Federal Court of Australia

Gillham v Melbourne Symphony Orchestra Pty Ltd (Liability) [2026] FCA 891

ORDERS

THE COURT ORDERS THAT:

1.    The Second Further Amended Originating Application dated 20 June 2025 is dismissed.

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

REASONS FOR JUDGMENT

HILL J:

A.    introduction

1    The Applicant (Mr Gillham) is a concert pianist. He contends that the First Respondent (the MSO) took adverse actions against him in August 2024, contrary to the Fair Work Act 2009 (Cth) (FW Act), and that the Fourth Respondent (Mr Ross, the MSO’s then Chief Operating Officer) was knowingly involved in one of those contraventions.

2    The claimed adverse actions were taken after Mr Gillham made statements that Israel had committed war crimes by targeting journalists in Gaza when introducing a new piece “Witness” at a piano recital presented by the MSO on 11 August 2024. The MSO’s actions were:

(1)    On Monday 12 August, the MSO cancelled the scheduled performance by Mr Gillham at a concert presented by the MSO scheduled for 15 August 2024 (the Cancellation);

(2)    On Monday 12 August, the MSO emailed a message to those who had attended the 11 August recital stating that Mr Gillham would no longer be performing at the 15 August concert and apologising for his statements (the Cancellation Message);

(3)    On Wednesday 14 August, the MSO sought to impose through Mr Ross as a condition of Mr Gillham’s performance on 15 August being reinstated that “there be no physical or verbal statement from the stage” (known as the Second Condition);

(4)    On Thursday 15 August, the MSO emailed and published a statement about the (by then cancelled) 15 August concert which, among other things, did not contain an apology to Mr Gillham for having previously cancelled his 15 August performance, which had been promised by Andrew Moore (the then Director of Programming for the MSO) (the Final Public Statement).

3    This proceeding deals with the issue of liability only, and not issues of compensation or penalty.

4    What this proceeding is not about: The events of this proceeding are bound up with a conflict that is a matter of considerable public controversy. As Rangiah J stated in Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669; (2025) 341 IR 105 at [3]:

The Israel/Gaza war quickly became the most covered, contested and controversial news story in the world, with each side claiming that coverage by mainstream media was inaccurate and biased. A state of hostility developed between supporters of each side. In Australia, heated rallies and protests were held and widespread campaigns of vilification, including doxxing and cancelling, were conducted.

5    It is not any part of the Court’s role to enter upon these broader issues. The factual correctness of what Mr Gillham said at the recital is not a matter for determination in this proceeding. Nor is this proceeding about whether performing artists have a right to express political views: the claimed workplace right is to be free from discrimination in the expression of political views. The MSO’s position, discussed below, is that it did not want anyone on the MSO stage to make remarks about the Israel-Gaza conflict, in support of either side. That position was not conveyed to Mr Gillham, but it informs the MSO’s reasons for its response to his statements.

6    Summary of conclusions: The issues raised by Mr Gillham’s case, and my conclusions on those issues, can be summarised as follows.

(1)    The first issue is whether Mr Gillham had a “workplace right” within s 341(1) of the FW Act. The claimed workplace right is the prohibition against an employer treating an employee unfavourably because of the employee’s political belief, contained in the Equal Opportunity Act 2010 (Vic) (EO Act). Mr Gillham argues that the EO Act is a “workplace law” for the purposes of the FW Act.

•    I find that the EO Act is not a “workplace law” for these purposes. It follows that Mr Gillham did not have a relevant workplace right: see section D.1 below.

(2)    The second issue is whether the four actions taken by the MSO set out in [2] above are “adverse actions” within s 342 of the FW Act.

•    It is common ground that the Cancellation is an adverse action. I find that the Cancellation Message, the Second Condition and the Final Public Statement are not adverse actions, as defined: section D.2 below.

(3)    The third issue is whether the MSO’s actions were taken “because” Mr Gillham had a workplace right. The onus is on the MSO to establish that Mr Gillham having a workplace right was not a substantial and operative reason for its actions.

•    Even if the other issues are assumed in Mr Gillham’s favour (contrary to the conclusions summarised above), I find that Mr Gillham expressing a political belief was not a substantial and operative reason for the MSO taking any of the four actions against Mr Gillham: section D.3 below.

7    It follows that Mr Gillham’s claims against the MSO and against Mr Ross must be dismissed.

B.    AGREED FACTS

8    The parties have agreed the following facts for the purposes of these proceedings, under s 191 of the Evidence Act 1995 (Cth). Although it does not appear in the agreed facts, it is also common ground that Mr Gillham’s relationship with the MSO was one of an independent contractor, not a common law employee.

B.1    The parties and other relevant persons

9    Mr Gillham (Applicant): Mr Gillham is an international concert pianist.

10    MSO (1st Respondent): The MSO is a charitable, cultural organisation for musical purposes, with the “Objectives” as listed in cl 5 of its Constitution. The MSO is a charity for the purposes of the Australian Charities and Not-for-profits Commission Act 2012 (Cth). The MSO has published a Strategic Plan 2025-2028 and regularly publishes Annual Reports.

