The Smoke-free Environments Act 1990 (the Act) requires all internal areas of workplaces, licensed premises and certain public enclosed premises to be smokefree.
The purpose of these provisions is to prevent the detrimental effect of other people's smoking on the health of people who do not wish to smoke there by preventing exposure to second-hand smoke.
The internal areas of all of these premises are required to be smokefree and smoking is only legally permitted in open areas. Employers/proprietors may choose to prohibit 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.
The Act defines both internal areas and open areas
Internal area, in relation to any premises or vehicle, 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 –
- a ceiling, roof, or similar overhead surface; and
- walls, sides, screens, or similar surfaces; and
- those openings.
Open area, in relation to any premises, means a part of the premises that is not an internal area.
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.
This guidance is intended to indicate how the Ministry of Health views the open area requirements of the Act. As with all legislative interpretation, elements of this guidance may develop over time including as a result of Court rulings.
Guidance for determining an ‘open area’
When the Ministry of Health is considering whether an area is internal or open, it looks at the following factors.
- 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 three 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 are:
- permeability of walls/sides/screens/ceiling/roof/overhead surface will generally be assessed based 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 the factors will be considered in the context of the purpose of the provision of the Act – ‘to prevent the detrimental effects of other people’s smoking on the health of people in workplaces, or in certain public enclosed areas, who do not smoke or do not wish to smoke there’.
All employers/proprietors 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 it is advisable to contact a local Smokefree Enforcement Officer.
Internal Area – update on public consultation
Some have concerns that the status quo for defining an internal area does not provide clarity for business owners or enforcement officers to determine whether a space within a premise is an open area (where smoking and vaping are permitted) or an internal area (where smoking and vaping are prohibited). In addition, when this issue has been tested in court, judgments have been inconsistent.
In early 2021, the Ministry consulted on four potential options for the definition of an internal area:
- the status quo
- defining an internal area as an area completely or partially enclosed with a roof or overhead structure of any kind, whether permanent or temporary
- prescribing the maximum percentage of roof/wall coverage for any premise or structure (for example, a space could be defined as an internal area if the total area of the roof and walls covered 50 percent of the perimeter)
- establishing an assessment tool that considers air quality (an earlier model was found by the High Court to be inconsistent with the statutory definition of an open area, where smoking is allowed).
The Ministry stated its preference was option b, as it would be relatively simple to understand and administer. However, consultation highlighted the Ministry’s preferred option could change the current policy (by extending the scope of an internal area). Amending a definition in regulations should only seek to clarify a current policy, not change it. Therefore, we recommended to the Government that the definition should not be changed at this time, and further work and targeted consultation is needed to determine a preferred option.