Independent Reviewer

As part of its ongoing commitment to international best practice in delivering the advertising self-regulation system in Australia, the Advertising Standards Bureau (ASB) introduced a review process for Advertising Standards Board (Board) decisions in April 2008.

The Hon Deirdre O’Connor was appointed as the first Independent Reviewer. Ms O’Connor is a lawyer who, in addition to many judicial appointments since being admitted the NSW Bar in 1980, was the first female appointed as a Justice of the Federal Court of Australia, President of the Administrative Appeals Tribunal and President of the Australian Industrial Relations Commission.

To ensure the operation of the review system in the event of Ms O’Connor’s absence, the ASB appointed Mr Mick Palmer, AO APM, as an alternate Independent Reviewer in September 2009.

Mr Palmer’s 33-year police career culminated in his appointment as Australian Federal Police Commissioner in 1994. Since retiring from his position in 2001 he has held a number of statutory positions and has presided over Commonwealth Government inquiries.

The review process

If people who originally complained about an advertisement or the advertiser are unhappy about a Board decision regarding a particular advertisement, they may ask for a review of the decision. These are the only people who may request a review.

If the Independent Reviewer decides to accept the request, the Independent Reviewer will undertake appropriate investigation and make a recommendation to the Board, stating whether the decision should be reviewed, amended or confirmed. The investigation will include an invitation from the Independent Reviewer for other parties in the case (ie either the complainant(s) whose views were considered by the Board or the advertiser) to comment on the submission provided by the party requesting the review.

During the review process, the original decision (and any subsequent remedial action or withdrawal of the advertisement) will stand. The ASB will not delay publication of the relevant decision pending the outcome of the review.

If the Independent Reviewer decides not to accept the request because they consider that it does not meet any of the required grounds, the person making the request will be informed.

The Board’s decision on reviewed cases is final. No further review is possible.

The ASB will inform all parties of the Board’s final decision. Decisions that are revised or amended following a review will be published on the ASB website.

Grounds for review

Reviews may be undertaken if the request is about at least one or all of the following grounds.

• Where new or additional relevant evidence which could have a significant bearing on the decision becomes available (an explanation of why it was not submitted previously will be required).
• Where there was a substantial flaw in the Board’s decision (decision clearly in error having regard to the provisions of the Code, or clearly made against the weight of evidence).
• Where there was a substantial flaw in the process by which the decision was made.

Since no review will proceed if the point at issue is the subject of legal action between anyone directly involved, requests for review should make plain that no such action is underway or contemplated. 

Requests for review

Requests for a review will be accepted only from the original complainant(s) or the relevant advertiser.

If the complaint was made by an organisation, an advertiser or an industry complainant, the request for review should be signed by a person who, in the opinion of the Independent Reviewer, has the right to bind that organisation.

Requests for a review must:

• be received within 10 business days of the date of the ASB’s final letter of notification of a decision and must relate to a decision taken by the Board within the previous month
• contain a full statement of the grounds
• be in writing
• be accompanied by relevant payment, and
• be addressed to

The cost of lodging a request for review is $500 for complainants, $1000 for complainants from Incorporated Associations and $2000 for advertisers. This payment must accompany a request for review and is not refundable if the Independent Reviewer decides that the request does not meet the grounds for review.

Requests for review received from people who were not original complainants, or in relation to a decision earlier than one month prior to the date of the request, will not be submitted to the Independent Reviewer and payment will be returned.