11    The MSO had a Code of Conduct of which it did not notify Mr Gillham.

12    MSO Board: Between 11-15 August 2024, the MSO Board was comprised of:

(a)    David Li AM, the Chairman;

(b)    Margaret Jackson AC, Co-Deputy Chair;

(c)    Diane Jameson OAM, Co-Deputy Chair;

(d)    Shane Buggle, Director;

(e)    Andrew Dudgeon AM, Director;

(f)    the Hon Martin Foley, Director;

(g)    Lorraine Hook, the MSO Employee-Elected Director;

(h)    Prof. Gary McPherson, Director;

(i)    Farrel Meltzer, Director;

(j)    Edgar Myer, Director; and

(k)    Dr Sophie Galaise, the (then) Managing Director of the MSO (and formerly the Third Respondent in this proceeding). Dr Galaise ceased to be the Managing Director of the MSO on 26 August 2024.

13    The (then) Company Secretary of the MSO was Demetrio Zema. Mr Zema was not a Director of the MSO Board.

14    Ross (4th Respondent): Between 11-15 August 2024, Mr Ross was the Chief Operating Officer (COO) of the MSO.

15    MSO Leadership Group: Between 11-15 August 2024, the MSO Leadership Group was comprised of:

(a)    Dr Galaise;

(b)    Mr Ross;

(c)    Suzanne Dembo, the (then) Director of Philanthropy and External Affairs. Ms Dembo is now the COO of the MSO;

(d)    Sharon Li, the (then) Chief Financial Officer of the MSO;

(e)    Andrew Moore, the (then) MSO Director of Programming;

(f)    Dylan Stewart, the MSO Director of Marketing and Sales; and

(g)    Jayde Walker, the (then) MSO Director of Business Development. Ms Walker is now the MSO Director of Brand and Communications.

16    Some other persons: Between 11-15 August 2024:

(a)    Elaine Armstrong was Mr Gillham’s agent;

(b)    Katharine Bartholomeusz-Plows was the MSO Head of Artistic Planning;

(c)    Dr Samuel Cairnduff was a Communications and Public Relations consultant engaged by Mr Gillham on 13 August 2024;

(d)    Paul Davies was a representative of the Media, Entertainment and Arts Alliance (MEEA);

(e)    David Imber was a Founder of “Imber Advisory”, a corporate advisory firm specialising in strategic media advice engaged by Dr Galaise to provide services on Monday, 12 August 2024;

(f)    Ian Smith AM was a Founding Partner of “Bespoke Approach”, a corporate advisory firm specialising in strategic communications advice engaged by the MSO Board Working Group to provide services on the evening of Tuesday, 13 August 2024;

(g)    David Luff was a consultant to Bespoke Approach;

(h)    Emily O’Brien was a Director of Elucidate Consulting Pty Ltd;

(i)    Justine Battistella was the Executive Assistant to Dr Galaise; and

(j)    Symphony Services Australia Limited (SSA), formerly the Second Respondent, provided specialised services to several Australian orchestras, including the MSO.

B.2    Key documents

17    The MSO and SSA executed a written agreement on 15 July 2010 for SSA to supply to or for the benefit of the MSO (with the MSO concomitantly agreeing to obtain from the SSA) various “Services” (the SSA/MSO Service Level Agreement).

18    The SSA/MSO Service Level Agreement was subsequently amended in a further executed written agreement between SSA and the MSO on 20 June 2013 (the Amendment to the SSA/MSO Service Level Agreement).

19    On 11 June 2024, Mr Gillham entered into a written agreement with SSA (the Gillham/SSA Agreement). The Gillham/SSA Agreement was entered into by SSA as the MSO’s agent under the SSA/MSO Service Level Agreement.

20    Under the Gillham/SSA Agreement:

(a)    Mr Gillham was to perform at “the Recital” on Sunday, 11 August 2024 at the Iwaki Auditorium (a concert hall located within the ABC Southbank Centre, Melbourne, that seats up to 400 people); and

(b)    Mr Gillham was to perform at “the Concert” on Thursday, 15 August 2024 at Melbourne Town Hall.

B.3    Key Events

21    Recital (11 Aug 2024): On 5 August 2024, Ms Armstrong sent an email to Ms Bartholomeusz-Plows titled “A little addition to Jayson’s recital programme by Connor D’Netto”. In her email, Ms Armstrong wrote:

This is just a wee note as [Connor D’Netto] has written a short meditative piece for Jayson called ‘Witness’ (4’) which he would love to premiere at his recital on Sunday [11 August 2024]. He would add it just after the interval and if it is too late to add to a printed programme he could simply announce from stage this lovely addition.

I hope this is OK!

22    On 6 August 2024, Ms Bartholomeusz-Plows responded to Ms Armstrong’s above email as follows:

Unfortunately the program has gone to print.

We’ll add it to the digital one, and [we’ll] also provide Jayson with a mic so that he can speak during the recital should he wish.

