The hearing has ended for today
The hearing has ended for today. David Anderson will be back tomorrow at 10.45am to complete his cross-examination.
The court will sit a little later on Thursday and end at 4.30pm, Justice Darryl Rangiah says.
After Anderson, Chris Oliver-Taylor, the outgoing ABC content chief, will enter the witness box. Oliver-Taylor ultimately made the decision to take Antoinette Lattouf off air.
Anderson said in his evidence today that in hindsight Oliver-Taylor should have taken more advice before making his decision but that ultimately it might not have changed the outcome.
If Mr Oliver-Taylor had his time over again, he might have sought additional advice from other people before he made his decision.
Thanks for joining me on the blog today. Good night.
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'I don’t know how you can deny racism in this country,' ABC managing director says in court
Antoinette Lattouf’s barrister, Oshie Fagir, has now asked David Anderson what action he took against staffers who made what he said were “contentious” statements.
He gave examples of the ABC chief political correspondent, Laura Tingle, saying Australia is a racist country, the former Media Watch host Paul Barry saying “Israel is killing journalists again” and the ABC chair, Kim Williams, criticising the Coalition’s energy policy. Guardian Australia reported on Tingle’s comments last year.
The question leads to an extraordinary exchange in which Anderson says that Australia is a racist country so it is not an impartial statement.
It’s not an impartial statement because it’s based in fact.
I don’t know how you can deny racism in this country.
Anderson says he wasn’t aware of Barry or Williams’ statements but Tingle had been sanctioned for some comments that were made alongside the racist country statement.
He says:
That statement was not what I had a problem with.
He agrees it was Tingle’s comment about the Coalition pressing hot buttons on race and that being very dangerous for the community.
For that, Anderson says: “She was not taken off air, but she was sanctioned … for undermining her effectiveness at work”.
So she was counselled because she was not meeting the standards that I would expect of someone in that role speaking publicly.
I believed that she was undermining her effectiveness at work and to be able to do her job.
Anderson says he recalls Patricia Karvelas has made comments about the Murdoch press, as part of its business model writing hit pieces about ABC journalists.
“I don’t think it’s contentious for news organisations to talk about themselves,” Anderson says, adding that he didn’t have enough information to assess it as a partial or impartial viewpoint.
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Anderson asked to compare public statements of Lattouf and Tingle
Fagir has put to Anderson that there were “ABC employees who have made public statements which are not impartial in relation to contentious issues” and he has done nothing about it.
Anderson replies:
Action has happened.
Fagir follows up with:
Isn’t this the situation? Ms Lattouf can’t make a public statement which is not impartial, but Laura Tingle can. That’s the fact of the matter, isn’t it?”
And Anderson responds:
It was a different matter, and that was dealt with at the time.
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Anderson has some regrets over way Lattouf matter was handled
Anderson has expressed some regret about the way the Lattouf matter was handled by the ABC, saying there was a “step missing” and Lattouf should have been given a chance to explain herself.
He says he thought his content chief, Chris Oliver-Taylor, was a competent manager but if he had his time over he may have sought additional advice.
“Hindsight is a wonderful thing,” Anderson tells the court, adding that it would have been useful to talk to Lattouf to find out what the motivation behind her social media post was.
“I think there’s a step in the middle, of a discussion with Ms Lattouf, to ensure that they’ve sought the right advice from employee relations and people and culture as part of that decision.”
Anderson agrees that under the ABC’s enterprise agreement, a misconduct allegation would be put to the employee.
Fagir: “Do you agree or disagree with this proposition: At the ABC it is misconduct if an employee wilfully disobeys or disregards a lawful and reasonable direction?”
Anderson says after an allegation was put to the employee, a process would follow.
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Lattouf’s barrister presses Anderson on ABC’s regulation of employees on social media
Lattouf’s barrister, Oshie Fagir, is asking David Anderson whether he agrees that the ABC has no entitlement to regulate the social media activity of its employees if it does not impact the editorial content.
