Thread by @Consortiumnews

Last day of witness testimony for Lattouf v. ABC will begin in about 30 minutes. Live updates will be on this thread and the proceedings will be live-streamed from the Federal Court of Australia on this link:

Yesterday ended with the former ABC Chair Ita Buttrose claiming she had nothing to do with @antoinette_news' sacking, despite evidence of a number of emails she sent to subordinates that appeared to apply pressure for this outcome.

She stated in court: "I'm not happy and I wasn't happy. I didn't wish her to be removed. I didn't put pressure on anybody. It's a fantasy of your own imagination. I have nothing to do with her dismissal".

Court in session.

Judge: A media organisation has published information that was subject to a suppression order. I ask that this organisation consider their position & avoid further action.

Announcement of document that has arrived.
Next witness with be Elizabeth Green (direct manager of Lattouf). There is an objection to a part of her affidavit, starting with "this is because...". Judge reads & Lattouf lawyer objects on relevance. What is revenant is what she said or intended to say in a meeting.

Judge: Isn't that favourable for you

LL: Potentially but what is relevant is what preceded her characterisation of what she said.

Judge: I will provisionally let that evidence be led & we can deal with the matter in closing submissions.

Green takes the stand. Confirms her name & position as producer of Sydney 'Drive' show.

LL refers Green to her affidavit.

EG: It's details of a Teams meeting + screenshot I took.

Barrister Philip Boncardo for Lattouf: Did you see complaints about AL?

EG: Yes

PB: Were you told they were from lobby groups?
EG: No, not that I recall.

PB: Re conversations with Ahern. he asked you to look at AL's post. Did you know they about Israel-Palestine?

EG: Yes

PB asks about specifics of what EG said to Lattouf about social media posting & about communication to Ms McBean, legal council.

EG: I said she should be mindful, avoid posting anything about Israel-Palestine.

PB: AL had asked if she had done anything wrong
EG: I told her she was doing a good job, but keep a low profile on social media.

PB: Did you tell Lattouf she should not post anything that might appear unbalanced or not impartial.

EG: Yes

PB: Nothing about Israel-Palestine?

EG: yes I believe so

PB: You said it was OK to post anything factual and from a verified organisation?

EG: Yes

PB: Nothing controversial?

EG: Yes

PB: You got an email from AL outlining what was OK to post & you forwarded this to Ahern. And you both OKd this?

EG: Yes

PB: You gave Lattouf good feedback on her show?

EG: Yes

PB: You were copied in on an email sent by Ahern detailing why AL was on the show.

EG: Yes

PB: When you learned of an intention to dismiss AL you raised an objection that there was nothing wrong with her post?

EG: yes

PB: You were at the dismissal meeting with Ahern & Lattouf where it was explained she had breached the social media policy. Did AL say she had discussed what was OK with you?

EG: Yes

PB: Al was crying & you spent time with here. You said you were sorry & had tried to stop this, but it was coming from higher up?

EG: yes

PB: AL asked if it was about the @hrw post & you said it was about it not being balanced.

EG: Yes

PB: And she said: "How can you balance starvation (as a 'weapon of war')?

EG: I don't recall that.

PB: You said you would love AL to work at the ABC again.

EG: Yes

PB: You made notes, saying you had heard the decision came from Mr Anderson. Heard from whom?

EG: Mr Ahern

PB: You note a conference call with Ben Latimer

EG: Yes.

@antoinette_news Cross-examination of Elizabeth Green

ABC lawyer refers to comms between AL & Green

ABC: What did Lattouf respond to this part of your conversation?

EG: Probably "OK". I can't recall.

Next witness Ben Latimer, currently employed by ABC.

Asked to look at his affidavit. Only change is that he is now Director of Audio, reporting to Managing Director.

Asked to identify record of Teams Meeting.

Oshie Fagir for Lattouf: How many employees do you manage?

BL: 500

OF refers to ABC Enterprise Agreement & a number of prominent ABC presenters, including Patricia Karvelas.

OF: You know she's the host of Q&A program?

BL: Not sure

OF refers to a series of meetings with Melkman & Oliver-Tayor. Do you recall what was discussed?

BL: No

OF: You say you don't recall Ms Green being present at the 2nd meeting on Wednesday?

BL: I don't recall her being there.

OF: You do remember giving Mr Ahern a direction at the 1st meeting on Tuesday?