23    Later that day, Ms Armstrong responded to Ms Bartholomeusz-Plows’ email (referred to above) as follows:

Ah so sorry it was literally a last minute gift from Connor [D’Netto] and it would be rude not to :) I can’t wait to hear it and Jayson will gladly let the audience know about the very short little addition, Thank you re: mic!

24    On Sunday, 11 August 2024, Mr Gillham performed a musical piece titled “Witness” by the composer Connor D’Netto at the Iwaki Auditorium. There were 156 audience members. The parties are unaware of any part of the Recital having been live-streamed or recorded. Mr Gillham made remarks before he commenced his performance of “Witness”. It is in dispute between the parties as to whether these remarks were made by way of introducing “Witness” (the Applicant’s contention) or not (the Respondents’ contention). The Applicant does not agree to the Respondents’ characterisation simply as “remarks”. (As will become apparent, little turns on this issue.)

25    On Monday, 12 August 2024, in response to a request by the MSO to provide a copy of the remarks referred to above, Ms Armstrong sent the MSO (by email) a copy of Mr Gillham’s notes of the remarks which he said he had made. Mr Gillham’s notes were as follows:

Connor [D’Netto’s] only note is Witness – dedicated to the journalists of Gaza.

My note:

Over the last 10 months, Israel has killed more than one hundred Palestinian journalists. A number of these have been targeted assassinations of prominent journalists as they were travelling in marked press vehicles or wearing their press jackets. The killing of journalists is a war crime in international law, and it is done in an effort to prevent the documentation and broadcasting of war crimes to the world.

In addition to the role of journalists who bear witness, the word Witness in Arabic is Shaheed, which also means Martyr.

26    No member of the MSO Board (see [12]-[13] above) or the MSO Leadership Group (see [15] above) had attended the Recital.

27    MSO Leadership Group Meeting (12 Aug 2024): At around 9.30am on Monday, 12 August 2024, the MSO Leadership Group attended an in-person meeting to discuss the remarks referred to above made by Mr Gillham at the Recital.

28    Formal notification to Ms Armstrong (12 Aug 2024): At 6.29pm on Monday, 12 August 2024, Mr Moore sent an email to Ms Armstrong and SSA to the effect that the MSO was terminating Mr Gillham’s engagement with immediate effect under cl 17.3 of the Gillham/SSA Agreement. Although it is not included in the agreed facts, cl 17.3 provides:

17.3     For Convenience: Symphony Services may terminate this Agreement at any time by giving the Artist prior written notice of termination. On termination under this clause, the Artist’s entitlement to the Fee is as follows:

(a)    If Symphony Services terminates this Agreement more than 90 days before the Arrival Date, Symphony Services will pay the Artist 25% of the Fee;

(b)    If Symphony Services terminates this Agreement between 90 and 28 days before Arrival Date, Symphony Services will pay the Artist 50% of the Fee;

(c)    If Symphony Services terminates this Agreement less than 28 days before Arrival Date, Symphony Services will pay the Artist 100% of the Fee.

29    Cancellation Message (12 Aug 2024): At approximately 7.05pm on Monday, 12 August 2024, the MSO issued the following “Cancellation Message” by email to persons who had attended the Recital:

During Jayson Gillham's performance yesterday (Sunday 11 August [2024]) Mr Gillham made a series of introductory remarks prior to giving the world premiere of the Conor D’Netto piece Witness, a late addition to the advertised programme.

Witness was accepted for performance at the request of Mr Gillham on the basis that it was a short meditative piece. Mr Gillham made his personal remarks without seeking the MSO's approval or sanction. They were an intrusion of personal political views on what should have been a morning focused on a program of works for solo piano.

The MSO does not condone the use of our stage as a platform for expressing personal views. Mr Gillham will not be performing in the advertised concert with the MSO this Thursday night at Melbourne Town Hall. Customers will be advised of this change to Thursday's program as soon as possible.

The MSO was at no point made aware of the content of the remarks Mr Gillham was intending to make. They were made completely without authority.

The MSO understands that his remarks have caused offence and distress and offers a sincere apology. It has been a priority for us to address this difficult situation today.

The MSO's values are Respectful, Collaborative, Innovative and Diverse and they are at the heart of what we do and how we act. They guided why we accepted the work to be performed, and why we've acted as a result of the unauthorised statements. Music brings people together and that is why one of our guiding principles is “We unite our individual strengths and celebrate our unifying love of music, fostering understanding and belonging”. In standing for humanity and peace we seek for every one of our performances to be a welcome and safe place for all.

30    Dr Galaise email update to MSO Board (13 Aug 2024): At 6.41am on Tuesday, 13 August 2024, Dr Galaise sent an email to the MSO Board about the Recital and the Cancellation Message.

31    MSO Board meeting (14 Aug 2024): On Wednesday, 14 August 2024 at around 3pm there was a meeting of the MSO Board at which Mr Gillham’s remarks referred to above were discussed.

