EME Productions No. 1 Pty Ltd and Screen Australia [2011] AATA 439 (24 June 2011)

Last Updated: 24 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 439

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0843

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

Applicant

And

Screen Australia

Respondent

DECISION

Tribunal

Justice Downes, President A K Britton, Senior Member

Date 24 June 2011

Place Sydney

Decision

Set aside the decision under review. Substitute a decision that the film series Lush House is entitled to a producer offset certificate under Division 376-65(1) pursuant to s 376-65(6) item 6 of the Income Tax Assessment Act 1997 (Cth).

................[sgd].............................
Garry Downes
President

CATCHWORDS

TAXATION AND REVENUE – films – income tax offsets – producer offset – qualifying conditions – “documentary” – meaning – series called Lush House – series entitled to offset

RELEVANT ACTS:

Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB

Broadcasting Services Act 1992 (Cth)

Classification (Publications, Films and Computer Games) Act 1995 (Cth)

Income Tax Assessment Act 1997 (Cth) ss 376-1, 376-2 and 376-65

CITATIONS

Bruyn v Perpetual Trustee Co. Ltd [1974] HCA 55; (1974) 131 CLR 387

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

McKinnon v Department of Treasury (2006) 228 CLR 423

Midland Railway v Robinson (1890) 15 AC 19

NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

REASONS FOR DECISION

24 June 2011	Justice Downes, President A K Britton, Senior Member
SUMMARY

1. Shannon Lush is an expert in household management. Her skills were employed in a film series produced by EME Productions No. 1 Pty Ltd called Lush House. 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 Ms Lush. The question in this case is whether the series is a documentary. If it is, EME will be entitled to producer offsets to its tax pursuant to s 376-65 of the Income Tax Assessment Act 1997 (Cth). We have decided that Lush House is a documentary.

THE FILM SERIES LUSH HOUSE

2. Lush House is described in EME’s application for a producer offset certificate as follows:

Life in our time-strapped, stressful 21^st 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.

The film series comprises ten episodes of some 24 minutes each. This time is described as a commercial half hour. The episodes follow the same format. They begin with the introduction of a family or household experiencing stress from problems associated with household management. The elements of the problems include untidiness and disorder and related problems of furniture, bedding and carpet stains, marks and smells. The stress is associated with the difficulties of living in an untidy and disordered environment including, in some episodes, with health problems exacerbated by exposure to chemicals and dust.

3. After the program sets the scene, the household is visited by Ms Lush who examines the home and assesses the problems. This part of each program involves the giving of some advice. Ms Lush then leaves the house to consider a detailed solution. The third segment of the program has Ms Lush returning to the household with a written action plan to implement her proposals. Ms Lush introduces the action plan, supplies some items such as storage boxes, explains what she proposes and gives some further advice. She then leaves the household to implement the plan. The fourth segment shows the household carrying out the action plan without the involvement of Ms Lush. An assistant to Ms Lush is sometimes involved. The final segment shows Ms Lush returning to the house, usually with some kind of gift, to see what has been achieved. Predictably enough, a lot has been achieved. The program takes pains to contrast the new ordered house, which is free of most stains, marks and smells, with its condition in the beginning. The household expresses its appreciation.
4. Some particular aspects of the programs should be noted.

(1) A substantial part of each program is filmed observation of the household discussing their problems, listening to Ms Lush, implementing the action plan and reporting to Ms Lush on the results of their efforts. The comments are not scripted, although we accept that it is highly likely that there was some discussion of what might be said before each scene was filmed.

(2) Another substantial part of each program is filmed observation of the setting, largely the house or flat and its garden, before, during and after the transformation.

(3) A third substantial part of the program is advice being given by Ms Lush. This is usually, but not always, while she is present at the house. The advice is given by filmed demonstration with accompanying dialogue (sometimes with Ms Lush in the scene and sometimes out of the scene) and by voice-over explanations of the demonstrations. Usually Ms Lush performs the demonstrations. Sometimes the demonstrations are carried out, under supervision, by the household. The advice in these demonstrations includes proposals to clean and order the house but it also includes advice on technical matters such as the removal of stains, marks and smells, usually using simple household products and avoiding commercial cleaners.

