EME Productions No 1 Pty Ltd and Screen Australia [2010] AATA 839 (28 October 2010)

Last Updated: 1 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 839

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0843

GENERAL ADMINISTRATIVE DIVISION		)
	Re		EME Productions No. 1 Pty Ltd

Applicant

And

Screen Australia

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 28 October 2010

Place Sydney

Decision

The Tribunal directs paragraphs 1 and 2 of the summons to produce issued by the applicant against the respondent on 28 June 2010 to be set aside.

.................[sgd].............................
Senior Member

CATCHWORDS

INCOME TAX ASSESSMENT ACT – producer offset certificate – whether film a documentary

PRACTICE AND PROCEDURE – summons to produce documents – whether documents sought relevant to proceedings – consistency of decision-making – Tribunal not satisfied documents sought relevant to issue in the substantive proceedings – summons amended to delete references to documents sought

Administrative Appeals Tribunal Act 1975

Income Tax Assessment Act 1997, s 376.65

Confidential and Australian Prudential Regulation Authority [2005] AATA 1264

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dunstan and Comcare [2009] AATA 843; (2009) 113 ALD 176

KLGL, QCYY and Australian Prudential Regulation Authority [2008] AATA 452

Re Radge and Others and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711

REASONS FOR DECISION

28 October 2010	Senior Member Jill Toohey
Background

1. A function of Screen Australia is to administer the Producer Offset scheme which encourages the production of Australian feature films, television and other projects by means of tax incentives. If a film satisfies the criteria in s 376.65 of the Income Tax Assessment Act 1997 (ITA Act), Screen Australia must issue a producer offset certificate, the effect of which is to entitle the holder to a tax offset.
2. On 2 March 2010, EME Productions No 1 Pty Ltd (EME) lodged with the Tribunal an application for review of a determination by Screen Australia refusing a producer offset certificate for its film, Lush House, on the ground that it is not a documentary and, as a consequence, does not meet the applicable expenditure threshold in the ITA Act.
3. EME’s application for review raises a single issue: whether or not Lush House is a documentary for the purposes of s 376.65(6) of the ITA Act. The term is not defined in the ITA Act. Rather, Screen Australia relies on the definition in the Australian Communications and Media Authority (ACMA) publication, Documentary Guidelines: Interpretation of ‘documentary’ for the Australian Content Standard, issued by the Australian Broadcasting Authority on 16 December 2004 (the ACMA Guidelines).

Summons to produce documents

4. By summons issued on 28 June 2010, EME sought the production by Screen Australia of various documents including documents concerning two films in respect of which Screen Australia has issued producer offset certificates. The documents are described in the summons as:

(i) Any assessment report, written communication or determination, including reasons, made by the Producer Offset and Co-Production Committee (howsoever described) that Screen Australia issue a provisional and/or final certificate for the producer offset with respect to the program known as Is Your House Killing You?; and the certificate(s) issued.

(ii) Any assessment report, written communication or determination, including reasons, made by the Producer Offset and Co-Production Committee (howsoever described) that Screen Australia issue a provisional and/or final certificate for the producer offset with respect to the program known as Stress Busters; and the certificate(s) issued.

5. Documents produced by Screen Australia in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) show that Screen Australia considered Is Your House Killing You? and Stress Busters when determining EME’s application in respect of Lush House. They show that Screen Australia determined that Is Your House Killing You? and Stress Busters were both documentaries and issued a producer offset certificate in respect of each.
6. The same documents show that Screen Australia noted similarities between Lush House, and Is Your House Killing You? and Stress Busters, but concluded that Lush House fell into the excluded category of “infotainment” and was therefore not a documentary for the purposes of the producer offset.
7. The T documents further show that Screen Australia noted that its decision was “a borderline assessment as there are valid arguments for and against and precedents supporting the applicant’s position that Lush House is a documentary”.
8. Screen Australia submits that the documents sought are not relevant to the substantive proceedings and seeks to have the paragraphs referring to them deleted from the summons.

Submissions

9. EME’s parent company was also the producer of Is Your House Killing You?. EME contends that the similarities in structure and content between that production and Lush House are such that a proper application of the ACMA Guidelines warrants similar treatment of Lush House.
10. EME says that, at the heart of its case is an apprehension “that Screen Australia has acted inconsistently in this case”. It submits that, without the documents in question, it cannot provide “sufficient evidence to the Tribunal about consistency and decision-making”. [T8-9]
11. EME seeks the documents in question in order to ascertain how Screen Australia interpreted and applied the ACMA Guidelines in the other cases, and the process by which it determined each to be a documentary. It submits that the material is relevant because it goes to the manner in which the Tribunal should interpret and apply the policy and whether such application is consistent with other applications considered by Screen Australia.
12. EME submits that Screen Australia’s consideration of how other, similar productions were treated was a central part of Screen Australia’s decision-making process in respect of Lush House. While not asserting that a precedent, in any strict sense, was established by those decisions, EME says the way in which Screen Australia considered the other productions, and specifically the way in which it applied the ACMA Guidelines, are relevant considerations when determining what the preferable decision is in the present case.
13. Following the decision of Brennan J in (as he then was) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, EME contends that it is relevant for the Tribunal to consider whether its decision would be out of keeping with other decisions made by Screen Australia.
14. Screen Australia does not dispute the relevance of the guidelines and policies applied in making its determination and nor does it dispute the importance of consistent decision-making. However, it says, the documents sought cannot throw light on the issue to be determined in the substantive proceedings. It says its approach in other cases cannot alter the legal principles to be applied by the Tribunal in this case; it cannot affect the meaning of documentary or whether Lush House is properly characterised as such.