32    The following persons were in attendance (either online or in person) during the MSO Board meeting:

(a)    each of the MSO Board, except for Mr Dudgeon and Mr Meltzer;

(b)    each of the MSO Leadership Group;

(c)    Mr Smith;

(d)    Mr Luff; and

(e)    Mr Zema.

33    As an aside, the parties join issue on whether Mr David Li attended this MSO Board meeting. I would accept Mr Li’s sworn evidence that he did not attend (which is supported by the recollection of other MSO witnesses). Little turns on this point, because Mr Li did not take an active part in the MSO Board’s decisions, whether or not he attended this meeting.

34    Mr Zema prepared draft minutes of the MSO Board meeting and circulated the draft minutes on 16 August 2024. The MSO Board minutes were subsequently approved by the MSO Board at its meeting on 29 August 2024.

35    Written communications Mr Moore to Ms Armstrong, Mr Ross to Mr Davies (14 Aug): In the morning on Wednesday, 14 August 2024, Mr Moore sent a text message to Ms Armstrong, in which he wrote:

We would like to investigate whether there is a world in which [Mr Gillham] would come and play the concerto tomorrow after all.

…

…We would be looking to make a joint statement with him about Sunday, which we would mutually agree, and would want a guarantee of no talking from the stage tomorrow night.

…

…Not for him right now, but for you to understand, we’d obviously need to acknowledge a misstep on behalf of MSO.

36    At 4.21pm on Wednesday, 14 August 2024, Ms Armstrong sent an email to Mr Moore, in which she wrote:

…Please know that Jayson holds his relationship with the MSO, the players of the orchestra and his audience here in the highest regard. He does appreciate being asked again together with the below note and whilst he was initially open to this I’m sorry to say that after much reflection this afternoon, Jayson has made the decision that he cannot perform tomorrow.

I’m really sorry to deliver this news to you Andrew. I know that you know that I personally recommended that Jayson consider the reinvitation but at the end of the day I wasn’t able to force this decision.

37    At 4.44pm on Wednesday, 14 August 2024, Mr Ross sent an email to Mr Davies of the MEAA containing an offer to reinstate Mr Gillham to perform at the Concert on conditions, including that there be no physical or verbal statement from the stage. Mr Ross also sent a text message to Mr Davies to similar effect, in which he wrote:

Without prejudice

Dear Paul

Following on from our brief discussion regarding Jayson Gillham, I am sharing with you the proposed next steps toward a resolution with Jayson on this matter. We are prepared to collaborate with you as a representative for Jayson on a without prejudice basis.

We propose:

1.     Reinstatement and performance of the Mozart concerto No. 12 with MSO at the performance on Thursday 15 August at Melbourne Town Hall (plus rehearsal tomorrow at MTH);

2.     No physical or verbal statement from the stage; and

3.     Agreement on the statement below (to be issued publicly by MSO).

Our intention here is to settle on the concerns raised and to assist Jayson through this most unfortunate situation.

38    Final Public Statement (14-15 Aug 2024): At 9.45pm on Wednesday, 14 August 2024, Mr Moore emailed Dr Cairnduff and wrote:

We have moved on somehow, but the acknowledgment of error and apology is there, so I think we might still use the quote. We’ll keep you in the loop.

39    On Thursday, 15 August 2024, the MSO issued the “Final Public Statement” by publishing it on its website and sending it to persons with tickets to attend the Concert. The Final Public Statement was as follows:

The Melbourne Symphony Orchestra will not perform at Melbourne Town Hall tonight (Thursday August 15) due to safety concerns.

The MSO earlier today sought independent security advice considering events that have occurred since last Sunday’s concert with Jayson Gillham.

In light of this advice, the MSO Board and management had no option but to cancel the concert. We apologise to those who were planning to attend.

The MSO acknowledges that an error was made in asking Jayson to step back from his performance on Thursday 15 August.

We have been engaging constructively with Jayson and his management and are seeking to reschedule the concert.

While the Melbourne Symphony Orchestra maintains that a concert platform is not an appropriate stage for political comment, we acknowledge Jayson’s concerns for those in the Middle East and elsewhere.

We recognise the strength of feelings of all parties on this matter and particularly acknowledge the dedication and commitment demonstrated by all our musicians and staff this week.

40    Other documents: Between 11-15 August 2024, the MSO Leadership Group exchanged messages in a WhatsApp Group Chat.

41    On 13 August 2024, Dr Galaise:

(a)    caused an email to be sent (at 8.48am) to all MSO Staff and Musicians titled “Urgent Update”;

(b)    created an SMS Message Chat Group for the use of the “MSO Board Working Group” (comprising herself, Ms Jackson, Mr Foley, Ms Jameson and Mr Myer).

42    On 14 August 2024:

(a)    Dr Galaise:

(i)    sent an email to the MSO Leadership Group (at 10.11am) titled “Re: Statement”, in which she wrote:

As an outcome of our 9:30 meeting, our new PR strategists have advised us to do a backflip and re-invite Jayson to perform with us tomorrow.

Andrew [Moore] is tasked to reach out to Jayson’s agent and discuss this possibility.

