Screen Australia v EME Productions No. 1 Pty Ltd

Federal Court of Australia (Full Court)|2012-03-07|Before: Keane CJ, Gilmour JJ

CJ, FINN & GILMOUR JJ DATE: 7 March 2012 PLACE: PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 Screen Australia brings this appeal pursuant to s 44 of the Administrative Appeals Tribunals Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal given on 24 June 2011. The Tribunal decided that the respondent EME Productions No 1 Pty Ltd (EME), was entitled to a producer offset certificate under Division 376 pursuant to s 376-65 of the Income Tax Assessment Act 1997 (Cth) (ITA Act) in respect of a film series titled "Lush House". The determinative issue was whether Lush House was a "documentary" within s 376-65(6) of the ITA Act. The Tribunal held that it was a "documentary" and on that basis set aside the decision of Screen Australia refusing EME's application for a certificate. 2 EME has filed a notice of objection to competency on the basis of its contention that the notice of appeal does not disclose a question of law.

Legislative scheme 6 Division 376 of the ITA Act provides tax offsets for certain Australian production expenditure incurred by a production company in making a film where a minimum level of expenditure has been incurred. The express object of the Division is "to support and develop the Australian screen media industry by providing concessional tax treatment for Australian expenditure" (s 376-1). It is apparent that the legislature intended to confer significantly different concessions according to the type of film in question. 7 One of the requirements for entitlement to an offset is that the relevant company must be issued with a certificate for the film (s 376-2(4)). Application for such a certificate in respect of a producer offset may be made by the relevant production company to the film authority (s 376-230(3)), being Screen Australia (s 376-55(3)). 8 The criteria for the issue of a certificate for the producer offset are set out in s 376-65(1)-(6). There are expressed both positively and negatively. As to the latter, the film must not be, or be to a substantial extent, one of the types of film set out in s 376-65(2)(d). 9 The only condition that was directly in issue in the Tribunal proceedings, for the purposes of determining EME's entitlement to a certificate in respect of Lush House, was the condition in s 376-65(6), which requires that the relevant film meet the expenditure threshold applicable to that type of film. It was common ground before the Tribunal that each of the conditions other than the condition in s 376-65(6) was met in respect of Lush House. 10 Different expenditure thresholds are specified for different types of film in a table set out at sub-s (6). Relevantly, where the application for the certificate is for a series, such as Lush House, the expenditure threshold varies depending upon whether the series is not, or is, a "documentary" (items 5 and 6 of the table respectively). The total qualifying Australian production expenditure (Total QAPE) must be higher, both in absolute terms and relative to the length of the film, if the series is not a documentary than if it is a documentary. In particular, item 5 of the table, which applies where the series is not a documentary, requires Total QAPE of at least $1 million and a QAPE to duration ratio of $500,000 for each hour. Item 6, which applies where the series is a documentary, at the relevant time, has no total QAPE requirement and requires a QAPE to duration ratio of $250,000 for each hour. The parties agreed in the Tribunal that the QAPE to duration ratio for Lush House was greater than $250,000 and less than $500,000, such that Lush House satisfied the expenditure threshold in item 6 of s 376-65(6), if it was a documentary, but not the expenditure threshold in item 5 of s 376-65(6), if it was not a documentary. 11 The term "documentary" appears in two other contexts in the provisions relating to the producer offset: (a) the producer offset is not available in respect of a film that is "a film of a public event" or "a reality program" unless the film is a "documentary" (ss 376-65 (2)(d)(iii) and (vii)); and (b) to qualify for the producer offset, the film must be in a specified format, including "a single episode program" (s 376-65(2)(c)(ii)). If a program is a documentary it may constitute a "single episode program" if it is only half of a commercial hour in duration, whereas if it is not a documentary it is required to be at least one commercial hour in duration (ss 376-65(3)(c) and (d)). 12 The term "documentary" is not defined in Division 376 or elsewhere in the ITA Act. Division 376 was introduced by the Tax Laws Amendment (2007 Measures No 5) Bill 2007 (Cth). The explanatory memorandum for that bill states, relevantly: 10.56 A documentary may be a feature film, a series or a season of a series or a single episode program. … 10.57 A documentary will take its ordinary meaning. It is intended that it will mean a creative interpretation of actuality, other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment program. 10.58 A reality television program is not a documentary. It is intended that the term 'reality programme' be applied to programmes in which contestants or participants are usually placed in contrived situations, where the primary purpose is to provide a vehicle within which their characters can be observed and assessed by the viewer. The primary purpose of such a reality programme would not be to explore and interpret an idea. Where there is a competitive element in the programme between participants it is intended the programme would generally be considered a reality programme. 