THE TAXATION BENEFIT

5. Section 376-1 of the Act, under the heading “What this Division is about”, identifies three kinds of “refundable tax offsets in relation to Australian expenditure incurred in making films”. The first of the offsets is an offset “for Australian expenditure in making an Australian film” (s 376-2(1)(a)). It is called “the producer offset”. Section 376-1 states that “[t]he offsets are designed to support and develop the Australian screen media industry by providing concessional tax treatment for Australian expenditure”.
6. The tax offset is available to a film when Screen Australia, an Australian Government agency, gives a positive certificate. The certificate will only be given when a film meets each of a number of conditions, namely, that it:

(1) “has a significant Australian content” or was made under a specified government arrangement (s 376-65(2)(a)); and

(2) was produced for exhibition or distribution to the public by one of a number of identified means (s 376-65(2)(b)); and

(3) is, among other alternatives, a feature film or a series (s 376-65(2)(c)); and

(4) is not, among other things, to a substantial extent (s 376-65(2)(d)):

(i) a film for exhibition as an advertising program or a commercial; or

(ii) a film for exhibition as a discussion program, a quiz program, a panel program, a variety program or a program of a like nature; or

(iii) a film of a public event (other than a documentary); or

(iv) a training film; or

(v) a computer game (within the meaning of the Classification (Publications, Films and Computer Games) Act 1995); or

(vi) a news or current affairs program; or

(vii) a reality program (other than a documentary).

(5) is, if a film that is a series, comprised of at least two episodes of at least one-half of a commercial hour each “and the series has a new creative concept” (s 376-65(5)(a)); and

(6) for a non-documentary, qualifying expenditure is at least $1 million (s 376-65(6) item 7) and the amount calculated under s 376-65(7) is at least $500,000, while for a documentary, no minimum qualifying expenditure is required and the amount under ss (7) need only be $250,000 (s 376-65(6) item 6).

7. Lush House is agreed by the parties to satisfy each of the above conditions other than condition (6). The series will satisfy that condition if it is a documentary.

IS LUSH HOUSE A DOCUMENTARY?

