Breaches of the national Tobacco Advertising Prohibition Act
As most violations and suspected violations of the Tobacco Advertising Prohibition Act 1992 (TAP Act) have not resulted in prosecution it is difficult to assess the extent to which the Act is being violated and enforced. As previously discussed in this chapter, annual reports on contraventions of the TAP Act contain limited information on prosecutions only. It is also uncommon for complaints to result in a prosecution. This is because the Department of Health and Ageing investigates every complaint and is usually able to have any potential breaches to the TAP Act removed within a short time frame.1 In 2005 and 2006 a total of 36 complaints were made about possible breaches to the TAP Act, all of which were investigated and either dropped or resolved without prosecution.2 The media often reports on possible violations to the TAP Act and is the primary source of information on complaints made to the Australian Government Department of Health and Ageing.
In 2002, the Australian Broadcasting Authority (ABA) found that three Nine network licensees had broadcast a tobacco advertisement in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (TAP Act), thereby breaching the conditions of their broadcasting licenses. Footage of the actor Russell Crowe smoking and displaying a pack of Marlboro cigarettes was shown in the '60 Minutes' program aired on 29 October 2000. The ABA found that airing of the footage amounted to a reckless broadcast of a tobacco advertisement under the TAP Act, contrary to the broadcasters' licence conditions under the Broadcasting Services Act 1992 (Cth). On review, the Federal Court affirmed the ABA's decision.3 i As the broadcasters had not previously breached this licence condition, the ABA did not prosecute or issue fines.
In 2001, Channel Ten was found to have broadcast a tobacco advertisement, in violation of the TAP Act, during a women's golf tournament. Channel Ten had shown signage for Philip Morris's Alpine cigarette brand and in interviewing the sales manager had made particular reference to the company's name. The network was not prosecuted but was advised to take further precautions during live interviews to avoid broadcasting tobacco advertisements and to provide staff with training on the provisions of the TAP Act.4
In April 2006 the Melbourne radio station 3AW was found to have broadcast three tobacco advertisements during an archival radio play broadcast. The station was held to be in breach of the TAP Act but was not prosecuted as the licensee was a first-time offender and agreed to: 'take steps to ensure that all future archival broadcasts are considered and reviewed prior to broadcasting, so that any potentially unlawful material is identified and removed from any further proposed broadcasts' (p9).5 In March 2007, print advertisements and billboards promoting a concert by US R & B singer–songwriter, Beyoncé (Knowles), were found to be potentially in breach of the TAP Act. The singer was shown posing with an old-fashioned cigarette holder—see http: