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STANDING COMMITTEE ON SOCIAL POLICY AND LEGAL AFFAIRS
04/04/2011
Regulation of billboard and outdoor advertising

ACTING CHAIR (Mrs Moylan) —I declare open this public hearing of the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into the regulation of billboard and outdoor advertising. I would like to acknowledge the traditional custodians of this land and pay respect to the elders both past and present and future. The committee also acknowledges the present Aboriginal and Torres Straight Islander people who now reside in this area and thank them for their continuing stewardship of the land. I would like to advise that we will be holding a public forum at 2.15pm today and any interested individual is welcome to make a statement to the inquiry detailing their views or experiences regarding outdoor advertising.

I now welcome representatives from the Advertising Standards Bureau and the Australian Association of National Advertisers to give evidence. Please note that these meetings are formal proceedings of the parliament. Everything said should be factual and honest and it can be considered a serious matter to attempt to mislead the committee. This hearing is open to the public and is being broadcast live and a transcript of what is said will be placed on the committee’s website. Do you wish to make a brief introductory statement before we proceed to questions?

Ms Mattila —I have a statement that Fiona and I have prepared. I would like to thank you for the opportunity to provide further information about a number of the other codes that the Advertising Standards Bureau administers. We are providing the following information to clarify comments made at the committee’s public hearing on 25 March. In total the Advertising Standards Bureau administers seven codes. As previously mentioned, the AANA Code of Ethics is the code which attracts the vast majority of complaints to the ASB. This code covers issues of discrimination, vilification, language, violence, sex, sexuality, nudity and health and safety. Three other AANA codes are administered by the ASB—the AANA Food and Beverages Advertising and Marketing Communications Code. I am hoping that Ms Bain from the AANA will be able to describe the key provisions of that code to this hearing today. Since January 2009, the board has considered complaints about four outdoor advertisements under the food and beverages code. Two cases: No. 59509, Nestle Smarties and No. 29309, Nestle Smarties, considered issues about truth and accuracy and were dismissed by the board.

Another case for a caffeine drink called cocaine, case No. 29609 from Wise Guys, was upheld on the basis that it breached section 2.1 of the food code for depicting material contrary to community standards, as it suggested that use of an illicit drug was acceptable. Most recently the board considered the advertisement for Coco Pops, case No. 45/11. This decision of the board was referred to at the 25 March hearing by the Coalition on Food  Advertising to Children, who we believe unfortunately may have misunderstood the board’s decision. This was a billboard campaign during the school holidays. The advertiser argued that the billboard was directed to the main grocery buyer with children aged 5 to 12. Under the food code and the advertising to children code, the board has to determine whether advertisements, firstly, ‘having regard to the theme, visuals and language used, are directed primarily to children’ and, secondly, are for a children’s product. The board determined that Coco Pops is a product targeted at and of principal appeal to children. The board also determined that the advertisement was directed to children, even though the advertiser argued that it was not. We particularly wish the committee to note this finding as it was presented to the committee last week that the board has said that the ad was not directed to children.

Although it was directed to children, the board found that the ad itself does not breach any of the rules of the food or children’s codes. In terms of the children’s code, which the advertisement was also considered under, the board determined that the advertisement was directed to children but again the advertisement did not breach any of the substantive provisions of the children’s code.

The ASB also administers the AANA Code for Advertising and Marketing Communications to Children. Apart from the Coco Pops advertisement which we just mentioned, there have been no complaints about outdoor advertisements directed to children since January 2009. For completeness we also note that there has been no complaints under the AANA environmental claims in the advertising and marketing code about outdoor advertising.

The ASB also has an important role working with ABAC, the Alcohol Beverages Advertising Code. To facilitate the complaints process for consumers, alcoholic beverages are subject to two advertising codes, the AANA Code of Ethics and the ABAC. The ASB accepts all complaints about alcohol advertising and all complaints about alcohol advertising are forwarded directly from ASB to ABAC. The ASB will only consider complaints about alcohol beverages if they raise an issue under the AANA Code of Ethics, for example if they include depictions of discrimination, sex, language or health and safety. Since 1 January 2009, six outdoor advertisements for alcohol have been considered by the ASB. Three were part of the same campaign by Independent Distillers Australia, and were considered under section 2.5, health and safety. The board determined that as no one was drinking in the ads, and the people in the advertisements all appeared to be of a legal drinking age, they did not breach the code; these were numbers 51510, 53610 and 811. They were, however, found to breach the ABAC and were removed.

