The costly and protracted court fight between Antoinette Lattouf and the ABC is in its final stages before the judge’s decision.
The costly and protracted court fight between Antoinette Lattouf and the ABC is in its final stages before the judge’s decision.
Hello and welcome to our live coverage of journalist Antoinette Lattouf’s unlawful termination case against the ABC.
I’m Michaela Whitbourn and I’ll be keeping you informed of the latest developments in the Federal Court in Sydney today.
If you’re just catching up on the trial now, here’s what you need to know: Lattouf was told not to return to work three days into a five-day casual contract as a fill-in Mornings presenter on ABC Radio Sydney in December 2023.
She alleges she was unlawfully terminated because of her political opinions about the Israel-Gaza war, which were not articulated on radio but on her social media accounts, as well as because of her race or national extraction as a woman of Lebanese, Arab and Middle Eastern descent.
The ABC took Lattouf off-air after she shared a post critical of Israel from non-governmental organisation Human Rights Watch on Instagram on December 19, 2023. She added the caption: “HRW reporting starvation as a tool of war.”
She claims the ABC bowed to pressure from pro-Israel lobbyists in removing her from air on December 20. The broadcaster had received complaints about her appointment as a fill-in presenter even before the December 19 post, the court has heard.
Antoinette Lattouf’s barrister, Oshie Fagir, takes aim at the use of the words “advocate” and “activist” to describe the freelance journalist.
The former ABC chair, Ita Buttrose, referred to Lattouf as an activist on the Israel-Gaza war during her evidence in court this month.
Fagir said that prominent ABC employees including Laura Tingle and Patricia Karvelas had expressed views, including on social media, and had not been labelled activists.
He submitted that the use of the word activist “involves a judgment on the relative merits of the opinions” being expressed by the individual, and it betrayed “a priori hostility to the opinions she holds”.
Justice Darryl Rangiah expressed reservations about this line of argument. He responded that this case involved a “very particular, if not unique, set of circumstances” and said that comparisons with other presenter’s comments on social media “may not be particularly helpful”.
Antoinette Lattouf’s barrister, Oshie Fagir, says in his closing submissions to the court that if the evidence of Lattouf’s line manager is accepted by Federal Court Justice Darryl Rangiah it is “game over for the ABC”.
Elizabeth Green, now executive producer of ABC Radio Sydney’s Drive program, gave evidence in court earlier this month about her dealings with Lattouf before and after the journalist was abruptly removed as fill-in host of the Sydney Mornings radio program in 2023.
At the time of Lattouf’s removal from the airwaves, Green was ABC Radio Sydney’s content director and Lattouf’s line manager.
On December 19, 2023, a day before her removal, Lattouf shared a post critical of Israel from non-governmental organisation Human Rights Watch on Instagram. She added the caption: “HRW reporting starvation as a tool of war.”
One of Lattouf’s barristers, Philip Boncardo, put to Green during her evidence that she “expressed the view that you did not see anything wrong with Ms Lattouf’s post” during an internal meeting on December 20, 2023.
“I did say that,” Green said.
Green agreed she told Lattouf she had “tried to stop them” and “tried hard to keep” her.
Fagir has submitted that Green’s evidence, if accepted, shows that Lattouf was not given an explicit direction not to post at all on social media about the Israel-Gaza war during her planned five-day stint on ABC radio.
It was “always clear that the post was not inconsistent with what she had asked Ms Lattouf to do”, Fagir said.
In a significant portion of this morning’s closing submissions, Antoinette Lattouf’s barrister, Oshie Fagir, identified the four ABC powerbrokers that Lattouf’s legal team allege were responsible for her dismissal.
They are: managing director David Anderson, the ABC’s chief content officer, Chris Oliver-Taylor, the then ABC chair, Ita Buttrose, and the ABC’s head of audio content, Ben Latimer.
“We say that Mr Anderson and Mr Oliver-Taylor were decision-makers in the conventional sense that they exercised authority to dismiss Ms Lattouf, and that Ms Buttrose and Mr Latimer were decision-makers in the broader sense … being people who materially influence the decision to dismiss,” Fagir said.
“You don’t assert that any other of the ABC employees were also decision-makers?” Justice Darryl Rangiah said.
“No, Your Honour, although we say that there is another group of persons who were materially influential and whose reasons are relevant and that is the group of campaigners, if I can put it that way.”
The ABC maintains that Lattouf was not sacked and that her contract ended as planned after five days. It says she was simply directed not to work the final two days of her contract.
Buttrose told the court that she did not want Lattouf taken off-air and “didn’t put pressure on anybody”.
Antoinette Lattouf’s barrister, Oshie Fagir, refers in court to an email sent by Chris Oliver-Taylor, the ABC’s chief content officer, after Lattouf’s first shift on-air on Monday, December 18, 2023.
The email asked: “[Can] we ensure that Antoinette is not and has not been posting anything that would suggest she is not impartial, I am concerned her public views may mean that she is in conflict with our own editorial policies.
“I am not suggesting we make any changes at this time, but the perceived or actual lack of impartiality of her views are concerning.”
