Seven Network (Operations) Limited and Screen Australia (Taxation)
[2019] AATA 798
•1 May 2019
Seven Network (Operations) Limited and Screen Australia (Taxation) [2019] AATA 798 (1 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1940
Re:Seven Network (Operations) Limited
APPLICANT
AndScreen Australia
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:1 May 2019
Place:Sydney
The reviewable decision is affirmed.
...........................[sgd]............................
Deputy President B W Rayment OAM QC
CATCHWORDS
TAXATION AND REVENUE – films – income tax offsets – producer offset – qualifying conditions – “documentary” meaning – series called Bride and Prejudice – series not entitled to offset – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901(Cth) s 15AB
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Broadcasting Services Act 1992 (Cth)
Income Tax Assessment Act 1997 (Cth) s 376.25, s376.65
Taxation and Superannuation Laws Amendment (2013 Measures No. 2) Act 2013 (Cth)
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Cf Herbert Adams Pty Ltd v Federal Commissioner of Taxation [1932] HCA 27; (1932) 47 CLR 222
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
EME Productions No 1. Pty Limited and Screen Australia [2011] AATA 439
Maunsell v Olins [1975] AC 373
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Screen Australia v EME Productions No. 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282
Whitton v Falkiner [1915] HCA 38; (1915) 20 CLR 118
SECONDARY MATERIALS
D.C. Pearce, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015)
Grierson, Grierson on Documentary, ed Forsyth Hardy (Faber and Faber Ltd, 1966)
Susan Kerrigan and Phillip McIntyre, ‘The ‘creative treatment of actuality’: Rationalising and reconceptualising the notion of creativity for documentary practice’ (2010) 11(2) Journal of Media Practice, 111
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
30 April 2019
Seven Network aired the first season of the television series known as Bride and Prejudice in 2017. It applied to Screen Australia for a certificate for the Producer Offset under s 376.65 of the Income Tax Assessment Act 1997 (Cth), which was refused, and Seven Network applied to the Tribunal for a review of that decision. The issue arising is whether the series was a “documentary” within the meaning of s 376.25.
The word “documentary” is used in the statute with a specific definition. Section 376.25 specifies conditions which must be satisfied in the following terms:
1A * film is a documentary if the film is a creative treatment of actuality, having regard to:
(a)the extent and purpose of any contrived situation featured in the film; and
(b)the extent to which the film explores an idea or a theme; and
(c)the extent to which the film has an overall narrative structure; and
(d)any other relevant matters.
2However, a * film is not a documentary if it is:
(a)an infotainment or lifestyle program (within the meaning of Schedule 6 to the Broadcasting Services Act 1992); or
(b)a film that:
(i) presents factual information; and
(ii) has 2 or more discrete parts, each dealing with a different subject or a different aspect of the same subject; and
(iii) does not contain an over-arching narrative structure or thesis.
The section was introduced in its current form by the Taxation and Superannuation Laws Amendment (2013 Measures No. 2) Act 2013 (Cth).
The application of both s 376.25(1) and s 376.25(2)(a) are in contest in this review.
The words “a creative treatment of actuality” are not themselves defined in the Act. As a matter of history they are derived from a definition advanced by John Grierson, a Scottish filmmaker who wrote extensively on documentaries in Britain and elsewhere, studying their development and many aspects of the influences upon them in the first half of the twentieth century. His definition has in turn been discussed by many other academic and industry professionals. For instance, in an article by Susan Kerrigan and Phillip McIntyre, ‘The ‘creative treatment of actuality’: Rationalising and reconceptualising the notion of creativity for documentary practice’ (2010) 11(2) Journal of Media Practice, 111 it is stated that Grierson never fully explained the meaning of the phrase ‘the creative treatment of actuality’ and his omission has led to significant discussion from within the area/field of documentary studies. They instance ten publications ranging from 1964 to 2008. They say that academic explanations of the terms ‘treatment’ and ‘actuality’ seem to be easily achieved within the documentary and film-making communities but the explanations and interpretations of the term ‘creative’ are and continue to be problematic.
They observe that although misunderstandings of the notion of ‘creativity’ and its artistic connotations are prevalent within the documentary and film-making communities, literature in those fields nevertheless continues to draw on the writings of Grierson and his disciples. Those authors situate the documentary product as “art”, thus suggesting that the person making the documentary is an artist. There is a collection of Grierson’s writings edited by Forsyth Hardy, Grierson, Grierson on Documentary, ed Forsyth Hardy (Faber and Faber Ltd 1966), which tends to show, to my understanding of it, that he viewed the making of documentaries as an artistic endeavour and as an important aspect of public instruction.
Reference to academic literature to understand the phrase “a creative treatment of actuality” is unusual unless the phrase has a secondary meaning rather than a meaning derived from ordinary English usage. Such a secondary meaning may be involved in the phrase. Compare the discussion of secondary meanings by Isaacs J in Whitton v Falkiner [1915] HCA 38; (1915) 20 CLR 118 at 127. Isaacs J said that the language of a Tariff Act, like that of every other Act, is to be taken in its ordinary signification, unless some secondary meaning is proved, and that in a Customs Act, the only appropriate secondary meaning is that of commerce. This is a matter which I decided to take up with the parties after I had reserved judgment, in particular to ascertain whether either party relied upon a secondary meaning of the expression “a creative treatment of actuality” and if so, upon what evidence.
