The Administrative Appeals Tribunal has overruled Screen Australia’s decision to reject Essential Media and Entertainment’s producer offset application for TV series Lush House.

The decision raises serious questions about the definition of eligible documentaries and similar shows previously excluded from the 20 per cent tax break because they were categorised as “reality”, “infotainment”, “transformation”, “makeover” or “how-to” programs.

Screen Australia originally rejected the application because it viewed the ten-episode cleaning series as a reality program. However, Essential argued that the series, which follows household expert Shannon Lush as she gives cleaning advice to homemakers, was similar to another of its programs, Is Your House Killing You?, which did receive the tax break.

The AAT said the word “documentary” is not defined in the legislation but in two other areas: guidelines issued by the former Australian Broadcasting Authority in 2004 (which appear to have been adopted as policy by Screen Australia), and Screen Australia’s own explanatory memorandum.

“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 AAT judgement said.

“The ABA guidelines themselves recognise the changing nature of programs and the difficulties that classification can present.”

The AAT largely rejected expert advice about the definition of documentary because the word is not used in the Act with any special or technical meaning. It stated that a documentary:

  • presents fact, usually in the form of events;
  • has an object of recording fact for the purpose of future information or education;
  • usually cover a number of related events which are linked and presented creatively;
  • may contain humour but not so that it compromises its serious purpose (it cannot be “frivolous”).

The AAT said Lush House met these standards.

It acknowledged that the program included household activities that were directed or influenced by the filmmakers, but said this “contrivance” added an element of creativity which did not involve fiction.

“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,” the AAT said.

It also acknowledged that Lush House is light-hearted and contains some humour.

“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’.”

Screen Australia has up to 28 days from the date the judgement was handed down to appeal the decision.

Screen Producers Association of Australia executive director Geoff Brown said: "On the face of it, we have a broader definition of documentary".

Earlier this year, the AAT upheld Screen Australia’s decision to reject Beyond International’s offset application for its fifth series of documentary Taboo on the grounds that it did not meet the significant Australian content (SAC) test and was not a new creative concept.

The Screen Producers Association of Australia has backed Beyond International’s second appeal against the decision.

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