or event

(1)This section applies to a declared smoke-free public place or event at which there is a designated smoking area.

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

Maximum penalty:  50 penalty units.

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

9TOffence to smoke at declared smoke-free public place or event

(1)A person commits an offence if —

(a)the person smokes at a declared smoke‑free public place or event; and

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

Maximum penalty:  5 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)a declaration under section 9O states that ‘no smoking’ signs must be displayed at the public place or event; and

(b)the signs are not—

(i)displayed as required by the declaration; or

(ii)in accordance with any requirement determined under section 9P.

NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

9UOffence to smoke at declared smoke-free public place or event in contravention of direction

(1)A person commits an offence if—

(a)the person smokes at a declared smoke‑free public place or event; and

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

(c)an inspector, the occupier of the public place or manager of the event, directs the person to stop smoking at the public place or event; 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.

NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

9VOffence by occupier or manager—not displaying required signs

(1)This section applies if a declaration under section 9O states that ‘no smoking’ signs must be displayed at a public place or event.

(2)The occupier or manager of the public place or event commits an offence if the signs are not—

(a)displayed as required by the declaration; or

(b)in accordance with a requirement determined under section 9P.

Maximum penalty:  5 penalty units.

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

  1. Inspectors
    Section 10 (2), new note

    insert

    Note 3Power to make a statutory instrument (including an appointment) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

  2. Dictionary, note 2

    insert

    ·     Minister (see s 162)

  3. Dictionary, new definitions

    insert

    declared smoke‑free public place or event—see section 9O (1).

    designated smoking area—see section 9Q (2).

    manager, in relation to a declared smoke-free public place or event, means the person responsible (whether wholly or in part) for the management of the public place or event.

  4. Further amendments, new note

    insert

    NoteThe defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

    in

    ·     section 7 (3)

    ·     section 8 (3)

    ·     section 9C (3)

    ·     section 9D (3)

    ·     section 9H (3)

  5. Magistrates Court (Smoke-Free Public Places Infringement Notices) Regulation 2010
    Schedule 1, new items 12A to 12F

    insert

12A 9Q (5) 50 1000
12B 9R (1) 50 1000
12C 9S (2) 50 1000
12D 9T (1) 5 110
12E 9U (1) 20 440
12F 9V (2) 5 110

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 18 February 2016.

  2. Notification

    Notified under the Legislation Act on 17 March 2016.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Smoke-Free Public Places Amendment Bill 2016, which was passed by the Legislative Assembly on 10 March 2016.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2016

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