The response from both parties was in the negative. They both submitted that no clear meaning for the expression emerges from the literature and that the words should be treated as words of ordinary English rather than as a term of art. I cannot conclude that the expression has a secondary meaning unless there is evidence to show that it is so. I am not content to resort to the academic literature to which I have referred in light of the submissions made to me by both parties that no clear explication of the Grierson definition arises from it. I do not doubt because of the origin of the expression “a creative treatment of actuality”, which appears in s 376.25, that the section is addressed to industry professionals, and in particular, film-makers. The words alone are, taken in isolation, words of ordinary English but their collocation in the expression (which I will call the Grierson definition) gives them a particular connotation, stemming originally from the definition formulated by John Grierson. It was submitted to me by Mr Free SC, appearing for the applicant, that both the explanatory memorandum for the Taxation and Superannuation Laws Amendment (2013 Measures No. 2) Act 2013 and the ACMA guidelines, to which the explanatory memorandum refer, constitute extrinsic materials to which regard may be had in this review. I discuss that question and some related questions below, in my discussion of s 376.25(1)(d).
Section 376.25 has a statutory predecessor, the terms of which were considered in this Tribunal and on appeal in the Full Court of the Federal Court of Australia. The statutory predecessor was s 376.65(6) and the word “documentary” had no definition. The Tribunal decision is EME Productions No 1. Pty Limited and Screen Australia [2011] AATA 439 (“the Lush House case”) (President Justice Downes and Senior Member A. K. Britton) and the Full Federal Court decision in Screen Australia v EME Productions No. 1 Pty Ltd is reported at [2012] FCAFC 19; (2012) 200 FCR 282 (Keane CJ, Finn and Gilmour JJ). Some reference is made to the Grierson definition in those two decisions, because the definition was used in both the relevant explanatory memorandum (with the omission of the word “treatment” and the substitution of the word “interpretation”) and (without that change) in the “Documentary Guidelines” issued by the Australian Broadcasting Authority in 2004 (also called the Australian Communications and Media Authority (ACMA) guidelines). Those guidelines were later adopted by Screen Australia as a guiding policy in determining what is a documentary for the purposes of the producer offset, and the same remains true today. The definition in those guidelines is set out at [27] of the Tribunal decision:
“Documentary program means a program that is a creative treatment of actuality other than a news, current affairs, sports program, sports coverage, magazine, infotainment or light entertainment program”.
It was also used in the Screen Australia Guidelines adopted in 2008 and in the Explanatory Memorandum set out by the Tribunal at [29]. At [30] and [31] the Tribunal said:
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.
The two elements which the Tribunal said it had adopted were the presentation of fact and creativity, meaning simply the use of imagination or invention. It added at [13]:
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.
The Tribunal suggested in [31] that its remarks about recording by documenting might be implied in the Grierson definition.
The Full Court, it seems to me, rejected the suggestion that the Grierson definition, by implication, involved that the concept of informing or education was found in the explanatory memorandum or the Documentary Guidelines (which it referred to together as the extrinsic material). At [38] the Full Court said:
38. However, the second characterisation settled upon by the Tribunal which contains the concept of informing or education is found not in the extrinsic material but rather is contained in the definition from the Oxford Dictionary.
Subsections (a), (b) and (c) of s 376.25(1) are matters necessary to be taken into account, in determining whether the program is “a creative treatment of actuality”. Subsection (d) on the other hand requires an understanding of the notion of a creative treatment of actuality in order to know what might qualify as relevant. I have the assistance given by the earlier Tribunal and Full Court decisions referred to at [11] and [12] above.
Subsection (2) of the section in subparagraph (a) gives rise to little difficulty of construction. The expression “infotainment or lifestyle program” is defined in Schedule 6 to the Broadcasting Services Act 1992 (Cth) as “a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value”.
The “purpose” of the program is to be ascertained objectively, and the “heavy emphasis” on entertainment value requires an evaluative judgment, to be made after an examination of the whole of the episodes of the production. Subsection (1) of s 376.15 requires a similar examination.
The explanatory memorandum for the Taxation and Superannuation Laws Amendment (2013 Measures No. 2) Act 2013 (Cth) observed that the definition approved in the EME Productions case referred to in [9] above “represents a departure from both the ACMA guidelines and the long-held understanding of the term in the context of government regulation of, and support for, documentaries”. It was apparently the intention of the amendment, at least in part, to overcome by statute what was decided in EME Productions. The explanatory memorandum makes a number of assertions about s 376.25, including at paragraphs 1.21 to 1.34, in the following terms:
Creative treatment of actuality
1.21 To qualify as a documentary, a film needs to be a creative treatment of actuality. To do that, it has to analyse, explore or interpret its subject matter. The treatment of the material needs to be more than merely superficial and needs to enhance the viewer's understanding of the subject matter.
1.22 The treatment also needs to be creative through, for example, an innovative narrative structure or the manner in which the film is edited or constructed from a range of sources. That distinguishes a documentary from a factual program such as a news report.
