8.79 The ALRC recommends that advertisements for content that must be classified should be treated in much the same way as advertisements for other products, services and media content. Advertisements for content that must be classified should continue to be subject to the existing voluntary advertising codes, with complaints being handled by the Advertising Standards Board. The new Act should not, therefore, need to contain additional, mandatory provisions targeting advertisements for media content that must be classified, such as those provided for in existing state and territory classification enforcement legislation.
8.80 However, the ALRC also recommends that advertisements for media content should be suitable for the audience likely to view the advertisement and that, in assessing suitability, content providers and the Advertising Standards Board should have regard to, among other things: the likely audience of the advertisement; the impact of the content in the advertisement; and the classification or likely classification of the advertised content.
8.81 Advertisements for content that must be classified—such as trailers for feature films—are currently expected to comply both with the mandatory laws under the national classification scheme and with industry codes, such as the Australian Association of National Advertisers’ (AANA) Code of Ethics. Section 3 of the code for commercial free-to-air television, for example, provides for program promotions and is intended to ensure that:
- no program classified higher than PG is promoted in programs directed mainly to children;
- higher classified programs are only to be promoted elsewhere in the G and PG viewing periods if the excerpts shown comply in every respect with the classification criteria of those viewing periods and with other the more stringent content restrictions specified [in the code].
8.82 Currently, under the National Classification Scheme, certain content that has been classified should only be shown to ‘commensurate audiences’. For example, the NSW classification enforcement Act provides that:
A person must not, during a program for the exhibition of a classified film (the feature film), publicly exhibit an advertisement for another film or a computer game unless the advertised film or advertised computer game has the same classification as (or has a lower classification than) the feature film.
8.83 This means, for example, that advertisements for MA 15+ films should not be shown with films classified G, PG or M. The classification scheme also provides for advertisements for unclassified films and computer games to be assessed by the Classification Board or an authorised advertising assessor to determine their likely classification; advertising is then restricted by this likely classification (for example, advertisements for films likely to be classified MA 15+ should not be shown before films classified G, PG or M).
8.84 The Advertising Standards Bureau submitted that its processes for assessing complaints about advertisements for movies and other classifiable content are ‘working effectively’. However, currently, this self-regulation operates in addition to the mandatory statutory requirements outlined above that govern the advertising of some classified content.
8.85 In the ALRC’s view, it is unnecessary to have advertisements for certain media content subject to greater regulation than other advertisements. Advertisements for films, television programs and computer games need not be subject to two sets of regulatory requirements (one voluntary, the other mandatory), and able to be reviewed by two separate boards (the Advertising Standards Board and the Classification Board).
8.86 Accordingly, the ALRC no longer considers it necessary for the new Act to contain a provision that mandates standards for advertisements for content that must be classified, as was proposed in the Discussion Paper. Instead, such standards should be set out in the existing industry codes.
8.87 This does not mean there should be a blanket exemption for advertisements in the definition of media content in the new Act. Rather, like all other media content, advertisements should be subject to the mandatory statutory requirement, recommended in Chapter 10, that content providers should take reasonable steps to restrict access to media content that is likely to be R 18+ or X 18+. In the ALRC’s view, it is important that all media content—including advertisements—should be subject to these statutory protections. This also means that there should be no need to have separate provisions in the new Act for publishing advertisements that have been or would be refused approval by the Classification Board, such as those now in the Classification Act and state and territory classification enforcement legislation.
8.88 Advertisements for media content that must be classified should, in the ALRC’s view, be suitable for their likely audience. In assessing suitability, the content provider—or if there is a complaint, the Advertising Standards Board—should have regard to the following matters, among others:
- the likely audience of the advertisement;
- the impact of the content in the advertisement; and
- the classification or likely classification of the advertised content.
8.89 This idea was largely supported in submissions. For example, the Advertising Standards Bureau submitted that it
already assesses the suitability of advertisements for classifiable material which includes movies, TV programs, DVDs, games and advertisements wherever they appear (including the internet and social media). The Board looks at the Australian Association of National Advertisers (AANA) Code of Ethics which requires the Standards Board to look at the Discrimination; Violence; Sex, Sexuality and Nudity; Language and Community Standards. In assessing suitability of the advertisements for media content the Standards Boards takes into account the likely audience of the advertisement; the impact of the content and the classification or likely classification of the advertisement.
