Antoinette Lattouf taken off the air ‘to protect ABC’s impartiality’

The ABC’s barrister has told court that all executives within the public broadcaster who were aware of Lattouf’s ‘activism’ were seeking to protect ‘the critical importance of impartiality’.

Antoinette Lattouf arrives at Federal Court, Sydney, on Friday. Picture: NewsWire / Flavio Brancaleone

The ABC has argued Antoinette Lattouf was taken off the air to protect the national broadcaster’s commitment to impartiality, in the process staking much of its reputation on the court’s decision.

The ABC’s barrister Ian Neil SC launched a last-ditch defence on Friday after a trial that exposed tensions at the highest echelons of the ABC.

Mr Neil said all executives within the ABC made aware of Lattouf’s “activism” were seeking to protect “The centrality of the concept of impartiality (and) its critical importance to the ABC”.

On Thursday, the former radio presenter’s lawyers sought to undercut such an argument by arguing Lattouf’s opinions were given greater importance than the quality of her work through her five-day contract hosting ABC Sydney’s Breakfast drive segment. Her barrister Oshie Fagir called it a “remarkably facile mode of analysis for a series of very senior executives in a broadcaster”.

Mr Neil said the ABC had stuck to its impartiality and took action to protect it, partly insulating it from any wrongdoing in the process.

“The ABC, by its senior officers and in its published policies, accepted that it had statutory obligations both to be and also to be seen to be impartial,” he said.

“(Impartiality was) a value or norm that informed the reasoning of everyone concerned in this matter.

“It was from the very first written contemporaneous document the focus in this matter, the focus of the ABCs concern.

“(There was) no manifestation here (of) an underlying hostility, no manifestation of a desire to be rid of (Lattouf).”

‘Hurdle of her own construction’

Mr Neil argued Lattouf’s case placed undue focus on factors that would not play a part in the ABC’s standard termination process.

The core of this argument hinges on the ABC’s legal defence saying former content chief Chris Oliver-Taylor was mistaken in believing an Instagram post from Human Rights Watch shared by Lattouf during her contract alongside the caption “HRW reporting starvation as a tool of war” was in breach of company policy.

“Ms Lattouf has … (said that) the reasons for the decision that she not be required to present on Thursday and Friday (of her five-day contract) are not tethered or connected in any way to the Human Rights Watch post,” Mr Neil said.

“Yet on the evidence, of course, that was the only thing with which anyone at the ABC was ever concerned. If that proposition is accepted as a matter of fact, then the applicant’s case will fail at a hurdle of her own construction.

“One thing (the case is) not about is the expressions of political opinion … having regard to the way in which the applicant’s case has been conducted, one might occasionally think otherwise.

“It’s not a case about discrimination, it’s not a case about differential treatment.

“It’s not an unfair dismissal case. It’s not a case about the fairness of anything that was done in relation to the applicant, to Ms Lattouf.”

In June last year the Fair Work Commission found Lattouf had been sacked by the ABC, despite it arguing her early dismissal did not constitute a firing because she was paid out for the entirety of her five-day contract.

Rather, Mr Neil argued, the case is solely about whether Lattouf disobeyed an alleged verbal instruction not to post anything about the Israel-Gaza conflict to her personal social media, regardless of the content’s political alignment. Lattouf’s lawyers have contended no clear instruction was ever given.

Antoinette Lattouf arrives at Federal Court, in Sydney on Friday: Picture: NewsWire / Flavio Brancaleone

Lattouf’s former line manager, Elizabeth Green, contended she gave advice to Lattouf to avoid posting social media material “that would be considered controversial”, however gave the proviso in her own evidence that it was not an order.

Mr Neil, however, argued Ms Green saying “it would be best if you don’t post anything” was equivalent to a clear order which Lattouf would then disobey.

“What does it matter whether somebody calls it a direction, a request (or) advice? It was a clear communication,” Mr Neil said.

“This is her employer telling her, “I’m asking you don’t do this”. Social attitudes may well have changed, but they have not changed to the point (where Lattouf’s behaviour was tolerable).

“Contemporaneously, both Ms Green and Ms Lattouf understood that … was an expectation that she stop posting altogether.”

As Mr Neil navigated an apprehensive back-and-forth over the argument with Justice Darryl Rangiah, a member of Lattouf’s legal team could be seen smiling behind him.

Justice Rangiah sought clarification on whether Ms Green was — at the time — “telling” or “asking” Lattouf not to post anything on Israel-Gaza, to which Mr Neil asked: “does it matter?”.

Lattouf ‘not dismissed’

The ABC denies it ever fired Ms Lattouf, instead cutting her workload under the contract to nothing, which it argues it was entitled to do.

Mr Neil said Lattouf was clearly not fired because she had not misconducted in the eyes of the national broadcaster.

“No one ever made an allegation of misconduct against Ms Lattouf, no one supposes or gives evidence to having thought she has misconducted herself,” he said.

“(Mr Oliver-Taylor didn’t want to punish her, he didn’t want to subject her to disciplinary action, he didn’t want to sanction her. These are all words that have been thrown around in the applicant’s case. He never thought about that. He wanted to remove her from presenting the program, something that he thought he was entitled to do and that no one thought was a punishment.”

Justice Rangiah asked: “What about Ms Lattouf?”

In response Mr Neil shrugged, saying: “she may well have thought it was. But regrettably, her thoughts on that question were not relevant.”

“What is the punishment? … You don’t have to do work, but you get paid for it,” he said.