That email was sent after the ABC started receiving the first of a flurry of emails in a campaign against Lattouf. The complaints called for Lattouf to be removed from radio because she had expressed views supportive of Palestinians in the Israel-Gaza war.
Fagir said there was “meagre evidence” Oliver-Taylor had ever given an explicit direction that Lattouf should not post at all about the Israel-Gaza war during her planned five-day stint on radio.
Lattouf’s legal team say this direction was never given and that Oliver-Taylor’s email does not prove that it was.
Antoinette Lattouf’s barrister, Oshie Fagir, tells the court that the grounds on which Lattouf was taken off-air were “clearly spurious”.
Fagir said emails from the ABC’s Steve Ahern, acting in the position of head of capital city networks, were “completely inconsistent with the notion that there had been any direction” given to Lattouf not to post on social media at all about the Israel-Gaza war during her planned five-day stint on radio.
A major issue in the trial is whether Antoinette Lattouf was given an explicit direction not to post about the Israel-Gaza war on social media during her planned five-day stint on ABC Sydney Radio in December 2023.
“It’s not seriously arguable the direction was given,” Lattouf’s barrister, Oshie Fagir, said in his closing submissions to the court.
He said the Lattouf team “would go a step further” and submit that Justice Darryl Rangiah would be “comfortably satisfied” that two key decision-makers, the ABC’s chief content officer, Chris Oliver-Taylor, and the ABC’s head of audio content, Ben Latimer, knew no direction of that kind was given.
Antoinette Lattouf’s barrister, Oshie Fagir, has started his closing submissions to the court.
He said the freelance journalist was contracted to host a “light, bright mornings radio program” on ABC Radio Sydney for five days in December 2023.
But she was the subject of a lobbying campaign, the purpose of which was to remove her from air. This had “nothing whatever to do with her work” on radio but her opinions about the Israel-Gaza war, Fagir said.
“Forty-eight hours after the campaign commences, she’s sacked,” he said.
“There is an extensive discussion about Ms Lattouf’s removal that has absolutely nothing to do with her work, nothing to do with anything she did during her employment by the ABC.
“The only reason the removal is in contemplation is that Ms Lattouf had, and expressed, political opinions. After all, that is all that the relevant actors knew about Ms Lattouf.
“They knew next to nothing about her work, they knew nothing about her background. Several of them say they didn’t know who she was. All they knew was that she had expressed views of a certain kind.”
The ABC maintains Lattouf was not sacked but was not required to work on the final two days of her planned five-day stint on radio. Ultimately, in January 2024, she was paid for all five shifts.
Antoinette Lattouf’s barrister, Oshie Fagir, told the court that he believed a document drafted by the ABC containing a narrative of facts, as requested by the court, was “selective” and not a “neutral chronology”.
Fagir said he was unable in the time provided to provide a response to that draft.
Ian Neil, SC, acting for the ABC, said the broadcaster’s legal team had “had done our best” to create a document setting out an agreed narrative of facts.
Justice Darryl Rangiah said: “I’m going to ask the parties to reconsider the issue once the submissions have been completed.”
Rangiah said he expected the parties to co-operate to produce something that would be of assistance to him in “writing what will be a complex and involved set of reasons for judgment”.
In orders made on February 21, the judge had required the ABC to provide Lattouf “with a draft statement of salient facts” by 4pm that day.
“By 4.00 pm (AEST) on 24 February 2025, the applicant [Lattouf] will provide the respondent [the ABC] with a response to its proposed draft narrative of salient facts,” the orders said.
Antoinette Lattouf arrived at court minutes ago and the hearing is now under way.
The ABC’s barrister, Ian Neil, SC, said the broadcaster was seeking documents from Lattouf relating to the “growth of her Instagram following” after she was removed from ABC Sydney Radio in December 2023.
Justice Darryl Rangiah asked why those documents are relevant and said: “I haven’t got a clear answer.”
Rangiah set aside a notice to produce issued by the ABC, which had asked for those documents to be handed over by Lattouf.
As federal political correspondent Paul Sakkal reported from Canberra this week, the ABC has paid $1.1 million to external lawyers in its court battle with Lattouf.
That figure was revealed during a parliamentary committee hearing in the national capital on Tuesday.
The acting managing director of the ABC, Melanie Kleyn, said the broadcaster had lessons to learn from the case.
“Will we learn lessons? Will we reflect? We absolutely will reflect on this matter. We do reflect on this matter,” she said.
Kleyn said the ABC continued to defend its position that Lattouf was not sacked, confirming the broadcaster’s lawyers made several attempts to settle the case out of court without admitting fault.
She said the ABC had spent $1.1 million so far on legal costs, including solicitors Seyfarth Shaw.
“We do understand this is an impost on public funds,” Kleyn said.
The ABC has spent millions defending lawsuits in recent years, including former soldier Heston Russell’s Federal Court defamation claim in 2023. Russell had offered to settle that case on terms that included the entry of judgment in his favour for $99,000, plus his legal costs.
Ultimately, the court awarded him $390,000 in damages plus interest, taking the total to $412,315.48, and the ABC also paid his legal costs.