Federal Court of Australia

Lattouf v Australian Broadcasting Corporation (Penalty) [2025] FCA 1174

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the following pecuniary penalties:

(a)    for the contravention of ss 772(1) and 50 of the Fair Work Act 2009 (Cth) (the FWA) through the breach of paragraph (f) of cl 55.4.1 of the ABC Enterprise Agreement 2022–2025 (the Enterprise Agreement), $75,000;

(b)    for the contravention of s 50 of the FWA through the breach of paragraphs (a), (b) and (c) of cl 55.2.1 of the Enterprise Agreement, $12,500;

(c)    for the contravention of s 50 of the FWA through the breach of paragraph (f) of cl 55.2.1 of the Enterprise Agreement, $12,500;

(d)    for the contravention of s 50 of the FWA through the breach of cl 55.2.2 of the Enterprise Agreement, $50,000.

2.    The respondent pay the pecuniary penalties to the applicant within 28 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    Ms Lattouf alleged that the ABC contravened ss 50 and 772(1) of the Fair Work Act 2009 (Cth) (the FWA). On 25 June 2025, I delivered judgment in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, finding substantially in Ms Lattouf’s favour.

2    I made the following orders:

THE COURT DECLARES THAT:

1.    The [ABC] contravened s 772(1) of the [FWA] by terminating the employment of the applicant, Antoinette Lattouf, for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza.

2.    The ABC contravened s 50 of the FWA by contravening cll 55.2.1(a), (b), (c), (f), 55.2.2 and 55.4.1(f) of the ABC Enterprise Agreement 2022–2025.

THE COURT ORDERS THAT:

3.    The ABC pay Ms Lattouf compensation of $70,000.

4.    The matter be set down for a hearing to determine the question of whether the ABC should be ordered to pay any pecuniary penalty and, if so, in what amount, on a date to be fixed.

…

3    In these reasons, I will determine the pecuniary penalties that should be imposed on the ABC. It is necessary to read these reasons together with my previous reasons.

Background

4    Following the attack on Israel by Hamas on 7 October 2023 and Israel’s invasion of the Gaza Strip, the Israel/Gaza war quickly became the most covered, contested and controversial news story in the world. A state of hostility developed between supporters of each side. In Australia, there were heated rallies and protests, and each side conducted widespread campaigns of vilification, doxxing and cancelling on social media and in other forums.

5    Ms Lattouf was a prolific user of social media and made numerous posts condemning the mass killing of Palestinian civilians by Israeli forces in Gaza.

6    Ms Lattouf came to be employed by the Australian Broadcasting Corporation (the ABC) to present the Sydney Mornings radio program for five days from Monday, 18 December to Friday, 22 December 2023. Soon after her first program, the ABC began to receive complaints from members of the public. The complaints asserted that Ms Lattouf had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC. As it turned out, the complaints were an orchestrated campaign by pro-Israel lobbyists to have her taken off air.

7    The complaints caused the ABC’s senior management great consternation. Nevertheless, after consideration, they decided that Ms Lattouf would not be taken off air and would complete her engagement.

8    However, on Wednesday, 20 December 2023, ABC managers became aware that Ms Lattouf had reposted a Human Rights Watch (HRW) video report entitled, “The Israeli government is using starvation as a weapon of war in Gaza”, on her Instagram account, adding the caption, “HRW reporting starvation as a tool of war” (the HRW Post).

9    Within an hour, Mr Oliver-Taylor, the ABC’s Chief Content Officer, had reversed the initial decision. Ms Lattouf was informed that she had shared a post that could be considered controversial and had breached the ABC’s policies. She was told that she would not be required for her remaining two shifts and that she should leave the premises. The policies she was alleged to have breached were not identified, nor was she given any opportunity to defend herself against the allegations.

10    Ms Lattouf subsequently commenced proceedings alleging that the ABC had contravened ss 50 and 772(1)(f) of the FWA.

11    Section 772(1)(f) of the FWA provides that an employer must not terminate an employee’s employment for reasons which include the attributes, characteristics or conduct specified in that provision. Ms Lattouf claimed that the ABC terminated her employment for reasons including her political opinions, race and national extraction. I rejected her claims concerning race and national extraction, but upheld her claim that her employment was terminated for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza.

12    Section 50 of the FWA provides that a person must not contravene a term of an enterprise agreement. Ms Lattouf also claimed that the ABC failed to comply with certain obligations under the ABC Enterprise Agreement 2022-2025 (the Enterprise Agreement), including by failing to give her an opportunity to respond to the allegations of misconduct made against her.

13    I rejected Mr Oliver-Taylor’s evidence as to his reasons for deciding to take Ms Lattouf off air. I did not accept that he believed Ms Lattouf had been given a direction not to post anything on social media about the Israel/Gaza war, and found that he understood Ms Lattouf had merely been given advice or been requested not to post anything about the war. I did not accept that Mr Oliver-Taylor had a view that Ms Lattouf had breached the ABC’s Personal Use of Social Media Guidelines, finding he had no more than a suspicion that Ms Lattouf might “potentially” have breached some ABC guideline or policy.

14    I made the following findings concerning Mr Oliver-Taylor’s actual reasons for his decision to take Ms Lattouf off air:

593    Mr Oliver-Taylor’s evidence was that the ongoing influx of complaints was making it harder to maintain the ABC’s position that Ms Lattouf would remain on air for the rest of the week. The final straw was Ms Lattouf making the HRW Post on her Instagram account. The HRW Post was different because it was made while she was an employee of the ABC. The “position” could no longer be maintained.

