13.20 Codes underpinned by legislation are typical of co-regulation. Sometimes legislation sets out mandatory government standards, but provides that compliance with an industry code can be deemed to comply with those standards. Legislation may also provide for government-imposed arrangements in the event that industry does not meet its own arrangements.
13.21 The ACMA has stated that co-regulatory mechanisms can include legislation that:
- delegates the power to industry to regulate and enforce codes;
- enforces undertakings to comply with a code;
- does not require a code but has a reserve power to make a code mandatory;
- requires industry to have a code and, in its absence, government will impose a code or standard;
- prescribes a code as a regulation but the code only applies to those who subscribe to it—prescribed voluntary codes; and
- prescribes a code as a regulation to apply to all industry members—prescribed mandatory codes.
Codes and classification
13.22 The Broadcasting Services Act, the Australian Broadcasting Corporation Act 1983 (Cth) and the Special Broadcasting Service Act 1991 (Cth) provide varying mechanisms for the development of industry codes concerning the regulation of media content. These codes are discussed briefly below, with reference to their relationship to the classification requirements of the Classification Act.
13.23 In relation to online content, sch 7 of the Broadcasting Services Act states that the Australian Parliament ‘intends that bodies or associations that the ACMA is satisfied represent sections of the content industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to their content activities’.
13.24 Schedule 7 provides a process for registering codes when the ACMA is satisfied that:
- the body or association developing the code represents a particular section of the content industry;
- where the code deals with matters of substantial relevance to the community, the code provides appropriate community safeguards or, in other cases, deals with matters in an appropriate manner; and
- there has been adequate public and industry consultation.
13.25 Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the content industry to comply with the code. Failure to comply with such a direction is an offence punishable by criminal, civil and administrative penalties. In addition, the ACMA has power to make an industry standard if there are no industry codes or if an industry code is deficient.
13.26 The content of codes dealing with classification of online material is constrained by Classification Act concepts. Schedule 7 of the Broadcasting Services Act evinces an intention that industry codes provide that content be assessed according to Classification Act categories and criteria; and definitions of ‘prohibited content’ and ‘potential prohibited content’ in sch 7 reflect Classification Act categories.
13.27 Section 81 of sch 7 prescribes matters that must be dealt with in industry codes for commercial content providers. Notably, these include the engagement of trained content assessors and ensuring that unclassified content likely to be classified MA 15+, R 18+, X 18+ or RC by the Classification Board is not released unless a trained content assessor has assessed the content.
13.28 Commercial television and subscription television codes of practice are less constrained by classification legislation. However, these codes of practice must (for films) apply the film classification system set out in the Classification Act and, in the case of commercial television broadcasting, must provide specified time-zone restrictions for M and MA 15+ films.
13.29 Under the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act, the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) have a duty to develop codes of practice relating to ‘programming matters’ and to notify those codes to the ACMA.
13.30 There are, however, no statutory requirements relating to the content of the code’s classification provisions. This reflects that the ABC and SBS are public broadcasters subject to special governance and accountability arrangements. In theory, this gives the ABC and SBS flexibility to develop their own classification categories and procedures. In practice, however, the ABC Television Program Classification Standard states that it is ‘adapted from’ the Classification Board’s Classification Guidelines; and the SBS Television Classification Code states that it is ‘based on’ the Classification Board’s Classification Guidelines.
 Australian Government, Best Practice Regulation Handbook (2010), 35.
 Australian Communications and Media Authority, Optimal Conditions for Effective Self- and Co-regulatory Arrangements (2010), 5.
Broadcasting Services Act 1992 (Cth) sch 7 cl 80.
 Ibid sch 7 cl 85.
 Ibid sch 7 cl 89.
 See Ch 16.
Broadcasting Services Act 1992 (Cth) sch 7 cls 91–94.
 Other matters may also be dealt with: Ibid sch 7 cl 81(3). Such matters include complaint handling and promoting awareness of safety issues: sch 7 cl 82.
 For example, the Broadcasting Services Act permits commercial broadcast and subscription television industries to develop, in consultation with the ACMA, codes of practice that relate to ‘preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry’, ‘methods of ensuring that the protection of children from exposure to program material which may be harmful to them is a high priority’ and ‘methods of classifying programs that reflect community standards’: Ibid s 123.
 Ibid s 123.
Australian Broadcasting Corporation Act 1983 (Cth) s 8(e)(i); Special Broadcasting Service Act 1991 (Cth) s 10(1)(j).
 See, Australian Broadcasting Corporation Act 1983 (Cth) pt II; Special Broadcasting Service Act 1991 (Cth) pt 2.
 Australian Broadcasting Corporation, Editorial Policies: Television Program Classification—Associated Standard, 1.
 Special Broadcasting Service, Codes of Practice 2006: 4. Television Classification Code, [4.1].