Antoinette Lattouf v ABC as it happened: Broadcaster denies Lattouf’s race, political views influenced decision to remove her from radio

That concludes our live blog for today. Thank you for reading. Here is a wrap of today’s evidence.

Antoinette Lattouf has described her unlawful termination suit against the ABC as the most difficult period of her life as the national broadcaster defended its decision to remove her from Sydney radio.

Lattouf was abruptly axed as fill-in host of the Sydney Mornings radio program in December 2023, three days into a five-day casual contract. She is suing the ABC, alleging it terminated her employment unlawfully and that her political opinion and Middle Eastern race played a role in its decision.

Antoinette Lattouf and barrister Philip Boncardo (left) outside the Federal Court in Sydney.Credit: Janie Barrett

Barrister Ian Neil, SC, acting for the ABC, said in closing submissions to the Federal Court in Sydney on Friday that Lattouf was unable to point to evidence that her race “bore in any way” on the decision to remove her from radio, and she was not removed for holding political beliefs.

He said she was “taken off-air because she did something she was told not to do”. The decision was designed to “protect the ABC, not to punish” Lattouf, Neil said.

Federal Court Justice Darryl Rangiah replied: “It may be both.”

“Literally no one ever talks about punishing her or sanctioning her,” Neil replied.

“What is the punishment, we ask rhetorically. You don’t have to do work but you get paid for it? We always have the right to tell you not to do any work.”

Antoinette Lattouf and her legal team (from left to right), barristers Ohsie Fagir and Philip Boncardo and solicitor Josh Bornstein.Credit: Louise Kennerley

Lattouf’s barrister Oshie Fagir said there was an “air of complete unreality to the submission” that she was not punished by being removed from air. He said Lattouf was subject to “shambolic treatment with severe consequences”.

Lattouf said outside court on Friday: “This case was never just about me. It was never about five days of work. It was about protecting the principles that should matter to all of us.

“And while this saga has undoubtedly been the most difficult of my entire life, wherever the threat and injustice is coming from, I will always stand up for myself.

“I will always stand up for civil liberties, I will always stand up for human rights. I will always stand up for justice. I will always stand up for journalism without fear or favour.”

The ABC’s barrister, Ian Neil, SC, outside the Federal Court in Sydney on Friday.Credit: Janie Barrett

Asked by Rangiah what Lattouf was told not to do, Neil told the court: “She was told, in effect, not to post anything [on social media] in relation to the conflict in Israel and Gaza during the week she was with the ABC.”

Whether such a direction was given is a key issue in the case.

Lattouf’s line manager, Elizabeth Green, gave evidence during the trial that she had told Lattouf it was “best not to post anything that would be considered controversial while you’re with us”, but if “something is fact based and from a verified source, I am sure it would be fine”.

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.”

Lattouf was told to pack up her things and leave after her third shift on December 20. She did not work her final two shifts but was paid for all five days in January 2024.

The freelance journalist alleges this amounted to a termination of her employment, and that the ABC bowed to pressure from pro-Israel lobbyists who wanted her removed from air because of her longstanding views about the Israel-Gaza conflict. The ABC maintains she was not sacked.

“She was relieved of the obligation to perform any further work,” Neil said. “We have the right to do that. There was no express right for Ms Lattouf to actually perform work.”

Under the Fair Work Act, it is unlawful for an employer to terminate a person’s employment for reasons including their race and political opinion.

But Neil said that “on her case the contents of that [Instagram] story were incontrovertible fact, not an opinion at all.”

Neil added that activism was “different from the holding of the opinion for which one is an activist.”

“An employer is perfectly entitled to say to employee, ‘I don’t want you going about the workplace buttonholing your fellow workers and thrusting your political opinions upon them’,” Neil said. He said it would be lawful to sack an employee if they did not comply.

What would not be lawful, Neil said, was acting as the “thought police” and terminating their employment because the employer did not like the person’s political views.

The judge will deliver his decision at a later date.

