That's it for today, thanks for reading
Let’s go through some of the key points raised during the hearing, which almost entirely focused on closing oral submissions from Antoinette Lattouf’s lawyers:
Lattouf’s lawyers argue she was dismissed not only because of her opinion about the war in Gaza, but because of her Lebanese heritage;
Her lawyers also say it is clear she was terminated from the ABC, which the broadcaster has denied;
The key evidence regarding her termination, the lawyers say, is a meeting in which she was told to “collect her things and leave” and was not told she was still employed. But they also rely on the fact the broadcaster did not refute an article in The Australian saying she had been sacked;
Justice Darryl Rangiah said he planned to ask lawyers for the ABC “about the relevance of the apparent leaking of the information about Ms Lattouf’s case to The Australian, and whether that factors in to questions of compensation”;
Oshie Fagir, for Lattouf described the ABC content chief, Chris Oliver-Taylor, as a witness of “no credit”, saying there was no material that supported his evidence that Lattouf was given a direction not to post on social media; and
The ABC failed in a bid to confirm how many Instagram followers Lattouf had gained since leaving the broadcaster.
Thanks again for reading, and enjoy the rest of your evening.
Updated
Judge to ask ABC whether apparent leak to The Australian is relevant to compensation
Justice Darryl Rangiah plans to ask lawyers for the ABC whether the apparent leaking of a story regarding Antoinette Lattouf’s departure from the broadcaster to The Australian should be considered when weighing possible compensation to the journalist.
Rangiah ended Thursday’s hearing by saying he planned to ask Ian Neil SC, for the ABC, “about the relevance of the apparent leaking of the information about Ms Lattouf’s case to The Australian, and whether that factors in to questions of compensation”.
The hearing has been adjourned until Friday morning, when lawyers for Lattouf are expected to finish their closing submissions, followed by the ABC.
Updated
Article in The Australian was evidence the ABC had indeed ‘sacked’ Lattouf, barrister says
Philip Boncardo, another barrister for Lattouf, is addressing a key issue in the case: whether the journalist was terminated from her role at the ABC.
The ABC deny she was terminated from her five-day contract.
He said the key evidence they would rely upon was the meeting in which Lattouf was told “to collect her things and leave”.
She was not told she was still employed.
She was not told she would be paid for Thursday and Friday.
She did not perform any more work … that, we clearly say, is a termination of employment.
Boncardo said that while the meeting was the key evidence Lattouf relied upon to refute the “assertion” from the ABC that the relationship “continued”, there were other factors.
One of these, he said, was that an article was published in The Australian shortly after Lattouf left the ABC, in which it was described she had been “sacked”.
“What does the ABC do in response? Absolutely nothing,” Boncardo said.
Closing submissions for Lattouf continue.
Updated
Social media post was ‘pretext’ for Lattouf’s ‘utterly abnormal’ removal, Fagir says
Removing Lattouf for the Human Rights Watch post on social media was a “pretext” and “utterly abnormal”, Fagir argues in his closing submission.
Mr Oliver-Taylor latched on to the post as a pretext to deliver that which he knew the managing director and the chair wanted.
Fagir says the pressure was coming from Buttrose who was “hammering” him with emails and Anderson who was “demanding assurances that a situation like this never arises again”.
“And he uses [the post] as a pretext to deliver what he wanted and what the organisation want too. And that is why the reasoning in relation to the direction and the potential breach of policy makes absolutely no sense.”
Updated
Key decision-makers in Lattouf’s removal laid out in court
David Anderson’s “deep unhappiness” about the hiring of Lattouf, and his “frequent expressions of hostility” towards her opinions were influential in Chris Oliver-Taylor’s decision to sack her, Fagir tells the court.
They were all aspects of the influence – the pressure – that was brought to bear on Mr Oliver Taylor, and which were relevant to his ultimate decision.
Fagir is taking Justice Rangiah to the people who played a part in the removal of Lattouf.
Fagir says although Ita Buttrose was not a decision-maker she was influential, especially when she started to forward all the complaint emails about Lattouf to Oliver-Taylor.
“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,” Fagir says.
Updated
Lattouf dismissed because of her race: Fagir
Antoinette Lattouf was dismissed by the ABC not only for her political beliefs but because she was Lebanese, her barrister says.
