Under Section 46(1) of the Tobacco and E-Cigarette Products Act 1997 smoking, including the use of e-cigarettes is banned in enclosed public places, workplaces or shared areas. This includes enclosed performance venues and enclosed film sets.
Smoking during an artistic performance in an enclosed area is prohibited unless an exemption is granted. The Minister (or delegate) may, by notice in writing exempt a person or class of persons, from this provision of the Act.
This legislation is designed to protect people from exposure to second hand smoke. For more information on the effects of smoking see the Risks of smoking
Under the Tobacco and E-Cigarette Products Act 1997, Section 4 - Interpretation:
in relation to a tobacco product—smoke, hold or otherwise have control over, an ignited tobacco product; or
in relation to an e-cigarette—inhale from, hold or otherwise have control over, an e-cigarette that is in use;
tobacco product means—
a cigar; or
cigarette or pipe tobacco; or
shisha tobacco, or
tobacco prepared for chewing or sucking; or
any other product, of a kind prescribed by regulation, that is comprised of or contains tobacco; or
any product (other than an e-cigarette product) that does not contain tobacco but is designed for smoking, and includes any packet, carton, shipper or other device in which any of the above is contained;’
e-cigarette means -
a device that is designed to generate or release an aerosol or vapour for inhalation by its user in a manner similar to the inhalation of smoke from an ignited tobacco product; or
a device of a kind declared by the Minister by notice in the Gazette to be an e-cigarette, but does not include a device of a kind excluded from the ambit of this definition by the regulations;
A place or area is enclosed if it is fully enclosed or is at least partially covered by a ceiling and has walls such that the total area of the ceiling and wall surfaces exceeds 70 per cent of the total notional ceiling and wall area.
Please consider if smoking (including using an e-cigarette) is an essential element to the performance. Applicants will be asked to explain why they consider smoking to be essential and provide details of alternatives to smoking that have been considered and why these are not regarded as satisfactory. The intention of the legislation is to provide protection from exposure to second hand smoke, the Act does not prevent the viewing of tobacco products or the portrayal of smoking (such as with an unlit cigarette).
Contractual obligations to present a performance as it was written may not be considered as sufficient reason to grant an exemption, as these arrangements cannot compel producers to contravene a law.
Applicants will also be asked to provide details of how the audience will be informed that smoking will be occurring during the performance, for example a warning will be included in advertising material and notices in foyer.
Applying for an exemption
Applications for exemption are required to be submitted at least 6 weeks prior to the date of the performance.
Applications received less than six weeks prior to the requested exemption period may be rejected due to insufficient time available to process the application.
All applicants are notified of the outcome of their application by letter or email.
An exemption is required to smoke herbal cigarettes in an enclosed area. Herbal cigarettes are defined under the Act as a tobacco product. If an exemption is granted, it may be a condition of the exemption that only herbal cigarette products are smoked.
An exemption is also required to use an electronic cigarette (e-cigarette) in an enclosed area.
Unlit tobacco products
It is not necessary to apply for an exemption if the tobacco product is not ignited, as smoking is not occurring.
The maximum fine for employers or business operators is $2,500. For a person smoking, in an enclosed public place or workplace the maximum penalty is $750. On-the-spot fines can also be issued.
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