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This is a Bill, not an Act. For current law, see the Acts databases.
SMOKING (PROHIBITION IN ENCLOSED PUBLIC PLACES) BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Mrs Helen Cross)
Smoking
(Prohibition in Enclosed Public Places) Bill 2003
Contents
Page
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Mrs Helen Cross)
Smoking (Prohibition
in Enclosed Public Places) Bill 2003
A Bill for
An Act to prohibit smoking in enclosed public places, and for related
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Smoking (Prohibition in Enclosed Public Places) Act
2003.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘smoking
product—see the Tobacco Act 1927, dictionary.’ means
that the expression ‘smoking product’ is defined in that dictionary
and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Part
2 Smoking prohibited in enclosed
public places
6 Offence
to smoke in enclosed public place
(1) A person commits an offence if the person smokes in an enclosed public
place.
Maximum penalty: 5 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1)
if the defendant establishes that he or she held or had control over the smoking
product for the purpose only of extinguishing it or removing it from the public
place.
7 Offence
to smoke in contravention of direction
(1) This section applies to a person if the person—
(a) smokes in an enclosed public place; and
(b) is directed to stop smoking in the enclosed public place by an
inspector or the occupier of the enclosed public place.
(2) The person commits an offence if the person contravenes the
direction.
Maximum penalty: 20 penalty units.
(3) However, a person does not commit an offence against this section
if—
(a) the inspector who gives the direction is not a uniformed police
officer; and
(b) when asked by the person, the inspector does not produce an identity
card that identifies him or her as a person who is an inspector.
(4) In this section:
occupier, of a place, includes—
(a) a person believed on reasonable grounds to be an occupier of the
place; and
(b) a person apparently in charge of the place.
(1) The occupier of an enclosed public place commits an offence if someone
else commits an offence against section 7 (1) in the enclosed public
place.
Maximum penalty: 10 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1)
if the occupier establishes—
(a) that the occupier did not provide anything designed to facilitate
smoking in the enclosed public place; and
(b) that—
(i) the occupier was not aware, and could not reasonably be expected to
have been aware, that the person was committing the offence; or
(ii) the occupier told the person that the person was committing an
offence and asked the person to stop committing the offence; or
(iii) the person held or had control over the smoking product for the
purpose only of extinguishing it or removing it from the enclosed public
place.
Examples for par (a)
1 ashtray
2 cigarette lighter
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).
9 Offence
by neighbouring occupier
The occupier of premises where smoking is not prohibited under this Act
commits an offence if the occupier fails to take reasonable steps to prevent
smoke from the premises from entering an enclosed public place at any time when
the public, or a section of the public, has access to the place.
Maximum penalty: 10 penalty units.
(1) Each of the following is an inspector for this Act:
(a) an authorised officer under the Tobacco Act 1927, section
32;
(b) a public servant appointed under subsection (2).
(2) The chief executive may appoint a public servant as an inspector for
this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
11 Identity
cards for inspectors
(1) The chief executive must give an inspector appointed under
section 10 (2) an identity card that states the person is an inspector for
this Act and shows—
(a) a recent photograph of the person; and
(b) the name of the person; and
(c) the date of issue of the card; and
(d) an expiry date for the card; and
(e) anything else prescribed under the regulations.
(2) A person commits an offence if—
(a) the person was appointed as an inspector under section 10 (2); and
(b) the person ceases to be an inspector; and
(c) the person does not return the person’s identity card to the
chief executive as soon as practicable (but within 7 days) after the day
the person ceases to be an inspector.
Maximum penalty: 1 penalty unit.
(3) An offence against this section is a strict liability
offence.
(1) An inspector may enter an enclosed public place at any time when the
public, or a section of the public, has access to the place, whether by payment
or not.
(2) If an inspector believes on reasonable grounds a person is committing
or has just committed an offence against this Act, the inspector
may—
(a) if the person is smoking in an enclosed public place—direct the
person to stop smoking; and
(b) require the person to give the inspector the person’s name and
usual address.