Oshie Fagir, continuing his closing submissions, said:
Ms Lattouf was removed from air … not only [because] she held and manifested particular views, but that she did so in circumstances where she herself was of Lebanese heritage. We absolutely maintain and urge the court to find that Ms Lattouf’s race was a reason for her dismissal.
Fagir said the material he relied upon was “explicit” in relation to the “hostility” about her political opinion, but “not as clear in relation to race”.
But he said the ABC had the onus to “explain this utterly abnormal exercise and the reasons for it”.
Justice Darryl Rangiah asked what would be relied upon in relation to race, but Fagir again responded that it was for the ABC to prove it had not been a factor.
“It’s not my client’s task to positively demonstrate that race was a factor, it’s for the ABC to exclude it,” Fagir said.
His closing submissions continue.
Updated
The difference between holding and expressing an opinion
We’re fairly deep in case law here about the difference, and the significance of the difference, between holding and expressing an opinion.
Fagir is taking Rangiah through previous cases that he says shows legally there is no difference.
Rangiah says the reason he is pressing Fagir on the distinction is that there is a clear disconnect between the ABC and Lattouf on the issue.
Rangiah said:
Where this point might arise conceivably is, if I rejected or did not accept the evidence of Mr Oliver-Taylor for his reasons for terminating the employment of your client, but nevertheless accepted his evidence that he was not concerned about whether your client held political opinions, but only the fact she expressed those views … in that case I might have to decide whether first, as a matter of construction, on your argument, there’s no distinction between the two, that is to express a political opinion is to hold it.
The second issue ... is that if there is a distinction between the two, then does your client fail because the pleading only relies on her holding a political opinion, rather than expressing a political opinion.
I’ve spent some time on this because I do think it’s a point in which the parties are firmly divided, and I do think that’s important.
Fagir said “it is conceivable that permutation might arise, obviously we would urge a different set of findings”.
He went on to clarify that his submission was not quite that to express an opinion is to hold it, it is that to dismiss someone based on expressing an opinion is to dismiss based on the holding of that opinion.
His closing submissions continue.
Updated
Hearing resumes
Oshie Fagir, for Lattouf, has continued his oral closing submissions.
And that’s lunch
The hearing has ended for lunch, and will resume at 2.15pm.
Judge urged to dismiss some evidence from David Anderson and other ABC witnesses
Fagir has emphasised that Lattouf’s case is not only that she was terminated because she held an opinion about the war in Gaza, but that it was expressed.
He says, however, that “our primary contention … is that it was the holding of the opinion was the issue”.
The onus was on the ABC to prove otherwise, he argues.
Just before lunch, Fagir also made clear that Rangiah should dismiss evidence from people at the ABC – including the managing director, David Anderson – that they did not know about Lattouf’s opinion.
“Some of them claimed, laughably, not to know what the opinion was,” he said.
Fagir said expressing an opinion was merely a “manifestation” of that opinion.
But Rangiah said it would be critical to the case to determine whether, under the relevant law, the expressing of a political opinion was indeed different from merely holding that view.
Updated
Judge questions comparing treatment of Lattouf to other ABC employees
Fagir runs through a series of people at the ABC who also expressed opinions while employed by the broadcaster, including Laura Tingle and Patricia Karvelas, who were not dismissed.
He said the way the ABC considered Lattouf shows that it was the nature of her opinions – not that she had expressed them – that was the main concern.
The fact she is labelled an advocate or an activist ... betrays a starting point that is hostile to those views.
Rangiah queries this, saying he’s “not sure how far that gets you, comparing the ABCs dealings with Ms Lattouf and others”.
The judge goes on to say that the evidence was that the ABC was receiving a series of complaints about Lattouf that needed to be dealt with “immediately”.
Fagir responded that the former ABC chair Ita Buttrose and the managing director, David Anderson, had both given evidence that dealing with complaints was “a day in the life of the ABC” and that there was nothing unusual about this campaign.
But he also added that “it is really for the ABC to explain … that series of events did not occur because of her opinion”.
Fagir’s closing submissions continue.