If this is possible we would have to come out saying we made an error and have reinstated the pianist. We would ideally have a joint statement from both sides.

After that we will reengage with the musicians staff., prepare [communications] to stakeholders, customers, etc…

(ii)    sent an email to the MSO Leadership Group (at 10.10pm) titled “STATEMENT – final version”;

(b)    the MSO Board exchanged WhatsApp messages in a Group Chat;

(c)    Mr Foley sent an email (at 10.00pm) to each of the other members of the “MSO Board Working Group” titled “Fwd: Preliminary Assessment – MSO Beethoven and Brahms event”, attaching a copy of a document earlier prepared by Ms O’Brien titled “RE: Preliminary assessment of risk environment related to potential event cancellation”;

(d)    the MSO Board Working Group exchanged emails (between 10.21pm to 11.13pm) about the wording of the draft of the “Final Public Statement”, referred to above.

C.    Applicable law

C.1    FW Act – protection against “adverse action”

43    Protection (FW Act s 340): Part 3-1, Div 3 of the FW Act sets out workplace rights. By s 340(1)(a), a person must not take “adverse action” against another person because the other person:

    has a workplace right; or

    has, or has not, exercised a workplace right; or

    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.

44    “Workplace right”, “workplace law” (s 341): By s 341(1)(a), a person has a “workplace right” if (relevantly) the person is entitled to the benefit of a workplace law. “Workplace law” is defined in s 12 to mean the FW Act (and regulations); the Fair Work (Registered Organisations) Act 2009 (Cth); the Independent Contractors Act 2006 (Cth); and:

(d)    any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

45    A crucial issue in this case is whether the Equal Opportunity Act 2010 (Vic) (EO Act) is a “workplace law” for these purposes: see section D.1(a)-(c) below.

46    “Adverse action” (s 342): Section 342(1) sets out the circumstances in which a person takes “adverse action” against another person.

    Item 3 provides that adverse action is taken by a principal “who has entered into a contract for services with an independent contractor” against an independent contractor if (relevantly) the principal:

(a)    terminates the contract; or

…

(c)     alters the position of the independent contractor to the independent contractor’s prejudice;

    Item 4 provides that adverse action is taken by a principal “proposing to enter into a contract for services with an independent contractor” against the independent contractor if (relevantly) the principal:

(b)    discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor;

47    It is common ground that the termination of Mr Gillham’s contract is an “adverse action” as defined. However, the MSO contends that none of the other three matters complained of (the Cancellation Message, the Second Condition, and the Final Public Statement) is an adverse action: see section D.2 below.

48    Determining the reason for action (ss 360-361): If Mr Gillham has a workplace right, then the next issue is whether this adverse action was taken “because” Mr Gillham exercised a workplace right. Determining the reason for adverse action is affected by ss 360 and 361. By s 360, for the purposes of Pt 3-1 (including s 340), a person takes action for a particular reason if the reasons for the action include that reason. The issue here is whether the reason is “a substantial and operative factor” in those reasons: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [56]-[57], [59] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ); Qantas Airway Ltd v Transport Workers Union of Australia [2023] HCA 27 at [6], [41] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [63] (Gordon and Edelman JJ).

49    Section 361(1) of the FW Act reverses the normal onus in civil proceedings, and provides that if:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

50    Reverse onus – general principles: In Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 at [14], the Full Court summarised the principles bearing on the application of the reverse onus of proof in s 361 of the FW Act in its application to s 340 as follows:

(a)    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken;

(b)    the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action;

(c)    an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason;

(d)    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;

(e)    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;

(f)    while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;

(g)    the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action;

(h)    even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;

(i)    the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and

(j)    adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.

This summary was adopted in Serco Citizen Services Pty Ltd v Parsons [2025] FCAFC 83; (2025) 310 FCR 436 at [57] (the Court).

51    Mere “interconnection” is not sufficient: Cases since Barclay establish that an action is not taken “because” of a prohibited reason (such as lawful industrial activity or the expression of political belief) simply because the action is connected, even interconnected, with that prohibited reason. It is sufficient to refer to two cases.

52    First, in CFMEU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243, the union argued that the employment of one of its members had been terminated because he participated in lawful industrial activity, contrary to s 346 of the FW Act. At a protest organised by the union, the union member had held up a sign that stated “No principles SCABS No guts”. The primary judge accepted the evidence of the employer’s general manager that the union member was fired because the word “scab” was inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of the employer’s workplace conduct policy (that required courtesy and respect); the union member was well aware of the policy and demonstrated arrogance when confronted with objections to his conduct; and the union member’s conduct was not only contrary to the policy, but antagonistic to the culture that the general manager was seeking to develop. The primary judge added that the decision to terminate the union member’s employment was arrived at over time and after a systematic consideration of the facts: BHP Coal at [2]-[3].

