Prescience is a writer’s best friend, but when I wrote last June that “the ABC stumbles around, punching itself in the head”, I didn’t know the half of it.
The trial for Antoinette Lattouf’s case against the ABC, for sacking her mid-contract in December 2023, has begun in the Federal Court. The big question — why the ABC is choosing to die on this particular hill — looms ever larger.
It was already known that the ABC has changed its position on why it sacked Lattouf more times than she had days on air. It was also known that the broadcaster had been deluged by coordinated complaints from the pro-Israel lobby, which was most unhappy about Lattouf’s social media posts criticising Israel’s actions in Gaza.
What’s now coming out is what was in the ABC’s underwear drawer, along with its lawyers’ further attempts to dress up its abandonment of Lattouf as something that didn’t break the law. In doing so, they’ve pretty much given up pretending that craven cowardice wasn’t the true motivation, leaving the ABC exposed to even more ridicule than it has already self-inflicted.
There were a couple of revelations from the first day’s play, one being that then ABC chair Ita Buttrose was very forthright in her reaction to the complaints about Lattouf, emailing managing director David Anderson at one point:
“Can’t she come down with flu or COVID or a stomach upset? We owe her nothing.”
Anderson, for his part, bought straight into the lobby’s insistence the ABC had hired a racist, texting chief content officer Chris Oliver-Taylor that Lattouf’s “socials are full of antisemitic hatred”.
Well, that’s a viewpoint, not a fact, but there is an interesting irony in the headlong rush with which the ABC was prepared to determine that keeping Lattouf on air was an act of antisemitic racism, deeply hurtful to Australian Jews.
That irony was exposed in opening submissions; Lattouf’s counsel was addressing part of her case, which is that she was sacked because of her race or national extraction, in contravention of the anti-discrimination protections afforded workers by the Fair Work Act.
Her counsel told the court the ABC has indicated it will be defending this claim, in part, on the basis that she has not proved that there is such a thing as a “Lebanese, Arab or Middle Eastern race” (Lattouf identifies as being of Christian Lebanese extraction).
The discrimination claim is that, if Lattouf had not happened to be Lebanese/Arab/Middle Eastern, she would not have been targeted for cancellation and the ABC would not have kicked her to the kerb. Bear in mind that her crime was not anything she did after she was hired by ABC Radio, but her previous, quite public, social media activity.
Apparently, the ABC is going to argue that it doesn’t matter because Lattouf has no legal protection against this form of discrimination — because the race she claims to be is not a race.
Interesting, and telling. Legally speaking, it’s just wrong. The courts have had plenty of practice dealing with the legal conundrum presented by the statutory use of the nonsense term “race”, and sensibly interpret it not with the 19th-century racist mindset that people can actually be categorised by race, but with the broader understanding that racism exists and attaches irrationally to generalised classifications of people.
Thus, it has been long recognised in Australian and overseas courts that “Jew” and “Muslim” can qualify as an ethnicity or race for the purposes of anti-discrimination law. The explanatory memorandum to our federal racial hate speech law says that “the term ‘race’ would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered … it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims”.
The Federal Court itself has more than once rejected the argument that Jewishness is not a race or ethnicity. In the recent case of Mehreen Faruqi v Pauline Hanson, not even Hanson bothered trying to argue that Muslims are not capable of constituting a racial or ethnic grouping.
Lattouf identifies with her heritage, and her detractors identify her with it too. Whether or not it factored into her sacking — which is a factual question for the judge, not the punters — it’s just silly to claim that it’s not a thing at all.
Tactically, the argument betrays the ABC’s conundrum: win or lose, it’s going to lose. The optics are devastating and promise only to worsen. It is resorting to technical legal arguments as an exit strategy, hoping to avoid a finding that it monstered a minority at the behest of a powerful lobby group, on the basis that the minority doesn’t exist in the first place. Good luck with that.
Ethically, Lattouf’s barrister wasn’t wrong to call out the public broadcaster for even attempting the argument. Where does the ABC get off suggesting that Lebanese, Arab or Middle Eastern people aren’t protected by anti-discrimination law?
It would also not be wrong to call out one obvious conclusion: that the ABC has bought into the prevailing political/media narrative that, when it comes to Israel, there can only be one victim group, and that to suggest otherwise is, by definition, invalid.
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