…
1.23 The requirement that a documentary be based on actuality means that the subject matter must be grounded in fact or real life. Therefore, the context for the program exists independently of the film itself. That is, the documentary is an exploration of something that would have happened whether someone was there to film it or not. However, it would be possible for a situation that was contrived by a filmmaker to give rise to actual events that are explored and analysed as part of a documentary program.
…
Relevant factors
1.24 When assessing whether a film is a creative treatment of actuality, and therefore a documentary, regard must be had to the extent and purpose of any contrived situation featured in the film, the extent to which it explores an idea or a theme, and the extent to which it has an overall narrative structure. These elements are drawn from the ACMA Guidelines. [Schedule 1, item 3, subsection 376-25(1)]
1.25 A documentary's primary purpose is to creatively examine actual events. The greater the level of contrivance of the matters being depicted, the greater the likelihood that the film is not a documentary. However, films featuring dramatised sequences may be documentaries and some documentaries may start with contrivance and then record and analyse the resultant events to explore a theme. In such cases, consideration of the extent to which the contrivances explore an idea or theme would be relevant. [Schedule 1, item 3, paragraph 376-25(1)(a)]
1.26 The extent to which a film explores an idea or theme is central to the definition of a documentary. Films that are superficial in their treatment of the subject matter would generally not be characterised as documentaries. The exploration or analysis of a topic or theme is also integral to the concept of documentary, accepting that the exploration or analysis need not be serious in tone. Films that have factual subject matter, but lack exploration or analysis, would be more likely to fall within the non-documentary categories of infotainment, lifestyle or magazine programs. [Schedule I, item 3, paragraph 376-25(1)(b)]
1.27 The narrative style of a program is very likely to have an impact on the way in which it treats its subject matter. A program without an over-arching narrative structure, such as one consisting of brief and unrelated aspects of a broad topic, is unlikely to be a program that explores and analyses its subject in some depth, which is a key characteristic of documentaries. [Schedule 1, item 3, paragraph 376-25(1)(c)]
…
1.28 These are not the only factors that can be taken into account; anything else that is relevant should also be considered in deciding whether a film is a creative treatment of actuality. For example, relevant factors in appropriate cases might include the commercial arrangements underpinning the production, the likelihood of the film having enduring appeal, and the breakdown of the film's budget. [Schedule 1, item 3, paragraph 376-25(1)(d)]
Infotainment, lifestyle and magazine programs
1.29 Documentaries do not include infotainment or lifestyle programs. [Schedule I, item 3, paragraph 376-25(2)(a)]
1.30 'Infotainment or lifestyle program' has the same meaning as in Schedule 6 to the Broadcasting Services Act 1992. There it is defined as a program, 'the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value'. [Schedule 1, item 3, paragraph 376-25(2)(a]
1.31 At the margin, it is this emphasis on entertainment that distinguishes an infotainment or lifestyle program from a documentary that presents facts but in a creative and entertaining way. In a documentary, the entertainment serves the more serious purpose rather than the other way around. Infotainment or lifestyle programs are also likely to share a number of observable characteristics that differentiate them from documentaries:
The programs are usually episodic in nature, comprising a series of distinct or loosely connected segments rather than an overall story arc.
The treatment of the material tends to be superficial and unquestioning. There is likely to be limited engagement with, or analysis of, the subject matter.
The primary purpose of the program is often to highlight goods or services available to the viewer, or to give the viewer advice on 'how to' do something.
1.32 Documentaries also do not include films that present factual information in multiple discrete parts, each dealing with a different subject, or a different aspect of the same subject, but without an over-arching narrative structure or thesis. These are what the ACMA Guidelines call 'magazine programs'. [Schedule I, item 3, paragraph 376-25(2)(b)]
1.33 Like an infotainment or lifestyle program, a magazine program does not contain an over-arching narrative. It may deal with several subjects but, even if it deals with one broad subject matter, it will touch upon a number of aspects of the subject. Each part of the program is discrete from the others. It typically imparts superficial factual information without presenting an original thesis, exploration or interpretation.
1.34 Infotainment or lifestyle programs and magazine programs are not necessarily excluded from the producer offset. However, because they are not documentaries, they must meet the higher QAPE threshold and other existing criteria.
The assertions do not amount to anything which binds a decision maker, in the same way as a decision of a court would bind him or her, unless s 15AB of the Acts Interpretation Act 1901 (Cth), discussed below, produces that result. The explanatory memorandum may provide information about mischief and context, which may assist in preferring an alternative construction over the literal meaning of a provision (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408) but it will be the text of the Act, if clear, which will govern as the surest guide to legislative intention rather than extrinsic materials: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [31], where the plurality (French CJ, and Gummow, Hayne, Crennan and Kiefel JJ) said:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation." ((1996) 187 CLR 1 at 168-16). Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
The Bride and Prejudice series consisted of eight episodes. The series involves tracing the ups and downs of the marriage plans of five couples of whom three are heterosexual and two are same sex. Each couple faces opposition to the marriage from at least one parent. One marriage does not take place at all, in the upshot. The others actually marry, despite parental opposition. Parental opposition is based on race bias, religious grounds, general opposition to same sex unions, concern about age difference, and concern that the couple is too young to marry. The agreement signed by the participants bound them to abide by and carry out reasonable directions of Seven Network during the production of the program. The s 37 Administrative Appeals Tribunal 1975 (Cth) documents include an episode outline in the following terms, prepared on behalf of the applicant:
Ep 1: Love and Conflict
Three couples, each carrying the burden of conflict with family members who oppose their relationship, prepare to reveal to them their plans to get married.