53    The High Court, by majority, held that there was no breach of s 346 of the FW Act.

    French CJ and Kiefel J held that s 346 does not direct a court to inquire whether the adverse action can be characterised as “connected with” the industrial activities protected by the FW Act, but rather requires “a determination of fact as to the reasons which motivated the person who took the adverse action”: BHP Coal at [19]. It is not sufficient that an employee’s union position and activities were “inextricably intertwined” with the adverse action: BHP Coal at [20]. The fact that there is a connection between adverse action and industrial activity may necessitate some consideration as to the employer’s true motivations, but cannot itself provide the reason why the employer took the action it did. There is no requirement in s 361 that the adverse action be completely disassociated from any industrial activity: BHP Coal at [22].

    Gageler J reasoned to similar effect: BHP Coal at [85], [90]. His Honour held at [92]:

The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.

54    Second, in CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150, the union contended that the employer had breached s 340 of the FW Act, by moving an employee from a weekend roster to a weekday roster (which was “adverse action”) because that employee had exercised a workplace right by taking personal leave to which he was entitled. The primary judge found that the adverse action was not taken because the employee had previously exercised his rights to personal leave, but because of the lack of predictability in the employee’s attendance: see Endeavour Coal at [13]. On appeal, the union argued that the absences from work which were given as the reason for taking adverse action were, in fact, the very absences to which he was entitled under the workplace agreement; that is, the stated reason was constituted by the same facts as the prohibited reason: Endeavour Coal at [14], [76].

55    The Full Court (by majority) held that there was no breach of s 340 of the FW Act, applying BHP Coal in particular.

    Jessup J held that BHP Coal established that if adverse action was taken because an employee’s conduct involved a contravention of the employer’s conduct policy, that action did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity. The same approach applied to the “because” question under s 340 of the FW Act: Endeavour Coal at [32]-[33]. There was no requirement that the reason for the adverse action be “entirely dissociated from” the protected circumstance: Endeavour Coal at [47].

    Perram J held that it was irrelevant that an employee’s conduct could be characterised in a number of different ways (in that case, either the exercise of lawful workplace rights, or an unreliable attendance record). The only issue was a factual issue about the actual motives of the decision-maker: Endeavour Coal at [77]. His Honour held that the inquiry thrown up by s 340 is not one of causation but, rather, the subjective reasons for action of the decision-maker: Endeavour Coal at [91].

56    It has been said that BHP Coal is a “difficult case”, and that the distinction drawn between a “connection” and a “reason” may be elusive: Sayed v CFMEU [2015] FCA 27; (2015) 327 ALR 460 at [188]-[189] (Mortimer J). That may be accepted, but it would be an unduly restrictive reading of BHP Coal and Endeavour Coal to say that a protected matter (such as a political opinion) will be taken to be a substantial or operative reason for action unless the possession of a protected attribute is merely “coincidental” or “part of the context or surrounding circumstances”: cf Sayed at [190]-[191]. I would instead treat those matters as indications of the “true motivations” for a decision: see BHP Coal at [22] (French CJ and Kiefel J). In principle, there is a difference between facts or matters that an employer may be aware of (and indeed may consider), and facts or matters that are the reason(s) for the decision: Endeavour Coal at [91] (Jessup J); Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [59] (Mortimer J).

57    Conduct and state of mind of body corporate (FW Act s 793): Section 793 of the FW Act provides as follows for determining the conduct and state of mind of a body corporate (such as the MSO).

58    Conduct (s 793(1)): By s 793(1), any conduct engaged in on behalf of a body corporate:

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)     by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of the FW Act to have been engaged in also by the body.

59    State of mind (s 793(2)): By s 793(2), if it is necessary for the purposes of the FW Act to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

    that the conduct was engaged in by a person referred to in s 793(1)(a) or (b) (set out above); and

    that the person had that state of mind.

60    A person’s state of mind includes the “knowledge, intention, opinion, belief or purpose” of the person; and their reasons for the intention, opinion, belief or purpose (s 793(3)).

61    Whose state of mind? When action is taken by a body corporate, there may be more than one person whose state of mind is relevant. Further, the persons whose state of mind are relevant may extend beyond officers, employees or agents who formally have power to bind the body corporate. A person who does the act or thing constituting the adverse action may act on information or advice that is actuated by a prohibited reason, either in its provision or content. Depending on the circumstances, the adoption of such information or advice may mean that the corporation’s reasons for the adverse action include that prohibited reason: Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 at [26] (the Court). For example, in Wong, information provided by a Mr Arnott formed a critical part of the decision-maker’s conclusion. In those circumstances, it was necessary to examine the reasons for Mr Arnott making the contribution he did, because his state of mind could be attributed to the corporation: Wong at [82]-[83]. This issue is considered further in section D.3(a) below.

C.2    EO Act

62    Mr Gillham contends that the relevant “workplace right” is the benefit of the EO Act (which he contends is a “workplace law”).

63    Discrimination (ss 6(k), 8(1)): By s 8(1) of the EO Act, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

    “Attribute” includes political belief or activity (s 6(k)). “Political belief or activity” is defined in s 4 to mean:

(a)     holding or not holding a lawful political belief or view;

(b)     engaging in, not engaging in or refusing to engage in a lawful political activity[.]