8. The real issue in this case is accordingly whether Lush House is a documentary. If it is, a producer offset certificate will issue; otherwise it will not. The expenditure on Lush House would not qualify it for a producer offset certificate unless it is a documentary.
9. The word “documentary” is not defined in the Act. The only assistance that can be gained as to its meaning from related publications is from the Explanatory Memorandum to the amending Act adding Division 376, from related guidelines issued by Screen Australia and from guidelines relating to the Australian content for commercial television licenses issued originally by the Australian Broadcasting Authority (the predecessor of the Australian Communications and Media Authority) and referred to on Screen Australia’s internet website.
10. It will be appropriate to look at extrinsic material as well as to dictionary definitions of “documentary” in due course, but, for the present, we propose to address the word documentary as an ordinary English word and to look at the characteristics of Lush House which may attract or deny its application.
11. Both parties accept that “documentary” is used in the Act with its ordinary meaning. It is not suggested that it is used in the Act with any technical or special meaning. Nevertheless, officers of EME gave evidence about the production of the series including some evidence about how it might be described and an experts on both sides gave wide and varying evidence about usages in the industry. The expert witnesses were Sharon Connolly and John Gregory, who each have extensive experience in film production. Because the parties agree that “documentary” is not used in the Act with any special or technical meaning the experts’ evidence is of limited use.
12. The meaning of ordinary English words is a matter for the court or tribunal hearing a matter. It is not for industry experts. The experts here have given evidence of their understanding of the use of “documentary” in the Australian film industry as well as their understanding of the use of a plethora of related expressions, many of them made-up expressions of recent or relatively recent origin. These words and phrases include “reality program”, “infotainment”, “transformation show”, “makeover program” and “how to program”. This evidence is of little assistance for the following reasons. First, it is for the Tribunal to determine what will satisfy the description “documentary” in the Act. Secondly, using other descriptions, whose meaning is just as uncertain as the meaning of “documentary”, to assist in identifying what it is to be a documentary, is more inclined to divert than to assist. Courts have warned again and again about the pitfalls of paraphrasing (McKinnon v Department of Treasury (2006) 228 CLR 423 at 468 and Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 311); they have even warned against using dictionaries excessively (Midland Railway v Robinson (1890) 15 App Cas 19 at 34). The meaning of words in a statute is ultimately for the court’s or tribunal’s “understanding of the sense in which words are currently used” (NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514). Current usage is even to be determined “as one who runs may read” (Bruyn v Perpetual Trustee Co. Ltd [1974] HCA 55; (1974) 131 CLR 387 at 393 paraphrasing Habakkuk 2.2 (King James Version) “that he may run that readeth it”).
13. The first characteristic of a documentary seems to be that it presents fact, usually in the form of events. Sometimes this is rather inelegantly described as “actuality”. Secondly, it has an object of recording fact, or “documenting” it. The recording will usually be made to inform or educate, although the mere preserving of a record of fact may be the only goal. Even so, the purpose must be to record for future information or education. However, a film of an event will not, without more, be a documentary. A film of a speech by a public figure, without comment or editing, will not be a documentary. Documentaries will usually cover a number of related events which are linked and presented creatively. Creativity is not here being used to identify excellence, but simply the use of imagination or invention. A poor documentary will still be a documentary.
14. It cannot be doubted that one characteristic of a documentary, which is related to the matters already considered, is that it will contain a serious treatment of its subject. A documentary may contain humour, but this will not compromise its serious purpose. A frivolous program will not be a documentary even if it satisfies the other characteristics of a documentary.
15. A useful process for determining whether a program is a documentary may be to examine the program to see if it is a creative recording of facts for the purpose of informing or educating. If it satisfies these requirements and, additionally, is not frivolous, then it will be a documentary. The most difficult aspect of any assessment may well be determining whether the program sufficiently tips the scale in favour of seriousness.
16. Lush House records events. It records facts. It presents a short history of each household through the stages described above. This recording of aspects of the life of a household is consistent with the result being a documentary. The editing of the record of itself, reflects creativity.
17. The events recorded are all true activities of each household over a period. However, although the household would inevitably have been involved in activities at the time of the filming, the filmed activities were influenced, even directed, by the filming. The households were not simply filmed doing what they would have been doing apart from the making of the film. To this extent it may be said that Lush House relies upon contrivance.
18. On the one hand, this added circumstance might be seen as affecting the requirement of a documentary to record fact. The intrusion is not confined to merely addressing the facts being recorded, such as occurs when an interview with a soldier is inserted in a documentary about the activities of an army; the intrusion extends to the film-maker actually supplying some of the action and directing what the subjects are to do. On the other hand, this aspect might be seen to be an added element of creativity which, because it does not involve a fictional element, still preserves the documentary qualities of the program.
19. If it ever were true, the days in which a film would lose its quality of being a documentary because some of the activity was directed by the maker of the documentary are now long gone. All events, whether they be the activities of an army, or the daily life of a family, will be constantly influenced by external factors. Such factors will not qualify the ability of a film to be characterised as a documentary unless they are procured by the film maker and 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.
20. Much of the expert evidence and the submissions in the case involved looking at other programs and types of programs. Reference was made to a television program called Getaway, which contains segments providing information about holiday destinations. EME suggested that this program was not a documentary and contrasted it with Lush House. EME also relied upon a program which it had produced called Is Your House Killing You?, in which families were shown ways of dealing with toxic elements (such as lead-based paints) in their houses. The program was granted a producer offset certificate. EME argued that it was in the same category as Lush House. There was discussion about whether Lush House was a “how to program”, “a makeover program”, or a “renovation program”, as it is described on the cover of the DVD of the series.
21. There are two problems with all these approaches. First, they conflict with the clearly established basis upon which we must carry out our task. Secondly, they are apt to lead into error. A “how to program” broken up into segments in which a chef prepares and cooks a number of meals, or a carpenter makes pieces of furniture, might not be a documentary, because it contains no more than tips and advice – there is no recording of a series of related events. However, syllogistic reasoning which identifies a particular program as a “how to program”, which is not a documentary, and then says that a different program, concludes that it also answers the description of “how to program”, cannot, for that reason, be a documentary, is invalid. It is even less valid if, rather than being a “how to program”, a program merely has “how to” elements. The question is always whether a program is a documentary. Asking first whether it is a “how to” program, or any other type of program, and then using that characterisation to determine whether it is a documentary will simply lead into error.
22. It is for this reason that the expert evidence was of very little assistance on the question of the meaning of “documentary” in the Act. It did, however, provide some useful discussion of the film industry and useful analysis of the issues.
23. The above considerations lead us to conclude that Lush House possesses many of the necessary components of a documentary. It records real events in real households. The extent to which these events were influenced by the producers of the film is not sufficient to displace that conclusion. Indeed, it enhances the creative aspects of the program. Nor is the conclusion qualified by the fact that the program contains advice. This further enhances the creative aspect, as well as the informative or educational aspect, of the program. That a program which is nothing but advice might warrant the label “how to program” and not be a documentary, is irrelevant.
24. 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.
25. 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.
26. It can be dangerous to use other tests or definitions in legislation to confirm the meaning of different words elsewhere. However, there is some basis here for saying that the legislature recognised that a film of a public event might be a documentary (s 376-65(2)(d)(iii)) and that a reality program might be a documentary (s 376-65(2)(d)(vii)). The danger of this type of reasoning is that the legislature may have been doing no more than exercising an abundance of caution to ensure that spurious arguments were not used to claim that some films of public events or reality programs were documentaries. Nevertheless, the provisions may show the width of meaning which the legislature understood the word documentary to have, as used in the Act. Plainly, Lush House is not a film of a public event. Nor is it a reality program. The essence of reality programs is subjecting persons to contrived events, such as interaction with persons they did not previously know, or to difficult or dangerous situations, or to challenges and observing how they react. Competition is often involved. These factors mean that the film is not a record of real events. In Lush House the ordinary lives of the families in their own homes are being recorded, even though those ordinary lives are influenced by the program. There is an informative or educative element. In reality television, the “reality”, which is really a misnomer, is the introduction of a completely artificial situation. It is only “reality” in the sense that it is not fiction. Actual lives are not being documented. There is little or no informative or educative element.
27. Many years ago a Scottish documentary film maker named John Grierson apparently coined the following definition of a “documentary”: “Creative treatment of actuality”. This definition seems to have gathered a degree of currency, although it is not universally adopted by the dictionaries. It was picked up by “Documentary Guidelines” issued by the Australian Broadcasting Authority in 2004 in the context of determining Australian content under different legislation, namely the Broadcasting Services Act 1992 (Cth). The Guidelines have apparently since been adopted by the Australian Communications and Media Authority. The full definition in the Guidelines is as follows:

“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.”

In addition to the definition there is, in the Guidelines, a discussion of its application. This involves discussion of categories of program such as “reality programs” and “infotainment” as well as discussion of particular programs.

28. The definition in the ABA Guidelines, but not the discussion, appears in Screen Australia’s Guidelines, adopted in 2008, called “Producer Offset for Screen Production in Australia: Guidelines”. The definition actually appears under a section dealing with single episode documentaries, but a fair reading of the Guidelines gives it general application. The full Guidelines are referred to on Screen Australia’s website.
29. The definition also appears in the Explanatory Memorandum accompanying the Bill which substituted the present form of Division 376 for the previous relevant provisions in the Act. It will be useful to set out the relevant provisions:

10.57 A documentary will take its ordinary meaning. It is intended that it will mean a creative interpretation of actuality, other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment programme.
10.58 A reality television programme is not a documentary. It is intended that the term ‘reality programme’ be applied to programmes in which contestants or participants are usually placed in contrived situations, where the primary purpose is to provide a vehicle within which their characters can be observed and assessed by the viewer. The primary purpose of such a reality programme would not be to explore and interpret an idea. Where there is a competitive element in the programme between participants it is intended the programme would generally be considered a reality programme.
10.59 By contrast, a programme is more likely to be classed as a documentary when, even though it may be based around a contrived situation, the contrivance will serve to explore a creative idea, concept or theme. Observations about the character of a participant will tend to illustrate the idea, rather than serve as the primary purpose. Such programmes may contain a strong information component within which the idea is explored. There will often be critical commentary which interprets or provides context for the activity depicted.

