UPDATE 10 MAY 2012: The 2012/13 Budget Paper No 2 states "The Government will insert a definition of documentary, and related terms, into the legislation governing the producer offset. It will apply to films where principal photography commences on or after 1 July 2012."
The change to the definition will impact on the following discussion of the Lush House litigation.
What qualifies as a ‘documentary’ program under the Producer Offset legislation is getting attention in the argument as to whether the television series Lush House is a ‘documentary’ series that qualifies for the 20% Producer Offset.[1] That a documentary as ‘a creative treatment of actuality’ is a definition attributed to John Grierson, which has been applied by the Australian Communications and Media Authority (ACMA) for the purposes of determining what is ‘Australian content’ under the Broadcasting Services Act 1992 (Cth). On 24 June 2011 the Administrative Appeals Tribunal of Australia (AATA) delivered the Lush House decision on whether that television series, staring the domestic goddess Shannon Lush - Australia's cleaning and home hints guru - is a ‘documentary’ series that qualifies for the 20% Producer Offset under s. 376 of the Income Tax Assessment Act 1997 (Cth) (the ITAA).
The change to the definition will impact on the following discussion of the Lush House litigation.
What qualifies as a ‘documentary’ program under the Producer Offset legislation is getting attention in the argument as to whether the television series Lush House is a ‘documentary’ series that qualifies for the 20% Producer Offset.[1] That a documentary as ‘a creative treatment of actuality’ is a definition attributed to John Grierson, which has been applied by the Australian Communications and Media Authority (ACMA) for the purposes of determining what is ‘Australian content’ under the Broadcasting Services Act 1992 (Cth). On 24 June 2011 the Administrative Appeals Tribunal of Australia (AATA) delivered the Lush House decision on whether that television series, staring the domestic goddess Shannon Lush - Australia's cleaning and home hints guru - is a ‘documentary’ series that qualifies for the 20% Producer Offset under s. 376 of the Income Tax Assessment Act 1997 (Cth) (the ITAA).
The AATA started with a statement that “the characteristics of a documentary program is the presentation of factual events; with the object of recording or “documenting” those factual events; with the purpose of the recording being to “inform or educate”. A documentary program is understood to be a “creative treatment” of factual events, with that creativity being evident in the commentary or editing of the factual material.”[2]
The AATA then provided a definition that describes a documentary as being “a creative recording of facts for the purpose of informing or educating” which is “not frivolous”.[3]
What is a frivolous program?
The AATA go on to describe a spectrum from programs that inform or educate (the serious end of the scale) to those that do not inform or educate (the ‘frivolous’ end of this imaginary spectrum); [4] however the approach of the AATA fails to provide a bright line test to the boundary between the two. The importance of the boundary is a ‘documentary’ qualifies for Producer Offset funding, but something that is not a ‘documentary’ is ineligible.
If the determination of ineligibility is something that is a ‘frivolous’ program - how do you know when you are looking at one? For example, is a program like ‘Bush Mechanics’ (2001, Warlipri Media Association/AFC) excluded because it “marked by unbecoming levity” (as the Merriam Webster dictionary would define frivolous), in the humour apparent in the solutions presented to dealing with a flat tyre on the notorious Tanami Track.
The AATA consider that documentary must be a ‘serious’ approach to informing and educating, however the AATA accept that a documentary may use humour, but not so as to compromise the serious purpose of informing or educating. ‘Bush Mechanics’ would therefore appear to be an eligible documentary. But this example suggests that ‘frivolous’ has no real meaning as a criterion to determine what is an eligible documentary program. What the AATA propose seems ambiguous or obscure in the false dichotomy it creates between informing and educating and contrasting that with the absence of any serious purpose or value, using the concept of something being frivolous. The AATA test of a program that is ‘frivolous’ as being outside what is understood to a documentary program is ultimately a circular definition.
Category based analysis versus a statement of criteria or indicia
The decision of the ATTA provides a statement of criteria or indicia of a documentary program – rather than a category based analysis - to determine whether factual programming should qualifying for the 20% Producer Offset under s. 376 ITAA; however Screen Australia have subsequently announced that it has filed an appeal in the Federal Court of Australia.