10.59 By contrast, a programme is more likely to be classed as a documentary when, even though it may be based around a contrived situation, the contrivance will serve to explore a creative idea, concept or theme. Observations about the character of a participant will tend to illustrate the idea, rather than serve as the primary purpose. Such programmes may contain a strong information component within which the idea is explored. There will often be critical commentary which interprets or provides context for the activity depicted. 13 The explanation of the meaning of "documentary" in para 10.57 of the explanatory memorandum - "a creative interpretation of actuality, other than a news, current affairs, sports coverage, magazine, infotainment or light entertainment program" - is substantially identical to the definition of "documentary program" found in the Australian Communications and Media Authority (ACMA) Documentary Guidelines (ACMA Guidelines), which was issued by the Australian Broadcasting Authority in 2004 in the context of determining Australian content under different legislation, namely, the Broadcasting Services Act 1992 (Cth). The ACMA Guidelines have since been adopted by Screen Australia as a guiding policy in determining what is a documentary for the purposes of the producer offset.

The Tribunal's approach to statutory construction 14 The Tribunal ostensibly, according to its reasons, approached the question of construction by first noting that it was common ground that the word "documentary", as used in s 376-65(6), was not used in any special or technical sense but was to be given its ordinary meaning. On that basis the Tribunal held that expert evidence which had been given about the meaning of the term was of limited use and the meaning of the word was a matter for the Tribunal to determine. 15 The applicant contends that the manner in which the Tribunal proceeded to define the word and construe the legislation is of critical significance for the appeal. It submits that the Tribunal arrived at its own understanding of the word "documentary" without reference to statutory context or purpose, including as explained in extrinsic materials, and expressly deferred the exercise of referring to extrinsic material and dictionary definitions until after it had formulated its own understanding of the word "documentary", and applied that formulation to the facts so as to reach a conclusion that Lush House was a documentary. 16 Apparently drawing on its own understanding of the term, the Tribunal identified a number of characteristic elements of "documentaries" before arriving at the conclusion that a film will be a documentary if it meets the description of "a creative recording of facts for the purpose of informing or educating" which may involve a degree of "contrivance" by the film maker and, additionally, is not "frivolous". "Creative" in this context, as the Tribunal explained, is to be understood as meaning "the use of imagination or invention", which can include the producers of a film influencing the events which were recorded or providing instructional advice to viewers. The editing of a film can also provide the necessary "creative" element. 17 The Tribunal considered whether Lush House satisfied the formulation it had devised, and concluded that it did. Having reached that conclusion, the Tribunal held at [25]: We have been able to arrive at a conclusion favourable to the applicant without detailed reference to other parts of the Act or to the extrinsic evidence, or to analogous delegated legislation and guidelines. It may, however, be useful to see what these matters show. 18 The Tribunal then referred to the ACMA Guidelines and the explanatory memorandum. It noted that resort might be had to such materials on two bases. First, the explanatory memorandum might be used under s 15AB of the Acts Interpretation Act 1901 (Cth) (AI Act) because the word documentary in s 376-65 is ambiguous and obscure: see [30]. In that regard, the Tribunal noted that the word "documentary" was "probably both ambiguous and obscure". Secondly, the Tribunal found that the ACMA Guidelines might be relied upon as establishing a policy adopted by Screen Australia which, in accordance with Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 635, should only be departed from with care. 19 The Tribunal found at [40] that "[g]iving these items full weight [did] not alter the views and conclusions" it had already reached. It arrived at that conclusion essentially by comparing the statements in the ACMA Guidelines and explanatory memorandum with the formulation the Tribunal had devised. The Tribunal concluded that there was an overlap between the elements of the definition it had arrived at and the definition set out in the explanatory memorandum and the ACMA Guidelines. The Tribunal also considered two dictionary definitions of "documentary". By a similar process of reasoning, it concluded that these were also substantially similar to the formulation devised by the Tribunal, and therefore confirm[ed] "the analysis and conclusions to which we have arrived." 20 The Tribunal concluded that while Lush House "does not present the clearest case of a documentary", it had "sufficient of the elements of a documentary to warrant giving it that overall description" [41].

