in relation to application for authorisation A40077 lodged by the Australian Direct Marketing Association Ltd

[Converted to HTML from the ACCC's Word file by Robin Whittle 9 December 1998. . ]

The conference was held at the Commission’s Sydney office, on Thursday 26 November 1998 and was linked by video to the Commission’s Melbourne office where certain interested parties were in attendance. The conference commenced at approximately 10.10am.

A list of persons who attended the conference is attached as Appendix A.

Mr Allan Asher, a member of the Commission, opened the conference and welcomed attendees. He explained the conference procedures and asked for statements and comments from attendees. The main issues raised by parties in statements and by way of comment are outlined below.

Statements by Parties

The Australian Direct Marketing Association (ADMA)

ADMA had prepared a written statement dated 26 November 1998 that was presented to the conference by Mr Rob Edwards. Mr Edwards also spoke about some specific provisions in the ADMA Code of Practice that he submitted would give rise to public benefit. These provisions included:

In order to offset this anti-competitive detriment, Professor Greenleaf submitted that the content of the Code needed to be of the highest order. If these considerations did not fall within the definition of anti-competitive detriment contained in the Trade Practices Act, Professor Greenleaf said that he would formulate the same arguments on the ground of lack of public benefit.

Professor Greenleaf said that the Code appeared to advocate an opt-out approach to telemarketing but submitted that an opt-in procedure provides a much higher standard of consumer protection

Consumer Law Centre of Victoria (CLCV)

Ms Catriona Lowe stated that any public benefit arising from the provisions contained in the Code would not accrue unless it was properly enforced. She said that while she supported the changes suggested in the Commission’s draft determination, she believed that they did not go far enough. She submitted that:

whether the Officer was an ADMA employee.

With respect to an acceptable span of hours for receiving telemarketing calls, Ms Lowe suggested that the hours contained in the Tasmanian door to Door Trading Act may be more appropriate or that they should be the subject of further consultation.

Consumer Credit Legal Service (CCLS)

Ms Carolyn Bond made submissions with respect to the coverage of the ADMA Code and the cooling off period. Ms Bond said that if read strictly most sections of the Code only apply to direct marketers rather than participants in the direct marketing industry. She submitted that given the definition of direct marketer it was unclear whether all mail houses etc would be covered by the Code, it was Ms Bond’s views that all ADMA members should be required to comply with the Code. Ms Bond was also concerned that there was no requirement that a direct marketer require a supplier to comply with the Code.

Ms Bond stated that the cooling off period needed to be stated clearly. She was also concerned that the exemptions contained in the Code were too broad.

Australian Consumers Association (ACA)

The ACA provided a written submission dated 25 November 1998 that was presented to the conference by Ms Mara Bun.

Ms Bun also said that at the beginning of 1995 there were many consultations concerning the development of a Model Direct Marketing Code of Practice. When it became obvious that the Code would not be mandatory, the ACA was of the view that it must be changed substantially. This did not occur.

Comments by parties


Mr Connolly made the following comments with respect to the detail of the Code:

Privacy Commissioner

The Deputy Privacy Commissioner said that in their current form the NPPs were based on the OECD Principles and the Principles contained in the European Union Directive. He said that developing privacy principles in a self-regulatory environment was a difficult task and that the Commissioner intended to have a final version of the NPPs in place by the end of December.

XC and the ACS

Dr Clarke commented that the Code should be amended according to the following:

Professor Graham Greenleaf

Professor Greenleaf stated that DG.15 of the European Directives said that a data subject must be able to obtain compensation. Professor Greenleaf submitted that the Code must have teeth and that punitive damages should be included. He said that according to the guidelines contained in clauses 18 and 19 it was unlikely that the expulsion and named publication of members found in breach of the Code would be utilised extensively. He submitted that ADMA has not specified the remedial action available to the Code Authority as requested by the Commission and that the Code does not require ADMA members to observe the rulings of the Code Authority. Professor Greenleaf also stated that clause 9.3 of Part E needed to be clarified in line with the Privacy Commissioner’s submission.

Professor Greenleaf also submitted that equivalent protection for electronic commerce was insufficient. He said that for telemarketers to make 10,000 calls they would require a large number of people and equipment, in comparative terms it is much easier to send e-mails to 10,000 people.

Communications Law Centre (CLC)

Ms Julie Eisenberg said that she did not want to make a submission other than to say that the CLC supported further consultation.


Mr Nelthorpe said that Part F of the Code contained no time line for advising consumers about the result of their complaint and did not provide for appropriate redress for consumers.

Consumer Affairs Division, The Treasury

Mr John Riley said that ADMA had done what MCCA had asked them to do in adopting the Model Code and that the Model had been developed in consultation with a range of consumer bodies. He noted that both the Model Code and the ADMA Code provided for a process of review. Mr Riley said that the Treasury had released an exposure draft for Prescribing Codes and that this had not received a great deal of comment. He said that the comments of bodies present at the conference were encouraged. Mr Riley also submitted that while the electronic commerce provisions were an important issue, they should not hold back authorisation of the ADMA Code.


Mr Peter Ludemann made the following comments on behalf of ADMA:

Conference Closed

Mr Asher requested that participants provide any further submissions and information to the Commission within three weeks. He closed the conference at approximately 1.30 pm.