The AATA stated that it is error in reasoning to adopt an approach of attempting to place a program in a category; such as considering whether the material is a ‘how to program, a ‘makeover program, or a ‘renovation program’ (or some other category of programming, such as those listed in the definition) and from that conclusion determine whether the material is a documentary. [5] [21] I suspect the appeal of Screen Australian will give attention to that proposition as being an error of reasoning.
UPDATE 7 MARCH 2012: The decision of
the Full Federal Court was that there was no error in the approach taken by the
AATA to interpreted what is meant by a “documentary”; the judges of Full
Federal Court took the view it was unnecessary to express their views of the
meaning of the word “documentary”.
Screen Australia had previously refused to certify the Lush House television series as qualifying for the 20% Producer Offset. Screen Australia made the decision that the television series Lush House was ineligible because the series fell into the excluded category of ‘infotainment’ in the definition applied in Screen Australia’s Guidelines, ‘Producer Offset for Screen Production inAustralia: Guidelines’:
“Documentary program means a program that is a creative treatment of actuality other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment program.”[6]
The AATA identified a problem with this definition is the uncertainty as to what material is ‘infotainment’. The AATA was of the opinion that the distinction between ‘documentary’ and ‘infotainment’ drawn in the definition might have been intended to emphasise the fact that documentaries will be at the informative or serious end of the scale.[7] That is, there is a possible spectrum of programming, with a dividing line between ‘documentary’ programming (that is eligible for Producer Offset certification) and programming that is not eligible for Producer Offset certification, such as “[i]f the program had had no, or very little, informative content”. [8]
Docu-drama
The AATA considered what is the impact of the events recorded being contrived, in that some of the activities recorded are directed by the makers of the program. The AATA identify the existence of contrivance of events in the program as not necessarily preventing a program from being a documentary unless “they are so extensive as to destroy the ability to describe the activity being filmed as genuine activity. The households in Lush House were not acting. Their lives really did involve the activities filmed, even if they were suggested by the film’s producers.” [9] Again the AATA describe a spectrum of programming from those that contain some elements of contrivance in how the events in reality television develop during the program to the introduction of a completely artificial situation.[10]
Eligibility for the 20% Producer Offset under s. 376 ITAA
The federal budget of May 2011 provided for a lower eligibility threshold for television productions. The Explanatory Memorandum for the necessary changes to the ITAA states that “A company eligible for the producer offset for a documentary must meet minimum expenditure thresholds of $500,000 and $250,000 per hour.”[11]
The appeal to the Federal Court should clarify how ‘documentary’ should be defined so as to determine who programs qualify for taxpayer funding under s. 376 ITAA and what is excluded from eligibility. Of course if Screen Australia does not win the appeal. The federal government can always legislated to redefine eligibility for ‘documentary’ programming if the treasury department wants to control the level of taxpayer funding that is approved by the Producer Offset Unit (POU) of Screen Australia.
UPDATE 7 MARCH 2012: The decision of
the Full Federal Court was that there was no error in the approach taken by the
AATA to interpreted what is meant by a “documentary”; the judges of Full
Federal Court took the view it was unnecessary to express their views of the
meaning of the word “documentary”.
Producer Equity Program
Screen Australia’s ‘Producer EquityProgram’ provides a direct payment of funds to producers of ‘eligible low-budget Australian documentaries’ equal to 20 per cent of the approved budget. Eligibility is tied the ACMA guidelines that were pulled apart by the AATA in the Lush House decision. However Screen Australia may well be able to maintain the integrity of the Producer Equity Program, as these funds for low-budget docos would appear to be part of the budget allocation to Screen Australia; that is, the funds are not part of producer offset funding under s. 376 ITAA - the effect of the AATA Lush House decision only relates to how ‘documentary’ should be defined in relation to producer offset funding under s. 376 ITAA .
[1] EME Productions No. 1 Pty Ltd and Screen Australia [2011] AATA 439 (24 June 2011)
[2] EME Productions No. 1, [13].
[3] EME Productions No. 1, [15].
[4] EME Productions No. 1, [14-15 & 24].
[5] EME Productions No. 1, [21].
[6] EME Productions No. 1, [27].
[7] EME Productions No. 1, [34].
[8] EME Productions No. 1, [35].
[9] EME Productions No. 1, [19].
[10] EME Productions No. 1, [26].
[11] Explanatory Memorandum [9.31 & 9.48]