Two advertisements raised issues around the use of sexuality in advertisements, Get Wines Direct, 46110, and Love and Rockets, 229/10. One of these, Love and Rockets, was upheld and the advertisement was taken down. One other advertisement raised issues under section 2.6 and section 2.3 but was dismissed; this was the ad for the Brown-Forman ‘Raise Your Jack’, No. 2811.

Since late 2009, the ASB has also administered on behalf of a number of quick service restaurants the quick service restaurant industry initiative for responsible advertising and marketing to children. Although this code applies to billboards and other outdoor advertising, there have been no complaints under this code in relation to outdoor advertising. Since early 2009 the ASB has administered the responsible children’s marketing initiative of the Australian food and beverage industry. This initiative does not apply to outdoor media. One complaint about outdoor advertising was received, the Kellogg’s Coco Pops advertisement. The board determined that the RCMI did not apply. However, as mentioned, it was considered under AANA’s food and children’s codes.

ACTING CHAIR —Ms Mattila, I am just concerned that if your verbal submission is too long we will run out of time for questions. You can submit it, that is okay, and it is fine to continue for another couple of minutes.

Ms Mattila —Since 2004 the ASB has also administered on behalf of the Federal Chamber of Automotive Industries the Voluntary Code of Practice for Motor Vehicle Advertising, and since January 2009 there have been no outdoor advertisements complained about. Finally, we would like to briefly clarify a couple of points brought before the committee last week about the independent review process. The independent review process was set up by the ASB in 2008; it is not a merits review. The independent reviewer will determine where new or additional relevant evidence that could have a significant bearing on the determination becomes available, where there was a substantial flaw in the board’s determination or where there was a substantial flaw in the process by which the determination was made. If the independent reviewer determines that there is a flaw in one or more of these matters, then the independent reviewer will ask the board to reconsider its decision taking into account the correct information or having remedied their process. Taking into account new information or having corrected a flaw in the process does not necessarily mean that the board’s decision will change. As previously advised, we have now reduced the cost of seeking independent review and will refund the application fee if the board amends its decision following the independent review.

ACTING CHAIR —Thank you very much for your submission. I have a question that perhaps you or Fiona can throw some light on. I noticed that the AANA Code of Ethics at 2.6 says:

Advertising or Marketing Communications shall not depict material contrary to Prevailing Community Standards on health and safety.

And then at 2.7 it says:

Advertising or  Marketing Communications for motor vehicles shall comply with the Federal Chamber of Automotive Industries Code of Practice relating to Advertising for Motor Vehicles and section 2.6 of this Code shall not apply to advertising or marketing communications to which the Federal Chamber of Automotive Industries Code of Practice applies.

Can you enlighten us on that?

Ms Mattila —I am sure that Fiona may be able to help you there.

Ms Jolly —The point of that is that the car code expressly deals with unsafe driving, excessive speed and unsafe driving practices. So what the provision says is that if there is an issue about car safety in an ad for cars then you would look at the provisions of the car code, not at the general health and safety clause. Basically it is almost like preventing double jeopardy for the car ads, so the car code is the proper code to look at for depictions of unsafe driving or unsafe driving practices. If we get a complaint, however, that in a car ad there happens to be someone doing something unsafe—for example, there was a car ad a couple of years ago where somebody was putting a vacuum cleaner to their face. That is not about how the car is depicted so we then look at it under the general health and safety provision in the Code of Ethics.

ACTING CHAIR —That brings me to the next question. The Australian Transport Safety Bureau conducted a survey in 2002 of more than 2,500 adults with the result showing that more than 56 per cent of those people agreed, and 41 per cent strongly agreed, that car advertising has too much emphasis on speed. That comes from the Road Safety in Australia ATSB 2004, page 298. Would you like to just comment on that? There seems to still be considerable community concern about the way in which motor vehicle advertising is depicted.

Ms Jolly —Sorry, Mrs Moylan, was the report you quoted from the 2002 report?

ACTING CHAIR —No, 2004.