Adelaide couple, Marina and Donny are in an interracial relationship; Marina's background coming from the former Soviet Union and Donny, born and raised in India before settling in Australia. But simmering tensions exist between Donny and Marina's mother, Natalia who, while civil to Donny in person, has laid concerns about his colour and culture to her daughter.
In Sydney, young lovers, 20-year-old Brad & 18-year-old Courtney are newly engaged and while they enjoy support from Courtney's mum, Sheena, the task of telling Brad's mum Sherrie fills them with dread. Sherrie has never liked Courtney and believes the pair are too young and immature to get married as well as harbouring the fear of losing her son.
In a harbour-side park, Chris drops to one knee to propose to his American born partner, Grant. It's a yes and support comes from Grant's parents in the US. But Chris has endured an 18-year estrangement from his deeply religious mother, Yvonne and war veteran father, Geoff. Telling them fills Chris with anxiety; neither of his parents agree with his relationship and believe homosexuality to be wrong and immoral.
Ep 2: Telling the Haters
Our three pairs, interracial couple Marina & Donny, young lovers Courtney & Brad and gay couple Chris and Grant now have to confront the conflict head on and tell their respective disapproving parents the news of their upcoming wedding.
Brad's Mum Sherrie is brought to tears; a mix of repulsion, sadness and frustration as she is faced with a marriage she won't give her blessing to and the possibility her son will be gone to her impetuous, soon to be daughter in law; not even a meeting with Sheena to validate the love Brad and Courtney share will change her mind.
Donny and Marina expose Natalia's duplicity and offer her a chance to come clean about issues she may have with Donny's Indian culture and the colour of his skin. Her assurances that there is no problem is met with suspicion and a family get together reveals the reasons behind her prejudice.
Chris is forced to face his parents alone and it doesn't go well. Yvonne's strict beliefs won't allow her to agree with or attend his wedding and Geoff's blames his upbringing for his homophobia. Chris is left hurt and sobbing by his parents continued rejection but finds solace and acceptance in Grant's parents who have arrived from the US to meet him.
Ep 3: The Cracks Begin to Show
After and awkward family get together, Marina debriefs with her mum Natalia who sees no problem with prejudices with Donny's culture. The stress of the underlying tensions and the upcoming wedding is becoming too much for Marina making Donny realise that he must again confront Natalia, this time to convince her to let go of her issues once and for all. After a nervous drive and a meeting in a park, the relationship between Donny and Natalia Is left in tatters.
Chris, Grant and his parents Dana & Pam find suits for the upcoming Palm Springs wedding in California. Chris is encouraged to find support from other members of the family which leads him to Queensland and a reunion with his Aunt Alison. There he decides to keep the channels of communication open to his parents in the hope they will change their mind and come to his wedding.
With demands from Courtney for the perfect engagement ring, Brad spends big to make her happy. Meanwhile at the nail salon, Courtney puts on the charm offensive in a bid to convince Sherrie that she now a mature young woman and a good match for her son; but mum's not taking the bait, now more suspicious of her than ever. Not even shopping for a suit with her son Brad for the ceremony is enough to get her support; she's resolute, she won't give up her son and doesn't want the wedding to go ahead. The pressure is too much for the young lovers and the couple are left fighting and apart
Ep 4: The 1st Wedding
Melbourne couple 24-year-old Garrad & 40-year-old Liz have an age gap of 16 years and Liz's sister doesn't approve; concerned that Garrad is too immature and that Liz has rushed into the relationship. While Garrad's country town family are, supportive and accepting, the pair know that when they tell Katerina their happy news, she's not going to react well, at all.
Chris visit's his dad Geoff for a second time to open more about Grant, get his dad's approval and get him to change his mind and come to the wedding; it doesn't go as planned. Chris can't get the words out and the meeting is an awkward couple of beers and a game of pool, with nothing accomplished. A second attempt, this time surfing the next day with mum Yvonne has the same result and Chris is left feeling defeated.
Youngsters Courtney and Brad reconcile after their fight, blaming the stress of the wedding as the cause. Brad's mum Sherrie is conspicuously absent from visiting the wedding venue but does attend the engagement party where she witnesses another fight between her son and Courtney, validating her belief they wedding shouldn't proceed and inspiring her to make a plea to Brad to call the whole thing off.
While a fiery encounter between Donny and soon to be Mother in law Natalia ended in a storm off, the couple head to their wedding Venue in the country. It's the last chance for Donny and Natalia to sort out their differences before he and marina tie the knot. Among the vineyards, they emotionally recite their vows, committing to each other for life. As the newlyweds bask in the happy occasion, Natalia finally concedes, welcoming Donny to the family with a warm embrace.