The notice of appeal 21 The 'questions of law' set out in the Notice of Appeal are as follows: 2. THE QUESTIONS OF LAW raised on appeal are (a) Whether the reference to documentary in s 376-65(6) of the Income Tax Assessment Act 1997 (Cth) (ITAA97) is to be construed by reference to the statutory context and the relevant Explanatory Memorandum. (b) Whether, in circumstances where a statutory provision is found to be both ambiguous and obscure, a construction of that provision which is consistent with the intended meaning as articulated in the relevant Explanatory Memorandum should be preferred. (c) Whether, on the proper construction of s 376-65(6) of the ITAA97, documentary, in the context of s 376-65, means a creative interpretation of actuality, other than a news, current affairs, sports coverage, magazine infotainment or light entertainment program. (d) Whether, on the proper construction of s 376-65(6) of the ITAA97, a necessary element of a documentary is an interpretation of a subject-matter. (e) Whether, on the proper construction of s 376-65(6) of the ITAA97, a necessary element of a documentary is that its subject-matter be actuality rather than facts. (f) Whether the degree of contrivance affecting the subject-matter of a film is a matter which should be considered relevant in determining whether the film interprets facts or actuality. (g) If, on the proper construction of s 376-65(6) of the ITAA97, a film which is an infotainment program is not a documentary: (i) is the term infotainment to be construed by reference to the relevant extrinsic material; (ii) is an infotainment film a film with a low information content and a high entertainment content (as found by the Tribunal).

The competency question 22 EME submits that neither para 2(a) nor 2(b) discloses a question of law because of the generality with which each is framed. Paragraph 2(a) poses as a question whether "reference to documentary" in s 376-65(6) of the ITA Act is to be construed "by reference to the statutory context and the relevant explanatory memorandum". This question they contend is one which lacks precision, contrary to s 44 of the AAT Act and rule 33.12(2)(b) of the Federal Court Rules 2011 (Cth), and falls within the category of broad questions of construction of a statute rejected in Comcare v Etheridge (2006) 149 FCR 522 at 528 per Branson J (with whom Spender and Nicholson JJ agreed). Paragraph 2(b) it is said is even more general, posing a question about use in the abstract of explanatory memoranda to interpret legislation. 23 EME further submits that the remainder of the purported questions of law set out at paras 2 (c) to (g) all concern the application of the definition of documentary found at [10.57]-[10.59] of the explanatory memorandum and that each of the purported questions of law at paras 2(c) to (g) attempt to draw the Court into a determination of the ordinary meaning of the term documentary: whether a documentary is a creative interpretation of actuality (2(c)), whether a necessary element of a documentary is "interpretation of a subject matter" (2(d)), whether the subject matter of a documentary must be actuality rather than facts (2(e)), whether the degree of contrivance is a relevant matter (2(f)), whether documentary includes infotainment and, if so, the definition of infotainment (2(g)). This, EME submits reveals an attempt by Screen Australia to substitute the words of the explanatory memorandum for the text found in the statute which offends the rule in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. 24 We are satisfied that the applicant has sufficiently articulated questions of law for the purposes of s 44 of the AAT Act. We accept the applicant's submissions that the questions of law set out in the notice of appeal are directed, with appropriate specificity, to the steps in the legal process of construction and to the material errors in that process as purportedly carried out by the Tribunal. The questions themselves need to be considered together as a whole. Questions 2(a) and (b) are directed towards the particular use which ought be made of the explanatory memorandum in the construction of "documentary". Question 2(c) asks whether, on its proper construction, the word is to be construed in accordance with the meaning specified in the explanatory memorandum. Questions 2(d), (e), (f) and (g) seek a resolution of the legal question as to how particular elements of the definition identified in the explanatory memorandum should be taken into account, on the proper construction of the term. It follows that we do not accept the respondent's submission that the asserted questions of law are deficient in the sense identified in Comcare v Etheridge in which case the notice of appeal did no more than invite the Court to embark on a broad and hypothetical inquiry as to the construction and operation of statutory provisions. 25 Furthermore, and central to EME's submission as to competency, is the proposition that the Tribunal determined the meaning of the word "documentary" by reference to its ordinary meaning without the need or requirement to resort to extrinsic material, such as the explanatory memorandum as an aid to construction. Thus, adopting the second proposition identified in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, EME submits that the ordinary meaning of a word is a question of fact. It follows in its submission that no question of law arises. 26 We do not accept these submissions. Moreover, the further consideration of this competency issue also goes to the second issue on the appeal. We will, despite this overlap, discuss it under that head.