“We always had the right to tell you (Lattouf) not to do any work. We’re telling you not to do any work. Are we punishing you? Are we disciplining you? Are we taking money off you? No.”

Anderson’s ‘misinterpretation’

Mr Neil went on to challenge the assertion that outgoing ABC managing director David Anderson was actively involved in firing Lattouf and prejudiced against her political beliefs.

He said that the argument was built on a single internal email in which he said Lattouf’s social media pages were “full of anti-Semitic hatred”, and that this singular point of evidence was “too slender a reed on which to construct an edifice of antipathy to the content of Ms Lattouf’s opinions”.

Justice Rangiah pointed out this initial assertion by Mr Anderson was likely a “misinterpretation” of Lattouf’s views.

Mr Neil: “It could well have been a misinterpretation, but it was a reasonably available one. (Her social media) referred to (carrying out) ethnic cleansing and a policy of annexation.”

Justice Rangiah: “Mr Anderson seems to (think Lattouf was) saying that Hamas ought to do that, whereas the post was Lattouf sarcastically suggesting that Israel should do that.”

Mr Neil: “I’m contending that Mr Anderson’s observation on that night, a single observation on that night, is too slender a reed on which to construct an edifice of antipathy to the content of Lattouf’s opinions.

“We would urge that it be accepted he did not mind or care, or have any concern, one way or the other about the content of her political opinion.

“What he was concerned with was the fact that she, in her past social media activity, had indelibly associated herself with one perspective of that controversy.

“The only fair reading of this text is that Anderson is focused exclusively on the expression, rather than the content.”

Justice Rangiah continued to rebut Mr Neil’s point saying it placed too much focus on whether Mr Anderson was “motivated by Ms Lattouf’s … expression of political opinion” and did not minimise the “extent” to which he was a decision maker in her dismissal. Mr Fagir said Mr Anderson had stood by his supposedly “mistaken” views when in the witness box.

Later in his argument, Mr Neil said the intricacies of the internal ABC communications were being given too much authority and being used to wedge the views of executives against one another or indict them as contributors to Lattouf’s dismissal.

Mr Neil: “It is a mistake to pass these communications as though they were some kind of legal instrument … they are emails, and they’re not written with the same kind of care that a legal document would have.”

Justice Rangiah: “But on the other hand, these are people working for a national media organisation. They know the importance and the power of words.”

Mr Neil: “They do, but they’re writing these words, and they’re reading these words against a background where they had no reason to think that what they had wanted to happen (the proper communication of management’s expectations for Lattouf) had not happened.”

ABC under fire

Closing arguments began on Thursday, as the former radio presenter’s legal team launched a broadside against four key ABC executives it alleged were instrumental in Lattouf’s dismissal: Mr Anderson, former chair Ita Buttrose, Mr Oliver-Taylor and audio content head Ben Latimer.

Lattouf has consistently alleged her employment was unfairly terminated when she was pulled off the air before her contract had ended in response to a complaint campaign against her by pro-Israeli lobbyists.

She argues the ABC’s stated motive for pulling her from the segment — the Instagram post — was just a pretext.

“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 influenced the decision to dismiss,” Mr Fagir said on Thursday.

“This is a matter of actual authority (in who may decide to fire an employee), not a matter of mere importance (within the company hierarchy). But on our view of things, Your Honour might consider that Mr Oliver-Taylor was contemplating acting without express approval (from Mr Anderson in deciding to oust Lattouf) because he knew what Mr Anderson wanted.

Antoinette Lattouf arriving at the Federal Court on Thursday. Picture: NewsWire / Monique Harmer

The ABC’s main legal gambit on Thursday was unsuccessful. In seeking to table additional evidence, it argued the growth of former radio presenter Antoinette Lattouf’s social media following since her alleged unlawful dismissal meant she benefited from the abrupt end of her contract.

Mr Neil compared Lattouf’s Instagram following between December 2023 and now, arguing her fortunes as a freelancer were buoyed by the public fallout of her sacking.

Mr Fagir argued it was irrelevant evidence, and Justice Rangiah agreed.

Mr Fagir said the dismissal hampered the ABC’s commitment to impartiality, given that Lattouf’s personal politics were considered over her work and conduct in deciding to fire her.

“References to impartiality and the like (are) unhelpful to the ABC. They’re in fact self defeating, because they point (to) the fact that it is the opinion that is the issue,” he said.

“Mr Anderson, at one point, refers to a threat to the organisation’s reputation and a threat to its need to appear impartial … this is a remarkably facile mode of analysis for a series of very senior executives in a broadcaster.

“(They are) suggesting that Ms Lattouf is an activist or an advocate, and the label is not applied to (other ABC presenters like) Ms (Laura) Tingle, (or Patricia) Karvelas.”

The ABC also touched on the “apparent leaking of the information concerning Ms Lattouf’s case to The Australian”, as a component of the alleged psychological harm incurred by Lattouf. She alleged a story detailing internal ABC discussion released soon after she was stood down made her feel “portrayed as insubordinate”.

Mr Neil argued the ABC should not be liable for this.

“Let us suppose that it was (leaked) by someone associated with the ABC who’d gone rogue. How could we be responsible for that? (Someone) acting off their own bat,” he said.

“I’m not suggesting that happened, I make that absolutely clear. But if it had, we’re not responsible. How can we be liable for that?”

Mr Fagir said such an argument besmirched the ABC’s “utmost concern for … reputation and its integrity”.

Justice Rangiah will now retire to compose his Judgement.