Industry codes

11.18 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.^[12]

11.19 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.^[13]

Existing industry codes

11.20 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.

11.21 These codes are discussed briefly below, with reference to their relationship to the classification requirements of the Classification Act.

11.22 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’.^[14]

11.23 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.^[15]

11.24 Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the content industry to comply with the code.^[16] Failure to comply with such a direction is an offence punishable by criminal, civil and administrative penalties.^[17] In addition, the ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.^[18]

11.25 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.

11.26 Section 81 of sch 7 prescribes matters that must be dealt with in industry codes for commercial content providers.^[19] 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.

11.27 Commercial television and subscription television codes of practice are less constrained by legislation. However, under s 123 of the Broadcasting Services Act, 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.^[20]

11.28 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.^[21]

11.29 There are, however, no statutory requirements relating to the content of the code’s classification provisions. This reflects that, as compared to commercial broadcasters, the ABC and SBS are public broadcasters subject to special governance and accountability arrangements.^[22] 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;^[23] and the SBS Television Classification Code states that it is ‘based on’ the Classification Board’s Classification Guidelines.^[24]

Classification and co-regulation

11.30 In the Issues Paper, the ALRC asked whether co-regulatory models under which industry itself is responsible for classifying content, and under which the government works with industry on a suitable code, would be more effective and practical than current arrangements.^[25]

11.31 Such an approach received considerable support, particularly from industry stakeholders,^[26] including those who cited the success of co-regulatory models of content regulation under the Broadcasting Services Act.^[27] Telstra, for example, stated that it believed that ‘the co-regulatory classification arrangements that are currently in operation on a range of different content distribution platforms have worked reasonably well to date and represent regulatory models worth building on in any future scheme’.^[28]

11.32 In relation to television specifically, Free TV Australia referred to the ‘very low level of complaint’ about television content given that nearly 80,000 hours of content are broadcast each year. Free TV Australia noted that, in 2011, only 834 classification complaints were received by members, with only six upheld; and, in 2009–10, the ACMA conducted 85 investigations into commercial television broadcasters, of which only 30 related to classification matters, with only 11 of those resulting in a breach finding.^[29]

11.33 Some community groups also saw benefit in co-regulatory approaches. The organisation Bravehearts stated that, while aware of some problems with industry classification, ‘the television industry appears to operate successfully under a Code of Conduct and this should be used as the model with severe penalties if breached’.^[30]

11.34 Other groups opposed co-regulatory approaches.^[31] The Australian Family Association Victoria, for example, observed that:

Given that the current classification scheme is regularly breached by content providers (and in particular, by publishers, distributors and retailers of restricted magazines), the situation is likely to be worse under a co-regulatory framework.^[32]

11.35 Similarly, Collective Shout asked ‘[w]hen distributors fail to respond to call-in notices under the current regulatory scheme, why should we believe they would comply with community standards if left to regulate themselves?’^[33]