594    The emailed file note written by Mr Oliver-Taylor is informative of his thinking on Wednesday, 20 December 2023. The file note must be understood as a whole and in the context of the surrounding circumstances. Mr Oliver-Taylor described Ms Lattouf’s post as a, “repost o[f] how Israel is using starvation tactics in the War”. Mr Oliver-Taylor continued, “it was agreed that she has breached the trust of the program by not following a request”. Mr Oliver-Taylor apparently understood Ms Lattouf to have been requested to refrain from posting anything about the Israel/Gaza war while employed by the ABC. He considered Ms Lattouf had been expected (“trusted”) to comply with (“follow”) that request but that she had failed to do so.

595    Mr Oliver-Taylor continued, “and she has also breached impartiality around personal use of social media”. In his text message of 12.29 pm on Wednesday, 20 December 2023 to Mr Anderson, he had said, “Looks like she has breached editorial impartiality…If correct she will be stood down”. I have accepted that he suspected she may have breached some policy or guideline of the ABC by making a post which he regarded as biased. I infer that Mr Oliver-Taylor thought that by making the HRW Post, Ms Lattouf was supporting a view that Israel was using starvation tactics in the war.

596    Mr Oliver-Taylor also said in his file note, “I explained to the MD via text initially that Local Radio Sydney had decided to not put AF [sic: AL] back on air due to this breach”. The “breach” appears to refer to both the breach of “trust” and “impartiality”.

597    The concerns expressed by Mr Oliver-Taylor in his file note are understandable. Ms Lattouf had made the HRW Post, which was bound to be controversial, when she was an employee of the ABC. It was ill-advised and inconsiderate of her employer. It was one thing for the ABC to publish the report as a news story: it was quite another for Ms Lattouf, having already made social media posts complained of as reflecting anti-Semitic and anti-Israel views, to repost the story. Although Ms Green said that if a post was fact based and from a verified source she was sure it would be fine, she also reiterated that it would be best not to post anything that would be considered controversial.

598    The ABC would have to brace itself for the inevitable criticism — whether fair or unfair — for permitting one of its presenters to make a controversial post and then allowing her to remain on air. To be fair to Mr Oliver-Taylor, he had already been placed under a great deal of pressure over Ms Lattouf’s engagement through the public complaints and Mr Anderson’s and Ms Buttrose’s trenchant criticism of him and his staff. Now that pressure had been amplified by Ms Lattouf’s heedless action.

599    However, Mr Oliver-Taylor knew Ms Lattouf had not been given any direction not to post anything about the Israel/Gaza war. This was not a case where her employment could be terminated for failing to comply with a lawful and reasonable direction. Further, Mr Oliver-Taylor had no more than a suspicion that Ms Lattouf may have breached some editorial ABC policy or guideline.

600    Mr Oliver-Taylor decided that Ms Lattouf would not be permitted to present Mornings or perform any other duties on the following two days (the decision). The decision operated to terminate Ms Lattouf’s employment. I infer that Mr Oliver-Taylor made the decision for several reasons, each of which was multifactorial, but stemmed from, and was interconnected with, Ms Lattouf having made the HRW Post.

601    First, Mr Oliver-Taylor thought it was misconduct for Ms Lattouf to make a post about the Israel/Gaza war when she had been advised or requested not to do so while she was an ABC employee. Mr Oliver-Taylor thought that by making the HRW Post, Ms Lattouf was expressing support for the view that Israel was adopting starvation tactics in Gaza. Mr Oliver-Taylor’s motivation of taking action against Ms Lattouf for misconduct cannot be separated from Ms Lattouf’s making of the politically charged post.

602    Second, Mr Oliver-Taylor believed that Ms Lattouf had expressed a biased view about the Israel/Gaza war by making the HRW Post and suspected that she may thereby have engaged in misconduct by breaching some editorial ABC policy or guideline. Again, Mr Oliver-Taylor’s motivation of taking action against Ms Lattouf for misconduct cannot be separated from his view that Ms Lattouf had made a politically charged post that was biased.

603    Third, Mr Oliver-Taylor understood that the ABC would now face accusations of supporting and facilitating Ms Lattouf’s opinion that Israel was adopting starvation tactics in Gaza. In addition, The Australian intended to publish a story that was likely to be critical of the ABC’s employment of Ms Lattouf in light of her social media posts, and had asked who had appointed Ms Lattouf. I infer that Mr Oliver-Taylor sought to mitigate the anticipated deluge of complaints and criticism of the ABC and his team for its employment of Ms Lattouf by taking her off air and “beat[ing] the story”. In that sense, the decision was made to appease the pro-Israel lobbyists who would inevitably escalate their complaints about the ABC employing a presenter they perceived to have anti-Semitic and anti-Israel opinions in such a public position.

604    Fourth, Mr Oliver-Taylor thought that taking Ms Lattouf off air might consequentially mitigate damage to the ABC’s reputation for impartiality. I accept that protection of the ABC’s reputation can be regarded as a substantial or operative reason for Mr Oliver-Taylor’s decision. However, it cannot be regarded as the only substantial or operative reason.

605    Each of Mr Oliver-Taylor’s first three reasons was interconnected with Ms Lattouf having made the HRW Post and his opinion that she was thereby expressing support for the view that Israel was adopting starvation tactics as part of its military campaign in Gaza. I find that Ms Lattouf’s expression of opposition to the Israeli military campaign in Gaza in the HRW Post was a substantial and operative reason for the decision.