(1) A person commits an offence if—
(a) the person knows, or is reckless about the fact, that the person is an
inspector; and
(b) the person obstructs, hinders, intimidates or resists a inspector in
the exercise of the inspector’s functions.
Maximum penalty: 10 penalty units.
(2) Strict liability applies to subsection (1) (b).
14 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may exempt an area of premises from the operation of
part 2 (Smoking prohibited in enclosed public places) if—
(a) the premises are occupied by a university or another entity prescribed
by the regulations; and
(b) the area is for scientific research into the effects of smoking.
Part
4 Transitional
provisions
In this part:
commencement day means the day when this Act
commences.
repealed Act means the Smoke-free Areas (Enclosed Public
Places) Act 1994.
repealed regulations means the Smoke-free Areas (Enclosed
Public Places) Regulations 1994.
16 Existing
exemptions—restaurants and licensed premises
(1) Despite the repeal of the repealed Act, the provisions of that Act
continue to apply in relation to exempt premises and, in
particular—
(a) a certificate of exemption in force immediately before the
commencement day continues in force subject to those provisions and any
condition that applied to it immediately before the commencement day;
and
(b) a certificate of exemption under suspension immediately before the
commencement day remains suspended subject to the provisions of the repealed
Act.
(2) In this section:
certificate of exemption means a certificate of exemption
granted under the repealed Act, section 8.
exempt premises means a restaurant, or a part of licensed
premises, to the extent to which a certificate of exemption applies.
17 Existing
exemptions—certain times and circumstances
Despite the repeal of the repealed Act, the provisions of that Act
continue to apply in relation to—
(a) a place mentioned in the repealed Act, schedule 1, part 1.2 (Places
exempted at certain times or in certain circumstances), item 2; and
(b) a place mentioned in the repealed regulations, schedule 1 (Places
exempted in certain circumstances).
18 Applications
under repealed Act
(1) This section applies if, before the commencement day—
(a) an application is made under the repealed Act, section 7 (Application
for certificate of exemption) in relation to a restaurant or a part of licensed
premises; and
(b) the Minister has not decided the application.
(2) The Minister may decide the application as if the repealed Act,
section 8 were still in force.
(3) If the Minister grants a certificate of exemption for a restaurant or
part of licensed premises under this section—
(a) the provisions of the repealed Act continue to apply in relation to
the exempt premises; and
(b) the certificate of exemption is subject to the provisions of the
repealed Act.
(4) In this section:
exempt premises means a restaurant, or a part of licensed
premises, to the extent to which a certificate of exemption under this section
applies.
19 Limitation
on exemptions
Despite any provision of the repealed Act—
(a) the Minister must not vary an exemption for a part of licensed
premises under the provisions of the repealed Act, section 10A (Variation of
exemptions) in a way that increases the total area of the licensed premises to
which the certificate of exemption relates; and
(b) a certificate of exemption granted by the Minister under
section 18 ceases to have effect 3 years after the commencement
day.
20 Regulations
modifying pt 4
The regulations may modify the operation of this part to make provision in
relation to any matter that is not, or is not in the Executive’s opinion
adequately, dealt with in this part.
This part expires 3 years after the day it commences.
Part
5 Repeals and consequential
amendments
The Smoke-free Areas (Enclosed Public Places) Act 1994 No 63 is
repealed.
The Smoke-free Areas (Enclosed Public Places) Regulations 1994 No 37
are repealed.
