Australia: Full Federal Court upholds AAT decision that "Lush House" is a documentary

Last Updated: 17 March 2012
Most Read Contributor in Australia, September 2016

"Lush House" is a television series (Series) produced by EME Productions No.1 Pty Ltd (EME). Each episode of the Series follows the efforts of a different family or household to improve household management and reduce stress through implementing advice given by an expert in household management, Shannon Lush.

EME has described the Series as follows:

Life in our time-strapped, stressful 21st century world has become a juggling act at work and at home without enough hours in the day to accomplish everything that needs to be done. Managing our homes is often the last thing on our minds. And yet as our homes become more disorganised, our lives become more stressful and unproductive. In this series, domestic guru Shannon Lush gives homemakers the skills to transform their homes and thereby transform their lives.

EME applied to Screen Australia for certification that the Series qualifies for the Producer Offset under Division 376 of the Income Tax Assessment Act 1997 (Cth) (ITAA97). Screen Australia decided not to issue a certificate because Screen Australia considered that the Series is not a documentary.

Administrative Appeals Tribunal

EME applied to the Administrative Appeals Tribunal (AAT) to have the decision by Screen Australia set aside and substituted by a decision that the Series is entitled to a Producer Offset certificate. EME's application to the AAT was successful.

In its decision delivered on 24 June 2011 the AAT noted that the word "documentary" is not defined in ITAA97 and that the only assistance that can be gained as to its meaning is from the Explanatory Memorandum to the amending Act which added Division 376 to ITAA97 (Explanatory Memorandum), from guidelines issued by Screen Australia, and from guidelines concerning Australian content on television issued by the Australian Broadcasting Authority in 2004 (and which were subsequently adopted by its successor authority, the Australian Communications and Media Authority) (ACMA Guidelines).

The AAT noted also that that the word "documentary" is used in ITAA97 with its ordinary meaning and not with any technical or special meaning. As a result, evidence given to the AAT by two industry experts was determined to be of limited use. However, the AAT also expressed the view that the word "documentary" as used in Division 376 of ITAA97 is both "ambiguous and obscure" and reference to extrinsic materials such as the Explanatory Memorandum and the ACMA Guidelines to determine the meaning of the word is justified.

Nevertheless, the AAT itself decided the characteristics of a documentary and determined that Lush House satisfied those characteristics. The AAT said, at paragraphs 24 and 25 of its decision:

Lush House accordingly records facts. It does so creatively. Its purpose is to inform or educate, both with respect to the ordering of a household and household cleaning, and, more importantly, by giving advice about chemicals and showing how to remove stains, marks and smells. The program is light hearted. It contains some humour. It is a long way from the serious end of the scale. It is, however, more serious than frivolous and seems to us to be sufficiently towards the serious end of the scale to warrant the description "documentary". Lush House accordingly is qualified for a producer offset certificate as a documentary.

We have been able to arrive at a conclusion favourable to the applicant without detailed reference to other parts of the Act or to the extrinsic evidence, or to analogous delegated legislation and guidelines. It may, however, be useful to see what these matters show.

The AAT then considered the ACMA Guidelines and the Explanatory Memorandum and stated that those extrinsic materials did not alter the views and conclusions it had formed. Finally, the AAT considered the definition of "documentary" in the Macquarie Dictionary and the Oxford English Dictionary and stated that the latter was the most satisfactory of the definitions because it draws on two of the elements of a documentary which the AAT had referred to, being its factual nature and its intention to instruct or record.

Full Federal Court

Screen Australia appealed the decision of the AAT to the Full Federal Court (consisting of their Honours Chief Justice Keane and Justices Finn and Gilmour) which delivered its judgment on 7 March 2012.

The Court accepted that the decision of the AAT raised questions of law which were appropriate for the Court to deal with. The Court also stated that a difficulty with the AAT's decision was that the AAT's stated reasons "do not expressly disclose the provenance of the supposed ordinary meaning [of the word "documentary"] as found by it."

However, the Court went on to state that, although the AAT did not disclose the basis of the ordinary meaning of the word "documentary" which it had found, the AAT nevertheless had, in practise, considered dictionaries and the Explanatory Memorandum in forming its view. The Court stated that: "whilst the reasons of the Tribunal [ie. the AAT] state to the contrary we are persuaded ..... that the Tribunal, in arriving at the "ordinary" meaning of "documentary" did have regard....not merely to the Oxford Dictionary but also to the extrinsic material. Fairly read, the Tribunal's reasons are informed, at least in part, by the definition of "documentary" found in extrinsic material."

The Court further stated that it was unnecessary for the Court to itself express a view of the meaning of the word "documentary". All that the Court had to do was to conclude that no material error of law had been made by the AAT. The Court decided that the error made by the AAT was to misdescribe the process of construction of the word "documentary" it undertook, but that this error was not material to the AAT's decision and the decision should stand. Screen Australia's appeal to the Court was accordingly dismissed with costs.

Unfortunately, the decision of the Court does not assist in better understanding the meaning of the word "documentary" for the purposes of the Producer Offset. The Court, like the AAT, considered the use of the word "documentary" in Division 376 of ITAA97 to be both "obscure and ambiguous" and that its ordinary meaning cannot be distilled from the text of the legislation or the context in which the word is used. However, notwithstanding these difficulties of interpretation, the Court appears to take the view that any combination of a dictionary, the Explanatory Memorandum, and the ACMA Guidelines (perhaps among other extrinsic materials) may be referred to in determining what is a "documentary", but that none of those sources need necessarily be determinative.

Some uncertainty is therefore likely to continue to exist in determining whether a particular factual program is a documentary for the purposes of the Producer Offset. It is likely that this uncertainty will only be resolved by legislative amendment to Division 376 of ITAA97 to clarify the meaning of the word "documentary".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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