Updated
Lattouf dismissed solely for her opinion, barrister says
Fagir continues his closing submissions by saying it is clear the ABC dismissed Lattouf simply because of her opinions.
He says Justice Darryl Rangiah should ignore any submission from the ABC to the contrary:
The various and many ways – imprecise references to policies, directions, unwritten concerns about impartiality, unwritten expectations of impartiality, reputational concerns, concerns about an audiences redaction – are all by the by.
It takes the matter nowhere for an employer to say [for example] that ‘I will not employee anyone over the age of 55, and I am dismissing this person when they turn 55 not because of their age, but because of this policy
The issue in relation to Ms Lattouf was the matter of her political opinions.
The ABC, in its defence, in various points, describes her opinions as contentious, or controverial
Fagir also described the observations of senior executives at the ABC about Lattouf’s opinions as overly simplistic.
“One might expect a bit more nuance in relation to that matter,” he said.
Updated
ABC content chief a witness of ‘no credit’, Fagir says
Oshie Fagir, for Lattouf, has continued his submission that there was no direction given to his client not to post on social media while she was employed by the ABC.
He has described the ABC content chief, Chris Oliver-Taylor, as a witness of “no credit”, saying that there was no material that supported his evidence that Lattouf was given a direction.
He said that the fact Oliver-Taylor insisted there was such a direction was “a matter that weighs heavily against Mr Oliver-Taylor’s credit”.
Fagir’s oral closing submissions continue.
Updated
And we’re back
We have just had a short break, but court has now resumed.
Judge should dismiss direction evidence, Lattouf’s barrister says
Fagir, continuing closing oral submissions for Lattouf, says Rangiah should find that the journalist was given no direction not to post about the Israel-Gaza conflict on social media.
Fagir said evidence from the ABC content chief, Chris Oliver-Taylor – that such a direction was given – should not be accepted.
This was in part because of a file note made by Oliver-Taylor and tendered in court that describes a “request” for Lattouf not to post on social media about the war, rather than a direction.
Fagir said:
The facts might be detailed, and the evidence might be extensive, but the factual questions … are readily answered.
Earlier, Fagir also said that while it was expected closing submissions would be finished tomorrow, he may have been “naive” in that thinking.
The hearing continues.
Lattouf’s lawyer starts closing submissions
Fagir starts his closing oral submissions by spelling out that Lattouf had been hired to present a “light, bright mornings program” but was almost immediately targeted by a campaign to oust her.
He steps through evidence he says the court heard in the case, including that Lattouf should not have been given a job at all and that the hiring was considered “grossly negligent”.
Fagir said it was clear Lattouf was not dismissed for her work, but because of views she had previously expressed regarding the war in Gaza.
He said she was sacked within 48 hours of the campaign against her, stating:
There is an extensive discussion about Ms Lattouf’s removal that has absolutely nothing to do with her work, absolutely nothing to do with anything she did during her employment at the ABC.
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.
Updated
ABC regrets Lebanese race argument in its $1.1m case
You may have missed earlier this week, but it was confirmed in Senate estimates on Tuesday that the ABC has already spent $1.1m on external lawyers, including the ABC’s barrister Ian Neil SC.
ABC executives also told the committee that the ABC’s earlier legal argument that Lattouf had to prove the existence of a Lebanese race should “never have been made”.
The ABC’s defence of Lattouf’s unlawful termination case originally argued she must prove the existence of a Lebanese, Arab or Middle Eastern race, a tactic which angered ABC staff and Australian Middle Eastern and multicultural groups.
On Tuesday the broadcaster’s chief people officer, Deena Amorelli, told senators that once the court proceedings were finalised, the ABC would apologise again to the community and staff for the hurt its legal tactic caused.
“We regret that argument was made,” Amorelli said. “It should never have been made, and we will apologise.”
Updated
Judge asks for an agreed narrative of facts to help with ‘complex’ judgment
Justice Darryl Rangiah is asking both parties why he hasn’t been given a document of agreed facts in the case, which he asked for at a previous hearing.
Rangiah said there was a vast number of documents, and he hoped there was an agreed narrative he could rely on when working on what he expected would be a “complex” judgment.
The parties are at pains not to blame the other for not providing the document.