Ep 5: New Love
Charity & Phoebe are in a committed relationship and want it to be recognised by marrying in New Zealand. They call family and friends to a gathering to announce the plans but Charity's parents don't show up. Both are pastors of a local church and despite the love they have for her daughter and Phoebe, cannot support their same sex relationship.
Having given Brad strict instructions to avoid girls and stay out of Kings Cross for his buck's night and with constant texts and threats to break up with him, she has travelled there to confront him with accusations of lies over his choice of venue.
Not giving up on his parents, Chris returns to the Sunshine Coast to in another attempt to connect with is Dad. Asking if he would change his mind and come to the wedding, his answer is the same; he won't change despite a hug and admission of love for his son. In tears, Chris hands his father paid airfares to the US if he changes his mind. The ball is now in dad's court.
Ep 6: The Breakup
After Charity's parents didn't show up for the announcement of her engagement to Phoebe, the girls travel to their house to break the news but are left bitterly disappointed when told they won't be attending the wedding. Despite the setback, they continue with the wedding plans and send an emotional note with invitations to Charity's parents in the hope they will come.
Liz is joined by sister Katerina to look at dresses for the wedding. There, Kat tries to convince her sister that marrying Garrad would be a mistake. Later, Liz tells Garrad who takes the news badly and there is a tense drive to Katerina's house, after she summons them to make an announcement.
Angered by the mistrust and intrusion on a lad's night out, Brad stands up to his young fiancé and calls off the wedding. The next day and with a clear head, Brad is convinced he has done the right thing and with a feeling of relief, moves back to his mum's house, breaking the news that not just is the wedding not going ahead but they relationship has ended entirely.
Chris and Grant have arrived in Palm Springs for their destination wedding and have mixed emotions; happy anticipation that they will soon be married but sadness that Chris' parents might not be there to share it with them. Later, the pair is left with hope when Aunt Alison and Uncle Barry arrive with suggestion that Yvonne and Geoff might change their mind and come to the wedding.
Ep 7: The 2nd Wedding
With the arrival of Grant's parents, Dana & Pam in Palm Springs, Chris hopes of his Dad coming to the wedding continue to rise. But later, the thought that either of his parents coming starts to worry him; would they sabotage it and ruin his big day? On the morning of the wedding, the boys wake, having stayed away from each other for the night. There's a mix of excitement and trepidation and as Aunt Alison and Barry arrive to see Chris, he's left hanging as they prepare to make a big announcement about his parents.
Charity's final dress fitting is a teary one and as her and Phoebe prepare to leave for their wedding in NZ, Charity makes one last emotional video plea to her parents and brother to change their mind and support her on her special day. As the big day arrives, it appears that her pleas haven't been met. Putting the disappointment behind them, the girls are surrounded by supportive friends and family and joy a every moment of the occasion, committing for life to each other and looking to a future together.
Liz and Garrad have been summoned to visit Katerina so she can make an important announcement to them; she won't be attending their wedding and won't support their relationship, the age gap between them to great. There's a mix of tears and anger and later at a dress fitting, Liz pleads with Katerina to try get to know Garrad so that she can see that he's the man for her sister. But with the right intentions to meet each other and find some common ground, the get together quickly becomes heated ending in Katerina storming off.
Ep 8: A Happy Ending
There's a rift between Garrad & Liz and her sister Katarina after her refusal to come to the wedding and a heated exchange with Garrad. But Liz isn't giving up and writes and emotional letter to her sister to change her mind. Despite the happy occasion, wedding rehearsals and preparations without Katerina are a cruel reminder that he's not coming to the wedding. But a last-minute change of heart from Kat, arriving with minutes to spare, has Liz in a mix disbelief and overwhelming happiness that her special day is now complete.
On the morning of their wedding day, Chris and Grant are hanging off an announcement from Auntie Alison about Chris' parents. Unfortunately, it's not what Chris wants to hear — they're not coming to the wedding and instead have sent him a video message that crushed Chris on his special day. After time to process and a nervous wait from Grant at the altar, Chris makes it to his wedding. After an emotional ceremony, the boys can now enjoy the party and Chris makes a speech, letting go of bitterness and thanking his parents. But he's learnt that his family is with Grant and their future together.
THE CRITERION MENTIONED IN S 376.25(1)(A) – THE EXTENT AND PURPOSE OF ANY CONTRIVED SITUATION
The applicant submits that no contrived situations detract from presentation of the actuality of the relationships and events. Seven Network says, relying on the ACMA guidelines, that a contrivance that serves to explore an idea is permissible in a documentary. It says that to the extent that locations and scenes are organised by the producer and directions are given to participants, this is simply a measure to facilitate the practical aspects of filming.
The respondent submits that the level of contrivance is above that typically seen in a documentary. It refers to the provision of props, including a picnic rug, champagne, a choir which serenades one of the couples, the scheduling of various scenes in call-sheets thus predetermining events depicted, the delivery of tickets to parents to travel overseas, the tickets having been purchased by Seven Network, the masking of certain employment details of participants and the like, and the payment of expenses for the participants or family members to attend overseas weddings of same sex couples. The respondent submits that but for these things, the natural progression of the events involved would have played out differently, or over a longer time period. As appeared from the evidence of the executive producer, a submission by the respondent about the use of “mood boards” may have been based upon a misunderstanding and I have given little weight to that part of the respondent’s submissions. The executive producer gave evidence that Seven had not actually booked the (unused) plane tickets offered to the parents of one of the participant couples, contrary to one of the submissions of the respondent.