…

631    I am satisfied Mr Oliver-Taylor attributed to Ms Lattouf the holding of a political opinion opposing the Israeli military campaign in Gaza which, in his view, made her unsuitable to work as a presenter at the ABC.

632    Further, Mr Oliver-Taylor’s decision was influenced by the complaints already received, and which he anticipated would escalate following the HRW Post if Ms Lattouf were not taken off air. The complaints criticised the ABC for employing Ms Lattouf as a presenter when she had made social media posts and written articles that were alleged to be anti-Israel and anti-Semitic. The complaints attributed to Ms Lattouf the holding of such opinions. Mr Oliver-Taylor thought that Ms Lattouf would again be attributed with holding such opinions following her HRW Post. Mr Oliver-Taylor sought to appease members of the public who would attribute to Ms Lattouf the holding of anti-Israel and anti-Semitic opinions by taking her off air. I find that Mr Oliver-Taylor’s reasons for his decision included his desire to mitigate further complaints about the ABC employing someone attributed with holding a political opinion opposing the Israeli military campaign in Gaza.

15    At this point, I wish to make clear that there are two matters I have not considered because it was unnecessary to consider them, either because of my anterior findings or because of the way the case was run by the parties. First, I have not considered whether it would have been a contravention of s 772(1)(f) of the FWA if the ABC had given Ms Lattouf a direction not to post anything about the Israel/Gaza war and Ms Lattouf failed to comply with such a direction. Secondly, I have not considered whether s 772(2)(a), which provides there is no contravention of s 772(1)(f) if the reason for termination is based on the inherent requirements of the particular position concerned, may have provided the ABC with a defence. The legal issues that might have been involved must await another case.

16    I also held that the ABC had contravened s 50 of the FWA by breaching cll 55.2.1(a), (b), (c), (f), 55.2.2 and 55.4.1(f) of the Enterprise Agreement, which provide:

55.2.1    Where an allegation of misconduct is made, the employee will be:

a.    advised in writing of the nature of the alleged misconduct;

b.    advised that at any stage during these or subsequent proceedings they may choose to be accompanied or represented by a person of their choice;

c.    advised in writing of the process to be undertaken by the ABC to determine whether the alleged misconduct is substantiated;

d.    in the event that an investigation is required, the employee will be advised in writing that an independent investigator will be appointed by the ABC who will report their findings back to the relevant delegate;

e.    provided with a right of access to any material that is reasonably necessary for the employee to respond to the allegation, provided that…

f.    given an opportunity to respond and/or explain their actions or inactions and any mitigating factors they seek to have taken into consideration, provided that explanation is provided in a timely manner.

55.2.2    Where the ABC forms the view that the alleged misconduct is likely to constitute serious misconduct, the ABC will advise the employee of that view at the earliest opportunity

…

55.4.1    Where an allegation of misconduct is substantiated, the ABC may impose one or more of any of the following forms of disciplinary action, as appropriate to the nature and seriousness of the misconduct:

…

f.    dismiss the employee with notice or payment in lieu in accordance with the relevant provisions of clause 57 - Termination of Employment; or

The principles

17    Section 546(1) of the FWA allows the Court to order a person to pay a pecuniary penalty that the Court considers is “appropriate” in respect of a contravention of a civil remedy provision. Sections 50 and 772(1) are civil remedy provisions.

18    The maximum penalty for a contravention of s 50 or s 772(1) by a body corporate, such as the ABC, was $93,900 at the date of the ABC’s contraventions.

19    The principles guiding the imposition of civil penalties were explained by the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson). They were succinctly summarised by Wheelahan J in Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 at [13] as follows:

(1)    The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act.

(2)    Reflecting the text of s 546 of the FW Act, the Court’s task is to determine what it considers to be an “appropriate” penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case.

(3)    The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act.

(4)    Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act.

(5)    The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime.

(6)    In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable.

20    There was also a recent, thorough exposition of the principles by Lee J in Transport Workers’ Union of Australia v Qantas Airways Limited (Penalty) [2025] FCA 971 at [23]-[32], which I will not repeat.

The number of contraventions

21    There is a dispute between the parties as to the number of contraventions committed by the ABC and, therefore, the number of penalties and the total of the penalties to which the ABC is exposed.

22    The parties are in agreement that the ABC’s contraventions of s 772(1) of the FWA and cl 55.4.1(f) of the Enterprise Agreement were, “in relation to particular conduct”, and that, under the “civil double jeopardy” provision in s 556 of the FWA, only a single penalty may be imposed for those contraventions.

23    The ABC accepts that s 557 of the FWA does not operate to make contraventions of different clauses of an enterprise agreement a single contravention under the interpretation given to that provision in Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at [10]-[11] and [17].

24    Ms Lattouf submits that the ABC’s breach of each of paragraphs (a), (b), (c) and (f) of cl 55.2.1 and cl 55.2.2 is a separate contravention of s 50 of the FWA. In response, the ABC submits that, on its proper construction, cl 55.2 is a single term, and that there was therefore only a single contravention of s 50 of the FWA.

25    Section 50 of the FWA provides that, “A person must not contravene a term of an enterprise agreement”. On each occasion a person “contravenes a term”, the person contravenes s 50. That raises a question as to whether each of paragraphs (a), (b), (c) and (f) of cl 55.2.1, and also cl 55.2.2, is “a term” of the Enterprise Agreement, such that a contravention of each of them, through essentially the same action or inaction, is a separate contravention of s 50.