8.90 A number of stakeholders argued that the classification or likely classification of content being advertised should not be the only matter relevant to determining the suitability of an advertisement. Free TV and the Motion Picture Distributors Association of Australia submitted that, in assessing the suitability of an advertisement, regard should be had to the content of the advertisement itself. The National Association of Cinema Operators submitted, by way of illustration, that ‘many comedies will carry an ultimate classification of M, but their trailers are very general in content and could not offend even a G or PG audience’.
8.91 The ALRC agrees that the content of the advertisement itself should also be a relevant consideration. An advertisement for a violent film might itself have a very low impact; and it is conceivable that an advertisement for a children’s film might have a higher impact than the film itself.
8.92 The AANA Code of Ethics does not, however, require consideration of the classification or likely classification of content being advertised. In the ALRC’s view, this is an important consideration that should be incorporated into the AANA’s Code of Ethics, particularly if the mandatory restrictions on advertisements in the National Classification Scheme were to be removed. FamilyVoice Australia submitted that it is ‘not desirable to be showing extracts from MA 15+ programs during C, P, G and PG programs’.
8.93 The ALRC recommends that in assessing the suitability of advertisements for media content, content providers and the Advertising Standards Board should have regard to the classification or likely classification of the advertised content. This is consistent with the principle that adult content should not be advertised to minors, and content that may be suitable for a person in their late teens should not be advertised to young children.
8.94 Relevant industry codes may usefully provide further guidance on advertisements for content that must be classified. For example, industry codes might provide that advertisements for R 18+ content should not be shown with content for minors, and advertisements for MA 15+ content should not be shown with content for young children.
8.95 Even with such measures in place, regulation is unlikely to entirely prevent minors from seeing advertisements for content that is not suitable for them, particularly if minors seek out the advertisement and use computers or media devices without activated filters or parental locks. Trailers for films and computer games are widely available on the internet, and are rarely restricted. As discussed further in Chapter 10, parental supervision, parental locks and internet filters are more likely to be effective in limiting or preventing minor’s access to adult content, including advertisements for adult content.
Recommendation 8–5 Advertisements for content that must be classified should continue to be subject to the existing voluntary advertising codes, with complaints being handled by the Advertising Standards Board. These voluntary codes should be amended to provide that, in assessing the suitability of an advertisement for media content that must be classified, the following matters should be considered:
(a) the likely audience of the advertisement;
(b) the impact of the content in the advertisement; and
(c) the classification or likely classification of the advertised content.
 The requirement for advertisements to feature classifications markings, however, should be maintained, and is discussed earlier in this chapter.
 Free TV Australia, Commercial Television Industry Code of Practice (2010) <http://www.freetv
.com.au/content_common/pg-code-of-practice.seo> at 1 September 2011, s 3.
Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 40(1).
Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009 cl 2.9.
 Advertising Standards Bureau, Submission CI 2487.
 Offences related to Prohibited content would also apply to advertisements: see Ch 12.
 For example, Classification (Publications, Films and Computer Games) Act 1995 (Cth) ss 29, 30; and Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 38.
 See, eg, Motion Picture Distributors Association of Australia, Submission CI 2513; Free TV Australia, Submission CI 2519; Arts Law Centre of Australia, Submission CI 2490; R Harvey, Submission CI 2467; Interactive Games and Entertainment Association, Submission CI 2470; D Henselin, Submission CI 2473.
 Advertising Standards Bureau, Submission CI 2487.
 Free TV Australia, Submission CI 2519; Motion Picture Distributors Association of Australia, Submission CI 2513.
 National Association of Cinema Operators–Australasia, Submission CI 2514.
FamilyVoice Australia, Submission CI 2509.
 The National Association of Cinema Operators suggested that trailers for films likely to be MA 15+ or R 18+ should continue to be shown only to commensurate audiences, even though they submitted that similar requirements for lower-level films should be relaxed: see National Association of Cinema Operators – Australasia, Submission CI 2514.