Discussion
The participants were all paid for their work amounts ranging from $15,000 to $17,500. Filming was done inside the parents’ homes where the parents were prepared to allow the filmmaker to do it. The participants and parents were interviewed on camera at various times to explain their attitudes about the weddings and to events depicted in the series. Some of them were apparently not only prepared to be interviewed but apparently enthusiastic to do so. The participants were for the most part not persons with acting training, but did their best to put on a good show. Much of the film was reshot on multiple occasions, no doubt to make the finished product more acceptable. The program model was itself contrived in my opinion, involving an apparent arrangement between the producers and those who appeared on screen so as to put what would usually be done in private into the public arena. The series had the look and feel of reality television, rather than a study of events. Some of the matters referred to by the respondent were no doubt within the bounds of what is permissible to explore and paint the story which emerged, but in some respects, such as the choir scene, it seemed to me to lack verisimilitude and to suggest contrivance.
The respondent submitted that because none of the film’s participants were called by the applicant I should more readily infer that the film involved contrivance where there is some evidence to suggest contrivance to be involved. This case does not involve considerations of onus of proof, and nor is the Tribunal bound to apply the rules of evidence, or presumptions which a court of law would apply in determining whether an onus of proof has been satisfied. The nature of the evidence called, and not called, by either party is capable of being considered as one of the circumstances of the case, but that kind of consideration is not necessarily determinative, and the findings I have made in the previous paragraph were made without regard to the applicant’s choice of the witnesses called by it.
THE CRITERION MENTIONED IN S 376.25(1)(B) – THE EXTENT TO WHICH THE FILM EXPLORES AN IDEA OR THEME
The applicant submits that this criterion is satisfied, and refers again to the ACMA guidelines. It describes, for example, the angst of a parent unable to accept the forthcoming marriage and also unable to let the child go, and the shock and hurt experienced by a child whose parents prioritise their personal values over the acceptance of their child.
The respondent submits that there is a lack of serious analysis of the subject matter and that the extent to which the film explores an idea or theme is limited. For example, if a parent changes his or her mind and attends the wedding, no real explanation of why they attended is offered.
Discussion
In my opinion, the film does explore a subject matter, namely some marriages which occur despite parental opposition on grounds which are ideological or otherwise seriously felt and the consequences to the marrying couple of such opposition. It is not evident that the marriages are put much at risk by the parental attitudes with one possible exception in the case of the marriage which does not occur, and the strength of the love between the couples is such that parental opposition does not affect the marriage decision in most cases.
The series would seem to some to be superficial or, perhaps, overly emotional in content, or unappealing, but that does not show that a theme was not explored. An objection that the exploration is not serious has to have regard to the fact that for some viewers, especially repeat customers, some interest in the treatment, and satisfaction with it, must have been generated.
THE CRITERION IN S 376.25(1)(C) – THE EXTENT TO WHICH THE FILM HAS AN OVERALL NARRATIVE STRUCTURE
The applicant submits that Bride and Prejudice features a strong, overarching narrative, in which the challenges the couples face are depicted in sequence, allowing the audience to build and develop their understanding of the material in a highly engaged way.
The respondent omitted this criterion from its written submissions.
Discussion
The film traces some aspects of the marriage history in a linear way and leads, in the case of each couple to a marriage or breakup. It is difficult to assert that it does not have a narrative structure.
THE CRITERION IN S 376.25(1)(D) – ANY OTHER RELEVANT MATTER
I received several statements from, and heard the oral evidence of Ms Deborah Spinocchia, the executive producer of the series. In her supplementary statement, she responded to the statement of facts, issues and contentions of the respondent. She observed that the series was produced for a commercial audience and was intended to be relatable to a wide group of viewers with different values and life experiences. She said that the re-caps in the episodes were added in post-production to re-introduce the audience to the couples and introduce new viewers to the series itself. She also asserted (or, as I ruled, submitted) that Bride and Prejudice is a story about the personal cost of prejudice and does not focus on the statistics or broader issues or seek to discuss prejudice in those terms.
The respondent submitted that it was relevant that the film was characterised in the “Reality” section of the applicant’s website and was not characterised in the “Documentary” section. It also submitted that the procuring of a social media blackout period from the pre-launch of the program until one week after the final episode had been broadcast, which it was submitted was typical of a reality television program and not typical for a documentary.
Discussion
The description of the series as a reality program may not be inconsistent with it being also a documentary within the meaning of the legislation. My attention was drawn during argument to s 376.65(2)(d)(vii) of the Act. It seems from s 376.65(2)(d)(vii) that a reality film may be a documentary, suggesting that they are terms which overlap. Section 376.65(2)(d)(vii) provides as follows:
2The conditions in this subsection are that:
(d)the film is not, or is not to a substantial extent:
(vii) a reality program (other than a documentary).
There is no statutory warrant for asserting that no reality films are documentaries. The ACMA guidelines do so suggest and the guidelines cannot be used to contradict the statute. On the other hand, the statute does not suggest that all reality television is a documentary as defined.