Ms Jolly —Okay, so the car code came in in 2004 and it has had a couple of minor tweaks since then. I have been in this position since late 2005 and what you can see in the trends—and we can give you some more information—is that at the time the car code came in there was a very different type of motor vehicle advertising than there is today. We can show you some cases where there were quite a number of car ads about which complaints were upheld because car manufacturers were not necessarily advertising cars in a way that was consistent with the community standards. That situation has, I would say, completely reversed since 2004 and we have very few complaints about how motor vehicles are advertised.

Mr NEUMANN —Ms Jolly, you mentioned about tweaking of the car code. Was there not to be a review in 2005 thereafter in relation to that which you anticipated would be completed by mid 2006. Can you tell us about that?

Ms Jolly —The ASB, as I think I have explained before, administers the codes. It is not our role to develop or review the codes. The Federal Chamber of Automotive Industries has responsibility for reviewing the code. My understanding is that they are currently in the process of doing a review, but you would need to ask them for further information about that.

Mr NEUMANN —That is fine.

Ms ROWLAND —I would like to ask you a question about the alcohol code. You mentioned that there were six advertisements that were considered as part of a complaint and three of them were from the same campaign. What was the nature of those advertisements?

Ms Jolly —The three advertisements were for a new product called Three Kings. This product  has a beer version, a cider version and a spirits mixer version. The creative campaign showed three men in various scenarios. The complaints we received, which were forwarded on to ABAC and were also looked at by us, were that the ad breached the ABAC code by depicting actors who looked to be under 25. In fact, it was determined that the actors were under 25, which is why the ads breached the alcohol code and they were brought down.

ACTING CHAIR —Our committee chair has now arrived.

CHAIR (Mr Perrett) —Good morning, sorry for my lateness. Ms Rowland, did you have another question?

Ms ROWLAND —I have just asked one and I will defer to Ms Smyth.

Ms SMYTH —There are a few points in the Food and Beverages Advertising and Marketing Communications Code which refer to the board reaching its own view of what a reasonable child of a target audience would understand from communications. This arises at a few points throughout that instrument and in other instances, and I just wondered how an assessment is made of what a reasonable child would believe—bearing in mind that the cut-off, I think, is age 14. Obviously there are a range of children who would be of varying educational standards below that, of different genders and different cultural backgrounds. How is it that the board informs itself of those sorts of reasonable expectations?

Ms Jolly —As I think I have explained before, we have a board made up of 20 people who represent a whole range of different skills and experiences from the community. Most people on the board have children of their own and we now have people who have children from babies up to fully grown children and teenagers. So the board really draws on the different experiences that they have experienced with their children, and also with the children they come into contact with—their children’s friends. Everyone on the board is supposed to be there because they have links with the community. We really think that we get quite a good understanding of what children’s views are generally, based on the views that the board members bring to the table from their own life experiences. Also one member of our board is a trained psychologist in child and family psychology.

CHAIR —Is that member a practising child psychologist?

Ms Jolly —No, an academic psychologist who has just recently retired. I just make the point that in 2008 following the inquiry into the sexualisation of children, one of the issues that came out of that was discussion around whether there should be a child psychologist on the Advertising Standards Board. Back in 2008 I contacted the Australian Psychological Society and also their expert group, which is practitioners with an interest in children. They were unable to provide any practitioners who were willing to give their time to the board which was disappointing for us. We were lucky to find an academic from Canberra with experience in child and family psychology.

Ms SMYTH —Ms Jolly, there seems to be quite a lot of good information that is obtained through research undertaken by the ASB after advertising campaigns have gone through and after decisions have been made by the board and others. Bearing in mind the demographics of children, is there anything that is done after advertising to assess the impact of that advertising on children and to gauge community standards around that specifically?

Ms Jolly —At the moment there is nothing that the Advertising Standards Board or Bureau does. We are currently putting together our research program for the next couple of years. One of the issues that we are looking at is whether it is time to do some research into whether the board’s decisions are matching community standards around issues relating to children. We have not made a commitment to that at the moment. Obviously, as a small organisation the issue of resources needs to be addressed as well.

Mrs MOYLAN —Can I return for a moment to the FCAI code. We had some evidence in Sydney recently around concerns about motor vehicle advertising. One submission has indicated that they support the FCAI code itself but the interpretation of it in the ASB complaint determination reduces its validity. Would one or all of you like to make a comment about that?

Ms Jolly —I think the board’s decisions stand in good stead with logical scrutiny so I do not really have any comment to make.

