WHAT’S A DOCUMENTARY?

This session at the AIDC 2012 in Adelaide has arisen via a ‘stoush’ between Chris Hilton and Screen Australia over their production Lush House. Chris applied for a producer offset for the program, but it was rejected. However Chris appealed to the Administrative Appeals Tribunal, who overturned the decision. Then Screen Australia appealed, and this was heard on 13 February. To date the outcome is still pending.

The session was the liveliest of the conference, with robust discussion as could be expected – and then some! Chris Hilton put forward a passionate argument in favour of Lush House being awarded the offset, and Screen Australia’s Chief Operating Officer Fiona Cameron rebutted his arguments.

Simon Nasht countered with an offer of a bet that Screen Australia would lose its appeal, as in his eyes their case is weak. If he is right, this will create the very uncertainty that Fiona said they were seeking to avoid over what sort of documentary is eligible for an offset.

Bob Connolly unleashed an astounding diatribe against the current state of the documentary industry in Australia. It was so astounding that we have reported it as a transcript of his comments, to the best of our ability in transcribing it. Our apologies for any errors.

Finally Jennifer Peedom put forward a perspective of someone with fewer kilometers on the odometer, but some equally penetrating insights into the dilemmas facing writer-directors or producer-directors who were not part of a large production company, and who wanted to continue to make films, and also pay the mortgage.

From the start it was clear that session convenor Dr Rachel Landers of AFTRS was expecting a battle on her hands. She made a lengthy introduction that set the scene. She said that she had been concerned that head of Screen Australia Dr Ruth Harley had suggested that she had no problem if fewer one off docs were being made at the expense of series, because she liked them. “I think that’s a problem,” said Rachel. “People have built their careers out of making one off docs.”

She suggested that a whole generation of skills may be lost by going down the series path. “I find it astounding that an industry that has been flooded with rebate money has not got the money to fund one off docs.” She added that the current feature film industry is hardly kicking major goals, and mused whether it might be cheaper to set the money on fire or pay people to not make features that are failing to find an audience. “We have to fight for documentaries,” she concluded, “and for our future.”

CHRIS HILTON

Chris Hilton began his speech by suggesting that perhaps Rachel was introducing a different panel to the one he was one. He characterized his ‘stoush’ over Lush House as an elegant one. However the legal system is of necessity adversarial.

Chris said he’s spent a great deal of time and money arguing the case that Lush House should qualify for the offset. He said he wasn’t called to offer evidence in court, but heard the barristers on both sides arguing what was and wasn’t a documentary, including such notions as if it wouldn’t have happened without a camera, then it wasn’t a doc.

“I used to be a writer-director of one off docs,” Chris explained. “I used to be serious minded, passionate, winning awards, making more films. But then I wanted to build a company as well, because being a one off writer-director it is very different to build a sustainable career. Now I’m in a small to medium size enterprise that does drama and other types of program as well as docs.”

Chris added that he has been involved in lobbying for docs via ASDA, as it was then, and SPAA. “For me it was about how to increase the pie, not squabble about a diminishing pie. If you can grow the pie, all the better. And the offset definitely grew the pie.”

“Canada has $2.5 billion industry domestically. Our industry is about $500 million. The Canadians are clearly prepared to spend a lot of money on their culture.”

He suggested that the tax offset that came in in 2007 has to be the greatest win for the film industry of all time. It’s an uncapped resource. But for documentary, there was a flaw inherent in the legislation, and that was in the way documentary was defined. Or rather, in the way it wasn’t defined. For documentary is defined by what doesn’t qualify, not what does.

Given the doubt around the definition, Chris had no problem in challenging the rejection from the offset of Lush House, and he was happy when he initially won. But Screen Australia’s intervention may overturn that.

FIONA CAMERON

Fiona began her presentation with a statement that she was going to confine her comments to the facts. She then summed up her view of what had happened, and why.

She agreed that the fact that the legislation doesn’t offer a definition of documentary is a problem. However, she said that there is an explanatory memorandum attached to the legislation that does, and its definition is lifted from ACMA. This definition, she added, was used previously by the FFC, and has provided the industry with transparency.

Fiona also said that by and large there hasn’t been much of a problem, as 238 final certificates have been issued to documentaries, and only three have been rejected. So for Screen Australia, the system was working.

Fiona stated that Screen Australia was not injecting uncertainty into the balance; however she conceded that plainly there was always going to be a program that raised the issue of definition, and it turned out to be Lush House.

She explained that her agency questioned the umpire’s decision because the umpire, namely the AAT, had introduced a new definition into the mix. That leaves Screen Australia with two tests instead of one. Clearly, in the future there will be projects that fail one test and pass the other. What then?