    In determining whether a person directly discriminates, it is irrelevant whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason (s 8(2)(b)).

64    EO Act s 18 (employee): By s 18 of the EO Act, an employer must not discriminate against an employee:

(b)    by dismissing the employee or otherwise terminating his or her employment; or

(d)     by subjecting the employee to any other detriment.

65    “Employee” is defined in s 4 to include a person engaged under a contract for services (see para (c) of that definition). Correspondingly, “employer” is defined in s 4 to include a person who engages another person under a contract for services (para (b) of that definition), and “employment” is defined to include engagement under a contract for services (para (c) of that definition). Mr Gillham relies principally on s 18.

66    EO Act s 21 (contract worker): By s 21(1) of the EO Act, a principal must not discriminate against a contract worker by (relevantly) not allowing the contract worker to work or continue to work; or subjecting the contract worker to any other detriment (s 21(1)(b) and (d)).

67    “Contract worker” is defined in s 4 to mean a person who does work for a principal under a contract between the person’s employer and the principal.

D    analysis

68    In broad terms, Mr Gillham’s claims against the MSO raise three issues:

    First, whether Mr Gillham had a “workplace right” within s 341(1) of the FW Act. The threshold issue is whether the EO Act is a “workplace law” for these purposes. If it is, a second issue is whether the workplace right conferred by the EO Act is a protection from discrimination against holding a political belief generally, or discrimination against holding a particular political belief (here, a pro-Palestinian belief).

    Second, whether the MSO took “adverse action” against Mr Gillham within s 342 of the FW Act. As noted, it is accepted that the termination of Mr Gillham’s contract is “adverse action”, but the MSO contends that none of the other actions was an adverse action. A key issue here is whether any of those other actions altered Mr Gillham’s position to his prejudice.

    Third, whether the adverse action(s) were taken “because” Mr Gillham had a workplace right. Given ss 360 and 361 of the FW Act, the onus is on the MSO to establish that Mr Gillham having a workplace right was not a substantial and operative reason for taking the adverse action. A key issue here is whether the perceived consequences of Mr Gillham’s statement can be separated from the political content of his statement, as the MSO contends.

69    Initially, the MSO contended that Mr Gillham had acted in breach of contract, which (it was said) meant that the statements he made at the Recital were not “lawful” political expression within the meaning of the EO Act. I indicated during the hearing that I would require some persuasion to find that a breach of a private contract could make expression “unlawful” for these purposes. The MSO then abandoned that branch of its argument, meaning that breach of contract is not an issue in these proceedings.

D.1    Identifying the “workplace right”

70    The first issue is whether Mr Gillham has a “workplace right” under s 341(1)(a) of the FW Act, which in turn depends on whether he has a benefit under a “workplace law”. As noted, the claimed workplace law is the EO Act. Mr Gillham contends that the EO Act is a “law of … a State … that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)” (see para (d) of the definition of “workplace law” in s 12 of the FW Act, emphasis added).

71    The MSO contends that the EO Act is not a “workplace law” for two reasons.

    First, it is said that the EO Act could only be a workplace law to the extent that it applies to “employers” and “employees” in their ordinary meaning (and not to independent contractors, such as Mr Gillham).

    Second, it is said that, even in its application to common law employers and employees, the EO Act deals with so many different and varied subjects that it is not properly described as a law regulating the relationship between employers and employees. A variation on this argument is that it would be contrary to the structure of the FW Act, particularly Pt 1-3, for State anti-discrimination laws to apply as a “workplace law”.

D.1(a)    “Workplace laws” and general protections

72    Before considering those arguments, it is necessary to understand the place of “workplace laws” in the context of Pt 3-1 of the FW Act as a whole.

73    FW Act Pt 3-1: Part 3-1 of the FW Act deals with general protections.

74    Objects and application: The objects of Pt 3-1 are set out in s 336(1), and include to protect workplace rights (s 336(1)(a)); and to provide protection from workplace discrimination (s 336(1)(c)).

    Section 336(2) provides that these protections are provided to a person (whether an employer, an employee or otherwise).

    At the same time, Pt 3-1 only applies to the extent set out in Div 2 (s 337, subject to s 30G). Section 338 sets out the actions to which Pt 3-1 applies (largely by reference to a “constitutionally-covered entity”), which include “action taken in a Territory or a Commonwealth place” (s 338(1)(d)). Section 339 sets out a narrower operation (by reference to national system employers and employees).

75    In Victoria, the FW Act (including Pt 3-1) is also supported by a reference of power by Victoria for the purposes of s 51(xxxvii) of the Constitution. Two aspects of that reference are relevant.

    By s 30G(1), Pt 3-1 “applies to action taken in a State that is a referring State because of [Div 2A]”. That is, s 30G of the FW Act extends the application of Pt 3-1 of the FW Act to action in a referring State in the same way that s 338(1)(d) applies Pt 3-1 to action taken in a Territory or Commonwealth place: see Explanatory Memorandum to the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 (Cth) (2009 State Referral EM) at [61].