Mr NEUMANN —Ms Jolly, there has been some criticism in some of the submissions about the turnaround time for decision making with respect to your organisation. I think some of the evidence is about four to six weeks for you to handle a complaint and then you write back and give about five days for the advertiser to respond. We would know, as politicians, that when we put up billboards for political advertising we book them for about a month or several months. If you book them for a month and there is a  complaint process that goes by, by the time that process is dealt with the advertising on that billboard may expire. Is there any possibility you can expedite the process?

Ms Jolly —You have raised a couple of issues there, Mr Neumann. One is that we certainly have the capacity to deal quickly with complaints about a billboard. We tend only to use that if we think that what is up is a problem and is likely to breach the code. Unfortunately I cannot tell you the advertiser because it is still a case in process, but we had an emergency meeting last week for just that situation—it was 48 hours to convene the board and the advertiser will be notified today. Certainly we have the capacity to get a quorum of the board together to look at campaigns that we think are likely to be a problem.

The other thing which I have mentioned before is that timeliness is a key priority for us. In our submission we detailed our performance indicators for turnaround time. We are working to get those time frames shorter in a greater percentage of cases within our KPIs. And also bear in mind that our timeliness does measure up well against other organisations performing work in this same sort of area. However, our view is that we want to have a turnaround time that is as fast as it can be, taking into account the due process for the advertiser and the need for the board to have read the submissions received. The absolute priority for us is making sure that we get billboards down once we have determined that they have breached the code and if it looks like something is going to breach the code we bring that to the board quickly.

CHAIR —Thank you, Ms Jolly. I take you to the AANA’s Code for Advertising and Marketing Communications to Children and paragraph 2.2, ‘Factual presentation’, which says that the advertising or marketing ‘must not mislead or deceive’, ‘must not be ambiguous’ and ‘must fairly represent, in a manner that is clearly understood by children’. With that in mind, I was wondering how the Big Five—McDonald’s, Hungry Jack’s, KFC, Domino’s and Pizza Hut—pitch advertisements accurately in terms of the high sugar content, the high fat content, the high salt content of their food. How do they accurately represent that to children? I do not watch a lot of their ads, but I do not recall any of those food qualities being mentioned in any of their advertisements.

Ms Jolly —Under the kids code, we would not expect and the code does not require an ad to state the key nutrient requirements. What (c)(i) there means in saying that it has to represent the ‘advertised product’ is that you need to be able to understand from the ad what is actually being sold, in terms of what is the product being sold, not necessarily the nutritional profile of the product. What we would do, though, if an ad made any comments about the nutritional profile or the ingredients is consider it under the AANA’s food code, which requires that where there are any comments made about the characteristics such as taste, size, content, nutritional health benefits then these have to be specific and accurate.

CHAIR —If the advertisement is represented as associating the food product with a healthy lifestyle and an active lifestyle, even if the nutritional content of the food is the opposite of that healthy lifestyle and healthy nutrition, could it be argued that that is being ambiguous and that is not actually the advertised product?

Ms Jolly —Ms Bain might want to make a comment, but first let me say that the codes do not prohibit advertising of foods that may be described as unhealthy foods or foods with high fat, sugar or salt content. The codes regulate how they can be advertised. The board has had a look at things such as an ad for a kid targeted meal from one of those restaurants you mentioned. If you can see shots of the product but you can also see kids running around playing outside, quite often in those ads you also see kids eating fruit or having water. As long as you can see there is some healthy lifestyle and a balanced diet, the board’s belief is that that meets the requirements of the code.

CHAIR —Just teasing that out, you also go on to say that the board has had decisions that said if you are advertising lingerie it would be acceptable for people to be semi-nude or wearing lingerie to be associated with the lingerie, but if you are advertising spanners people would not necessarily be in lingerie. It was almost a suggestion that what is being sold must fit in the context. I would have thought that a healthy lifestyle and these foods would be contradictory, that the product being sold does not match the context of the advertisement.

Ms Jolly —The board’s view is that, in terms of interpreting the codes, there is nothing that says that those products cannot be advertised.

CHAIR —But you would frown upon an ad for a spanner having a scantily clad male or female, I guess.