So they appealed, on the grounds that the AAT was wrong at law to set aside the definition in the explanatory memorandum.

“The three judges have not seen the program,” she said, “and will only rule if the decision was correct at law. Our argument is that the decision was made in error.”

“We await the court decision and of course we will abide by it.”

If they uphold it, that means that some projects previously thought of as infotainment and magazine would now be eligible for the offset.

The industry does need to grapple with the definitions. How will we define premium docs?

Fiona concluded by suggesting that perhaps instead of getting bogged down in this debate about definitions, we should shift the industry focus to the cultural policy that is about to be handed down. “There could be an Australian content fund, a future fund for Australian content,” she said. “Let’s get behind it.”

BOB CONNOLLY

It was then industry veteran and director of “Mrs Carey’s Concert” Bob Connolly’s turn to speak. As far as possible, this part of the report is verbatim.

“I did not want to sit on this panel, or participate in this discussion, but Joost asked me to. I didn’t even know about the issue and I told Joost he should get someone else as I doubted I could make a worthwhile contribution. He insisted, and because I like him and respect him for a number of other reasons I agreed. And since I was going to sit here I tried to extend to him the courtesy of familiarizing myself with the issue.  I’ve read various court judgments and press articles, I talked to people in the know, I think I have a reasonable take on the situation, and the position I take is, that this topic fills me with despair.

Despair that this discussion, in this place, is what our cherished art form has been brought to.

Now before I begin smashing everything within reach in the china shop, via this hastily written and overly emotive presentation, in every sense, yes, I am a dinosaur. I sort of knew that before coming here, but now I know I am one, a dinosaur that hasstrayed into the wrong paddock. Because if anyone had told me thirty years ago that I’d find myself on a panel participating in a serious discussion about whether or not a TV show about removing stains qualified as a documentary I’d have come to the embarrassing conclusion that I’d caught the wrong plane and landed in Surfer’s Paradise and blundered into one of those tax dodge conventions so fondly purused by doctors and dentists and no doubt the stain removal industry.

“Ladies and gentlemen this dinosaur says that the lunatics have taken over the madhouse. Twenty years ago I used to complain too much about navel-gazing in industry gatherings of documentary filmmakers. Too much politically correct argumentation about politics and ethics and not enough about craft. That compares unfavourably with our feature film brethren. They don’t waste time with this stuff I’d say, they put their collective energy into discussing how to make better films.

“Now I find myself nostalgic for those doco talkfests. Because at least we were talking about serious issues. Now we are reduced to arguing about stains.

“What must the rest of the film industry think of us? The politicians and the bureaucrats who control the purse-strings of this heavily subsidized so called art form. How have we gotten to the state of affairs whereby a judge in a court of law has been given licence to determine what it is that we do in such a way as to make sensible differentiation virtually impossible?

“Dr Landers has given us five minutes each to talk about stains and I’ve spent too much time on it already.

“I said I’d participate today out of respect to Joost, and it also gives me the opportunity to address a number of people at this conference including its director about the elephant in the room.

“There aren’t many practising filmmakers here this week unfortunately. Guess what? The economics of documentary filmmaking in this country makes it difficult for filmmakers, the ones at the sharp end, to afford such indulgences as interstate conferences. I now realize that there are some people here who see no useful reason why they should come. Such has their place in the creative foodchain been downgraded. I’ve noted at this conference for example that it has become normal in some large production houses to actually exclude the director from the editing room once the film is shot. This is the filmmaker we’re talking about. The one with the obligation of gaining his or her subject’s trust to reveal something that is often intensely private, to the camera’s gaze. Taken out of the loop. No longer allowed into the proceedings to control what happens to the people who offered that trust.

“It’s come to this.

“I’ve also heard at this conference that if you go to one of the commissioning editors of our free to air networks with an idea the chances are that you will be shown the door. They’re no longer interested in one off films no matter how wonderful the concept. And even if they are interested, or even if you come with a rolled gold series idea, you’re still down the tube because they don’t want to deal with people like you any more. They want to deal with corporate entities. The large production houses like the one making the ground-breaking series on stains. No offence intended Chris.

“It doesn’t matter how good the idea is. Or how important if that’s your thing. We know what the people want, and we know who we want to contract to give it to them.

“Okay so you take your idea to one of these brave new world production companies and what happens? Not always, but increasingly often I’m told, your idea becomes their idea and you become a gun for hire. On your own film.

“We have come to this.

“If this is the trend line, the direction that we’re headed, then we are busily engaged in my mind in transforming our industry concerned with artistry and high endeavour that’s made its mark around the world that is studied by film students and supported by enlightened bureaucrats into a sausage factory turning out, with some very honourable exceptions, what can only be described as fodder.

