The following is an outline of the ASA’s appeals process.
What decisions can be appealed?
The following types of decisions are able to be appealed under the ASA Rules:
- A Decision from the Complaints Board
- A Ruling from the Chair of the Complaints Board
How do I know if the decision I received can be appealed?
The type of decision you received is stated in the summary of your complaint. It will either say:
- Complaints Board Decision; or
- Chair’s Ruling
If you’re unsure what type of decision you received or whether you’re able to appeal the decision, please contact us.
How long do I have to make an appeal after I receive a decision?
Any party to a decision must notify the ASA of their intent to appeal in writing within 14 calendar days of receipt of the written decision. You can either send us an email or letter.
The substantive appeal application, which needs to include the information set out below, must be lodged with the ASA within 21 calendar days of receipt of the written decision.
What do I need to include in my appeal application?
There are five grounds for an appeal, which are outlined below. In your appeal application you need to state the following:
- The complaint number of the decision you are appealing (this can be found on the front page of the written decision).
- On what grounds you are appealing the decision (choosing one or more of the five options below that are grounds for an appeal).
- An explanation of why you are appealing the decision under those ground/s.
What are the grounds for an appeal?
The five grounds for appeal are:
a) The proper procedures have not been followed: This ground for appeal is likely to be met if the Secretariat or the Complaints Board have not followed the procedures set out in the ASA Rules prior to the complaint being adjudicated on. This could include parties to the complaint not being given an opportunity to respond, or the Board paper missing information provided by the parties. This ground for appeal may also be met if a Complaints Board member with a conflict of interest did not declare it and adjudicated on the complaint.
b) There is new evidence of sufficient substance to affect the decision: This ground for appeal is likely to be met if new evidence of sufficient substance to affect the decision is available. The Chairperson of the Appeal Boardwill assess the quality and relevance of the evidence provided and whether it amounts to new evidence. Is it evidence that was not previously available, that could materially affect the decision, or evidence that was available but not provided to the Complaints Board.
c) Evidence provided to the Complaints Board has been misinterpreted to the extent it has affected the decision: This ground for appeal is likely to be met if the appeal application details how the Board has misinterpreted evidence and how that has materially affected the decision. The Chairperson will assess the quality and relevance of the information provided and whether the decision has been affected.
d) The decision is against the weight of evidence: This ground for appeal is likely to be met if the appeal application shows the Board did not give appropriate weight to information that was available to it when making its determination and that has materially affected the decision.
e) It is in the interests of natural justice that the matter be reheard: This ground for appeal gives the Chairperson the option to rule that an appeal should be accepted for reasons not specifically listed in the other grounds for appeal and based on the justice of the case.
When is an appeal not accepted for consideration?
If the appeal doesn’t fall into any of the above five grounds stated. Please also note that disagreement with a decision is not grounds for appeal.
Who reviews appeal applications?
The Chairperson of the Appeal Board reviews all appeal applications. If the application does not meet any of the appeal grounds, the application will be declined, and a ruling issued to that effect.
If the Chairperson determines there are sufficient grounds to accept an appeal application, an accepted ruling will be issued and parties to the complaint will be invited to respond. In accepting an appeal application, the Chairperson has discretion to determine if the appeal will be referred to the Appeal Board or returned to the Complaints Board.
Broadly, it is accepted that appeals allow reconsideration of the merits of a decision and rehearing’s are about reconsidering whether there was a substantial miscarriage of justice.
The Chairperson may refer an appeal to the Complaints Board for a rehearing, for example, if the proper procedures have not been followed.
Appeal applications that establish grounds about evidence (new evidence, misinterpretation, weight of evidence) are likely to be referred to the Appeal Board.
What happens to the advertisement while the appeal is being considered?
If a complaint has been upheld, parties are requested to remove the advertisement. This is not affected by the appeal process. If a decision to uphold a complaint is overturned on appeal, the advertisement may be used again.
Pending determination of the appeal by the Appeal Board or a rehearing by the Complaints Board, the Chair of the Complaints Board may set aside the previous decision.
Where can I find out more information?
If you’re unsure whether you’re able to appeal a decision or you need more information, please contact us.
I wish to appeal an Appeal Board decision, what can I do?
As a body with a public decision-making function, decisions of the Complaints and Appeal Boards are subject to judicial review under the Judicial Review Procedure Act 2016.