The construction of "documentary" 27 That the Tribunal determined the meaning of "documentary" to be the "ordinary" meaning requires some deeper consideration. It is the product of this which is key to the disposition of this appeal. 28 The ITA Act does not define "documentary". The immediate text in s 376-65(6) offers little assistance. The wider context of s 376-65 suggests a meaning that would not, we think, immediately recommend itself as the "ordinary" meaning. For example, it is apparent that a "film of a public event" and a "reality program" may each be a "documentary" (s 376-65(2)(d)(iii) and (vii). 29 It was the Oxford Dictionary which the Tribunal considered most satisfactory in reaching for the ordinary meaning of the word. It appears, at least implicitly, from the Tribunal's reasons at [39]-[40] that the particular definition in that dictionary to which the Tribunal was referring was this: Factual, realistic; applied esp. to a film or literary work, etc, based on real events or circumstances and intended primarily for instruction or record purposes. 30 This definition makes no mention expressly or by implication of "a creative recording of facts", or "contrivance" by the documentary maker as an example of creativity yet these, as the Tribunal found and to which we have referred, were indicia of a documentary giving it its ordinary meaning. 31 The difficulty with the Tribunal's reasons in this respect is that its reasons do not expressly disclose the provenance of the supposed ordinary meaning as found by it. Senior counsel for EME said that the meaning proceeded from what the Tribunal had been taken to at the hearing, including for example, the explanatory memorandum. He put it this way: MR WILLIAMS: It, plainly enough, has undertaken a process of the following kind. It has considered, no doubt, in the course of argument, both parties being represented. It has considered the material - the statutory material which plainly considered the dictionaries in the extrinsic material. It hasn't entirely put that other material aside. It has simply deferred detailed reference to it, as it said later on. I will come to that. 32 We consider that the word "in" before the words "the extrinsic material" in the fourth line is a typographical error and should in fact be read as "and". Thus when asked whether the submission was that the Tribunal had drawn upon, for example, the dictionaries without actually saying so (in its Reasons) at that point, senior counsel responded: MR WILLIAMS: It has been cognisant of what was said in both the dictionaries and the explanatory memorandum. 33 We think this to be the correct position and it betrays the Tribunal's actual, as distinct from its stated, approach to the construction task. The meaning ascribed by the Tribunal did not emerge in a vacuum. 34 The meaning of the word "documentary" in its ordinary meaning, so described, was derived by the Tribunal at the outset, from the Oxford Dictionary meaning as well as with the aid of extrinsic material, including the explanatory memorandum; the Documentary Guidelines issued by the Australian Broadcasting Authority in 2004 in turn adopted by its successor Australian Communications and Media Authority as well as guidelines issued by Screen Australia. 35 So much is also evident from the Tribunal's reasons at [13]-[17]: 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. 14. It cannot be doubted that one characteristic of a documentary, which is related to the matters already considered, is that it will contain a serious treatment of its subject. A documentary may contain humour, but this will not compromise its serious purpose. A frivolous program will not be a documentary even if it satisfies the other characteristics of a documentary. 15. A useful process for determining whether a program is a documentary may be to examine the program to see if it is a creative recording of facts for the purpose of informing or educating. If it satisfies these requirements and, additionally, is not frivolous, then it will be a documentary. The most difficult aspect of any assessment may well be determining whether the program sufficiently tips the scale in favour of seriousness. 16. Lush House records events. It records facts. It presents a short history of each household through the stages described above. This recording of aspects of the life of a household is consistent with the result being a documentary. The editing of the record of itself, reflects creativity. 17. The events recorded are all true activities of each household over a period. However, although the household would inevitably have been involved in activities at the time of the filming, the filmed activities were influenced, even directed, by the filming. The households were not simply filmed doing what they would have been doing apart from the making of the film. To this extent it may be said that Lush House relies upon contrivance. 