The Federal Government has released its long-delayed legislation aimed at limiting the type of documentary that is eligible for the Producer Offset tax rebate.

It has been several months since the Labor government announced its plans following Screen Australia’s failed court battle to reject Essential Media and Entertainment’s Offset application for TV series Lush House.

The legislation, which is open for comment until January 30, 2013, will affect any production that began principal photography from July 1, 2012. It enshrines Screen Australia’s previous practice – which spurred its unsuccessful court battle against Essential – to use the Australian Communication and Media Authority’s documentary guidelines.

Those guidelines define documentary as a creative treatment of actuality which excludes infotainment, lifestyle programs, and magazine programs. The new legislation will also explicitly exclude game shows.

Opponents of the Lush House decision have raised concerns that relaxing the documentary definition could open the funding floodgates for cheap network programming. However, defenders have questioned why changes in the nature of documentary programming are not being adequately recognised while also pointing to big-budget Hollywood films such as The Great Gatsby, which have qualified for the 40 per cent Producer Offset intended for local productions.

The AAT’s Lush House decision directly questioned whether the ACMA documentary guidelines were appropriate. They were originally based on guidelines issued by the Australian Broadcasting Authority in 2004, which applied to different legislation.

“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 decision said in June 2011. “The ABA guidelines themselves recognise the changing nature of programs and the difficulties that classification can present.”

The AAT also noted that a panel of experts were unable to agree on whether Lush House was an infotainment series or even on a definition of what should be classed as infotainment. The Lush House series follows cleaning expert Shannon Lush as she attempts to overhaul family lives and homes.

Screen Producers Association of Australia president Brian Rosen said the Offset legislation should be flexible.

"It should be as wide open as possible to interpretation because the PO [Producer Offset] should be about creating content and not stopping it."

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