Fagir asks:
Would you agree with this proposition: the ABC seeks to regulate its employees’ private conduct on social media only to the extent that it impacts on the editorial content to which they contribute?
Anderson replies:
No, I don’t subscribe to that.
Fagir then follows up:
Can I suggest to you that the ABC does not have nor does it claim any broader entitlement to regulate its employees’ expressions of their political or other opinions in their own time?
Anderson responds:
No, we can’t regulate what they do. We can judge what they do afterwards, though we can’t regulate what they do. People can have freedoms. They’ll do what they want on social media. So we can’t regulate what they do.
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‘ABC does not deny existence of any race’, silk argues
Before David Anderson was called to the witness box the ABC sought to clarify a point made by Lattouf’s barrister, Oshie Fagir, in his opening statement on Monday, that the broadcaster rejected Lattouf’s claim of racial discrimination, because she has not proven being Lebanese, Middle Eastern or Arab is a race.
Ian Neil SC tells the court:
The ABC does not deny the existence of any race. I repeat that the ABC does not deny the existence of any race.
“The point being made there is, that this is an issue in respect of which the applicant has an onus, and that she has not equipped the court with any evidence upon which to resolve that issue, please,” Neil says.
“There is no evidence consistent with the hypothesis that race or national extraction had anything to do with any matter under consideration in these proceedings.”
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‘I will find you and end you’: vicious death threat against Lattouf revealed in court documents
Earlier today, in an affidavit released by the court, Lattouf detailed dozens of death threats and abusive and threatening messages she had allegedly received since December 2023 when she hosted ABC radio’s Sydney Mornings program.
One alleged threat was made by an anonymous man who telephoned Lattouf and said: “I will find you and end you and shut your antisemitic mouth once and for all.”
Reporters Ben Doherty and Amanda Meade have got the main developments from court this morning.
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ABC managing director David Anderson begins evidence in unfair dismissal claim
After lunch, David Anderson, the broadcaster’s outgoing managing director, begins his evidence.
Anderson is explaining the various rules which govern ABC employees, including the Australian Broadcasting Corporation Act, ABC Charter, code of practice, editorial policies and code of conduct. These are all instruments that contain rules which apply to ABC employees.
He is being cross-examined by Antoinette Lattouf’s barrister, Oshie Fagir.
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ABC executives set up online meeting and made decision to take Lattouf off air
Ian Neil SC then takes his honour to the reversal of the ABC’s decision to initially not take Antoinette Lattouf off air, which was triggered by a social media post about Gaza.
The court heard that the radio chief, Ben Latimer, discovered that Lattouf had shared a post by Human Rights Watch on her Instagram account on Tuesday.
“In a separate stream of events, on Wednesday the 20th of December it came to the attention of Mr Latimer that Lattouf had posted, as he put it, regarding Israel-Gaza, the day before,” Neil says. “That was, of course, the Human Rights Watch post that your honour has already seen amongst others.”
The evidence has shown that Lattouf reposted a report from Human Rights Watch as a story on her Instagram account, and she added additional text reading ‘HRW reporting starvation as a tool of war’, according to court documents.
Neil says Chris Oliver-Taylor called an online executive meeting and together the team decided Lattouf would be taken off air because of the post.
Neil tells the court:
It is our submission that Mr Oliver-Taylor has described an entirely reasonable, rational and compelling basis for his [decision]. He didn’t take it alone, of course, he took it in consultation with others.
Mr Ahern was given the responsibility, or the task, of communicating the decision to Ms Lattouf.
The hearing has adjourned and will return at 2.15pm.
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ABC managing director contacted ‘plainly agitated’ Buttrose to discuss Lattouf’s exit, court hears
Ian Neil SC is now taking his honour to the evening of 19 December when David “Anderson was called upon to deal with a plainly agitated chair”, that is one Ita Buttrose.