It is to be noticed that “interpretation” is substituted for “treatment” in the definition, but little is likely to turn on that.

30. The extrinsic materials might be resorted to on either of two bases. First, the Explanatory Memorandum might be used under s 15AB of the Acts Interpretation Act 1901 (Cth) because “the provision is ambiguous or obscure”. The word “documentary” in s 376-65 is probably both ambiguous and obscure. Reference to extrinsic materials is therefore justified. Secondly, the other material might be relied upon as establishing a policy adopted by Screen Australia which should be departed from with care (Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 635). The definition in the ABA Guidelines appears to have been adopted as a policy by Screen Australia. It might also have adopted the text of the ABA Guidelines, as well as the definition, because the Guidelines are referred to on its website.
31. Giving these items full weight does not alter the views and conclusions we have already expressed. The definition “creative interpretation of actuality” contains two of the elements we have identified. The addition of a third, namely an object of recording for the purpose of informing or educating, to the extent to which it adds anything, might only be adding something which would be implied in the definition. It is really a necessary consequence of the requirement for creativity. In any event, because we have found the program to be a documentary, the result would not change if the element were dropped.
32. The excluding descriptions from the definition, and particularly the exclusion of infotainment, are more problematic. It is difficult to say more about “infotainment” than that it refers to programs which inform in an entertaining way. That is how it is defined in the dictionaries. So defined, “infotainment” is likely to cover most, if not all, documentaries and must be a wider term than “documentary”. “Infotainment” must, however, be used in the definition to cover something which does not extend to the whole field of “documentary”. It is noted that the experts were unable to agree on whether Lush House was “infotainment” and, we apprehend, even on what “infotainment” is.
33. The use of “infotainment” in the definition raises two matters. First, it is apt to suggest that there is a narrower category of program than “documentary”, which might otherwise be called a documentary, but which is to be denied that status because of its entertainment content. Secondly, the category would seem to be narrower than, and different to, the apparent ordinary meaning of infotainment, although what either meaning is, is difficult to determine and experts do not agree on it.
34. Having regard to the purpose and object of the Act, as provided for in s 15AA of the Interpretation Act, it seems reasonable to proceed on the basis that the advantaged position of documentaries for receipt of producer offsets is as much motivated by an object or purpose of preferring documentaries over other programs as it is by some assumption that documentaries inherently cost less than other programs. There is much to be said for the view that the object or purpose is associated with encouraging information over entertainment or serious programs over frivolous programs. “Infotainment” might have been used to describe programs with a low information content and a high entertainment content. To this extent 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.
35. All of this is consistent with the way we have approached the assessment of Lush House. If the program had had no, or very little, informative content it might have been ruled out as infotainment. However, along with Is Your House Killing You?, Lush House does have a significant informative and educative element. Indeed, learning how to order and clean a house and remove stains and unwanted marks and smells may be of more practical use to more people than learning about the cause of the American Civil War.
36. While the ABA Guidelines contain a helpful discussion, they do not add anything of substance which is not already considered in these reasons. It would be wrong to treat guidelines adopted seven years ago for a different purpose, in an industry subject to constant change, as akin to a statutory definition. The ABA Guidelines themselves recognise the changing nature of programs and the difficulties that classification can present.
37. Both the Guidelines and the Explanatory Memorandum discuss “contrivance”. The question is, what level of contrivance? Both recognise that contrivance can be disqualifying, but that it will not necessarily have that result. We do not think that the level of contrivance in Lush House is disqualifying.
38. Our examination of the Explanatory Memorandum and the ABA Guidelines confirms rather than challenges the conclusion we have already come to and the reasons we have relied upon.
39. It is appropriate finally to refer to the dictionaries. Two definitions will suffice. The first is the Australian Macquarie Dictionary definition and the second is the definition in the Oxford English Dictionary Online:

Macquarie Dictionary:
Documentary adjective
1. Also, documental relating to, consisting of, or derived from documents. –noun (plural documentaries) 2. a factual presentation of a real event, person’s life, etc., in a television or radio program, film, etc.

Oxford English Dictionary:

Documentary, adj. and n.
“A. adj.
1. Of the nature of or consisting in documents.

