Last updated: January 19, 2024
Key Terms
Second Hand Smoke (or similar term)
The law does not contain a definition of “second hand smoke.” However, a definition is not strictly necessary because the law provides that “smoking is prohibited” in places, rather than, for example, “no person shall be exposed to second hand smoke.”
The smoke emitted from the burning end of a cigarette or from other tobacco products usually in combination with the smoke exhaled by the smoker. (FCTC Art. 8 Guidelines para. 15)
Smoking or Smoke
"To smoke" —
a) means to smoke, hold, or otherwise have control over an ignited tobacco product, weed, or plant; and
b) includes to smoke, hold, or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it; but
c) does not include to hold or have control over an ignited product or thing customarily used as incense.
The definition of “to smoke” in the law aligns with the definition of “smoke” or “smoking” provided in the FCTC Art. 8 Guidelines.
Being in possession or control of a lit tobacco product regardless of whether the smoke is being actively inhaled or exhaled. (FCTC Art. 8 Guidelines para. 17)
Public Place
The law does not contain a definition of “public place.” However, a definition is not strictly necessary because the law prohibits smoking in “workplaces,” rather than “workplaces” and “public places.” The definition of “workplace” is expansive and covers virtually all indoor public places.
An area, permanent or temporary, that is accessible to the general public or for collective use by the general public regardless of ownership or right of access. (FCTC Art. 8 Guidelines para. 18)
Workplace
“Workplace”, in relation to an employer,—
(a) means an area that is—
(i) an internal area, within or on a building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or
(ii) an internal area, within or on a ship (being a ship to which section 10 applies), an aircraft, or a train, owned, leased, or otherwise operated by the employer, usually frequented by employees or volunteers during the course of their employment; and
(b) includes a cafeteria, corridor, lift, lobby, stairwell, toilet, washroom, or other common internal area attached to, forming part of, or used in conjunction with a workplace within the meaning of paragraph (a); and
(c) includes an internal area within or on a vehicle that—
(i) is not an aircraft, a ship, or a train; but
(ii) is provided by the employer and normally used by employees or volunteers; and
(d) includes an operating taxi; but
(e) does not include—
(i) a motel, or a bedroom or suite in a hotel; or
(ii) a cabin or suite, for the time being assigned to a passenger or passengers, on a ship; or
(iii) a sleeping compartment, for the time being assigned to a passenger or passengers, on a train; or
(iv) a cabin, for the time being assigned to only 1 employee or volunteer, or to the master or owner, on a ship; or
(v) a sleeping compartment, for the time being assigned to only 1 employee or volunteer, on a train; or
(vi) [repealed]; or
(vii) a dwellinghouse occupied by the employer.
The definition of “workplace” exempts accommodation such as hotel guestrooms and employee and passenger accommodation in ships. This functions to exempt these types of areas from the smoking ban. Although the definition of “workplace” provided in the law closely aligns to the definition of “workplace” contained in the FCTC Art. 8 Guidelines, this exemption deviates from the definition in the FCTC Art. 8 Guidelines and the intent of FCTC Art. 8. To fully align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should provide a definition of “workplace” in accordance with the definition provided in the FCTC Art. 8 Guidelines, with no exemptions.
An area, permanent or temporary, in which a person performs duties of employment or work, regardless of whether the work is done for compensation or on a voluntary basis, and includes private offices, common areas and any other area which generally is used or frequented during the course of employment or work. (FCTC Art. 8 Guidelines para. 20)
Public Transport
"Large passenger service vehicle," "small passenger service," and "small passenger service vehicle" have the same meanings as in section 2(1) of the Land Transport Act 1998.
The Land Transport Act 1998 provides the following definitions:
"Large passenger service vehicle" means any passenger service vehicle that is designed or adapted to carry more than 12 persons (including the driver).
"Small passenger service" means a passenger service provided in—
(a) a small passenger service vehicle; or
(b) a
vehicle designed or adapted to carry 12 or fewer persons (including the
driver) that is provided by one of the passengers being carried; or
(c) a
vehicle designed or adapted to carry 12 or fewer persons (including the
driver) that is being used in a facilitated cost-sharing arrangement.
"Small passenger service vehicle" means any passenger service vehicle that is designed or adapted to carry 12 or fewer persons (including the driver.
The definitions of “passenger service vehicle,” "small passenger service," and “small passenger service vehicle” together align with the definition of “public transport” provided in the FCTC Art. 8 Guidelines.
Any vehicle used for the carriage of members of the public, usually for reward or commercial gain. (FCTC Art. 8 Guidelines para. 22)
Indoor or Enclosed
“Internal area”, in relation to any premises or vehicle,—
(a) means the area determined as an internal area in accordance with regulations made under section 81(3); but
(b) if
those regulations are not in force, means an area within or on the
premises or vehicle that, when all its doors, windows, and other
closeable openings are closed, is completely or substantially enclosed
by—
(i) a ceiling, roof, or similar overhead surface; and
(ii) walls, sides, screens, or other similar surfaces; and
(iii) those openings.
The definition of “internal area” contained in the law does not align with the definition of “indoor” or “enclosed” provided in the FCTC Art. 8 Guidelines. The FCTC Art. 8 Guidelines define an area as “enclosed” if it has a roof or one or more walls; whereas an area with a roof and one wall would not necessarily be considered an “internal area” under the law because it is not completely or substantially enclosed. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should provide a definition of “internal area” or “enclosed” or “indoor” in accordance with the definition of enclosed or indoor provided in the FCTC Art. 8 Guidelines.
Any space covered by a roof or enclosed by one or more walls or sides, regardless of the type of material used for the roof, walls or sides, and regardless of whether the structure is permanent or temporary. (FCTC Art. 8 Guidelines para. 19)
Tobacco Product
“Tobacco product” means any product manufactured from tobacco and intended for use by smoking, inhalation, or mastication; and includes nasal and oral snuff; but does not include any medicine (being a medicine in respect of which there is in force a consent or provisional consent given under section 20 or section 23 of the Medicines Act 1981) that is sold or supplied wholly or principally for use as an aid in giving up smoking.
The definition of “tobacco product” contained in the law aligns with the definition of “tobacco product” provided in FCTC Art. 1(f).
Any product entirely or partly made of the leaf tobacco as a raw material which is manufactured to be used for smoking, sucking, chewing, or snuffing. (FCTC Art. 1(f))
Licensed Premises
“Licensed premises” means any premises, or any part of any premises, on which alcohol is sold pursuant to a licence under the Sale and Supply of Alcohol Act 2012.
The definition of “licensed premises” is significant because smoking is prohibited in indoor areas of licensed premises.
Dedicated Room
“Dedicated room” means an internal area in a hospital care institution, a residential disability care institution, or a rest home that is used solely to—
(a) enable patients or residents who smoke to smoke, or to socialise with each other in a place where smoking is permitted; or
(b) enable patients or residents who vape to vape, or to socialise with each other in a place where vaping is permitted.
The definition of "dedicated room" is significant because smoking is allowed in dedicated rooms in specified facilities.