Consideration

15. Section 37(2) of the Administrative Appeals Tribunal Act 1975 provides:

Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice. (italics added)

16. The power in s 37(2) is clearly broad. There is no issue, however, that documents sought pursuant to a summons must be relevant to the substantive issues in the proceedings: Re Dunstan and Comcare [2009] AATA 843; (2009) 113 ALD 176 at 180.
17. Relevance means “adjectival relevance” in the sense that the documents have an apparent relevance to the issues in the principal proceedings: Re Radge and Others and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711 at 730 [63]. There must be more than a mere correlation between the documents in question and the subject matter of the review proceedings: they must be able to “throw light on the issue in the main case”: KLGL, QCYY and Australian Prudential Regulation Authority [2008] AATA 452 at [17].
18. As already noted, the issue in the substantive proceedings is whether or not Lush House is a documentary within the meaning of the ITA Act. In making that determination, the Tribunal engages in merits review; its task is not to determine whether or not Screen Australia fell into error. The documents sought must be capable of throwing light on whether or not, applying the relevant legislation, policy and Guidelines, Lush House is properly characterised as a documentary.
19. The principal relevance contended for by EME is that the documents sought will show whether or not Screen Australia has acted inconsistently and that this is a relevant consideration in determining the preferable decision in this case.
20. The first observation to be made is that this is not a case in which the Tribunal is called on to exercise discretion. The issue is the proper application of the definition – in this case found in policy – to a particular production. To the extent that a range of productions might meet the definition, there may be differences of opinion, but that is as far as it goes.
21. The importance of consistency in decision-making as an aspect of justice and fairness cannot be disputed. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J (as he then was) said, at 642:

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with accepted notions of justice.

22. His Honour continued, at 643:

One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy.

23. At 644-645 he said:

If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for [the Tribunal] in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.

24. In Confidential and Australian Prudential Regulation Authority [2005] AATA 1264, the President of the Tribunal, Justice Downes, considering an application to vary the terms of a summons requiring the respondent to produce documents, emphasised (at 21) the importance of consistency:

But to my mind there is another important reason why the material is relevant. What is relevant in proceedings before a tribunal conducting merits review of a decision is different to what is relevant in adversarial proceedings before a court. One matter which has always been thought to be important in administrative review is consistency in administrative decision-making. From the very earliest days of the Tribunal it has stressed the importance of consistency in administrative decision-making. A related topic to which it has also addressed attention is the taking into account of policy although not to the exclusion of individual justice. Policy cannot be taken into account unless it is known. Consistency cannot be achieved unless what there is to be consistent with is known.

25. Justice Downes cited Brennan J in Re Drake No 2 (above) and continued (at 23-24)

The question before me is not whether whatever decision was made so far as Mr X and the others are concerned should bind me in the decision I make. It is not whether I should follow it as some matter of obligation. It is merely whether I should be informed of it so that I can consider the important matter of consistency in administrative decision-making along with other matters when determining what should happen in this case. I might, for example, say that the decision in the case of Mr X was quite wrong, should be departed from and that for the future it would be more appropriate for the Authority to follow the process which led to the decision which was arrived at in the case before me.

There are many ways in which I might find relevance in the decision short of simply applying it to the extent to which it could be applied in the matter before me. The question is whether I should be aware of the position and nothing more. In my opinion it would be inappropriate for me knowing what I do about the association of the activities of the applicant and the involvement in them of Mr X to make a decision in this case in the face of a decision such as the decision of Brennan J relating to the importance of consistency, without at least knowing what the position was with Mr X and why.

26. The Tribunal has decided in other cases that it may properly be influenced by the requirements of consistent decision-making and it may well be relevant for it to take into account and apply appropriate practices and policies formulated by primary decision-makers: Re KLGL (above).
27. However, I am not persuaded that the documents sought in this case are capable of throwing light on the issue in question in a meaningful way. What they may show is how Screen Australia treated two other cases. If they do show that Screen Australia has acted inconsistently, that will not assist the Tribunal correctly to apply the policy in question in this case.
28. I accept that seeing productions which have been determined to be documentaries may assist the Tribunal’s understanding of documentaries generally, and promote clarity of thinking. Equally, it may assist to see examples of productions determined not to be documentaries.
29. However, while there is clearly utility in understanding the kinds of productions generally accepted as meeting the definition of documentary, I am not persuaded that the documents which expose Screen Australia’s deliberative processes in relation to particular productions will assist. Without seeing a much broader range of productions, the Tribunal cannot have any basis for believing it is deciding like cases consistently. Moreover, it cannot be assumed that the other cases were themselves decided correctly.

Conclusion

30. I am not satisfied that the documents described in paragraphs 1 and 2 of the summons issued on 28 June 2010 are relevant to the substantive proceedings. The Tribunal directs paragraphs 1 and 2 of the summons to produce issued by the applicant against the respondent on 28 June 2010 to be set aside.

I certify that the 30 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

Signed: ...................[sgd]...........................................................

Diana Weston Associate

Date of Hearing 13 August 2010
Date of Decision 28 October 2010

Solicitor for the Applicant Ms C Newman, Essential Media Pty Ltd

Counsel for the Applicant Mr S Beckett

Solicitor for the Respondent Ms E Grinston, Screen Australia

Counsel for the Applicant Mr R Cobden and Mr S Free