BL: Yes

Judge calls for 20 minute adjournment to deal with another matter.

Court resumes with cross-examination of Ben Latimer

Ohio Fagir asks him to confirm instruction he gave to Mr Ahern: "You are to direct AL not to post anything on social media".

OF: That was pretty direct. What did you give him that direction

BL: To protect AL, keep her on air & protect ABC reputation

OF: Was this on you own initiative.

BL: The message had already been given by Oliver-Taylor

OF: So why did you reiterate?

BL: To protect AL

OF: On what basis did ABC have the right to tell AL what she can fro in her own private time on social media.

BL: I don't know. I was following a directive

OF: Do you believe ABC has this right

BL: If it affects content

OF: So it's about protecting content?

BL: Yes

OF: Could she post a photo of a dog, or nothing at all, according what you wrote in your instruction?

BL: The context was the Israel-Gaza war.

OF: So you expected Ahern to interpret and restrict the instruction to that context?

BL: Yes

OF: You said: "My recollection was that my instruction to Ahern was clear and unambiguous." Do you stand by that?

BL: Yes

OF refers to email sent by Melkman on Tuesday morning. He says he has not identified any breach, suggests AL be asked to keep a low profile or switch socials to protected or private.

OF: You had already sent or were just about to send a blanket ban to Lattouf from posting.

BL: About Israel-Gaza
OF: Did you tell Melkman about the ban on posting anything?

BL: No

OF So the suggestions to keep a low profile or changing to posts to protected / private were pointless?

BL: I don't think so

OF: You saw that the MD was being informed about the suggestions. You didn't think of informing the MD about your blanket ban.

BL: She had already been told by O-T on Monday not to post on Israel-Gaza

OF: O-T only said not to post anything that might give the impression of her not being impartial, eight

BL: About Israel-Gaza.

OF: You saw Ahern's email about AL being given a "suggestion". Did you correct him that it was a "direction", not a suggestion?

BL: No. I was confident my orders were communicated.

OF: The email statement : "it would be wise for AL not to post on her socials" appears to be different to an order. Did you follow up to clarify?

BL: No, I thought it was clear.

OF: You evidence states that when you read Ahern's email you were confident that a direction had been given. Do you expect this court to agree that it was clear?

BL: Yes... (looking confused).

OF refers to email from Ahern talking about Green's "advice" to Lattouf, were you confident an order had been issued?

BL: Yes

Judge: Why were you confident?

BL: Speaking with Mr Ahern, I think my words were very clear.

OF refers to email Lattouf sent to Ahern, Spurway & Green shortly after she was dismissed, that was forwarded to Latimer.

OF: You recall Lattouf's account of her conversation with Ms Green. That's inconsistent with your impression of a direction, right?

BL: I'm not sure

OF: What would it have taken to shake your faith (withdrawn)

OF: You say after read all these emails you still harboured no doubt about your direction having been given in the terms you intended. And you didn't call Lattouf, Green or Ahern to sort out the confusion.

BL: I had no doubt and I didn't contact anyone.

OF: You spoke to O-T on Tuesday about work-related stress. What was the stress about?

BL: He was having a tough week.

OF: About the Lattouf issue.

BL: Yes. I knew he was under the pump.

OF: You got a screen shot about a 'Woman's Agenda' article. What about that was about Israel-Gaza?

BL: Nothing, but my understanding was she was not to post at all.

OF refers to Teams Meeting on Wednesday

OF You say "Mr Ahern said AL was not to post anything on social media". Is that true.

BL: Yes

OF You referred to the @hrw post. Did you think that expressed a position, and what position?

BL: being sympathetic to the people of Palestine.

OF: Explain the ABC's concept of impartiality.

BL: Don't give impression of bias

OF: On air or at all times?

BL: Anything that would affect online content.

OF refers to a number of posts on Patricia Karvelas' Twitter feed. Asks BL if opinions expressed there breach ABC's impartiality standards.

Judge questions relevance in asking if others breach social media policy. OF says standards are incoherent & other presenters make statements every day that appear to breach these standards.

OF to Latimer: explain what you mean by partiality obligation. Where is the source of this obligation mentioned.

BL: Editorial policies

OF: You know that EdPols only apply to on air content, and the don't apply to personal social media activity?

BL: Yes

OF: Can you explain then how the @hrw post give rise to your concern?

BL: She was told not to post about ME conflict

OF presents document to BL relating to his job description about interpretation and implementation of EdPols. Did you have the capability in December to do this?