26    In Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union (2019) 270 FCR 359, Allsop CJ held at [16]:

Whilst the word “contravention” is capable of a wide meaning, in the context of a civil remedy provision which includes the possible imposition of a civil penalty the word includes the notion of violating or infringing a rule or obligation or standard which is required. One would not assume or conclude that Parliament would provide for the imposition of a penalty for doing or not doing something that one was not obliged not to do or not obliged to do. One does not, in my view, contravene a non-obligatory term of an arrangement.

27    Accordingly, a contravention of s 50 of the FWA requires a contravention of an obligation under an enterprise agreement that is binding on a party.

28    The expression “terms” is frequently used in the FWA in relation to enterprise agreements. For example, s 55 provides that certain “terms” may be included in an enterprise agreement and also deals with the interaction between “terms” of an enterprise agreement and a modern award. The Fair Work Commission is required, under s 186(2)(c) to be satisfied that “the terms of the agreement” do not contravene s 55 and, under s 186(4), that the agreement does not include any “unlawful terms”. However, the expression “terms” is not defined.

29    It is evident that an enterprise agreement must be in writing: see, for example, s 185(2) of the FWA. Halsbury’s Laws of Australia states at [110-2001], “When used in its most general sense, the word ‘term’ describes any clause or provision in a contract”. An enterprise agreement is not, of course, a contract, but it can be accepted the expression “a term” in s 50 refers to a clause of an enterprise agreement. The expression refers, more particularly, to a clause that imposes an obligation on a party.

30    In Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216, Gray J observed at 223 that, “The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out”. The question of whether a clause of an enterprise agreement is “a term” must depend, not merely upon the way the clause has been drafted, but also the substance of the obligations imposed by the clause.

31    The principles of interpretation of an enterprise agreement were summarised in WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]. Of particular relevance to this case is that the words are not to be interpreted in a vacuum divorced from industrial realities.

32    Clause 55.2 of the Enterprise Agreement has the heading “Process” and contains cll 55.2.1 and 55.2.2. Clause 55.2.1 sets out the process the ABC must follow “[w]here an allegation of misconduct is made”. The process imposes a series of obligations on the ABC. Paragraphs (a) and (c) require that in every case, the employee be advised in writing of certain matters. Paragraph (b) also applies in every case and requires that the employee be advised they may be accompanied or represented, but does not require that the advice be given in writing. Paragraph (d) contains a similar obligation, although it will not be applicable in every case. Paragraph (e) imposes a different kind of obligation, namely, to provide the employee with a right of access to certain material. Paragraph (f) also imposes a different kind of obligation, to give the employee an opportunity to respond and/or explain their actions or inactions.

33    Although cl 55.2.1 separates the requirement to advise the employee of certain matters into different paragraphs under (a), (b) and (c), that does not necessarily mean that each is a separate “term” for the purposes of s 50 of the FWA. The paragraphs fall under the umbrella of a single clause, namely cl 55.2.1. If those requirements had instead been included as a single paragraph within that clause, there would have been little doubt that there was only a single obligation to advise of the three different matters.

34    Clause 55.2.1 must be understood as envisaging a single piece of correspondence in which the employee will be advised of the matters in paragraphs (a) and (c) in every case. Although, paragraph (b) does not specify that the advice is to be “in writing”, it is plainly envisaged that the employee will be informed that they may be accompanied or represented in the same correspondence. In practical terms, it seems likely that a contravention would occur through the ABC omitting to advise the employee of any of the matters in paragraphs (a), (b) and (c) at all. It seems most unlikely that the ABC would advise the employee of the content of only one or two of paragraphs (a), (b) or (c). In this context, the separation into lettered paragraphs of the matters of which the ABC is required to advise the employee seems to be merely a stylistic device for clearer expression of the matters which the ABC is required to advise the employee.

35    Clause 55.2.1 should be construed such that the ABC is under a single obligation to provide the employee with advice of three matters, namely, the nature of the alleged misconduct, the entitlement to be accompanied or represented, and the investigation process to be undertaken. The fact that paragraphs (a), (b) and (c) all envisage the provision of advice through a single piece of correspondence makes it artificial to construe each paragraph as containing a separate “term”. If one or two of those matters is omitted, there will be a single breach of the obligation; and if all three are omitted, there will be a single breach of the obligation.

36    Accordingly, the ABC committed one contravention of s 50 of the FWA by failing to comply with paragraphs (a), (b) and (c) of cl 55.2.1.

37    Paragraph (f) of cl 55.2.1 is in a different category. It deals with the ABC’s obligation to actually provide the employee with an opportunity to respond and/or explain their actions or inactions, not merely to advise the employee that they will have that opportunity. As paragraph (f) contains a quite different obligation, it should be regarded as a separate “term”. For the ABC to make an allegation of misconduct against Ms Lattouf but fail to give her an opportunity to respond or explain her actions was to contravene paragraph (f), and to contravene s 50 of the FWA.

38    Clause 55.2.2 provides that where the ABC forms the view that the alleged misconduct is likely to constitute serious misconduct, the ABC will advise the employee of that view at the earliest opportunity. That view may be formed at the time when the allegation of misconduct is made or may be formed at a later time during the investigation of that conduct. The advice will not necessarily have to be provided at all, and may not have to be provided at the same time as the employee is advised of the matters in cl 55.2.1. Clause 55.2.2 should be regarded as providing a separate obligation and as a separate “term”.