Ms Jolly —The board has not gone to the point of saying that you cannot use a bikini clad person to advertise a spanner, and the code does not prohibit that. That may be a position that the community wants the board and the codes to get to down the track. But at the moment, in terms of what the board will look at, whether the scantily clad person is relevant in any way to the product is part of the consideration but is not the determining factor. So the board will also look at the context in terms of where the ad is being shown. In terms of objectification of women, it will look at whether the woman is being depicted as an inanimate object to be looked at, rather than as a person who is part of the scene and may well be using a spanner. Relevance to the product is a factor, but is not the determining factor.

CHAIR —In the AANA’s Food and Beverages Advertising and Marketing Communications Code, on page 34, under the specific guidelines and under the heading of ‘nudity and sexual innuendo’, it makes the point that discreet portrayal of nudity and sexuality in an appropriate context is generally accepted by the board but less so on billboards. I am paraphrasing here. By contrast, blatant or gratuitous use of nudity or sexuality in contexts where it has little or no relevance to the product advertised or merely to gain attention is likely to cause offence and provoke complaints. It does not say should not be done, but I assume that provoking complaints or causing offence is something to be avoided.

Ms Jolly —And that is our intention with the determination summaries—to provide advertisers with an indication of where it might be better for them not to go in ads, because when they are subject to complaints it raises scrutiny for them but also raising the potential that their campaign will have to come down. Most advertisers do not wish to be the subject of complaints.

CHAIR —They do give a couple of examples there where the board has found it to be discrimination or excessively sexually explicit in the past. You can see the link I was trying to make there in terms of a product and the context in which it is sold: how foods high in salt, high in sugar, high in fat being wrapped in a message that is associated with sport might be confusing for a child under 14. I think there was some media in the weekend papers illustrating that, particularly so for young males and particularly so for a five-year-old, I assume. Do you know whether the Big Five—it is not the banking Four Pillars; it is the ‘five fillers’—actually do advertise in shows geared at children that are four, five and six? Do McDonald’s, Pizza Hut, Hungry Jack’s, KFC, Domino’s?

Ms Bain —Are we talking in terms of commercial free-to-air television?

CHAIR —Yes.

Ms Bain —There are two types of programs geared towards children on commercial free-to-air television. There is the pre-school programming for children not yet at school, and there is no advertising at all in those programs. Then there are the—

CHAIR —Why is that? Is that a government decision?

Ms Bain —It is a government decision; it is within the Children’s Television Standards, which is the licence of condition on the television broadcasters. That was put in place on the basis that children before primary school have trouble distinguishing between marketing and advertising messages and program content.

CHAIR —On TV?

Ms Bain —On TV.

CHAIR —But on billboards they can discern?

Ms Jolly —Billboards are not subject to the same classification system. Children’s Television Standards applies only to commercial free-to-air television; it does not apply to any other media. I was responding in terms of programs directed to children. Within the children’s programming there are limitations on the types of ads that can be shown. I do not have all the names in front of me but a lot of those fast-food restaurants, as you might refer to them, have signed up to the AFGC or the Quick Service Initiative and some of them have voluntarily decided not to advertise some of their products within those programs.

CHAIR —So the non pre-schooling times but the children’s time.

Ms Bain —The dedicated children’s programming times.

CHAIR —Okay.

Mrs MOYLAN —Going to alcohol advertising, the ABAC offers prevetting of advertisements. Is this available only to ABAC signatories and have any ABAC pre-vetted advertisements subsequently elicited any upheld complaints?

Ms Jolly —I would have to take part of that question on notice, Mrs Moylan. ABAC offer the prevetting service to all of the industry, not just their members. I know ABAC’s preference is that all members of the industry subject themselves to prevetting for alcohol advertising. There certainly have been some ads that have gone through the prevetting process and still been upheld, but I would have to take that on notice to get you those details.

Mrs MOYLAN —This question involves three parts. In the Code of Ethics, it has ‘complaints are not forwarded to the board if’ and at dot points 5, 6 and 9 it says it will not be forwarded if the complaint involves ‘public advocacy issues’, if the commercial communication complained about is ‘local advertising’ and then, at dot point 9, if the commercial communication complained about ‘has been withdrawn or discontinued before challenge’. I wonder if somebody would like to run us through what that actually means.

CHAIR —So the trivial, the local—

Mrs MOYLAN —Let’s start with the first one, that a complaint is not forwarded to the board if it involves public advocacy issues.