BL: I did, but I was only in the job for 4 months. I had access to advice.

OF: To Melkman's advice?

BL: Yes.

OF: And did you agree with Melkman's advice that AL had not breached editorial policy.

BL: I did agree, but then she posted the @hrw post, and I wasn't sure.

OF: You know ABC employees express opinions on all sorts of subjects all the time, on social media & otherwise.

BL: Not all the time.

OF shows social media posts of Karvelas; one relating to Scott Morrison's multiple ministries; one relating to Roe v. Wade.

ABC: Objection, since posts were prior to BL's employment.

Judge: This concerns AL's post

OF: refers back to meeting where Ms Green said she was present.

To be continued...
Court adjourns for lunch. Back at 2.15pm AEDT.

Court backing session with cross-examination of Ben Latimer.

OF refers to Wednesday Teams Meeting. Agree or disagree? Green attended. Melkman spoke of direction to Lattouf. Green said she had not passed on a direction.
BL: I don't remember.

OF: Many ABC presenters express opinions and are not sanctioned, including Patricia Karvelas & John Lyons. Are you aware of these opinions?

BL: Yes for Karvelas, don't know about the others.

OF: There's no formal mechanism for monitoring presenters social media accounts?

BL: I don't know

OF: It was unusual to scrutinise Lattouf's social media?
BL: Yes, it was unusual

OF: Was it because of her opinions that were sympathetic to the rights of the Palestinian people?

BL: We knew she held opinions about Israel-Gaza and we were getting complaints.

OF: And it was because she was critical of the State of Israel that she was taken off air?

BL: That is not true.

OF refers to email from Nick Rees regarding the sharing of complaints with The Australian, claiming the ABC was of the view that Lattouf had breached editorial policy.

OF: You did not agree with that characterisation of the ABC's view?

BL: I did not. The view was that she had not breached editorial policy.

OF refers to article published in The Australian about Lattouf's sacking.

OF: How did The Australian know about internal matters mentioned here. Did you tell them?

IB: No

End of cross-examination

Re-examination
Judge: Did The Australian indicate that information was leaked from the ABC?

IB: I don't know

Judge: You have no recollection of Green's presence at Teams Meeting but you can identify her in a screenshot.

IB: Yes

Judge So if you don't remember her being there you don't remember what she said?

IB: Correct?

judge: If you had heard what she said about no direction being given, you would have reacted?

IB: yes

OF: You did not at any time tell O-T you had given the instruction that appears in your affidavit?

IB: That is not true.

OF Nor did you tell him of an similar instruction?
IB: No audible answer.

Witness excused

Next and last witness: Simon Melkman, expert in the application of Editorial Policies and Personal Use of Social Media (PUSU) guidelines.

A number of objections are raised by the Lattouf team regarding Melkman's reasoning process, as expressed in his affidavit. Noting that Melkman was not a decision-maker in AL's dismissal, what matters is what he stated in communications with colleagues.

Judge finds all but one objection admissible.

Calling Simon Melkman, Senior Content Policy Advisor to ABC. He is asked to identify his submissions.

OF: You've dealt with EdPols since 2006?

SM: Yes

OF: also of potential breaches of PTSM guidelines

SM: yes

OF: You carefully scrutinised AL's socials activity prior to her dismissal?

SM: Yes

OF: Oliver-Taylor alerted you?

SM: Yes

OF Is there a formal process that should be followed in such cases?

SM: Yes, P&C should be informed, line manager should be involved.

OF: And this process was not followed?

SM: yes it was. Line manager was involved

OF: Was there a formal determination?

SM: No

OF: So if there's a complaint from the public, there would be a formal determination

SM: Not necessarily. It depends on the circumstances.

OF: So in this case there was no formal determination, made in conjunction with the P&C department?

SM: No, there wasn't.

OF refers to guidelines, and quotes a statement relating to impartiality.

OF: So the statute is about the gathering and presentation of information in an impartial manner?

SM: Yes, but there is a line elsewhere about conduct.

OF: But there is no rule about banning employees from posting on social media altogether?

SM: No

OF: Or banning statements with which some members of the community might disagree?

SM: No

OF: ABC acknowledges that it may cause outrage...

SM: I wrote these words. I could hardly disagree with them. (Judge laughs)

OF: So it's part of ABC's job to confront people?