39    I hold that:

    the breach of paragraphs (a), (b) and (c) of cl 55.2.1 was a single contravention of s 50 of the FWA;

    the breach of paragraph (f) of cl 55.2.1 was a single contravention of s 50 of the FWA; and

    the breach of cl 55.2.2 was a single contravention of s 50 of the FWA.

40    The ABC is also exposed to a single penalty for its contravention of s 772(1) and its contravention of s 50 through its breach of cl 55.4.1(f).

41    Accordingly, the ABC is liable to four penalties of $93,900 each, a theoretical maximum of $375,600.

Course of conduct

42    In Pattinson, the High Court confirmed at [45] that concepts from criminal law such as totality, parity and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions.

43    The course of conduct (or one transaction) principle under the general law has been stated in a variety of ways. A helpful exposition of the principle was given by Owen JA in Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at [22]:

…At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

44    The course of conduct principle operates to avoid penalising the contravener twice for what is in substance the same wrong: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 at [39].

45    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59, I summarised the application of the course of conduct principle at [124] in the following way (Allsop CJ and Griffiths J agreeing):

(1)    The purpose of the common law course of conduct principle is to ensure that, having regard to the circumstances (factual and legal), a party is not penalised more than once for the same conduct.

(2)    That phrase should not simplistically be adopted to transfer multiple contraventions into one contravention, or, necessarily, to impose one penalty by reference to one maximum amount.

(3)    The principle cannot, of itself, operate as a de facto limit on the penalty to be imposed.

(4)    The application of the principle must be informed by the particular legislative provisions relevant to the proceedings. In particular, weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each relevant action.

(5)    The application and utility of the principle must be tailored to the circumstances.

(6)    A judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of contraventions.

(7)    The task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions.

(8)    It is necessary to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penalties, in order to avoid double punishment.

46    In this case, the parties are agreed that there are two courses of conduct, one comprising of the failure to comply with the process under cll 55.2.1 and 55.2.2 of the Enterprise Agreement, and the other comprising of the termination in contravention of both cl 55.4.1(f) of the Enterprise Agreement and s 772(1) of the FWA.

47    Mr Oliver-Taylor made a decision to take Ms Lattouf off air following her HRW Post and to exclude her from the premises, thereby terminating her employment. Mr Oliver-Taylor also chose to make that decision without Ms Lattouf being given an opportunity to defend herself. I consider the parties’ characterisation of the ABC’s conduct, as involving two courses of conduct, to be appropriate.

48    I am satisfied that the course of conduct principle applies in respect of the ABC’s contraventions. That is not to say that only two penalties must automatically be applied. Rather, it is necessary to evaluate the conduct and assess what penalties are appropriate for the contraventions.

Seriousness

49    The seriousness of the contravening evinced, for instance, by its intentionality or recklessness, or the fact it involved members of senior management, will generally suggest that a higher penalty is necessary to achieve specific and general deterrence: see Pattinson at [57].

50    In Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992, Wigney J observed at [174] that:

As a general proposition, higher penalties are likely to be appropriate to secure effective deterrence, particularly general deterrence, in circumstances where the mischief to which the civil penalty provision in question is directed is serious.

51    In Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338, Mortimer J (as the Chief Justice then was) observed in respect of a contravention of s 351 of the FWA at [23] that:

…There were clear findings that the applicant was treated as he was because of his political opinion. Making decisions which result in a person losing his employment because of his allegiance and membership of a political party should be the kind of conduct which simply does not occur in the Australian community any more. It should be subject to strong disapproval by the courts.

52    Section 772(1) of the FWA protects employees against the termination of their employment on the basis of the conduct, attributes and characteristics, including political opinion, identified in that provision. The object of s 772 of the FWA, explained in s 771, is to give effect to Australia’s obligations under various international instruments, including the ILO Convention (No.158) concerning Termination of Employment at the Initiative of the Employer, which specifically provides that political opinion shall not constitute a valid reason for termination. The explanation for such a prohibition appears, albeit indirectly, in the United Nations Office of the High Commissioner for Human Rights’ General Comment No. 34 on Art 19 of the International Covenant on Civil and Political Rights:

Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.

53    And in Coleman v Power (2004) 220 CLR 1, Kirby J observed at [260]:

History, and not only in other societies, teaches that attempts to suppress [political] opinions, even when wrong-headed and insulting, are usually counter-productive and often oppressive and ultimately unjustified. In Australia, we tolerate robust public expression of opinions because it is part of our freedom and inherent in the constitutional system of representative democracy. That system requires freedom of communication. It belongs as much to the obsessive, the emotional and the inarticulate as it does to the logical, the cerebral and the restrained.

54    Section 772(1) recognises that employees with the attributes or characteristics listed in that section are vulnerable to termination of their employment because of those attributes or characteristics and that it is desirable and necessary to protect such employees. It only applies to the serious consequence of termination and not to less consequential forms of adverse action. In that context, any contravention of the provision must be regarded as serious.

55    Ms Lattouf submits that the ABC intentionally contravened s 772(1)(f), or alternatively, was “subjectively reckless” as to whether the provision was contravened, adding to the seriousness of the contravention. By “subjectively reckless”, Ms Lattouf means that there was plainly a risk that the termination was motivated, in part, by illicit reasons and the ABC, cognisant of that risk, determined to proceed, relying on Australian Securities and Investments Commission v Firstmac Limited (Penalty Hearing) [2025] FCA 12 at [44]-[45]; cf. “objective recklessness” in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [136]; Australian Competition and Consumer Commission v HJ Heinz Company Australia Limited (No 2) [2018] FCA 1286 at [25].

