ABC no longer disputes that ‘Lebanese, Middle Eastern or Arab races exist’, unlawful termination suit hears | Australian Broadcasting Corporation

The ABC has amended its legal defence in the unlawful termination suit it is defending in federal court, after outcry about its claims that the onus was on the sacked journalist Antoinette Lattouf to prove the existence of a Lebanese, Arab or Middle Eastern race.

On Tuesday, the ABC’s lead barrister, Ian Neil SC, began by amending the broadcaster’s defence to say that the ABC accepted “Lattouf is a person of Lebanese and Arab and Middle Eastern descent”.

“We are now instructed as follows: the ABC does not put in issue, that is, it does not dispute or contest that the Lebanese, Middle Eastern or Arab races exist, or that Ms Lattouf is one or more of those races,” Neil said.

“To be entirely clear about this, your honour will understand that the ABC continues to deny that Ms Lattouf’s race or national extraction, together with any political opinion she may have had, were reasons for, or part of, the reasons for any the decision to take her off air in December 2023.”

The broadcaster’s chief people officer, Deena Amorelli, emailed all ABC staff apologising for the distress caused by the legal tactic.

“Last Thursday I wrote to you regarding the ABC’s defence of the current proceedings in the federal court brought by Ms Antoinette Lattouf,” Amorelli said in an email seen by Guardian Australia.

“As part of these proceedings, a proposition was made in the ABC’s legal submission relating to race and matters that needed to be established by Ms Lattouf in her case against the ABC. This proposition was intended to state the legal elements that must be established, it was not to make a statement about any aspect of Ms Lattouf’s race or national extraction.

“The ABC recognises that, regrettably, this legal argument has caused distress in some sections of the community and our workforce. This was not the ABC’s intention.

“Today, the ABC has made clear to the court that it does not dispute or contest Ms Lattouf’s race or national extraction being Lebanese, Middle Eastern or Arab.

“The ABC does, however, deny that any action was taken against Ms Lattouf because of her political opinion, race or national extraction.

“The ABC’s commitment to diversity remains an important part of the ABC’s workplace culture and we will continue to work to foster inclusion for all staff.”

Lattouf was hired as a fill-in presenter on ABC Sydney radio for one week in December 2023. She was taken off air three days into a five-day contract after she posted on social media about the Israel-Gaza war.

The amendment comes following outcry from cultural groups after the ABC’s legal arguments were made public last week.

“It follows that Ms Lattouf’s case … insofar as it depends on ‘race’ as an attribute, must fail,” it said in a submission released by the court.

However, Neil said in court on Wednesday that “the ABC does not deny the existence of any race” and the onus was on Lattouf to provide evidence in relation to any race claim she may make.

David Anderson did not have view if Lebanese race ‘exists’

David Anderson, the ABC’s managing director, was asked under cross-examination on Thursday whether he had any doubts that “there exists a Lebanese race”.

“If somebody tells me they’re Lebanese, I don’t question whether they mean it’s race or national identity,” he said.

When pushed by Lattouf’s barrister, Oshie Fagir, as to whether there is “a Lebanese race in your view or not”, Anderson replied: “I haven’t formed a view as to whether there is or there isn’t.”

The Arab Council Australia called the ABC’s legal defence “disturbing” while the president of the Australian Lebanese Association, Raymond Najar, said the ABC’s position was “surreal and blatantly racist”.

“Here we have the head of the national broadcaster accusing Ms Lattouf of being racist for stating facts on the one hand and then erasing her race all within a couple of hours of each other and seemingly blind to the irony of it all,” Najar said.

Questions about Lattouf email

On Tuesday, the court heard evidence from the former head of ABC Radio Sydney, Steve Ahern.

Ahern was questioned about an email he received from Ben Latimer, head of audio, after Lattouf shared a post on Instagram from Human Rights Watch about the Gaza war. In the email, Latimer said the “instructions were to direct Antoinette not to post on socials for the rest of this week”.

Philip Boncardo, one of Lattouf’s barristers, said to Ahern: “When you read that, you must have been concerned, because all you had done was suggest to Ms Green: ‘please have a word with Antoinette about her social media. Tell her she should keep a low profile, not post anything controversial’.”

Ahern replied that he “was confident that the message had been given and communicated to Antoinette”.

Boncardo then enquired: “You had never been told by Mr Latimer, Mr Oliver-Taylor, or anyone else to tell Miss Green, or someone else from your area, to tell Miss Lattouf not to post to socials at all?”

Ahern said, “in that wording, I had not been told in that way.”

Boncardo then said: “So Mr Latimer was plainly wrong when he said the clear instructions were to direct Antoinette not to post to socials for the rest of this week. A direction just had not been given to you or anyone else as you understood it.”

Ahern said that “in those words, as a direction, no, but the understanding for me and I know, to Elizabeth, was very clear.”

Proceedings on Tuesday opened with Justice Darryl Rangiah sternly reprimanding the ABC’s legal team after they filed an unredacted version of witness Chris Oliver-Taylor’s affidavit, despite a federal court order that the names of the people who complained to the ABC about Lattouf should remain private.

The document was taken down later on Monday.

“I am deeply unhappy about the error made by the ABC’s legal representatives,” Rangiah said.

Neil apologised for what he said was “human error”.

“As leading counsel responsible for the presentation of the respondent’s case, I stand before you this morning to tender my personal apology for what has happened.”

The court is due to hear evidence from former ABC chair Ita Buttrose and Lattouf’s line manager, Elizabeth Green, on Tuesday afternoon, before concluding hearing evidence on Wednesday.