From 1 July 2007 amendments to the Tobacco Act 1987 (Vic) take effect. The amendments require all enclosed licensed premises (including gaming venues) and some outdoor dining / drinking areas to be smoke-free. Only the high roller rooms at Crown Casino are exempt.

What is an Enclosed Licensed Premise?

Enclosed means an area, room or premise that is substantially enclosed by a roof and walls regardless of whether the roof or walls, or any part of them are permanent / temporary or open / closed. The smoke-free status of a licensed premise will not alter even when large windows or doors of an enclosed area are open. Therefore, from 1 July 2007, smoking will only be permitted in some outdoor dining / drinking areas.

Outdoor Dining / Drinking Areas

Outdoor dining / drinking areas include (if predominantly used for the consumption of food and /or drinks):

• balcony or veranda;
• courtyard;
• rooftop;
• marquee;
• street or footpath; and / or
• any similar outdoor area.

The Requirements

From 1 July 2007 smoking will be prohibited in outdoor dining or drinking areas:

• where the area has a roof in place; and
• the total actual area of the wall surfaces exceeds 75% of the total notional wall area.

Smoking Status of Outdoor Dining / Drinking Areas Can Change

Unlike enclosed premises, the smoking status of an outdoor dining / drinking area can change depending on the position of roofs and walls.

Often outdoor areas have the capacity to sustain retractable or temporary walls and roof/ceilings to protect customers from the elements. When the awnings are retracted, leaving the walled area to be 75% or less, then the outdoor area is not required to be smoke-free. However, if wall and roofs/ceilings are in place, and the walled area is enclosed more than 75%, then the outdoor area will be required to be smoke-free.

Footpaths

From 1 July 2007, only in certain circumstances may footpaths be used as outdoor smoking areas.

ENFORCEMENT AND PENALTIES

Tobacco laws will be enforced by Local Council Environmental Health Officers or by any officer authorised by the Department of Human Services.

Breaches and Penalties

Occupiers / Managers - The occupier of a premises or area is responsible for breaches of the smoke-free law at those premises. An ‘occupier’ is defined as ‘ person who appears to be of or over 16 years of age and who is, or appears to be in control of the area or premises’. The occupier of the premises or area breaches the law if they allow smoking in a smoke-free premises or area, and/or they fail to display acceptable No Smoking signage.

Occupiers of enclosed licensed premises, or outdoor dining or drinking areas which are considered enclosed by the Act, where smoking occurs are liable to have committed an offence and face penalties of up to 5 penalty units ($537.15). Further, occupiers who fail to display adequate ‘No Smoking’ signage are liable to have committed an offence and face penalties of up to 5 penalty units ($537.15).

Customers - A person smoking in an enclosed premises or smoke-free is liable and may receive a fine. Persons smoking in enclosed licensed premises or outdoor dining or drinking areas considered to be enclosed by the Act occurs are liable to have committed an offence and face penalties of up to 5 penalty units ($537.15).

As the 1 July 2007 amendments to the Tobacco Act are yet to come into operation, the intricacies of their application are yet to be resolved.

Further information can be obtained online at the Department of Human Services website at www.health.vic.gov.au/tobaccoreforms  or alternatively, by contacting Russell Kennedy’s Local Government, Planning and Environment Team.