General advice about the requirements of the Act and how to apply it to workplaces, licensed premises and some public enclosed premises.
The Smokefree Environments and Regulated Products Act 1990 (the Act) requires all internal areas of workplaces, licensed premises and certain public enclosed areas to be smokefree and vapefree. The Act applies to schools, early childhood centres, retailers, licensed premises, sports clubs and all employers.
The internal areas of all of these premises are required to be smokefree and vapefree and smoking and vaping is only legally permitted in open areas. Employers/proprietors may choose to ban smoking in their open areas as well.
The Ministry of Health offers general advice about the requirements of the Act and how it is applied. Because the Ministry of Health is the lead enforcement agency, it is not able to provide advice on specific premises. Anyone wanting specific legal advice or legal interpretations of the Act should contact a lawyer or legal expert.
How the Act defines internal areas and open areas
Guidance for determining an internal area
The Act defines an ‘internal area’ as meaning 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 –
- a ceiling, roof, or similar overhead surface; and
- walls, sides, screens, or similar surfaces; and
- those openings.
An ‘open area’, in relation to any premises, means a part of the premises that is not an internal area.
Guidance for determining an open area
This guidance is intended as a tool to assist with deciding whether an area is internal or open area. As with all legislative interpretation, elements of this guidance may develop over time including as a result of Court rulings.
- In considering whether an area is internal or open, the following factors should be considered:
- Does the space have a roof? If not, then by definition it is an ‘open area’.
- Does the space have only one wall and a roof? If yes, then in all likelihood it will be an ‘open area’.
- If the space has 3 walls and a roof, it may not/probably will not meet the ‘open area’ definition.
- The most important question to ask is ‘what would a reasonable person say about this area?’ Would a reasonable person consider it to be ‘open’ or ‘internal’?
Other factors to also consider:
- permeability of walls/sides/screens/ceiling/roof/overhead surface will generally be assessedbased on their ratio of open/closed surfaces. However, the overall area will still need to pass 'what would a reasonable person say about this area' test.
All employers/business owners should satisfy themselves that any smoking area would meet the ‘reasonable person’ test outlined above.
If there is still some uncertainty as to whether a space is an open area contact a local Smokefree Enforcement Officer.