Ms Jolly —Public advocacy issues refers to community service announcements which are broadcast at no cost, so basically ads for not-for-profit organisations that are broadcast or published for free by the media. I think the Outdoor Media Association refer in their submission to a magazine that they do advertising campaigns for for free—I cannot remember the name of the group. Here it is basically not-for-profit group advertising. That is something that has been in place with us since the system was established, but it is under review whether we should continue to not look at those types of things.

With respect to local advertising, my apologies for that still being in our publication. Since the AANA Code of Ethics was amended in 2008 we do now look at local advertising. We tend to take a cut-off that the ad should have been seen by around 20,000 people, but if we get a complaint about a local ad we will forward it to the board if it raises an issue within the code.

In terms of the last point, on those withdrawn or discontinued prior to challenge—is that right?

Mrs MOYLAN —Yes, if the commercial complained about has been withdrawn or discontinued before the challenge.

Ms Jolly —We need our resources to be spent on current ads. This situation came from a research organisation doing a project who put in a series of complaints about ads that been broadcast or in print months and months before. We do not spend our resources looking at ad campaigns that are over or that are not current. If something has just finished we will usually consider that it is current and take it to the board anyway. But there is bit of discretion there for me in determining whether the campaign is still current and whether the ad, if it becomes a case and goes to the board, is going to be a useful precedent for the industry. Is it worth having adjudication on, even though the campaign has ended and is not going to be used again, because the board’s decision will send a message about whether the type of content is appropriate or not?

Mr NEUMANN —Ms Jolly, I want to run through the independent reviewer process if you do not mind, so that I can get a bit of information about that. I understand that the only person who can ask for a review of the ASB decision is the complainant. Is that correct?

Ms Jolly —No, anyone who has complained about an ad before it went to the board, or the advertiser, can ask for a review. So if there is one complainant and one advertiser—and there is always only one advertiser—then that one complainant is the only person who can ask for a review, or the advertiser. But if there is a case which had 100 complaints, any of those 100 people can ask for an independent review.

Mr NEUMANN —Only a complainer—is that right?

Ms Jolly —That is right, so someone who actually had an interest in the ad before it went to the board.

Mr NEUMANN —And there are three doors through which a complainant can get to the independent review: first, there is new evidence; secondly; there is a substantial flaw in the process; and, thirdly, a substantial flaw in the decision. Is that correct?

Ms Jolly —That is right.

Mr NEUMANN —What is the definition of ‘substantial flaw’?

Ms Jolly —The two independent reviewers that we have are both experienced administrative lawyers and Ms O’Connor is a former Federal Court judge. It is their decision about whether they believe there is a substantial flaw. They tend to apply a fairly low threshold—I am not sure if that will come across right. If they can see that there has been an error in the process then they will send it back to the board and ask the board to have another look, having corrected than process.

Mr NEUMANN —What sorts of errors or substantial flaws in the process are we talking about? Can you give us an example of something they have upheld as an error or a substantial flaw in the process?

Ms Jolly —Yes. In one of the cases that went to independent review last year, the complainant said that there was flaw in the process because the board took into account an arrangement between the ASB and the FCAI—it was a complaint under the car code. The complainant said there was a secret arrangement in place and that affected the board’s decision, that there should not have been a secret process. In that instance the independent reviewer agreed with the complainant. Let me just clarify the secret process. It was an error in my administration. An agreement between ASB and the car industry was that if someone is only complaining about the fact that an overseas car, a left-hand drive vehicle, is being driven on the right-hand side of the road—so the correct side for that vehicle—then we will not raise that as a case. If that car was driving dangerously as well as being driven on the European side of the road we would certainly look at it. But the mere fact that it is an ad from overseas which shows a car driving safely and on the appropriate side of the road for where the ad is filmed, then that is an issue where the board will not raise a case. We will not use our resources on that because our history has shown the board will find that that is not a depiction of unsafe driving. So FCAI and ASB had an arrangement and, to our great sorrow and misadministration, we did not have that process articulated and publicly available on our website. The complainant was aware of it, though.

Mr NEUMANN —Does one of those three triggers have to be ticked before the independent reviewer recommends to you to reconsider your decision?

Ms Jolly —Only one.

Mr NEUMANN —Are you considering reducing the time frame for the independent reviewer to decide? It is 10 days in the code.

Ms Jolly —We have just looked at that and we had about 30 submission. Half of the submissions said the process was too long, half said it was too short. In our view, a total time frame of 10 days is about right. That gives the independent reviewer time to look at all the information that is provided. That also includes the time that the advertiser or the complainants have to put in a response and it includes the time that the independent reviewer has to talk with any of the complainants or advertisers as well, if they choose to.