1827. J. Bentham Rationale Judicial Evid. I. i. iv. 54 Documentary evidence.
1831. T. Carlyle Sartor Resartus II. iii, Various fragments of Letters and other documentary scraps.
1855. T. B. Macaulay Hist. Eng. IV. 178. They were in possession of documentary evidence which would confound the guilty.
1861. M. Pattison Ess. (1889) I. 30. Going back beyond the printed annalists to original and documentary authorities.

2. Affording evidence, evidential. rare.

1843. T. Carlyle Past & Present I. iii. 25. It is an authentic fact, quietly documentary of a whole world of such.

3. Relating to teaching or instruction. rare.

1873. J. Earle Philol. Eng. Tongue (ed. 2) Introd. 55 Long before 1250 we get traces of the documentary use of French Trevisa says it was a new thing in 1385 for children to construe into English in the grammar schools.

4. Factual, realistic; applied esp. to a film or literary work, etc., based on real events or circumstances, and intended primarily for instruction or record purposes.
1926. N.Y. Sun 8 Feb. 18/1 ‘Moana’, being a visual account of events in the daily life of a Polynesian youth and his family, has documentary value.
1930. P. Rotha Film till Now I. ii. 65 The Documentary or Interest Film, including the Scientific, Cultural and Sociological Film.
1932. Cinema Q. I. i. 67 Documentary is a clumsy description, but let it stand. The French who first used the term only meant travelogue.
1932. Film in National Life (Rep. Comm. Educ. & Cult. Films) viii. 115 §174 A deliberate documentary film must be a transcript of real life, a bit of what actually happened, under approximately unrehearsed conditions.
1934. Punch 26 Dec. 720/1 Most documentary films seem to hinge upon the exposition of some staple industry.
1957. V. J. Kehoe Technique Film & Television Make-up i. 17 Some producers do not like the smoothness of the face created by the use of make-up. They strive to achieve what is termed a documentary effect by the lack of make-up on men (even at times, on women).

1962 Observer 8 July 20/4 Henry Cecil's light legal documentary fiction.
B. n.
A documentary film, broadcast, or literary work.

1935. R. Spottiswoode Gram. of Film 288 The documentary as he defines it is still flourishing.
1936. Times Lit. Suppl. 25 Jan. 72/3 The documentary film—or, tout court, ‘documentary’.
1941. B.B.C. Gloss. Broadc. Terms 3 Actuality, presentation of real persons and things to give a picture of contemporary life in a particular aspect; documentary.
1947. J. Hayward Prose Lit. since 1939 32 ‘Mass-Observation’, whose intriguing ‘documentaries’ of the British people at work and play contain the crude substance of innumerable novels, biographies, and essays.
      1957. Listener 18 July 103/1 Mr. Owen's ‘documentary’, as he calls his attractive book, reveals him as an acute observer.”

40. The Oxford Dictionary draws on two of the elements of a documentary we have referred to, namely its factual nature and its intention to instruct or record. Like the definition in the ABA Guidelines, the Macquarie Dictionary omits the informative element, as well as the creative element, which does appear in the ABA Guidelines. It is to be noted that although the informative element is absent from the definition of “documentary” contained in the ABA Guidelines it is present in the discussion to a substantial extent. To our minds the Oxford Dictionary is the most satisfactory of the definitions. Applying that definition confirms the analysis and conclusions to which we have arrived.
41. In the result, we accept that Lush House does not present the clearest of cases of a documentary. It is close to the line. Nevertheless, we conclude, for the reasons we have given, that it does represent sufficient of the elements of a documentary to warrant it having that overall description. The decision under review will be set aside and a decision substituted that the film series Lush House is entitled to a producer offset certificate as a documentary under Division 376 of the Income Tax Assessment Act 1997 (Cth).

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President and A K Britton, Senior Member

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

Samantha Robson, Associate

Dates of Hearing 31 May - 2 June 2011

Date of Decision 24 June 2011

Counsel for the Applicant Mr S Beckett

Solicitor for the Applicant Ms C Newman

Counsel for the Respondent Mr R Cobden SC with Mr S Free

Solicitor for the Respondent Ms E Grinston