Industry professionals other than Ms Spinocchia were not called in the case by either party. In particular, neither party sought to call evidence from persons familiar with the Grierson definition and its application, prepared to state any expert opinion on whether this series qualifies as such.
I have referred in [11] and [12] above to the assistance provided to me by earlier authority in this Tribunal and the Federal Court. The applicant has sought to refer to the ACMA guidelines as a relevant document bearing on the issues in dispute. The respondent has submitted that the ACMA guidelines are not referred to in s 376.25 and that the definition in that section is not to be construed through the prism of the ACMA Guidelines. In oral argument Ms Graycar for the respondent submitted that because the guidelines were first published in 2004 they may be out of date at this time. The fact that they are referred to in the explanatory memorandum, she submitted, does not mean that the text is not the fundamental concern. I have discussed this question in [17] above.
Even if the ACMA guidelines are (possibly) out of date, they were mentioned in the respondent’s statement pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) as part of the evidence or material on which the findings were based, together with the explanatory memorandum for the current regime, which also mentions them. The s 37 statement tends to confirm that the ACMA guidelines are current policy of the respondent. The reference to the guidelines in the explanatory memorandum may also suggest that the guidelines are a relevant resource. If the provisions of s 376.25(1)(a) are ambiguous or obscure, extrinsic material may be resorted to in order to resolve that ambiguity or obscurity. Section 15AB(1) of the Acts Interpretation Act 1901 (Cth) provides as follows:
1Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
The Full Court on appeal from the Tribunal in the Lush House case held (at [48]) that the Tribunal was entitled to refer to the ACMA guidelines as extrinsic material to a statute which did not define “documentary”. It seems to me to follow that such a conclusion ought also to be drawn in relation to the current statute, which actually uses the Grierson definition as part of its definition of a documentary.
I ought also to mention that a government policy which includes statements as to the government understanding of the meaning of legislation will not detract from the obligation of this Tribunal to consider the proper interpretation of the legislation for itself. Following the agency opinion in the Tribunal without considering for itself whether the agency opinion is correct will be an error of law. See generally D.C. Pearce, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015) at paragraph 16.30 and cases there cited. If the policy is embodied in relevant extrinsic material, it may in appropriate cases nevertheless be used to determine the meaning of the legislation in accordance with s15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth).
The Documentary Guidelines are included in the s 37 documents filed with the Tribunal by the respondent. They were first issued by the Australian Broadcasting Authority in 2004. Starting with the Grierson definition they state that the two issues are whether the subject matter of the program is “actuality” and whether the program is a “creative treatment of its subject matter”. They describe the Grierson definition as a term of art, rather than a precise description. The parties to this review seem to differ from that proposition, in that they say the words are to be construed in their ordinary English sense. The explanatory memorandum confirms that the community to which the definition is addressed is the relevant industry that is, film makers. That view, if correct, would allow evidence of what the expression means in the industry; Cf Herbert Adams Pty Ltd v Federal Commissioner of Taxation [1932] HCA 27; (1932) 47 CLR 222 at 227 per Dixon J and see the discussion of that case and of the speech of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373 at 391 in Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389. Part of the evidence which would be admissible in that way may be the policy of the respondent itself, the ACMA guidelines, which include the respondent’s understanding of the meaning and application of the Grierson definition. In the absence of evidence from industry professionals that they understand the Grierson definition in light of the ACMA guidelines, I cannot be satisfied that the industry meaning of the Grierson definition is as set forth in the ACMA guidelines.
The Guidelines discuss the “actuality” question by asking whether the events recorded would have happened whether someone was here to film it or not, treating actuality as fact, in much the same way as the Tribunal did in the Lush House case. They then discuss the “contrivance issue” and I have already referred to that factor in relation to s 376.25(1)(a) above.
On the issue of the creative treatment, the Guidelines say this:
One of the primary characteristics of a documentary, recognised in the Standard definition, is that it will treat its subject matter in a creative way. That is, the program will demonstrate original thought or expression.
A program may depict actual events (it may, for example, be a record of a street parade, or a birthday party), but unless it treats these events in a creative way, it will not be considered a documentary. Similarly, chat or interview based programs where real events are discussed, but not explored in a creative way, will not meet the definition.
The following characteristics may be non-exclusive indicators that a program is a documentary. It should be noted that these are general characteristics only. A program may not contain all of these characteristics, and yet still be considered a documentary.
·The starting point for the program will be to explore an idea, theme or subject matter. The idea, theme or subject matter does not need to be serious. The program may adopt a critical approach, or present the theme in an original way.
·It will be interpretative, explaining or construing the idea in a particular way.
·It will be structured to form a narrative, and will not be simply a series of aspects of a common subject.
·Through the information conveyed, it will increase a viewer's understanding of the idea. It will be more than a 'how to' guide, a travel guide, or a vehicle to highlight goods and services.
·It is likely to have some enduring appeal and ongoing relevance.
The program will not serve primarily as a vehicle to promote goods or services. Where it does contain commercial content, this will either be incidental to the central subject matter, or the program will demonstrate sufficient other characteristics listed here to bring it within the definition of documentary.
