As featured in the August edition of the QHA Magazine
The Tobacco and Other Smoking Products Amendment Bill 2023 (the Bill) introduces notable changes to the Tobacco and Other Smoking Products Act 1998 (the Act) in the regulation of tobacco and smoking products. The changes are focused primarily to address public health concerns associated with smoking, and some of these changes include the regulations for designated outdoor smoking areas (DOSA). DOSA have proven to be a subject of debate and scrutiny, particularly by stakeholders advocating for the health and well-being of the general public.
The Bill introduces various changes including the extension of smoke-free areas. In particular it introduces a buffer zone near outdoor eating and drinking places, as well as changes to DOSAs, including alterations to the obligation of liquor licensees with DOSAs on their licensed premises.
The Act and dosa
The Act currently allows a liquor licensee to designate a part of the outdoor area of their licensed premises as an area in which drinking and smoking is allowed. The licensee must post a diagram or other notice showing the boundaries of that area and can designate more than one outdoor area at the premises.
Under the Act, the total area of the designated outdoor smoking area must:
- not be more than 50% of the whole licensed outdoor area of the licensed premises. For example, where your hotel premises has an outdoor area of 100m2 that is included as part of your licenced premises under your liquor licence, you cannot designate more than 50m2 of that outdoor area as a DOSA; and
- have buffers of a screen at least 2.1m high or with an area of 2m wide where customers are not permitted to eat, drink or smoke on its parameter where the DOSA is adjacent to other parts of the outdoor area accessible by customers.
The licensee of a licensed premises with a DOSA must ensure that the following is not provided in the DOSA:
- food or drink being served;
- food consumption;
- entertainment; and
- gaming machines.
A licensee is also required to ensure that no person is allowed to smoke anywhere other than a DOSA in its licensed venue. In addition, a licensee must have a smoking management plan, display notice in or near the DOSA about the smoking management plan, make the plan available for perusal upon request, and produce the plan for inspection. If the licensee does not comply with its obligations, penalties apply.
changes in the bill
Under the Bill, the following changes would apply:
- a licensee would need to ensure that buffers are at the perimeter of a DOSA wherever it is adjacent to other parts of the licensed premises (and not just when adjacent to outdoor areas of the premises);
- if the buffer to the DOSA is a door, it must stay closed whilst the DOSA is in use, unless customers or employees need to pass through;
- if the buffer to the DOSA is a window, it must stay closed whilst the DOSA is being used;
- there may not be a DOSA at the licensed venue if any part of the outdoor area is set aside as a smoking area under the new Section 26XA (which relates to a smoking area at outdoor eating or drinking places), however this new section does not apply to holders of a commercial hotel licence; and
- a licensee now has an obligation to ensure no children are in the DOSA, unless the child is merely walking through the DOSA.
The Bill also introduces stricter requirements for tobacco product vending machines in licensed premises and introduces a licensing scheme for wholesale and retail sellers of smoking products. Whilst the proposed amendments are yet to be enacted, it is important for licensees to be aware of the proposed changes and an opportunity to revisit their obligations in relation to DOSAs at their venues.