Enforcement

Complaints Received by ADMA

Any regulator, individual or consumer  who considers that an Member has breached a provision of the Code may lodge a complaint with ADMA, addressed as follows:

Code Compliance Officer
Australian Direct Marketing Association
GPO Box 3895
Sydney
New South Wales 2001

The complainant should set out the following details:

• His or her name and contact details
• The name and, if known, the contact details of the member
• A brief outline of the complaint
• If the complainant has previously made a complaint to the member, a brief  outline of how that complaint was dealt with by the member

Complaints Initiated by the Code Authority

The Code Authority may instigate investigation without receipt of a written complaint where it has reason to believe that a Member company is acting in breach of the Code of Practice provisions.

Responding to Complaints

a. No breach of the Code

If, after assessing a complaint, the Code compliance officer does not consider there has been a breach of the Code, the Code compliance officer shall write to the complainant informing him or her that, based on the information provided by the complainant, there does not appear to be a breach of the Code:

• If new information becomes available, the complainant may request that ADMA review the complaint again
• The complainant may request a review of the decision of the Code compliance officer by the Code Authority; and
• The response of ADMA does not preclude the complainant from pursuing other forms of redress such as lodging his or her complaint with a government regulatory authority

Upon receiving a request for a review of a decision that the complaint does not involve a breach of the Code, the Code compliance officer must refer the matter to the Code Authority for its review in accordance with Section I 12.Lack of jurisdiction

If, after assessing a complaint, the Code compliance officer concludes that:

• the complaint does not fall within the scope of the Code of Practice; or
• the complaint does not fall within the jurisdiction of the Code Authority and should be dealt with by a Government Regulatory body,

the Code Compliance Officer shall endeavour to direct the complainant to the appropriate regulatory or advisory body.

b. Potential breach of Code by non-Members

Where the Code compliance officer considers that an organisation who is not a Member of ADMA may have breached the Code, the Code compliance officer may write to the non-Member informing them of the existence of the Code and request compliance. The compliance officer may forward the complaint to the appropriate regulatory authority for further action. Potential breach of the Code by Member

Where the Code compliance officer considers that an ADMA Member may have breached the Code, the officer shall write to the ADMA Member outlining the particulars of the alleged misconduct. Members must provide a written response to the allegations within 14 days.

If within 14 days the ADMA Member provides clear evidence of acting in compliance with the Code or independently resolves the complaint, the Code compliance officer will take no further action and advise the complainant in writing why no further action will be taken, offering the complainant the option of requesting that the Code Authority review the complaint.

If the ADMA Member disputes the complaint they must show evidence of steps undertaken in the matter to comply with the Code. If the Member is not able to demonstrate compliance within a reasonable period of time, the Code compliance officer shall refer the complaint to the Code Authority for its consideration in accordance with Section I 12.

Upon reviewing the complaint, the Code Authority may:

• direct the Code compliance officer to investigate the complaint further and report the results of such investigation to the Code Authority
• cause the Code compliance officer to send a notice to the ADMA Member inviting the organisation to attend a hearing regarding the alleged breach of the Code by the Member. The notice should stipulate the place, the day and hour of the hearing and offer the ADMA Member the opportunity to attend the hearings by way of telephone conference; resolve not to further pursue the alleged breach.

c. Hearing before the Authority

Prior to or at the Code Authority hearing, the member may make written submissions to the Code Authority. Prior to the Code Authority hearing, the Member must be given a reasonable opportunity to inspect any documents that the Code Authority proposes to have regard to in reaching its decision on the allegations.

At the Code Authority hearing, the Member shall be given a reasonable opportunity to present its case. The Member may make verbal submissions in relation to the allegations. The Member may appear in person or may be represented by some other person. The Code Authority may, at its discretion, invite a complainant to participate in the Code Authority’s hearings through written and/or verbal submissions.

Within 14 days of the conclusion of the Code Authority hearing, the Chief Executive Officer shall send the member a notice containing the decision of the Code Authority. If the decision affirms the allegations, then the notice shall also include any remedial action and/or sanctions the Code Authority considers appropriate. The Code Authority must advise the complainant in writing of the decision of the Code Authority in relation to his or her complaint and provide a statement of any reasons the Code Authority has for making that decision.

The Member will have 14 days from receipt of the decision of the Code Authority to take the necessary steps to comply with the decision.

If within 14 days from receipt of the decision of the Code Authority the Member is   unable to demonstrate compliance with the decision, the CEO will 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.

If ADMA records indicate that the Member has breached the Code on two or more occasions in the preceding 12 months, the Code Authority may recommend to the CEO that ADMA membership be revoked.
If the member withdraws from ADMA membership at any point:

• During the consideration of a complaint by the Code Authority; or
• Subsequent to a determination being reached by the Code Authority rendering sanctions unenforceable

the Code Authority forward the complaint, including relevant documentation and the determination, to the appropriate regulatory authority for further action.

d. Sanctions for Breach

Where the Code Authority finds that a member has been in breach of the Code it may, subject to Section I 21, impose such sanctions as it considers appropriate including, without limiting the generality of its powers:

• Requiring a formal apology for breach
• Requiring corrective advertising or the withdrawal of offending advertisements or statements
• Requiring the correction or deletion of relevant records and personal information
• Recommending refund or replacement of goods or services where appropriate
• Requiring the Member to take specified remedial action to correct the breach and avoid re-occurrence
• Seeking a written undertaking from the member that the breach will not be repeated
• Recommending the relevant supply chain or media channel used by the member to communicate with its customers cease to supply and not cooperate with the member in respect of future direct marketing activities planned by the member until the breach is rectified
• Recommending to the CEO that membership be suspended or revoked

The ADMA Board of Directors may, on recommendation of the Code Authority, impose the following sanctions:

• Order the payment of money, the transfer of property (including goods) or the delivery of goods
• Suspend or cancel Membership of a member
• Issue a formal written admonishment to the non-compliant member, which may, where appropriate, be made public. This will include specifically informing the Membership that action has been taken. The non-compliant member will be given the opportunity to both see and comment on the statement prior to publication
• During suspension or after termination, the member must take immediate steps to cease using the ADMA logo and must not imply in any way that it is a member of the association.

On suspension or termination, the ADMA Board of Directors may notify any relevant industry bodies and/ or issue a public statement giving reasons for the suspension or expulsion. Non-Members

With regard to non-compliance by non-members, ADMA will inform the relevant government regulator of the non-compliant behaviour.

e. Charges

No fees or charges will be levied by ADMA with respect to the enforcement procedures. Complainants must bear their own costs with respect to making a complaint under this Code.

f. Publication of Enforcement Action

ADMA will publish in its Annual Report:

• The number of the complaints received by the Code compliance officer during that year
• The number of breaches established by the Code compliance officer and Code Authority during that year
• An analysis of the enforcement action taken during that year
• A statistical analysis of complaints by company