Here’s some of what Antoinette Lattouf had to say outside court just now:

Antoinette Lattouf addresses the media outside Federal Court on Friday.Credit: Janie Barrett

This case was never just about me. It was never about five days of work. It was about protecting the principles that should matter to all of us.

And while this saga has undoubtedly been the most difficult of my entire life, wherever the threat and injustice is coming from, I will always stand up for myself. I will always stand up for civil liberties, I will always stand up for human rights. I will always stand up for justice. I will always stand up for journalism without fear or favour.

The closing submissions have concluded and Justice Darryl Rangiah will deliver his decision at a later date.

Lattouf is expected to address the media outside court shortly.

“I’ll reserve my judgment,” Rangiah says.

The ABC’s submissions have now concluded. Antoinette Lattouf’s barrister, Oshie Fagir, is back on his feet and delivering his reply.

“There are many aspects of the ABC’s case which are objectionable,” he opens.

He says there is an “air of complete unreality to the submission” that Lattouf was not punished by being removed from air three days into her planned five-day shift.

“Taking someone off-air is designed to protect the ABC, not to punish the employee,” the ABC’s barrister, Ian Neil, SC, says.

Federal Court Justice Darryl Rangiah replies: “It may be both.”

“But in this case it was only the first,” Neil says.

“I’m not sure about that,” Rangiah rejoins.

“Literally no one ever talks about punishing her or sanctioning her,” Neil says.

“What is the punishment, we ask rhetorically. You don’t have to do work but you get paid for it? We always have the right to tell you not to do any work.”

The ABC’s barrister Ian Neil, SC, tells the court that the national broadcaster didn’t terminate Lattouf’s contract or the employment relationship.

“She was relieved of the obligation to perform any further work. We have the right to do that. There was no express right for Ms Lattouf to actually perform work,” he said.

Neil said the ABC was permitted to change her contract to “no work” if it wished to do so.

The court has heard that ABC managing director David Anderson initially resisted removing Antoinette Lattouf from radio before the end of her five-day contract and told the broadcaster’s then chair Ita Buttrose in an email that Lattouf’s finish would be a “managed exit”.

Antoinette Lattouf and barrister Philip Boncardo leave the Federal Court in Sydney.Credit: Louise Kennerley

What did that email mean? The ABC’s barrister Ian Neil, SC, describes it in this way.

“The ABC had carefully weighed the competing risks and decided to keep Ms Lattouf on-air until the Friday, having put in place … mitigating plans,” Neil said.

One of those mitigants was to tell Lattouf not to post on social media about the Israel-Gaza war for “one week. Five days,” Neil said.

But Lattouf’s legal team says she was not given an explicit direction of this kind.

The hearing has resumed after lunch. The ABC’s barrister Ian Neil, SC, says he will now address the court on the “central importance” of impartiality at the national broadcaster.

Antoinette Lattouf and her lagal team outside the Federal Court in Sydney on Friday.Credit: Janie Barrett

“The ABC’s obligations of impartiality and the need for it to ensure that it was perceived to be impartial are central to the ABC’s discharge of its responsibilities as the national broadcaster,” Neil said.

This was a “value” or “norm” that informed the reasoning of everyone in this case, he said.

Neil said that until as late as 11.07am on Wednesday, December 20, 2023 – the day Lattouf was told to pack up her things – “the settled consensus” among everyone involved at the ABC was that Lattouf would stay on-air until the end of her planned five-day stint on Friday, December 22.

“That’s the latest written record of that settled consensus,” Neil said.

ABC barrister Ian Neil, SC, says he is “on track” to finish his submissions at 3.30pm, leaving 45 minutes for the reply from the Lattouf side.

The court takes the lunch break. The hearing resumes at 2.15pm (AEDT).

ABC barrister Ian Neil, SC, outside the Federal Court in Sydney.Credit: Janie Barrett

The ABC’s barrister Ian Neil, SC, says Antoinette Lattouf’s team was unable to point to evidence that Lattouf’s race “bore in any way” on the decision to remove her from ABC Sydney Radio in December 2023.