Anderson responded to Buttrose’s concern that she was still getting complaints from the public about Antoinette Lattouf and why couldn’t they take her off air.
According to Neil, Anderson wrote:
Dear Ita, Antoinette will finish up on Friday. It is a managed exit, given the situation. I can explain more tomorrow. I plan to respond to all those who’ve emailed on Friday afternoon.
Neil submits that neither this email, nor any of the correspondence between ABC executives, shows that “any trace, even a bat squeak of antipathy” to the “actual content of any opinions that Ms Lattouf might have”.
Neil says all the concern was around protecting the ABC’s integrity and impartiality.
“Mr Anderson was holding the line,” Neil says.
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ABC Sydney staff told to use ‘dump button if needed’, court hears
The hearing has resumed with Ian Neil SC taking his honour through the ABC’s case.
After consulting with the acting editorial director Simon Melkman about Lattouf’s “problematic content” – which had been uncovered by the ABC managing director, David Anderson – the ABC decided there was no reason to take Lattouf off air prematurely, Neil tells the court.
Anderson explained to the ABC chair, Ita Buttrose, that his assessment was that “she hasn’t done anything wrong,” Neil says. “She is a casual employee whose engagement will come to an end on Friday. The decision is that she will stay on air until then.
“Our submission is that’s the end of the third phase of the salient events.”
Neil says the ABC content manager Elizabeth Green then spoke again to Lattouf on Tuesday 19 December about “the importance of not talking about Israel-Gaza in her shows this week”.
“She’s also suggested that Antoinette may be wise not to post anything on her socials this week,” Neil tells the court.
The court hears that Green had also spoken to the production team at ABC Radio Sydney “to be particularly vigilant about using the dump button if needed”.
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‘Does she need to come off air?’ – chain of ABC messages read out in court
Neil, for the ABC, says after the decision to keep Lattouf on air had been made on Monday afternoon, Anderson discovered some of her earlier social media activity that troubled him. Anderson believed it may conflict with the ABC’s impartiality requirements and the perception of impartiality, the court heard.
About 9pm that night Anderson sent a text to Chris Oliver-Taylor saying:
We have an Antoinette issue, the socials are full of anti semitic hatred.
Neil quoted the text message from Anderson:
Not sure we can have someone on the air that suggests that Hamas should return to their ethnic cleansing in Gaza and move on to the West Bank.
Oliver-Taylor then sent a text message to Anderson saying:
I think this is hugely problematic.
Oliver-Taylor emailed radio managers Ahern and Melkman and the radio chief Ben Latimer, saying:
I think we have a problem.
Ahern, who hired Lattouf, replies:
Thank you, Chris. Does she need to come off air? If so, it can be done, but may disruptive if done tomorrow.
The hearing has briefly adjourned.
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ABC silk tells court how broadcaster planned to warn Lattouf about posts
Continuing his opening statement, Ian Neil SC submits that by the afternoon of Lattouf’s first day on air the complaints about her hiring had been dealt with.
It was agreed by David Anderson and all the ABC managers involved that she would be warned not to post about Israel and Gaza and would remain on air until Friday as she had been hired to do.
Neil tells the court:
In our submission, this is the end of any influence that the fact or content of complaints that the ABC received about Ms Lattouf had on any of the salient events.
The complaints had been received. They had been looked at. It had been appreciated that the complaints focused not on anything that Ms Lattouf had done or said on air.
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Lattouf was ‘selected in part’ for role because of ABC diversity policy, court hears
Ian Neil SC is continuing with his opening statement, taking the judge through the chronology of events which includes emails and contemporaneous notes.
David Anderson then spoke to both the manager of ABC Radio Sydney, Steve Ahern, who hired Lattouf for the casual shifts, and to content director Elizabeth Green.
Ahern advised Green to caution Lattouf about posting on Gaza and not to give the complainants any more ammunition, Neil said. A contemporaneous note by Green read:
Don’t give ammunition, best not to post whilst here.
