How does the Lattouf judgment affect employees' freedom of speech?
Those hoping the Federal Court's findings in the Antoinette Lattouf case will go some way to answering a question surrounding the rights of workers to express their political opinion ‒ and the rights of employers to prevent them ‒ will probably be disappointed.
Lattouf's case was mounted on the basis that her employment contract was unlawfully terminated, in breach of section 772 of the Fair Work Act, due to her expression of her political opinion, or, alternatively, her race and political opinion. A secondary but related issue was that the ABC breached the staff enterprise agreement.
The ABC relied on the defence that it had terminated Lattouf's employment for reasons that did not include her political opinion, race or national extraction but because of her failure to follow a direction from her producer not to post anything about the Israel-Gaza war and because she had contravened the ABC's 'Personal use of social media - Guidelines'.
The court found in Lattouf's favour, noting that Lattouf had not been given a direction, but simply general guidance. It also found that the ABC was ultimately unable to identify any breaches of the social media guidelines or editorial guidelines or policies.
The decision is helpful in highlighting that employers are in general able to issue directions to employees about publicly expressing their views. The judgment refers to the established right of employers to issue 'lawful and reasonable' directions. It also suggests that these directions must be made clearly and, ideally, rely on established and accessible policies.
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Doing so enables employers to point to a specific employee breach if they wish to take disciplinary action. If they can't, then they leave themselves open, as did the ABC, to accusations of discrimination under provisions such as section 772.
The decision is helpful, but not groundbreaking, leaving one big question unanswered: the one we are still asking after a series of messy disputes ‒ think Folau, Khawaja, Gillham to name some recent examples. That is, how far can employers go in attempting to control employees' 'freedom of speech'?
In the Lattouf case, the Federal Court was not required to make any finding on this. It was required only to consider whether a direction was issued or a policy in place, not when the making of such directions or policies itself impinges on an individual's freedom of political expression. In thinking about this question, we must consider the delicate balance between employers' rights to protect their reputation and their obligation to maintain a safe workplace and employees' rights to self-expression. Where is the line that can't be crossed? And what are the institutional protections that might come into play in deciding where to draw that line?
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News.com.au
4 hours ago
- News.com.au
‘Make the deal': Donald Trump shifts focus back on Gaza
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ABC News
8 hours ago
- ABC News
Antoinette Lattouf's unlawful sacking exposed the power of lobbying on the Australian media
Last weekend, I wrote a piece about the news-gathering model and media literacy. It mentioned how governments, militaries, and lobby groups try to stop the media telling stories, and it wondered if news audiences would like major media outlets to talk about it more: "They might be shocked to learn about the orchestrated bullying that goes on, which is designed to discourage editors and journalists from reporting on certain topics and framing stories in certain ways, even speaking to certain people," the piece said. "Would it improve media literacy if the media wrote about these issues openly and regularly?" Then, three days later, we heard relevant news. On Wednesday, the Federal Cout ruled that the ABC had unlawfully sacked journalist Antoinette Lattouf, in December 2023, for reasons including that she held political opinions opposing the Israeli military campaign in Gaza. Justice Darryl Rangiah found external pressure from "pro-Israel lobbyists" had played a role in the ABC's decision. Ms Lattouf had been employed by the ABC on a small five-day contract, as a fill-in summer radio host. But Justice Rangiah found that soon after Ms Lattouf presented her first program that summer, the ABC began to receive complaints from members of the public. "The complaints asserted she had expressed antisemitic views, lacked impartiality and was unsuitable to present any program for the ABC," he wrote. "It became clear that the complaints were an orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air." For journalism students, it's an important case study. Many of you would have discussed it in class last week. But everyone should read Justice Rangiah's judgement. It details what went on behind the scenes at the ABC when the email campaign against Ms Lattouf began, and how it contributed to a "state of panic" among some senior ABC managers (many of whom have since left the organisation). It also showed how such pressure campaigns work. Not only had pro-Israel lobbyists sent dozens of emails to the ABC calling for Ms Lattouf to be taken off air, but their complaints found their way to News Corp's The Australian newspaper, which then told the ABC it was planning to report on the fact that the ABC had received complaints (which fed the growing panic inside the ABC). That's how the game is played. After the Federal Court's ruling was published on Wednesday, the ABC's new managing director, Hugh Marks, said the ABC had let down its staff and audiences. "Any undue influence or pressure on ABC management or any of its employees must always be guarded against," he said. A large number of articles were also written about the court's ruling. Alan Sunderland, a former editorial director of the ABC, said the public broadcaster had lessons to learn from the saga. "The world these days is filled with those who seek to control, bully and pressure public interest journalism in all its forms," he wrote. "The role of senior managers is to stoutly resist that pressure, and protect journalists from it as much as possible." Paula Kruger, the chief executive of Media Diversity Australia (and a former ABC radio host), made other points. She said news audiences had to trust that news outlets were capable of telling truthful stories, but the impact that that orchestrated pressure campaign had on the ABC had "shaken trust internally and externally". "You break trust with the broader community when an interest group can go to the top of an organisation and get its way. Lobbyists skip the process that everyone else must follow," she wrote. She also raised the topic of media literacy and trust. She said we often talk about ways to improve the public's media literacy, but the decline in trust in the media should not be a problem for audiences to fix; it was the responsibility of news organisations. "Silencing one side of the story isn't success. Shutting down voices isn't 'social cohesion,'" she wrote. "But silencing and shutting down were the preferred responses of senior ABC management under pressure from pro-Israel lobbyists. We need a different approach to our most difficult conversations." That last point is worth thinking about. In last weekend's article, I made a reference to Hannah Arendt's famous 1971 essay on the Pentagon Papers. But she wrote another essay, in 1967, that deserves a reference today. In that earlier essay, Truth and Politics, Arendt famously argued that "objectivity" and "impartiality" were revolutionary concepts that helped to usher in the modern world. In fact, she left her readers with the impression that those concepts were pillars of so-called "western civilisation": "The disinterested pursuit of truth has a long history," she wrote. "I think it can be traced to the moment when Homer chose to sing the deeds of the Trojans no less than those of the Achaeans, and to praise the glory of Hector, the foe and the defeated man, no less than the glory of Achilles, the hero of his kinfolk [...] "Homeric impartiality echoes throughout Greek history, and it inspired the first great teller of factual truth, who became the father of history: Herodotus tells us in the very first sentences of his stories that he set out to prevent 'the great and wondrous deeds of the Greeks and the barbarians from losing their due meed of glory'. "This is the root of all so-called objectivity ... without it no science would ever have come into being." 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West Australian
8 hours ago
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‘We are not going to stand for this': Trump lashes out at Israel prosecutors over Netanyahu's corruption trial
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