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SMOKING (PROHIBITION IN ENCLOSED PUBLIC PLACES) AMENDMENT ACT 2009 (NO. 51 OF 2009) - SECT 11

New parts 2A and 2B

insert

Part 2A     Smoking prohibited in outdoor eating or drinking places

Division 2A.1     General

9A     Meaning of outdoor eating or drinking place

    (1)     A place is an outdoor eating or drinking place if—

        (a)     it is a public place (other than an enclosed public place); and

        (b)     people at the place may consume food or drink provided from an on-site service; and

        (c)     either—

              (i)     the place is licensed premises; or

              (ii)     tables and chairs are provided by the on-site service for use by people consuming food or drink at the place.

Examples—par (c) (ii)

1     an area containing tables and chairs on a footpath outside a cafe or takeaway food shop

2     an outdoor area at a shopping centre, surrounded by food outlets, containing tables and chairs at which food or drink purchased at the outlets may be consumed

3     an area containing tables and chairs, and bounded by hoardings or planter boxes, that is around a food caravan at a sporting ground

Note     An 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)     However, a place is an outdoor eating or drinking place only while—

        (a)     food or drink is being provided, or is available to be provided, at the place from an on-site service; or

        (b)     food or drink provided from an on-site service is being consumed at the place; or

        (c)     clearing or cleaning related to the provision of food or drink in the place is being done.

    (3)     Food or drink is taken to be provided from an on-site service whether it is—

        (a)     served to a person in the outdoor eating or drinking place by or for the person conducting the on-site service; or

        (b)     taken by a person from the on-site service for consumption in the outdoor drinking or eating place.

    (4)     In this section:

"food or drink service "means a business, or an enterprise of a commercial, charitable or community nature, that sells food or drink.

"on-site service", in relation to a place, means a food or drink service at the place.

"provide", food or drink, includes distribute, give or sell the food or drink.

Division 2A.2     Smoking prohibited—outdoor eating or drinking places

9B     Offence to smoke in outdoor eating or drinking place

    (1)     A person commits an offence if—

        (a)     the person smokes in an outdoor eating or drinking place; and

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

Maximum penalty: 5 penalty units.

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

9C     Offence to smoke in outdoor eating or drinking place in contravention of direction

    (1)     A person commits an offence if—

        (a)     the person smokes in an outdoor eating or drinking place; and

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

        (c)     an inspector, or the occupier of the place, directs the person to stop smoking in the outdoor eating or drinking place; 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.

9D     Offence by occupier—person smoking in outdoor eating or drinking place

    (1)     The occupier of an outdoor eating or drinking place commits an offence if—

        (a)     a person smokes in the outdoor eating or drinking place; and

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

Maximum penalty: 10 penalty units.

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

    (3)     The occupier does not commit an offence against this section if—

        (a)     the occupier was not aware, and could not reasonably be expected to have been aware, that the person was smoking in an outdoor eating or drinking place that was not a designated outdoor smoking area; or

        (b)     the occupier directed the person to stop smoking in the outdoor eating or drinking place and the person contravened the direction.

9E     Offence by occupier—not displaying required signs etc

    (1)     The occupier of an outdoor eating or drinking place must ensure that ‘no smoking' signs are prominently displayed at the place.

Maximum penalty: 20 penalty units.

    (2)     The occupier of an outdoor eating or drinking place that is not licensed premises must ensure that tables and chairs provided by the on-site service for use by people consuming food or drink at the place are clearly identified by either or both of the following:

        (a)     a plan displayed at the place;

        (b)     signs or markings on the tables and chairs.

Maximum penalty: 20 penalty units.

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

Division 2A.3     Designated outdoor smoking areas

9F     Designating outdoor smoking area

    (1)     This section applies to—

        (a)     premises in relation to which a club licence under the Liquor Act 1975 is in force; and

        (b)     premises in relation to which a licence under the Liquor Act 1975 is in force authorising the sale of liquor for consumption on the premises, and that are used principally for that purpose.

Example—par (b)

a pub or tavern

Note     An 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)     The licensee of the premises may designate part of the licensed outdoor area of the premises as an area in which drinking and smoking is allowed (a designated outdoor smoking area ) by displaying a notice near the area—

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

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

        (c)     stating that a smoking management plan for the premises is available for inspection at any time; and

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

    (3)     There may be more than 1 designated outdoor smoking area at the premises.

    (4)     The parts of the licensed outdoor area of the premises that may be designated outdoor smoking areas are—

        (a)     any part (an "off-gaming area") that—

              (i)     is adjacent to a gaming area and accessible only from a gaming area; and

              (ii)     was part of the licensed outdoor area of the premises on 1 November 2009; and

        (b)     up to 50% of the total area of the licensed outdoor area of the premises that is not an off-gaming area.

    (5)     Each designated outdoor smoking area must have a buffer on its perimeter wherever it is adjacent to other parts of the outdoor area of the premises ordinarily accessed by patrons.