To some extent the bullet points set out replicate issues discussed above in relation to s 376.25(1)(b) and (c). The second, fourth and fifth bullet points are candidates for consideration under s 376.25(1)(d) in my opinion. Similarly, the second sentence of the first paragraph of the excerpt set out in the previous paragraph may go to whether the subject matter is treated in a creative way, and the interviews in the series may fall for consideration in the light of what appears in the second paragraph. For the most part, the questions thus suggested can only be answered in an impressionistic way, in the light of my own viewing of the series.
I do not go so far as to decide that I am bound to consider all those questions in determining the meaning of the word “creative” in s 376.25(1)(a) and in s.376.25(1)(d). It does not seem to me that I am bound to do so by s 15AB of the Acts Interpretation Act 1901 (Cth), even if I hold that the word “creative” is ambiguous or obscure. Rather, s 15AB(1)(b)(i) is facultative. The statute permits, rather than requires, consideration to be given to material in determining the meaning of a provision. And weight is a matter which is left to the person interpreting the legislation, as is made clear by s 15AB(3), which provides as follows:
3In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
One would not resort to extrinsic material unless it were appropriate to do so. The ACMA guidelines read to me as a rational and cogent description of creativity in the relevant genre. Their adoption successively by Screen Australia and its predecessors suggests that the guidelines have stood the test of time and there is no reason in the evidence to doubt that they remain applicable to the industry.
If I were to act on the submission of both parties that the academic literature provides no clear indication of the meaning of the phrase as a whole I would be justified in concluding that the phrase is obscure. In any event I consider that the phrase, by reason its inclusion of the word “creative”, is ambiguous if not also obscure. One would be justified in the light of the state of the evidence before me in seeking help for its construction in the ACMA guidelines in the interpretation of the Grierson definition and thus in interpreting s 376.25(1)(a) and (d). The parts of the ACMA guidelines set out in [41] above raise the following questions, insofar as not already dealt with in relation to s 376.25(1)(b) and (c): Does the program “demonstrate original thought or expression”? Does it treat the events depicted in a creative way? To the extent that it contains interviews does it involve events explored in a creative way? Is the idea, theme or subject matter explored in the series explored critically, or in an original way? Does the series increase a viewer’s understanding of the idea or theme explored? Is it likely to have some enduring appeal and ongoing relevance?
Most of those questions are only able to be answered in an evaluative or impressionistic way having seen the series itself. They do not lend themselves to the making of detailed explanations, for the most part, unless they are to be answered in the affirmative. Nor are they a check list of cumulative requirements. One or more might be answered in the negative without the film failing to be a documentary on that account.
Does the program “demonstrate original thought or expression”? I have not noticed that it does so. It is hardly demonstrative of original thought to engage five couples and in some cases their relatives to make public the matters recorded in the episodes, and to edit the resulting film.
Does it treat the events depicted in a creative way? This should not be confused with a question about the art of a television producer, or a question about program ratings. The treatment of the events depicted in the series demonstrates, in my opinion, no particular twists or turns suggesting the application of creativity.
To the extent that it contains interviews does it involve events explored in a creative way? It is difficult to conclude that the interviews, or any of them, involve events explored creatively.
Is the subject matter explored critically or in an original way? The series seems to proceed without criticism, and indeed without analysis, of the events depicted, and otherwise does not appear to involve originality, or to use the language of Downes J and Member Britton in the Lush House case, to involve the imagination or invention.
Does the series increase a viewer’s understanding of the idea or theme explored? One could say no more than “perhaps” in relation to this question. The story line brings out the motivations of those involved, without contrasting them expressly with any alternative, although a degree of contrast is apparent between the attitudes of different parents of the same couple or one of them. The viewer is largely left to form his or her own conclusions, if they wish, as to the attitudes of the participants and their parents. It does bring out the hurt felt by persons whose parents disapprove of the wedding, although it is hard to see that as increasing the understanding of a viewer.
Is it likely to have some enduring appeal or ongoing relevance? I do not think so, as to “ongoing appeal”. In another connection Mr Free SC put to me that the series may become interesting in say, 30 years’ time, after community attitudes have changed somewhat to same sex marriage, and the like. Those possibilities are very speculative, and do not satisfy me that the program is likely to have some ongoing relevance.
I would therefore give a negative answer to the additional questions arising.
Despite what I have written about s 376.25(1)(b) and (c), the matters mentioned in [46]-[52] taken together with what I have written about the criterion mentioned in s 376.25(1)(a) above move me to the conclusion that the series is not a creative treatment of actuality, and therefore not a documentary as defined.
That conclusion, if correct, is enough to dispose of the matter. Like the decision maker, I go no further than subsection (1) of s 376.25, and do not need to discuss subsection (2).
The reviewable decision will therefore be affirmed.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
.............................[sgd]......................................
Associate
Dated: 1 May 2019
Date(s) of hearing: 1 and 2 November 2018 Date final submissions received: 26 February 2019 Counsel for the Applicant: Mr S Free SC Solicitors for the Applicant: Ms J Munsie, Addisons Counsel for the Respondent: Ms R Graycar and Ms S Woodland Solicitors for the Respondent: Ms J Moore, Australian Government Solicitor
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