Mr NEUMANN —The independent reviewer does not really have any capacity to make a decision, just simply to recommend to you—a bit like one of those old writs of mandamus—that you actually reconsider the issue. Has there ever been any circumstance when you have considered it but you have not accepted the independent reviewer’s recommendation?

Ms Jolly —If the independent reviewer says to the board that there has been a problem or there is new evidence and the board should look at their decision again, the board always looks at the decision again.

Mr NEUMANN —If, for example, the independent reviewer has said, ‘You have got this wrong; there is a substantial flaw in this decision; you should not have decided it that way,’ are there any circumstances in which you have thumbed your nose at the independent reviewer and said, ‘You got that wrong. We’re deciding the same thing again.’

Ms Jolly —Again, I come back to the point that the independent review might find that there is a flaw in the process or that there is new evidence, so the board has to fix the process or look at the new evidence, but fixing the process does not mean that the board’s decision will necessarily be different. The statistics are in our submission, but certainly on at least one occasion the board has changed its decision after the independent review. But, if you use the example I just gave, where we had an agreement with FCAI that we would not look at certain issues, we fixed that. That information is publicly available. In the case that went back to the board, they had to look at that new information, but the decision still was that a left-hand drive car being driven safely on the right hand side of the road does not breach the car code.

Mr NEUMANN —Why does the recommendation of the independent reviewer remain confidential?

Ms Jolly —It does not remain confidential.

Mr NEUMANN —Until the board’s decision is published, it remains confidential. Why wouldn’t it be disclosed before the board’s decision to look at it again?

Ms Jolly —My understanding of our process is that the reviewer’s decision will be that the board’s decision is affirmed or that they want the board to look at it again. I do not believe there is any reason why we would not give that information to the advertiser and the complainant, the parties to the case.

Mr NEUMANN —Under the Code of Ethics, the recommendation remains confidential until your decision is published, so, if someone complains and they do not get told the outcome of the independent review, it goes back to you and it then remains secret until you reconsider the issue again. That is what the Code of Ethics says.

Ms Jolly —I am just trying to think through the situation that we have. Once we get a request for independent review, all the complainants and the advertiser are advised straightaway that there is a request for review. The independent reviewer then does their process and then says to us, ‘Fiona, you need the board to have a look at this again,’ or ‘No, I am happy with the board’s decision.’ If they are happy that there has been no flaw in the process then the advertiser and the complainants are informed immediately. If it goes back to the board, I do not see why we would not be telling the advertisers and complainants that that is the situation.

Mr NEUMANN —The Code of Ethics actually says what I just said, that the independent reviewer makes a recommendation to you, having listened to someone’s complaint that there is a substantial flaw, for example, in a decision. The recommendation of the independent reviewer is not told to the complainant, nor is it told to the complainee. It then goes back to you and you make a decision and then it is published later on, so that the person who makes the complaint is not actually told of the decision until you have looked at it again. Isn’t that a fundamental problem in the process?

Ms Jolly —The Code of Ethics does not have any procedural rules in it. The procedural rules are developed and administered by the bureau. The code just says the rules about the actual ads. But if we put a system in place where we do not tell people as a matter of course after the independent review—there is no reason why we would not; it would just be that we do not. If someone rang, we would definitely tell them now, and it is maybe—

Mr NEUMANN —In fact that is not correct. The code actually says it remains confidential until the board’s decision is published. So that information is held. That is what the code says.

Ms Jolly —The Code of Ethics does not say anything about processes, I am sorry. You need to refer me to what you are referring to.

CHAIR —Time is blowing out a little bit. I did want to ask something, but I think we have run out of time to ask it. It was about whether I could have in my workplace any billboard that is approved by the board and acceptable to the public or whether I might get in trouble with workplace and safety. We might give you some other questions on notice if that is okay. Unfortunately time is compressing, I do apologise for being late if that has meant that we have not been able to cover all the things that we would like. But thank you very much for appearing today.

Ms Jolly —Thank you, Mr Perrett, for letting us join in by phone. My apologies for not being able to be there in person.

CHAIR —That is okay. Thank you very much.

Mrs MOYLAN —I think Shayne’s question should be answered in writing.

CHAIR —We might put that in writing.

[10.58 am]