36 It may be seen that the word "actuality" as well as derivatives of the words "creative" and "contrivance" employed at [13]-[17] emerge from the extrinsic material to which we have referred but not from the Oxford Dictionary. For example the Australian Communications and Media Authority Guidelines and in turn by Screen Australia provide: Documentary program means a program that is a creative treatment of actuality . . . (Emphasis added) 37 Likewise the explanatory memorandum provides at 10.57 and 10.59 relevantly: 10.57 documentary will take its ordinary meaning. It is intended that it will mean a creative interpretation of actuality . . . (Emphasis added) 10.59 By contrast, a programme is more likely to be classed as a documentary when, even though it may be based around a contrived situation, the contrivance will serve to explore a creative idea, concept or theme. . . . (Emphasis added) 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. 39 As we mentioned, EME relied upon the second proposition set out in Pozzolanic at 287 that the ordinary meaning of a word in its non-legal technical meaning is a question of fact. However, that is not the case here. As the first proposition makes clear the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical meaning or other meaning is a question of law. Properly understood that is what the Tribunal did although that is not what it said that it had done. Confusing and unusual as this may be it does throw up a question of law for consideration by this Court. 40 The fourth proposition in Pozzolanic is a counterpoint to the second proposition: the effect or construction of a term whose meaning or interpretation is established is a question of law. Moreover the High Court in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 396-97 observed upon a consideration of the Pozzolanic propositions and in particular the distinction between the second and fourth of the five propositions seems "artificial if not illusory". The Court added: If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law. 41 This clearly considered obiter of the Court has since been followed, for example, by the Court of Appeal of New South Wales in Ov v Members of the Board of the Wesley Mission Council (2010) 270 ALR 542. It had earlier been cited with approval by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Aktiebolaget Hässle v Alphapharm Pty Limited (2002) 212 CLR 411. Thus understood the questions raised by the applicant are questions of law. As the Court in Agfa-Gevaert stated at p 397: All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. 42 That in our opinion precisely describes, in effect, the central questions in this appeal. Where there is uncertainty as to the meaning of a statutory word or expression, as here, the process of construction raises a question of law: Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 473-474. 43 The starting point in the process of statutory construction is to apply the ordinary and grammatical sense of the statutory word(s) to be interpreted having regard both to text and perhaps also context as well as legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [4] per French CJ. Likewise the plurality in that case stated at [47]: The Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted and emphasis in original) 44 We think that the joint submission put to the Tribunal by the parties that the word "documentary" had an ordinary meaning was probably, in the end, unhelpful if it was intended to convey that the meaning of the word could be distilled from its ordinary meaning having regard to the text and if necessary its statutory context as well as its underpinning legislative purpose in the way described in Alcan. We say this because we do not think that the word "documentary" has an "ordinary" meaning in that sense. This is so for at least three reasons. 45 First the Macquarie and Oxford Dictionary definitions considered by the Tribunal do not disclose a unitary expression. The Macquarie Dictionary definition contains, unlike the Oxford Dictionary, no element of instruction. 46 Second, having regard to the absence of any statutory definition and the particular use of "documentary" in s 376-65(2)(d)(iii) and (vii) we rather think it has an extraordinary meaning which is, as the Tribunal found at [30], both obscure and ambiguous. 47 Third, in addition to this contextual reinforcement for an extended definition of "documentary" from its ordinary meaning, if there indeed be one, this is further reinforced upon a purposive construction where the object of the statutory provision is to support and develop the Australian screen industry. This approach to construction warrants a wider meaning being attributed to "documentary": Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275 per Bowen CJ, Morling and Neaves JJ; Abbott Point Bulk Coal Pty Ltd v Collector of Customs (1992) 35 FCR 371. 