• Dispute resolution procedures
  • Penalties for non-compliance with the code
  • Case study: self-regulation in direct marketing




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    Member

    Non-Member

    Total

    January

    2

    0

    2

    February

    1

    0

    1

    March

    1

    1

    2

    April

    0

    1

    1

    May

    1

    0

    1

    June

    2

    0

    2

    July

    1

    2

    3

    August

    0

    6

    6

    September

    0

    1

    1

    October

    1

    0

    1

    November

    4

    0

    4

    December

    4

    0

    4

    TOTAL

    17

    11

    28 (+ 1 unknown)

    Percentage of total

    61

    39

    100

    Dispute resolution procedures


    If the member disputes the complaint, they are required to provide evidence of the steps they have undertaken in the matter to ensure compliance with the Code. If they are unable to do this within a reasonable period of time, the Code Compliance Officer is required to refer the complaint to the Code Authority for its consideration.

    When reviewing a complaint, the Code Authority can request the officer to investigate the complaint further, invite the member to attend a hearing regarding the alleged breach of the Code, or decide not to pursue the alleged breach further.

    Prior to a hearing, the member is able to make written and verbal submissions to the Code Authority and to inspect any documents to be considered by the Code Authority. At the hearing, members are also given reasonable opportunity to present their case either by appearing in person, or seeking legal representation.

    The CEO of the Code Authority is required to provide the member with a notice outlining the Authority’s decision within 14 days of the conclusion of the hearing. If the Authority decides there has been a breach of the Code, that notice must also outline the remedial action and/or sanctions considered appropriate by the Code Authority. The Authority is also required to advise the complainant in writing of the decision, and the reasons underlying that decision.


    Penalties for non-compliance with the code


    If the member fails to comply within 14 days of the receipt of the decision, the CEO of ADMA is required to call a special meeting of the Board of Directors to consider removing the member from the Association, subject to the recommendation of the Code Authority.

    The Code Authority is able to impose a range on sanctions on members that breach the Code, including:



    • formal apologies;

    • corrective advertising, or the withdrawal of offending advertisements or statements;

    • correction or deletion of relevant records and personal information;

    • refund or replacement of goods and services;

    • specific remedial action to correct the breach and avoid re-occurrence;

    • written undertakings that the breach will not be repeated;

    • recommendations to the CEO of ADMA to revoke membership.

    In addition, the Board of ADMA, but not the Code Authority, is able to:

    • order the payment of money, transfer of property or the delivery of goods;

    • suspend or cancel the membership of a member; or

    • issue a public admonition of the member.

    If a member breaches the Code on two or more occasions in a twelve month period, the Code Authority may recommend to the CEO of ADMA that membership be revoked.

    To ensure that the ADMA Code included suitable enforcement mechanisms an application was submitted to the ACCC for approval under Section 88.1 of the Trade Practices Act. The ACCC authorisation process enables organisations to obtain protection from legal action for conduct that would otherwise be at risk of contravening the competition provisions of the Trade Practices Act 1974. Anti-competitive conduct can only be authorised on public benefit grounds. Essentially, the process provides for the ACCC to decide that the public benefit outweighs the detriment caused by any possible anti-competitive elements of the Code. Authorisation was granted on 16 August 1999.

    The Code requires ADMA to publish in its Annual Report details of:


    • the number of complaints received by the Code compliance officer during the year;

    • the number of breaches established by the Code compliance officer and the Code Authority during the year;

    • an analysis of the enforcement action taken during that year;

    • a statistical analysis of complaints by company.



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    Case study: self-regulation in direct marketing

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