Smoking banned outside Victorian schools

25 September 2014

The Victorian Government has recently passed new laws to restrict smoking in and near all schools (government and non-government), kindergartens and childcare centres. The Tobacco Amendment Act 2014 (Vic) (Amendment Act) amends the Tobacco Act 1987 (Vic) (Act) by inserting new outdoor smoking bans into the Act, expanding on previous anti-smoking legislation. Although government schools are smoke-free zones under department regulations (and non-government schools are smoke-free by choice), these new laws will assist Principals to keep their schools smoke-fee. New financial penalties will act as a strong deterrent for those who skirt the previous laws around smoking in schools, or who might be habitual re-offenders. These laws will take effect sometime between now and 30 June 2015, as determined by the Minister for Health, Mary Wooldridge.

According to the Explanatory Memorandum, the reforms aim to limit exposure to second hand smoke, denormalise smoking, minimise littering and improve public amenity.

Smoke-free zones

In Victoria, smoking was already banned within 10 metres of outdoor public children’s playground equipment and other public areas used by children such as skate parks.

Now, the Victorian Parliament has legislated to further limit the places where people can smoke in proximity to children. Currently, the Act prohibits smoking in enclosed workplaces - which includes schools.

The new laws go much further by prohibiting smoking:

  • in an unenclosed area within school premises (the buildings and grounds of the school); and
  • at or within 4 metres of any part of a pedestrian access point to the school (e.g. the school gate).

The laws are aimed at parents, carers and other people aged over 18 who attend school premises. They don't apply to minors and students caught smoking in or near school premises. These incidents would be dealt with under a school's discipline procedures.

Schools must display a 'no smoking' sign, which must be displayed in a prominent position at a pedestrian access point to the school.

Similar prohibitions apply to kindergartens, childcare centres and indoor play centres. A person caught breaking these new laws can issued with an on-the-spot fine $147.61 or a fine up to $738 if court action is taken.

These laws ensure that schools will be 'smoke-free' environments. Some defences exist in relation to these new restrictions, including legalising certain smoking situations such as where a person may be passing a school gate and smoking. In that case, the person is unlikely to be caught by the new laws. However, according the Amendment Act Explanatory Statement, a parent who smokes while waiting at a school gate to collect their child would be caught.

Powers of inspection

The new Act also empowers authorities to enforce these outdoor smoking bans. The new Act allows an inspector to enter and inspect school premises without a warrant for the purposes of 'monitoring compliance' with or investigating a possible convention of the law prohibiting outdoor smoking. The inspector must obtain the school's consent before entry and the inspector must be accompanied by the school's representative whilst conducting an inspection.

General inspection powers to 'enter and search any premises' already exist under the Act (if an inspector reasonably believes that a person is committing an illegal smoking act), but the new Act will make it easier for school inspectors to police suspected or actual illegal smoking in outdoor spaces.

Other states and territories

Smoking in enclosed places is banned in all other states and territories - meaning schools in those jurisdictions are already subject to some level of anti-smoking restriction. Queensland already has laws under the Tobacco and Other Smoking Products Act 1998 (Qld) which prohibit smoking within 4 metres of the entrance to an enclosed place - meaning that school gates are already anti-smoking zones in that State. And other states have general restrictions in place regarding outdoor play areas, such as NSW under the Smoke-Free Environment Act 2000 (NSW). However, Victoria's new laws are the most extensive, and they apply expressly to schools. Schools across Australia are already smoke-free zones but now the Victorian Government is stepping in to help enforce their policies with legislation. It remains to be seen whether other States and Territories will also go so far as to make schools and their pedestrian access points smoke-free as well.

How does your school discourage smoking? Is this a problem in your school?


Xenia Hammon

Xenia joined CompliSpace in 2014 having previously worked as a lawyer in Melbourne for six years. Xenia was a lawyer at a leading Australian law firm in their corporate team before taking up the role of in-house Legal Advisor at an ASX listed company. Xenia has experience in Australian and international law on various areas of commercial practice. She is currently completing a Graduate Diploma of Applied Corporate Governance at the Governance Institute of Australia.