Anderson asked whether Lattouf would be covering the Israel-Gaza war during her shifts and was told she would not.
Ahern told Anderson that Lattouf had been identified as a future, potential presenter for ABC Radio:
Her background is Lebanese-Christian. She grew up in western Sydney, the child of Lebanese immigrants.
She’d been selected in part having regard to the ABC’s diversity policy.
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How complaints started and Lattouf’s impartiality was questioned
The contract between Lattouf and the ABC for one week of shifts on the Mornings program on ABC Radio Sydney in December 2023 is being dissected by Ian Neil SC.
Now Neil is taking Rangiah through the chronology of events.
Lattouf presented her first show on the Monday 18 December and, 90 minutes after she came off air, the ABC began to receive emails complaining about her, Neil said.
David Anderson forwarded some of those complaints to the chief content officer Chris Oliver-Taylor and acting editorial director Simon Melkman with the request to investigate the matter and provide advice.
Neil said Anderson had written in an email:
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.
Anderson also asked why Lattouf had been selected as a stand-in host.
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Lattouf 'jumbled chronology of events and omitted salient events', ABC barrister argues
Justice Darryl Rangiah has opened proceedings and warned the public not to record or screenshot the broadcast of the hearing on the federal court’s YouTube channel.
The ABC’s barrister Ian Neil SC is first up to present his opening statement. Neil says he will unveil the “true sequence of all the salient events” leading up to Lattouf’s termination.
The applicant’s opening statement “jumbled the chronology of events and omitted salient events”, Neil said.
Neil tells the court he is initially going to examine the contract between Lattouf and the ABC.
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Five things we’ve learned this week in court
Just to bring everyone up to speed, Lattouf was cross-examined for five gruelling hours over two days – here you can read about five things we have learned from her sometimes tense, sometimes tearful testimony.
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Three top ABC executives scheduled to give evidence
David Anderson is the outgoing managing director who is finishing up next month after a 35-year career at the broadcaster, during which he rose from the mailroom to mahogany row.
He was appointed for a second term on 1 July 2023 and was supposed to be in the role until July 2028 but resigned months after Kim Williams joined the ABC as chair.
He is not the only one of the ABC witnesses to be caught up in the trial despite having either left or being in the process of leaving.
Williams’ predecessor Ita Buttrose, who left the ABC almost a year ago, is to give her evidence on Friday.
Content chief Chris Oliver-Taylor, who is scheduled to appear after Anderson, is also almost out the door.
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What we can expect in court today
The Antoinette Lattouf v ABC hearing continues today in Sydney’s federal court with the ABC managing director, David Anderson, the next witness to be called.
The hearing schedule is already a day behind, the court was told yesterday, as Lattouf’s cross-examination lasted five hours and extended over two days.
Lattouf’s barrister Oshie Fagir said:
The party’s schedule has been completely exploded. We’re a day behind after two days.
Lattouf was taken off-air three days into a five-day casual contract in December 2023 after she posted on social media about the Israel-Gaza war, which the ABC said was a failure to follow a direction from a manager not to post.
The federal court heard yesterday that Lattouf disputes that she was given a direction, claiming her manager Elizabeth Green merely suggested she stick to factual posts only.
Lattouf took her case to the Fair Work Commission, which found last year she had been sacked but did not rule on whether it was an unlawful termination.
The ABC argued at the commission that Lattouf had not been sacked because she was paid for the full five days of her contract.
Green’s evidence is scheduled for Thursday.
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Welcome
Hi, I’m Amanda Meade, media correspondent, I’m watching day three of the Antoinette Lattouf v ABC unfair termination trial today.
We will bring you all the evidence as it unfolds from 10.15am though to 4.15pm.
Witnesses today include two ABC chiefs David Anderson and chief content officer Chris Oliver-Taylor, both of whom are on the verge of leaving the ABC after early resignations.
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