56    The ABC submits that the contraventions, “were the product of a single inadvertent mistake”.

57    The evidence does not establish that Mr Oliver-Taylor intentionally or deliberately contravened s 772(1)(f). The evidence does not establish that he was aware of the provision, nor that he was aware there was any legal prohibition upon termination of employment on the basis of political opinion. In that respect, it may be noted that it is not unlawful to discriminate on the basis of political opinion under the Anti-Discrimination Act 1977 (NSW). I am also prepared to accept that Mr Oliver-Taylor did not intend to actually terminate Ms Lattouf’s employment, even though that was the effect of his decision. In these circumstances, Mr Oliver-Taylor was not “subjectively reckless” as to whether s 772(1)(f) was contravened.

58    However, I infer Mr Oliver-Taylor was aware that the ABC may have been acting in contravention of the Enterprise Agreement by peremptorily taking Ms Lattouf off air and removing her from the workplace. The starting point for that analysis is Mr Oliver-Taylor knew that Ms Green had denied giving Ms Lattouf a direction not to post anything controversial, and he had no more than a suspicion that Ms Lattouf had breached an ABC policy, but decided to proceed anyway. I have rejected Mr Oliver-Taylor’s evidence that he believed Ms Lattouf had been given a direction and had breached the ABC’s policies.

59    Mr Oliver-Taylor admitted he had a broad understanding of the Enterprise Agreement. It would be fanciful to think a manager of his seniority would not be aware of at least the broad process for dealing with allegations of misconduct. That process involved giving the employee an opportunity to respond, except in cases warranting summary dismissal. Mr Oliver-Taylor must have known this was not an occasion for summary dismissal, given there was no breach of a direction and no more than a suspicion of the breach of a policy. In any event, Mr Melkman had sent an email on Monday, 18 December 2023 to recipients including Mr Oliver-Taylor advising “caution” if the ABC was inclined to pursue disciplinary action against Ms Lattouf and saying that it, “would be worth looping in P&C [People and Culture]” as there was an “established process” that applied, which included giving the employee “procedural fairness”.

60    The evidence does not allow a conclusion that Mr Oliver-Taylor intended to contravene the Enterprise Agreement. However, he blithely ignored the risk that the ABC would be in contravention of the Enterprise Agreement and forged ahead with his decision to terminate Ms Lattouf’s employment anyway. He did not bother to consult the human relations and legal experts within the ABC. That was, I infer, because he was keen to “beat the story” that The Australian intended to publish. I accept Ms Lattouf’s submission that the ABC acted with disdain for her legal rights under the Enterprise Agreement.

61    The conduct of the ABC in terminating Ms Lattouf’s employment in contravention of s 772(1)(f) is particularly serious because of the reasons for which it occurred. The ABC’s senior managers knew there was an organised political campaign to have Ms Lattouf removed from the ABC. I found at [521] that:

Mr Anderson and Mr Oliver-Taylor were acutely aware of the ABC’s dilemma. They considered Ms Lattouf’s employment to have been a grave mistake that had exposed the ABC to criticism. They wanted her removed. However, they also understood if they took Ms Lattouf off air, the ABC would appear to have caved-in to the pro-Israel campaigners and would be exposed to further criticism from another front. They sought to resolve the dilemma by keeping Ms Lattouf on air until the end of the week and putting in place strategies to mitigate the risk involved in that course.

62    The ABC’s position became more difficult, caught between the campaign by pro-Israel lobbyists, its statutory obligation of impartiality, including the appearance of impartiality, and Ms Lattouf pouring fuel on the fire by making a social media post that was obviously going to be controversial. The ABC’s response was to surrender to the lobbyists’ political campaign by sacrificing Ms Lattouf. It did so for spurious reasons and without giving Ms Lattouf the opportunity to defend herself.

63    Since its establishment in 1932, the ABC has been a trusted, respected and cherished part of the Australian cultural fabric. The ABC is seen as an important public institution at a time when trustworthy sources of news and information are increasingly hard to find. In the course of this proceeding, the ABC made much of its Board’s statutory duty to ensure impartiality. However, the ABC’s conduct in surrendering to the demands of the pro-Israel lobbyists and taking Ms Lattouf off air ignored the equally important statutory obligation of maintaining its independence and integrity. The ABC let down the Australian public badly when it abjectly surrendered the rights of its employee Ms Lattouf to appease a lobby group.

64    Although the ABC is not to be penalised for its failure to comply with its statutory obligation to ensure its own independence and integrity, that failure is reflected in the ABC’s contravention of the law. An object of s 772(1) of the FWA is to prevent employers from dismissing an employee for their political opinion in the face of demands by governments, political parties, lobbyists and other actors. The ABC’s capitulation in the face of political pressure means that a penalty of sufficient weight must be imposed to deter the ABC from again contravening the FWA when it is confronted with similar pressures in the future. It is necessary to remind the ABC that, as a public institution, it is required to maintain high standards in its treatment of employees. More particularly, it is expected and required to treat its staff in accordance with the requirements of the FWA.

65    The ABC submits that the contraventions arose, “in extraordinary and unique circumstances”. I do not accept that submission. As Ms Buttrose confirmed, the ABC often receives complaints alleging that its broadcasting is not impartial, sometimes from both sides of the same issue. Pressures of the kind faced by the ABC in this case will undoubtedly arise again in the future.