Oshie Fagir, for Lattouf, said the ABC sent a document of about 100 pages that was “selective” and “closer to a submission than a neutral chronology”, and that his legal team ran out of time to edit them.
Ian Neil SC, for the ABC, said they were doing their best.
Both agree to provide the document after submissions.
Fagir has just started his closing oral submissions.
Updated
Antoinette Lattouf arrives at federal court
Updated
ABC seek to confirm increase in Lattouf’s Instagram followers
We’re starting the hearing with some housekeeping.
Ian Neil SC, for the ABC, confirms that he wishes to tender some documents to the court relating to videos on Antoinette Lattouf’s Instagram profile, and some relating to a complaint she made to police.
But he also says the ABC seeks information confirming how many followers Lattouf has gained on Instagram since she left the ABC in December 2023.
Neil said Lattouf had agreed during cross-examination that an increased Instagram following was beneficial to her career as a freelance reporter, and that her number of followers had increased since December 2023.
He said documents confirming the extent of the increase in followers, and therefore the possible benefit to Lattouf, was relevant to the ABC’s case.
Lattouf’s barrister Oshie Fagir said the application was not relevant to the case.
Justice Darryl Rangiah agreed, setting aside the ABC’s request.
He asked Neil, somewhat tongue-in-cheek, whether the ABC would be asking Lattouf for compensation if it was proven she had received some benefit from leaving the broadcaster.
Neil confirmed they would not, but pressed that it was relevant if Lattouf had grown her following in the wake of her departure from the ABC.
The hearing continues, but closing submissions are yet to start.
Updated
Day eight begins
And we’re off! Court has just started.
Updated
The events that brought Lattouf and ABC to this point
Antoinette Lattouf, a 41-year-old freelance journalist, lost her job in December 2023 after she shared a Human Rights Watch post about the Israel-Gaza war while employed in a casual role for ABC Radio.
After she was dismissed, three days into a five-day casual contract hosting ABC’s Sydney Mornings, she took her case to the Fair Work Commission.
The ABC argued at the commission that Lattouf was not sacked because she was paid for the full five days of her contract, but the commission found she was sacked, paving the way for her to pursue an unlawful termination case in the federal court.
The evidence in chief was heard over seven days earlier in the month, and after a short break the parties return today to present their final submissions.
On Monday 18 December Lattouf presented her first show on Mornings from 8.30am to 11am. After lunch, the ABC managing director, David Anderson, sent a number of emails to executives asking them to investigate the multiple complaints he was getting about Lattouf’s employment and to provide advice.
The complaints were not about the broadcast but about the ABC hiring someone who was critical of Israel’s conduct in Gaza.
The court was told Anderson wrote in an email: “Can we ensure that Antoinette is not and has not been posting anything that would suggest she is not impartial”, setting off a chain of events leading to this high-profile trial.
According to Lattouf’s statement of claim, the complaints were “sent by members of Lawyers for Israel and Jewish Creatives and Academics” and “sought to pressure the ABC to … terminate the employment of the applicant”.
The former ABC chair Ita Buttrose said in her affidavit she “did not recognise or know of any of the names of the persons from whom I received complaint emails, although, from their names, I assumed that many of them were of a Jewish background”.
The issue for me was not whether Ms Lattouf was pro-Palestinian or pro-Israeli. Rather, the issue was that Ms Lattouf appeared to be an activist in relation to the Israel-Gaza conflict, which was a serious and contentious matter of concern in the community, regardless of which side of that conflict she was an activist for. I do not support the hiring of activists of any cause to the ABC.
At the beginning of the trial Justice Darryl Rangiah granted a suppression order on the names of the individuals in those groups.
The hearing kicks off with the applicant’s closing submissions listed for two hours, followed by the respondent’s closing before and after the lunch break.
If the parties don’t get through their submissions today the court will sit again on Friday.
Updated
Welcome
Hi, I’m Nino Bucci, and I’ll be watching day eight of the Antoinette Lattouf v ABC unlawful termination claim.
Over today and possibly Friday we will hear the closing arguments from both sides.
The hearing is scheduled to begin at 10.15am and is live streamed on the federal court’s YouTube channel.
When final submissions have been made Justice Darryl Rangiah will retire to consider his verdict.