Division
5.2 Gaming Machine Act
1987
24 Commission
may take disciplinary action against
licenseeNew section 24
(3A)
insert
(3A) The licence conditions that may be imposed or varied under
subsection (1) (b) include, but are not limited to, conditions to
ensure the licensee complies with the Smoking (Prohibition in Enclosed Public
Places) Act 2003, section 8 (Offence by occupier) or section 9 (Offence by
neighbouring occupier).
renumber subsections when Act next republished under Legislation
Act
26 Grounds
for disciplinary actionSection
24A
omit
In this Act
substitute
(1) In this Act
27 New
section 24A (1) (ba) and (bb)
insert
(ba) the licensee has permitted people to smoke in a part of the licensed
premises that is an enclosed public place; or
(bb) the licensee has fails to take reasonable steps to prevent smoke from
another area occupied by the licensee entering an enclosed public place;
or
renumber paragraphs when Act next republished under Legislation
Act
insert
(2) In this section:
enclosed public place—see the Smoking (Prohibition
in Enclosed Public Places) Act 2003, dictionary.
smoke—see the Smoking (Prohibition in Enclosed
Public Places) Act 2003, dictionary.
Division
5.3 Liquor Act
1975
30 Grounds
for issue of directionsSection
82
omit
For this part,
substitute
(1) For this part,
31 New
section 82 (1) (ca) and (cb)
insert
(ca) a licensee has permitted people to smoke in a part of the licensed
premises that is an enclosed public place;
(cb) the licensee has failed to take reasonable steps to prevent smoke
from another area occupied by the licensee entering an enclosed public
place;
renumber paragraphs when Act next republished under Legislation
Act
(2) In this section:
enclosed public place—see the Smoking (Prohibition
in Enclosed Public Places) Act 2003, dictionary.
smoke—see the Smoking (Prohibition in Enclosed
Public Places) Act 2003, dictionary.
34 Types
of directionsSection 85 (2)
(c)
substitute
(c) a direction requiring the licensee to do, or not to do, something to
comply with the licensing standards manual;
(d) if section 82 (1) (ca) or (cb) applies—a direction to ensure
that the licensee complies with the Smoking (Prohibition in Enclosed Public
Places) Act 2003, section 8 (Offence by occupier) or section 9 (Offence by
neighbouring occupier).
93A Automatic cancellation of
licence
A licence is cancelled automatically if the licensee is found guilty or
convicted of an offence against the Smoking (Prohibition in Enclosed Public
Places) Act 2003, section 8 (Offence by occupier) in relation to any part of
the licensed premises.
insert
110A Permit to be subject to condition about
smoking
(1) It is a condition of a permit that the permit-holder must not permit
people to smoke in a part of the premises for which the permit is issued that is
an enclosed public place.
(2) The condition under subsection (1) is in addition to any condition to
which the permit is subject under section 110 (2).
37 Ground
for cancellationNew section 116 (2)
(ab)
insert
(ab) whether the permit-holder has permitted people to smoke in a part of
the premises for which the permit is issued that is an enclosed public
place;
renumber paragraphs when Act next republished under Legislation
Act
insert
116A Automatic cancellation of
permit
A permit is cancelled automatically if the permit holder is found guilty or
convicted of an offence against the Smoking (Prohibition in Enclosed Public
Places) Act 2003, section 8 (Offence by occupier) in relation to any part of
the premises for which the permit is issued.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• contravene
• found guilty
• must
• police officer.
enclosed public place means a public place, or part of a
public place, that has a ceiling or roof and is, except for doors and
passageways, completely or substantially enclosed by walls or windows.
Examples
1 a shopping centre, mall or plaza
2 a restaurant or cafeteria
3 a school, college or university
4 a community centre, hall or place of worship
5 a hostel or nursing home
6 a bus or taxi
7 the enclosed part of a boat
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).
occupier, of an enclosed public place, means a person having
the management or control, or otherwise being in charge, of the place.
public place means a place to which the public, or a section
of the public, has access, whether by payment or not.
smoke—a person smokes if the
person—
(a) directly puffs the smoke of an ignited smoking product, whether or not
the person uses a device designed for the inhalation of smoke by a smoker;
or
(b) holds or has control over a smoking product while it is
ignited.
Examples for par (a)
1 a cigarette holder
2 a pipe (including a water pipe or bong)
smoking product—see the Tobacco Act 1927,
dictionary.
Endnotes
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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