“In other words, we as an industry are busily engaged in eliminating the concept of art. That’s what I was brought up to believe was the end point of all this , concerned with creative excellence.

“The evidence is mounting that we are digging our own graves because this is not how the great films are made. Take a look at the five Oscar nominated feature documentaries this year. Not one of them made by a corporate entity. All of them made by that increasing non-person here, the auteur. The individual. The freelancer. The maverick or as some would no doubt describe them, the bedroom filmmakers.

“Teachers of documentary at Australian institutions are saying to me, why do I bother? What sort of world are these graduates we’re churning out about to inhabit?

“Filmmakers I talk to, and you would be shocked to learn who some of them are,  are confused, depressed, demoralized, and frightened to speak out. They’ve asked me to do it on their behalf because I’m nearing the end of my career and I don’t give a stuff who I offend. But they do, because they have no power, no status, no say in proceedings, and mortgages to pay. And if you want a case study later on, I’m happy to give you one, thank you and good night.”

(The rest of this report is not verbatim, but based on my hearing of the session – and some fast typing!)

SIMON NASHT

It was then Simon Nasht’s turn to speak, and has he said, he had always realized that Bob Connolly would be a hard act to follow.

“We all here love the craft that we practise,” he began. “Documentary is constantly changing. I have seen fully scripted docs, reinterpretations of documentary online. I do have sympathy for a state agency representing Australian taxpayers, trying to wrangle the cats in our industry.”

Simon told the audience that even though Chris Hilton could be castigated for raising the issue, as a producer it is his job to test the system and get the best deal for his programs. And the issue was always going to be tested at some point or other.

Simon agreed with Bob in regretting that the definition of what a documentary is has now fallen to the ‘capricious cat house of the courts.’ “I despair at the action of Screen Australia. I have looked at the available documents and I am willing to bet that their appeal will fail. Doing it without consultation with the industry is patronizing and very risky,” he added.

Simon mentioned that a producer-director in Arizona is fighting the tax department who has rejected her claims for expenses in making a documentary, on the grounds that making documentaries is a hobby, not a business. So it is clear that if we don’t defend our position, it will be eroded.

“We have to decide what to do about it as an industry,” he said.

“This is a life and death issue for what we practise. We need to petition our agency which is supposed to support our industry about what we think they should do about it. It is is a very serious matter. It will not end here.”

JENNIFER PEEDOM

Like Bob, Jennifer said that she also had wondered what she was doing on the panel. She assumed it was because she was an emerging filmmaker, and she had written an article last year for Lumina, the AFTRS magazine, about the emerging sector. “I asked them who they were and what they were doing, and the answers were a bit alarming,” she told us.

“People like me who aspire to be a filmmaker, the opportunities seem to be limiting. I have been supported by various people and given work, as a gun for hire. I don’t own the copyright to any of my films. That leaves me with no revenue streams to support me while I develop my own projects. So I have to go on being the gun for hire on my next project.”

“I admire Chris and where he’s come from and that he has chosen to be a businessman,” she said. “However I don’t want to do that at this point of my career. But that leaves me with few choices.”

Jennifer said she was the recipient of a documentary fellowship last year, and that had made a huge difference, giving her the impetus to keep going for a bit longer.

“For me, the offset has been bitter sweet. I went to the ABC as a filmmaker with plenty of filmmaker credits. I was told that they loved the project, but they wouldn’t let me do it on my own, I had to bring it under the auspices a bigger company.  I said fine, I took it to Michael Cordell who had experience in that subject area. But the team who actually made it didn’t have a lot of experience, so the project struggled a bit. In fact Jennifer has a business degree, and in a previous life was in charge of a business with a turnover of more than $1 million, and in charge of staff, so she found it rather surprising when the assumption was that she couldn’t manage this particular project herself.

During questions, Julie Marlow from SPAA raised the notion of premium content tied up with the convergence review, and suggested that Screen Australia may not be the body to regulate it, if it indeed happens.

Fiona Cameron said that Screen Australia needed legal certainty about the offset.

Simon chimed in that the agency could have chosen not to appeal the decision about Lush House, but instead consult widely with the industry before acting.

Fiona then said that Screen Australia is responsible for administering the Taxation Act in relation to the offset. “You can call us a regulator, or a pack of bastards, but we have to do it, and for that we need legal certainty.”

Stephen Boyle added that the issue is poor drafting of the legislation, and the term documentary clearly must be defined properly. “There was always going to be a legal challenge,” he said. “There is probably going to be another one.”

MARK POOLE

Mark Poole is a writer and director of drama and documentary. His documentary Fearless was screened on ABC1 in 2010.