66    The capacity of contemporary society to engage in mass communication through social media has given lobby groups from all sides of the political spectrum increasing power to engage in campaigns of boycotting, public shaming and cancelling of businesses and organisations to pressure them into sacking employees whose political views the campaigners disagree with. It is necessary to set the penalties at a level calculated to deter, not just the ABC, but other employers, from dismissing their employees in such circumstances.

Whether the contravening conduct involved senior executives

67    Ms Lattouf submits that the then Chair of the ABC’s Board, Ms Buttrose, was determined to inveigle herself in the matter by applying pressure against Mr Oliver-Taylor and was clearly sympathetic to the lobbyists’ complaints. She submits that the Managing Director, Mr Anderson, was materially involved in Mr Oliver-Taylor’s decision and influenced him by stating that Ms Lattouf had anti-Semitic views. Ms Lattouf submits that accordingly, the contravening conduct involved the most senior executives at the ABC, including Ms Buttrose and Mr Anderson.

68    I found that by the morning of Wednesday, 20 December 2023, a decision had been made by Mr Anderson and Mr Oliver-Taylor that Ms Lattouf would remain on air until she finished her engagement on Friday, 22 December 2023. I found that Ms Buttrose had acquiesced in that decision. The subsequent decision to terminate Ms Lattouf’s employment was made by Mr Oliver-Taylor.

69    Ms Buttrose and Mr Anderson were deeply unhappy about the decision of those within Mr Oliver-Taylor’s team to engage Ms Lattouf. They continued to apply pressure to Mr Oliver-Taylor over that decision, including by Ms Buttrose forwarding the complaints to Mr Oliver-Taylor for him to deal with and by Mr Anderson asking for an assurance that his team had taken steps to ensure a similar situation would never arise again. Mr Oliver-Taylor felt the need to repeatedly apologise. The pressure that was applied to Mr Oliver-Taylor contributed to the panicked decision he ultimately made. I also found that Mr Anderson materially contributed to the decision by attributing to Ms Lattouf the holding of anti-Semitic opinions, which Mr Oliver-Taylor agreed with.

70    However, Ms Buttrose and Mr Anderson had accepted that Ms Lattouf would complete her engagement, and she would have done so if Mr Oliver-Taylor had not decided to the contrary. I do not think that Ms Buttrose and Mr Anderson can ultimately be held responsible for the decision to terminate Ms Lattouf’s employment.

71    Although the contraventions of the Enterprise Agreement and the FWA cannot be attributed to the conduct of those at the very top of the ABC’s management, it did come from the next rung down. Mr Oliver-Taylor was a very senior manager. That adds to the seriousness of the contraventions.

Contrition

72    Ms Lattouf submits that the ABC has not cooperated with her at all in the prosecution of the proceedings and has instead fought the case tooth and nail. Ms Lattouf also complains that the ABC repeatedly and publicly rejected her claims, including its current Chair, Mr Kim Williams, telling the National Press Club in November 2024 that Ms Lattouf had not been sacked.

73    The ABC was entitled to contest the proceeding and to argue each of the points that it took. It was not required to capitulate. Ms Lattouf has not submitted that any part of the defence of the proceeding was unreasonable or lacked any realistic prospect of success. The purpose of specific deterrence is to deter future contraventions, not to deter the conduct of reasonably arguable defences. The ABC cannot be penalised for defending the proceeding.

74    It can be accepted that by defending Ms Lattouf’s case, and by its public comments, the ABC did not show contrition for its conduct. If the ABC had conceded the contraventions that were ultimately held to have occurred, that would have been very much to the ABC’s credit.

75    However, the ABC has demonstrated contrition for its contraventions since my judgment was delivered. Ms Deena Amorelli, the ABC’s Chief People Officer, has apologised on behalf of the ABC to Ms Lattouf, the ABC’s employees and the Australian public for the contravening conduct. She acknowledges the seriousness of the contravening conduct and that Ms Lattouf has suffered distress because of the contraventions.

76    Ms Amorelli deposes that since the judgment, the ABC has taken steps to ensure that the contravening conduct does not re-occur. It has delivered training to its senior leadership team and members of the ABC Board concerning the necessity to ensure the ABC follows its established processes and complies with its legal obligations when considering and taking disciplinary action.

77    On 25 June 2025, the day my judgment was delivered, Mr Hugh Marks, the ABC’s new Managing Director, issued a public statement expressing regret at how the decision to remove Ms Lattouf from air was handled and the distress occasioned to her. It also included an apology to Ms Lattouf.

78    Ms Lattouf made a number of criticisms of the ABC’s evidence of its contrition. For example, she complains that Mr Marks failed to file an affidavit and subject himself to cross-examination and failed to acknowledge the unlawfulness of the ABC’s conduct, that the new training is formulaic and generic and that the ABC has not apologised to Ms Lattouf personally. I consider these complaints to be minor and carping.

79    Ms Lattouf also submits that the ABC’s absence of genuine contrition is demonstrated by its continued employment of Mr Latimer. Although I did not accept significant aspects of Mr Latimer’s evidence, it was not his decision to remove Ms Lattouf from her employment. There is no obvious basis for the termination of Mr Latimer’s employment. I do not consider that Mr Latimer remaining employed by the ABC demonstrates a lack of contrition.

80    Ms Lattouf also submits that the ABC’s failure to conduct any investigation concerning who leaked information about Ms Lattouf’s dismissal to The Australian evinces a lack of contrition. It is difficult to know what to make of the lack of investigation into the leak. The article, published just over an hour after Ms Lattouf was taken off air, contains information that can only have been provided by an ABC insider with access to communications between the senior leadership. Although the ABC supposedly regarded Ms Lattouf’s alleged misconduct as so serious that it justified terminating her employment, it did not regard the leaking of confidential information by a member of its staff as even worthy of investigation. Ms Lattouf’s distress about the deliberate and apparently malicious leaking of information about her treatment is understandable.