48 Accordingly it was open to the Tribunal, in the circumstances, to resort to the explanatory memorandum as material "capable of assisting in the ascertainment of the meaning of the provision": s 15AB(1)(b) of the AI Act. It was not obliged to import the entire description of what constituted a documentary from the explanatory memorandum. The Tribunal, for reasons stated, regarded part of this description as problematic raising as it did further definitional issues such as the expressions "magazine, infotainment or light entertainment program". Section 15AB(1)(b)(i) is facultative and permits, but does not require, a court (or tribunal) to resort to extrinsic materials to determine meaning: Brennan v Comcare (1994) 50 FCR 555. All that the provision provides is that "consideration may be given to that (extrinsic) material". That is precisely what the Tribunal did. 49 Whilst the reasons of the Tribunal state to the contrary we are persuaded for the reasons set out above that the Tribunal, in arriving at the "ordinary" meaning of "documentary" did have regard, at that point, not merely to the Oxford Dictionary but also to the extrinsic material. Fairly read, the Tribunal's reasons are informed, at least in part, by the definition of "documentary" found in extrinsic material. The Tribunal's use of the expressions "presents fact, usually in the form of events"; "actuality"; "creative"; and "contrivance" (Reasons [13]-[17]) are, plainly enough, sourced from that material. The meaning attributed by it derives from those various sources in combination. The meaning thus reached by the Tribunal was not its ordinary meaning. The process of construction which it in fact employed was a process of law and was not directed to a question of fact. 50 It is unnecessary for us to express our view of the meaning of the word "documentary". It is sufficient for present purposes that we have concluded that no material error of law has been demonstrated by the applicant. Rather, and to the contrary, we find that read fairly, as a whole, the Tribunal had regard when determining the meaning of "documentary" to the relevant extrinsic material. It did so because the text and context of the ITA Act threw up ambiguity as to its meaning. Its error, whilst not material, was to misdescribe the construction process which it in fact undertook. However, form ought not be allowed to reign over substance. The reasons of administrative decision-makers are meant to inform and not be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way the reasons are expressed: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Properly described the Tribunal's approach was orthodox and does not disclose appealable error.

Materiality of error 51 Assuming an error of the kind contended for by the applicant were demonstrated the question remains as to whether or not it was a material error. 52 It is not every error of law that will result in a matter being remitted for re-determination: the error in question must be material to the Tribunal's decision: BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253-254 per Lockhart and Hill JJ. 53 To the extent that the Tribunal purported to consider the extrinsic material only at a later stage in its Reasons it nonetheless did so and its conclusion as to the meaning of "documentary" remained the same. Even if such appealable error had been established, and it has not, we would, in the exercise of our discretion, have declined to remit the matter to the AAT. 54 When it did consider, in its Reasons, expressly, the extrinsic material, the Tribunal, it seems to us, accepted its description at least to the extent which was permissible having regard to the legislative text, context and purpose. We reject Screen Australia's submission that when it considered this material it was concerned merely with the degree of similarity and the overlapping elements between its own definition and that suggested by the legislative context and extrinsic materials. 55 Referring to this material the Tribunal said: [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. [38] Our examination of the Explanatory Memorandum and the ABA Guidelines confirms rather than challenges the conclusion we have already come to and the reasons we have relied upon. 56 These paragraphs disclose the acceptance by the Tribunal of the relevant extrinsic material. Whilst the word "interpretation" in the phrase "creative interpretation of actuality" is not picked up expressly by the Tribunal in its definition the content of paras [31] and [38] demonstrate that such was its intention. The expressions employed by the Tribunal are wide enough, in our opinion, read in light of its standing as a Tribunal, to embrace that concept. "Creative recording" of facts is such an expression. So too is the reference by the Tribunal to "editing of the record" which it said could of itself reflect creativity. It is also to be noted that counsel for Screen Australia eschewed reliance on the proposition that the term "documentary" is only an apt description of a film if the film records and examines events which have occurred independently of the making of the film so that it cannot apply to a film of events which have been orchestrated for the purpose of producing the film in question. For these reasons we do not accept the submission made by Screen Australia that the Tribunal's definition is not harmonious with that described in the explanatory memorandum. 57 We are confident that had any such assumed error not occurred that there is not even a possibility that the outcome could or might be different: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex parte Alaa (2000) 204 CLR 82. 58 The appeal will be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Keane CJ, Finn & Gilmour JJ.

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