DSICA
Column – Our Hotel – August 2007
ABAC – World’s Best Regulatory Practice
By Gordon Broderick
The Alcohol Beverages Advertising Code (ABAC) has recently
come under fire from certain sectors. It is claimed that the ‘self-regulatory’ code
has failed and that government should step in and fully regulate alcohol advertising.
DSICA considers that these calls are misplaced, and that a greater understanding
of the system will show that the ABAC Scheme is indeed world class.
From the
outset it is important to realise that the regulatory model ABAC operates under
is best described as co-regulatory or quasi-regulatory rather than ‘self-regulatory’.
Following an exhaustive government review of the ABAC Scheme in 2004, a government
representative was appointed to the ABAC Management Committee. In addition, a
government nominated independent health expert was appointed to the ABAC Adjudication
Panel.
The government representative on ABAC’s Management Committee is
also represented on a new government committee, the Monitoring of Alcohol Advertising
Committee, which reports to the Ministerial Council on Drug Strategy (MCDS).
The MCDS comprises the health and police ministers from the Commonwealth, states
and territory governments.
The government representative on the ABAC Management
Committee is effectively the conduit for all governments across Australia to
raise their concerns about alcohol advertising, and while the government is represented
by a single member on the management committee, its role and influence should
not be underestimated. Co-regulatory models are generally preferred by governments
compared with full back letter regulation.
Co-regulatory models are associated
with flexibility, adaptability and industry support, while the government has
a role to ensure that community standards are being effectively met. Full government
regulation can be slow to adapt to industry needs, costly, cumbersome and can
led to a ‘them and us’ mentality, rather than a spirit of industry-government
partnership.
It is hardly surprising then that co-regulatory schemes are viewed
by governments an effective way to achieve community outcomes, while minimising
the regulatory burden imposed on industry and government.
In a liberal democracy
such as Australia, advertising represents of form of free speech. It is DSICA’s
view that any curtailment of this freedom should rest on rock solid ‘public
good’ reasons. The alcohol industry recognises the special nature of alcohol,
and accordingly in the early 1990s it established an advertising code. This has
evolved into the current ABAC Code. DSICA considers that the Code strikes an
appropriate balance between the rights of industry to advertise its products
and its obligations to the community to advertise responsibly.
A key strength
of the ABAC Scheme lies in its rigorous pre-vetting arrangements. Ads are submitted
at draft stage and assessed against the Code. Of the 795 advertisements pre-vetted
in 2006, 173 were rejected out right and 57 were accepted after modification.
The pre-vetting system prevented around one quarter of draft ads from being published
or broadcast. Given this rigour it is little wonder that relatively few ads receive
complaints.
The other key strength of the ABAC Scheme is the independent adjudication
of complaints, and here I stress ‘independence’. There are no alcohol
industry representatives on the Adjudication Panel. The current Chief adjudicator
is Professor The Honourable Michael Lavarch, former Commonwealth Government Attorney-General
and current Executive Dean of Law at Queensland University of Technology. The
integrity of the system rests on due process, as well as the judicial consideration
of complaints (examples of decisions can be viewed on the ABAC website at www.abac.org.au).
No regulatory system is perfect, but DSICA considers that the present system
of co-regulation maximises the benefits to the community, while minimising costs
to industry and government. In a pluralist multicultural society there is likely
to be diverse views on what is considered appropriate. What may be considered
humorous or ‘tongue in cheek’ by one person may be considered grossly
offence to another person. The ABAC Scheme seeks to bridge this divide by steering
a middle course based on what a ‘reasonable person’ would consider
appropriate. This is a difficult task for a regulatory system, but DSICA considers
that not only does the ABAC Scheme work well; it is in fact world class.