81    I do not think the leaking of the information itself can be attributed to the ABC as an organisation. There is no evidence that the information was leaked under the authority of any of the ABC’s senior managers. It may well have been leaked by an individual acting without authority.

82    However, I do consider that the absence of any investigation into the leak detracts from the ABC’s expression of contrition. Although I accept that the ABC is genuinely sorry for its contraventions of ss 50 and 772(1) of the FWA, the lack of any investigation suggests that its apology for the distress caused to Ms Lattouf has its limits. The ABC has demonstrated limited contrition for the broader effects of its unlawful actions on Ms Lattouf.

83    Consequently, although I accept that the ABC has demonstrated contrition, that contrition came at a late stage and was certainly not as full as it might have been.

Previous contraventions of the FWA

84    The ABC has disclosed that in June 2020, it entered into an “enforceable undertaking” with the Fair Work Ombudsman (the FWO) in respect of contraventions of s 50 of the FWA through the underpayment of casual employees. The ABC voluntarily disclosed the contraventions, and I accept that the ABC complied with its undertakings.

85    Further, in July 2021, the ABC made disclosures to the FWO concerning the underpayment of certain categories of employees under various enterprise agreements. The ABC made a “contrition payment” to the Commonwealth of $600,000.

86    Ms Lattouf submits that the ABC’s history of contravening s 50 of the FWA enhances the need for specific deterrence.

87    The ABC’s previous contraventions of s 50 of the FWA were of a quite different kind. It appears that the underpayments were inadvertent and the ABC self-reported the contraventions to the FWO. In the present case, the contraventions of the Enterprise Agreement involved conduct which Mr Oliver-Taylor must have known placed the ABC at risk of contravening the Enterprise Agreement.

88    Nevertheless, the ABC ought to have been aware from its previous contraventions of the FWA of the need for vigilance. It did not exercise vigilance. I accept that the ABC’s historic contraventions suggest a greater need for specific deterrence than might otherwise have been the case.

89    I am persuaded that it is unlikely that the ABC will contravene the FWA in a similar way in the future. Mr Marks’ public statement demonstrates he is acutely aware of the reputational damage that has been caused to the ABC. The public scrutiny the ABC has faced must surely have brought home to the ABC the unacceptability of its contravening conduct. Nevertheless, I consider that substantial penalties are necessary to ensure that the message is received and heeded.

The size of the organisation

90    The size and resources of a contravener are germane in assessing an appropriate deterrent penalty as, logically, the larger the contravener and the greater its financial resources, the greater the penalty required to effect deterrence: see Richard Crookes at [200]; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 at [39]; Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646 at [38].

91    The ABC has over 5,000 employees operating at some 61 office locations throughout Australia, with a further eight offices overseas. For the 2023/2024 financial year, the ABC received approximately $1,138 million in Commonwealth funding and $99 million from other sources. After expenses and tax, the ABC had a deficit of approximately $2 million. Its assets were valued at approximately $1,954 million, with total liabilities of approximately $784 million.

92    It can be accepted that the ABC is a large, sophisticated and well-resourced organisation which is readily able to pay any penalties that are imposed.

93    In Pattinson, the High Court reinforced at [17] that a penalty, “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”, citing Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66] and Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62]. The principle has been applied to unions, which cannot be described as “businesses”: see for example, Australian Competition and Consumer Commission v J Hutchinson Pty Ltd (No 2) [2022] FCA 1007 at [26], [78]-[79].

94    The principle is relevant in the present case. The primary motivation for the termination of Ms Lattouf’s employment was to avoid criticism from political lobbyists, the media and sections of the public. The ABC and others cannot be allowed to regard a penalty as an acceptable price to pay for staving off criticism over the employment of an employee by engaging in unlawful conduct against that employee.

The consequences of the contraventions

95    The ABC’s contraventions have caused very significant consequences for Ms Lattouf, as I discussed in my previous reasons. For most people, employment is not just a source of income, but contributes substantially to their sense of purpose, identity and self-worth. The unlawful termination of their employment for alleged misconduct, particularly where the employee has been given no chance to defend themselves against the accusations made, can be devastating. The human consequences of the unlawful termination of employment ought not be underestimated.

96    In the present case, Ms Lattouf has been awarded compensation. That is sufficient to address the impact of the consequences of the contraventions.

Conclusion

97    In all the circumstances, I conclude that it is appropriate to impose the following penalties:

(a)    for the contravention of ss 772(1) and 50 of the FWA through the breach of paragraph (f) of cl 55.4.1 of the Enterprise Agreement, $75,000;

(b)    for the contravention of s 50 of the FWA through the breach of paragraphs (a), (b) and (c) of cl 55.2.1 of the Enterprise Agreement, $12,500;

(c)    for the contravention of s 50 of the FWA through the breach of paragraph (f) of cl 55.2.1 of the Enterprise Agreement, $12,500;

(d)    for the contravention of s 50 of the FWA through the breach of cl 55.2.2 of the Enterprise Agreement, $50,000.

98    Applying the totality principle, I am satisfied that the total of $150,000 is appropriate.

99    I will order that the penalty be paid to Ms Lattouf within 28 days.

Associate:    

Dated:    24 September 2025