    (6)     A buffer must be—

        (a)     a screen or wall that is impervious to smoke and at least the height prescribed by regulation; or

        (b)     an area at least 4m wide where patrons are not allowed to eat, drink or smoke, half of which must be taken from the area that would otherwise form part of the designated outdoor smoking area.

    (7)     A designated outdoor smoking area—

        (a)     must not be adjacent to an entrance to the premises (unless it is an off-gaming area); and

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

    (8)     A licensee of premises must not designate a part or parts of the licensed outdoor area of the premises under subsection (2) otherwise than in accordance with this section.

Maximum penalty: 50 penalty units.

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

9G     Licensee to notify commissioner of designated outdoor smoking area

    (1)     The licensee of premises at which there is a designated outdoor smoking area must give the commissioner notice of the designated outdoor smoking area within 14 days after the day the licensee designates the outdoor smoking area.

Note     If a form is approved under s 21 for this provision, the form must be used.

Maximum penalty: 50 penalty units.

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

9H     Obligations of licensee—things not allowed in designated outdoor smoking area

    (1)     The licensee of premises at which there is a designated outdoor smoking area must ensure that, in the designated outdoor 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; and

        (e)     there are no gaming machines.

Maximum penalty: 50 penalty units.

Note     For where gaming machines may be located, see the Gaming Machine Act 2004 .

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

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

    (4)     In this section:

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

Note     An 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).

9I     Offence by occupier—permitting smoke from designated outdoor smoking area to enter another part of outdoor eating or drinking place

    (1)     This section applies to premises at which there is a designated outdoor smoking area.

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

Maximum penalty: 50 penalty units.

Note     The occupier also commits an offence if smoke from the premises enters an enclosed public place on the premises (see s 8A).

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

9J     Smoking management plan

    (1)     A smoking management plan is a document, prepared for premises at which there is a designated outdoor smoking area, stating how smoking is managed at the premises with the aim of reducing harm from environmental smoke at the premises.

    (2)     A smoking management plan must include—

        (a)     a diagram of the premises that identifies—

              (i)     the designated outdoor smoking area; and

              (ii)     the buffer for the designated outdoor smoking area; and

              (iii)     the location of the notice mentioned in section 9F (2); and

        (b)     a statement of how the exposure to environmental smoke will be minimised; and

        (c)     a description of the training given to workers about the requirements of this Act; and

        (d)     a description of how the prohibition on food or drink service in designated outdoor smoking areas will be managed; and

        (e)     anything else prescribed by regulation.

    (3)     The licensee of premises at which there is a designated outdoor smoking area must—

        (a)     prepare and keep up-to-date a smoking management plan that complies with this section; and

        (b)     make the smoking management plan available for inspection on request.

Maximum penalty: 50 penalty units.

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

Part 2B     Smoking prohibited at underage functions

9K     Meaning of underage function —pt 2B

    (1)     In this part:

"underage function "means a function that—

        (a)     has as its principal purpose the provision of live or recorded music (for listening to, dancing to or both); and

        (b)     is predominantly organised for people under 18 years old; and

        (c)     is open to the public or a section of the public (with or without payment); and

        (d)     takes place in an area or premises other than a private residence.

Examples—underage functions

1     a blue light disco

2     a live band performance organised for students at a secondary school

3     a lakeside dance party organised for under 18 year olds only

Note     An 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)     In working out whether a function is predominantly organised for people under 18 years old, each of the following must be considered:

        (a)     the name of the function;

        (b)     the nature of the body or person who is the organiser of the function;

        (c)     the ways used to publicise the function;

        (d)     who the function is publicised to;

        (e)     ticketing arrangements for the function (if any);

        (f)     anything else prescribed by regulation.

Note     Section 9M (1) (b) requires any tickets issued for an underage function to state that smoking is prohibited.

9L     Smoking prohibited at underage function

Smoking is prohibited at an underage function.

9M     Obligations on organiser of underage function

    (1)     The organiser of an underage function must ensure that—

        (a)     ‘no smoking' signs are prominently displayed at the function; and

        (b)     any ticket issued for the function includes a statement that smoking is prohibited; and

        (c)     a public announcement that smoking is prohibited is made at the beginning of the function.

Maximum penalty: 20 penalty units.

    (2)     The organiser of an underage function must—

        (a)     give a direction to stop smoking to any person who smokes at the function; and

        (b)     give a direction to immediately leave the function to any person who continues to smoke in contravention of a direction given to the person under paragraph (a).

Maximum penalty: 20 penalty units.

    (3)     Subsection (2) (a) does not apply if the organiser was not aware, and could not reasonably be expected to have been aware, that the person was smoking at the function.

9N     Offence to smoke at underage function in contravention of direction

    (1)     A person commits an offence if—

        (a)     the person smokes at an underage function; and

        (b)     an inspector, or the organiser of the function, directs the person to stop smoking at the function; and

        (c)     the person contravenes the direction.

Maximum penalty: 10 penalty units.

    (2)     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.



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