Codes and co-regulation

13.31 In the Discussion Paper, the ALRC proposed that the Classification of Media Content Act should provide for the development of ‘industry classification codes of practice by sections of industry involved in the production and distribution of media content’.[26]

13.32 Stakeholders expressed a range of opinions on the desirability of codes as part of a new classification scheme. Codes received broad support from industry stakeholders in particular,[27] in part due to generally positive experiences of television and online codes under the Broadcasting Services Act. Telstra, for example, stated that:

The use of industry codes allows for the incorporation of technical expertise and detail in the implementation of classification processes, whilst avoiding the inflexibility that would result from an attempt to impose this level of detail through direct regulation.[28]

13.33 Free TV Australia (Free TV) also supported the ALRC’s proposals concerning codes. It stated that this aspect of the proposed new classification scheme ‘essentially expands the co-regulatory system that currently applies to commercial free-to-air television broadcasters to other sectors’, which it considered to be ‘working well’.[29]

13.34 Foxtel agreed that any new Act should ‘confirm the role of co-regulation as a central tenet’ of the classification framework, including

provisions facilitating the development of industry codes of practice and industry complaints-handling, and the accreditation of industry classifiers. Where the new Act provides statutory criteria for matters such as classification categories and access restrictions, it should also provide, as proposed by the ALRC, for industry-specific guidance on these matters to be given in industry codes of practice.[30]

13.35 In contrast, some stakeholders expressed concern about co-regulatory approaches to classification, including in relation to existing television classification codes.[31] The Australian Council on Children and the Media (ACCM) referred to the complexity and ‘tendency to liberalise’ of commercial broadcasting codes:

Overall our experience of industry codes is that they operate mostly as public relations for the industry in question. They make it look like they are doing something, but in fact their main function is to make the industry look better. Industries do not voluntarily stop doing things they otherwise want to do—especially things that make them money … If limits are needed on industry in the public interest, those limits should be imposed by public institutions.[32]

13.36 The Commissioner for Children and Young People (WA) expressed concern about a classification scheme incorporating a co-regulatory approach, including because ‘industry codes of practice and self-regulation currently in place, for example, in advertising and print media, are not sufficient to ensure the safety, protection and wellbeing of children and young people’.[33]

[26] Australian Law Reform Commission, National Classification Scheme Review, ALRC Discussion Paper 77 (2011), Proposal 11–1.

[27] For example, Free TV Australia, Submission CI 2519; Motion Picture Distributors Association of Australia, Submission CI 2513; Foxtel, Submission CI 2487; Interactive Games and Entertainment Association, Submission CI 2470; Telstra, Submission CI 2469. Other stakeholders who expressed support for codes included Arts Law Centre of Australia, Submission CI 2490; Collective Shout, Submission CI 2477.

[28] Telstra, Submission CI 2469.

[29] Free TV Australia, Submission CI 2519. In this context, while there were 2816 complaints made under the Commercial Television Industry Code of Practice in the 2010–11 financial year, only 11% of these complaints concerned classification of content: Free TV Australia, Commercial Television Industry Code of Practice: Annual Code Complaints Report 2010-11.

[30] Foxtel, Submission CI 2487.

[31] I Graham, Submission CI 2507; Australian Council on Children and the Media, Submission CI 2495; Commissioner for Children and Young People Western Australia, Submission CI 2480; Lin, Submission CI 2476.

[32] Australian Council on Children and the Media, Submission CI 2495.

[33] Commissioner for Children and Young People Western Australia, Submission CI 2480.