SM: Absolutely

OF: Is there an over-arching principle about impartiality among news staff?

SM: No, it's much more nuanced than that.

OF refers to email Melkman was copied in on, about opinions on matters presenters are reporting on.

OF: There is no rule against having opinions. Presenters do that all the time.

SM: Absolutely

OF: And there is no rule about expressing them on social media

SM: I wouldn't say there is no blanket rule.

OF shows SM social media posts by Patricia Karvelas, asking if each is a breach of PUSM guidelines.

SM: I can't judge

Objection, what relevance are the expressed opinions of other presenters on social media?

OF presents more expressed by Karvelas on controversial issues.

OF: There's no blanket rule that she can't do that?

SM: Correct. It's hard to make a call about breach. You would have to look at the context, but these are definitely tweets expressing opinions on controversial issues.

OF: You said complaints about Lattouf were "Completely misguided"?

SM: Yes

OF: You describe a concern you had. That Lattouf would continue to post on social media & might say something on air because of her views.

SM: Yes

OF: What were those views?

SM: Support for Palestine / criticism of Israel. I was concerned she may express these views without counter view.

OF: In Tuesday you were convinced she should not be taken off air

SM: Yes

OF: You got an email from O-T, aleging bread of PISM guidelines & disobeying a direction. Were you privy to any direction given to Lattouf?

SM: No I wasn't

OF: You got an email saying the instructions were clear, and you were present at at Wednesday group meeting. Was Ms Green there?

SM: Yes she joined at some point.

OF: Did you hear Ms Green say she had not given a direction to Lattouf?

SM: I don't recall that. The best source I have is the record I took. I write that we had confusion about what exactly Lattouf had been told - not to post anything controversial, or nothing about Israel-Gaza.

OF: Might I suggest Green said Lattouf had not been given any direction at all?

SM: I recall that she was asked what she had said but I don't remember exactly what she said. We were subsequently confused.

OF: So there was uncertainty about the content of a direction. Were you in doubt as to whether there was a breach?

SM: yes

OF: And the others, were they in doubt?

SM: Yes, but there was a consensus about the potential of a breach.

OF: Was the @hrw post a breach?

SM: Potentially

OF But it didn't express an opinion, did it?

SM: No, but the act of posting it could have been expressed as an opinion.

OF: The HRW post was a simple statement of fact. How was that controversial?

SM: Israel denied it

OF: So because Israel denied it she couldn't't post it?

SM: That's not what I'm saying

OF: So you saw Lattouf in different category because of her views on Israel-Palestine?

SM: Do you mean in terms of the guidelines or the direction? In the first case you have to consider the context

OF: One factor you took into account when deciding on whether there was a breach was her views on Israel-Palestine?

OBJECTION! Argument erupts between ABC & Lattouf lawyers. Melkman asked to leave the courtroom & judge calls both sides into Chambers.

OF cites objection of a proposition that advice given by Melkman was based on Lattouf's views.

Judge asks if that advice was about the potential breach or whether a direction was given.

OF: You came to the conclusion that there may have been a breach on the basis of the expressions of Lattouf's opinions on social media?

SM: Yes but it was the general activity, not the opinions themselves.

OF: The fact that she expressed opinions?

SM: Yes

OF: Based on the expressions of opinions we have just discussed.

SM: Yes

OF: And you ignored that Green had said there was no direction given?

SM: I didn't hear Green say that

End of cross-examination

Re-examination
ABC: Can you confirm this section of the Code of Conduct?

SM: yes

ABC refers to document sent by Justin Stephens to ABC, that Mr Anderson referred to. It concerns ME guidance.

Witness asked to leave courtroom.

ABC draws attention to hyperlink on text: "Our guidance to Teams".

ABC: Are you familiar with this document?

SM: yes

ABC: I tender this document.

Melkman excused.

ABC We could discuss the rest in Chambers.

Judge: It should be done in open court. There's also the chronology document and affidavit from Ms Vag, and more...

OF: No objections to these being tendered, but there is an incomplete police statement.

Judge: Can we deal with this by closing submissions?

Agreed.

There is the matter of the Fair Work Submission but this can be dealt with by closing submissions.

Agreed.

Judge requests more detail on emails and moving actors. Asks for narrative of relevant events to be included in Closing Submissions.

Agreed. ABC proposes to file such a narrative in very short order. Judge asks for a consensus chronology.

Court adjourned until Feb 27-28.