Updated: Lush House appealed in Federal Court
Screen Australia has appealed a decision by the Administrative Appeals Tribunal that television series Lush House is a documentary. The AAT decision, if it stands, would result in the series being eligible to claim the 20% producer offset.
Lush House, an Essential Media and Entertainment program had previously been determined by Screen Australia to be infotainment, not documentary, discounting it from offset eligibility.
For the purposes of the Producer Offset, what is, and isn’t a documentary is significant for the screen production sector and for Screen Australia as the film authority under the Tax Act.
Screen Australia’s Chief Executive Officer, Ruth Harley, said: “This is the first case concerning the definition of documentary and we believe it is important to differentiate between documentary and lifestyle/infotainment programming. For this reason it is necessary to appeal the AAT decision.”
Said Chris Hilton, CEO of Essential Media and Entertainment, “The reason we thought we’d get it was because we had a very similar format with SBS’s Is Your House Killing You that did get the offset. We thought it was inconsistent so we appealed at the AAT and the decision was that Lush House did fit in the category of ‘documentary’.”
From the ACMA documentary guidelines, a documentary is: “a creative treatment of actuality other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment program.” Elsewhere in the guidelines it states, “To qualify on the ‘actuality’ test, the subject matter must be grounded in fact, or real life, this generally means that the context for the program exists independently of the program itself. That is, the documentary is a record of something that would have happened whether someone was there to film it or not.” However, the guidelines also acknowledge productions with a contrived premise like Super Size Me.
The guidelines differentiate documentary and infotainment by illustrating ‘infotainment’ as the majority of the following characteristics:
- “The program will often be episodic in nature, comprising a series of distinct or loosely connected segments rather than an overall story arc.
- The treatment of the material will be superficial and unquestioning. There is likely to be limited engagement with or analysis of the subject matter.
- The primary purpose of the program may be to highlight goods or services available to the viewer, or to give the viewer advice on ‘how to’ undertake an activity.”
Hilton said: “In both Is Your House Killing You and Lush House, there is a story with a narrative arc and there is no shameless product endorsement, and in the case of Lush House it questions toxic products and general household practice so it can’t be seen as superficial and unquestioning.”
The case will be appealed by Screen Australia in the Federal Court. In a showing of good faith and due to this being the first such case to determine the meaning of ‘documentary’, Screen Australia will contribute toward Essential Media’s legal costs in the appeal.
Essential Media and Entertainment produce Rake, Gourmet Farmer, A Voyage to the Planets, the upcoming Seduction in the City, Jack Irish a mini series starring Guy Pearce. Screen Australia has recently invested in script development for Essential’s feature film King of Thieves: the story of the Kangaroo Gang, about a shoplifting gang of Australians in London during the 1960s-70s.
“It is necessary” ?
No. This statement is false. It’s also misleading and deceptive.
The AAT decision is a thorough examination of the issue – and interestingly it was done by someone with more practical experience of the working industry than most people at Screen Australia have.
It’s not necessary.
Screen Australia could have the dignity and the intelligence to recognise a thorough, independent analysis and go along with it. Unfortunately the attitude of the senior team in Scr-oz is an arrogant presumption that they know better – despite a large amount of evidence to the contrary.
They forget that the Producer Offset was not designed by Screen Australia, and is not there to support the personal biases of Scr-oz executives. The definition of documentary the Offset uses has been the basis of the television content quotas for years. If it was a problem, the government had the chance to change it when it made the law putting the offset in place.
If it is a problem now, the government can make that clear by legislating a different definition.
The little Scr-oz clique has decided it’s better or smarter than the government and the ACMA.
What, exactly would be wrong with accepting the judgment of an independent authority (comment edited for legal reasons)?
Even if a few other programs like Lush House that aren’t – according to the narrow views of Scr-oz – as culturally valuable as their more pure idea of ‘documentary’ get the offset, how much would it cost? We can be certain it would not cost the Australian taxpayer as much as some of Screen Australia’s (comment edited) decisions for its feature pals – Knowing? Accidents Happen?
Where was Screen Australia in those debates? If they were only to apply the actual, existing law a bit more faithfully they’d save the government – and Australian taxpayers – much much more in one decision knocking back a US show (that would be eligible instead for the location and post offsets) than they will in years of using the documentary definition that applies now to free-to-air television.
Ruth Harley needs to give a much better account than her dissembling “it is necessary” for why she had put such a high priority on opposing a small level of assistance to independent producers making Australian television.
[comment amended for legal reasons]
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