Australia: Smokers move on - more areas declared ‘smoke free'

The NSW Government has continued its focus on anti-smoking legislation, expanding the scope of areas where smoking is now banned. This acts as a timely reminder for both landlords and tenants to carry out a proper assessment of enclosed public places and outdoor public areas to ensure compliance with the relevant legislation. In this Alert we review the recent NSW changes and provide a high level summary of the restrictions and penalties in both NSW and Queensland.

New South Wales

Under the amendments to the Smoke-free Environment Act 2000 (NSW) which took effect on 6 July 2015, smoking is now banned in "a place that is within 4 metres of a pedestrian access point to a building ... [being] to licensed premises or a restaurant..."; and also in "a commercial outdoor dining area".

4 metre law

The ban on smoking within 4 metres of a pedestrian entrance to, or exit from, a public building was already in place in NSW, but is now extended to licensed premises (including clubs and hotels), restaurants and cafés.

Although no specific signage is required, NSW Health Authorised Inspectors can enforce the "4 metre law" and issue on the spot fines to those caught smoking in those areas.

Outdoor dining areas

Smoking is also now banned from all commercial outdoor dining areas, with the NSW Government's policy position being that:

• those areas are often visited by children and families and can be crowded;
• those areas allow limited opportunity for people to avoid second hand smoke;
• this approach will achieve an important reduction in many people's exposure to second hand smoke; and
• this approach will create a more supportive environment for those who have quit.

Mandatory prescribed 'no smoking' signage must be displayed within an outdoor dining area in accordance with NSW Health's signage guidelines.

The requirements of the legislation would also restrict smoking on any footpath area that is licensed by a business operator from the local Council to be used as a "seating area", if that area falls within the "4 metre law" or is an outdoor dining area.

Penalties

On the spot fines of $300 may be enforced against individuals caught smoking in a prescribed 'smoke free' area.

A fine of up to $550 may be imposed against a business owner who does not display the required 'no smoking' signage.

Penalties of up to $5,500 can be imposed against business owners where a customer is caught smoking in a prescribed 'smoke free' area.

Queensland

The legislative regime in Queensland under the Tobacco and Other Smoking Products Act 1998 (QLD) is much the same as in NSW, and has a similar policy perspective on banning smoking in enclosed areas, dining areas and public places.

However, licensed premises in Queensland can have a "designated outdoor smoking area" (DOSA) where patrons are entitled to consume drinks and also smoke, but not eat. The conditions applying to any DOSA are:

• the DOSA must be clearly identified in a plan or other notice at the premises that shows the limits of the DOSA;
• the DOSA must not be more than 50% of the whole outdoor area of the licensed premises;
• there must be a "perimeter buffer" wherever the DOSA is next to another part of the licensed premises that is accessed by patrons; and
• licensees must prepare, and keep up to date, a smoking management plan (including having a notice displayed at the premises confirming that a plan is in place and is available on request).

In terms of signage, amongst other requirements of the Tobacco and Other Smoking Products Regulation (QLD) 2010, a licensee of licensed premises must display a 'no smoking' sign at each public entrance/exit from an outdoor area to an enclosed space at the licensed premises. There are strict requirements set out in the regulations which dictate the form and location of such signage, including a minimum size of the sign itself, as well as the font on the sign and what symbols are required to be displayed on the sign.

Detailed information on fines and penalties can be found on the Queensland Health website, including:

• On the spot fines of $228 for individuals caught smoking in a prescribed 'smoke free' area.
• On the spot fines of $228 for a business owner who fails to display the required 'no smoking' signage and on the spot fines of $1,140 for a business owner where a customer is caught smoking in a prescribed 'smoke free' area.
• Penalties of up to $15,940 can be imposed by a Court against a business owner where a customer is caught smoking in a prescribed 'smoke free' area.

Interestingly, some licensed premises, restaurants and cafés in NSW have also adopted a DOSA approach following the introduction of the new Smoke-free Environment Act 2000 (NSW) provisions this month ¹. That is, proprietors have decided to restrict eating in outdoor areas in favour of permitting smoking in those areas. If food was served in those outdoor areas, then they would otherwise be subject to the smoke-free legislation.

Key takeaways

A strong public policy against smoking has been in place for some significant time and continues to be developed by Governments who are now all-too-familiar with the long term health and societal impacts of smoking. Whilst the new provisions in NSW are neither ground-breaking nor unexpected, they act as a timely reminder for both landowners and business operators to review the legislative requirements and ensure strict compliance.

• Tenants: As illustrated above, significant penalties can be imposed on tenants who are operating a business and do not maintain the necessary 'no smoking' signage and fail to enforce the smoking ban within prescribed areas.
• Landlords: Landlords should ensure that they have complied with any 'no smoking' signage rules that apply to the building generally and enforce the restriction on smoking within 4 metres of the entrance or exit to the building. In relation to smoking within tenancies, whilst the penalty regime may not extend directly to a landowner (where they are not the party that has the "management or control" of the premises), it would still be prudent for landlords to carry out periodical checks and audits of their tenants' operations to ensure that tenants are complying with (and properly enforcing) the requirements of the relevant 'smoke free' legislation.
• WHS: Work health and safety considerations may also be relevant in this area. Given that every employer has an obligation to ensure the health and safety of its workers, it is important for landlords and tenants who are also employers to ensure that their non-smoking policies (and the enforcement of those policies) are consistent with the relevant 'smoke free' legislation.

Footnote

¹ http://www.smh.com.au/nsw/how-sydney-is-beating-new-antismoking-laws-20150714-giazpy

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.