    Section 30E(1) extends the ordinary meaning of “employee” to include a law enforcement officer of that State, and s 30E(2) extends the ordinary meaning of “employer” to include a State officer nominated in the State’s referral law as the employer of the law enforcement officer. The reference of power otherwise does not alter the meaning of “employer” or “employee”.

76    Pt 3-1, Div 3 (workplace rights): Division 3 of Pt 3-1 provides protection of workplace rights against adverse action (ss 340, 342), against coercion (s 343), against undue influence or pressure (s 344), and against misrepresentations about a workplace right (s 345).

    The prohibitions against taking adverse action, against coercion, and against misrepresentations about a workplace right apply to “[a] person” in relation to “another person” (see ss 340(1), 343(1), 345(1)).

    The prohibition against undue influence or pressure applies to an “employer” in relation to specified decisions by an “employee” (s 344).

77    Pt 3-1, Div 4 (industrial activities): Division 4 of Pt 3-1 provides protection of industrial activities.

    Sections 346 (protection), 348 (coercion) and 349 (misrepresentations) apply to a “person” in relation to “another person”.

    Section 350 (inducements – membership action) applies to an employer in relation to an employee. Sections 350A (protection for workplace delegates) and 350C (workplace delegates and their rights) apply to an employer in relation to a workplace delegate.

78    Pt 3-1, Div 5 (Other protections): Division 5 of Pt 3-1 provides other protections; dealing with discrimination (s 351, applying to employers and employees, including prospective employees); temporary absence from illness or injury (s 352, applying to employers and employees); bargaining services fees (s 353, applying to an industrial association); discrimination relating to coverage of particular instruments (s 354, applying to a person in relation to an employer); coercion relating to allocation of duties (s 355, applying to a person against another person); and the effect of objectionable terms (s 356).

79    Section 351 protects employees and prospective employees against discrimination by employers.

    By s 351(1), an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s:

race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin. (emphasis added)

    However, by s 351(2), s 351(1) does not apply to action that is:

(a)     not unlawful under any anti-discrimination law in force in the place where the action is taken [including the EO Act: s 351(3)(b)]; or

(b)     taken because of the inherent requirements of the particular position concerned; or

(c)     if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)     in good faith; and

(ii)     to avoid injury to the religious susceptibilities of adherents of that religion or creed.

D.1(b)    Is a “workplace law” limited to laws regulating common law employers and employees?

80    Turning to the MSO’s arguments, its first argument is that the EO Act is only a “workplace law” to the extent that it regulates the relationship between common law employers and employees. This argument arises because Mr Gillham is not an “employee” at common law, but rather an independent contractor.

81    Ordinary meaning of “employer” and “employee” apply: “Employer” and “employee” have their ordinary meanings in Pt 1-2 of the FW Act (which contains s 12) (see s 11). In addition, “employer” and “employee” have their ordinary meanings in Pt 3-1 of the FW Act (s 335). (The meaning of these terms in Pt 3-1 is conceivably relevant, because the usual approach with a definitions section is to read the words of the definition into the substantive enactment and then construe the substantive enactment: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J).) On either analysis, para (d) of the definition of “workplace law” refers to “employer” and “employee” in their ordinary meaning; that is, their meaning at common law: C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 83 at [34]-[37] (the Court).

82    On its face then, para (d) of the definition of “workplace law” applies to State and Territory laws that regulate the relationship between common law employers and employees, and does not apply to State and Territory laws that regulate other relationships. However, Mr Gillham argues that para (d) is not confined in this way.

83    Regulating relationships between employers and employees are words of inclusion? Mr Gillham’s first argument is that the protections provided by Pt 3-1 are provided to a person (whether employee, employer or otherwise), citing s 336(2). Mr Gillham argues that para (d) of the definition of “workplace law” should therefore be treated as words of inclusion, not words of limitation. I do not accept this argument.

84    First, s 336(2) cannot be read in isolation. As set out above, it is true that some provisions in Pt 3-1 are expressed to apply to “persons”, including s 340. But ss 337 to 339 then set out the actual application of Pt 3-1. Admittedly, s 340 applies according to its terms in a referring State (such as Victoria), by reason of s 30G of the FW Act. However, several provisions in Pt 3-1 have a narrower operation, and apply only to “employers” and “employees” (meaning common law employers and employees): see ss 344, 350, 351 and 352. That is, it is necessary in each case to determine the scope of the provision. As noted, the definition of workplace law uses “employer” and “employee”, which are defined. The referral of power does not expand the ordinary meaning of those terms, other than to include law enforcement officers (see s 30E).

85    Second, to treat “employer” and “employee” as words of inclusion would create difficulties in determining the outer limit of the State law that is treated as a workplace law under para (d) of the definition in s 12. It cannot be the case that parts of the EO Act dealing with matters wholly unconnected with employment (say, discrimination in education) would be treated as a “workplace law” simply because some provisions of the EO Act regulate the relationship between common law employers and employees. The question is not the character of an Act as a whole, but rather the character of the applicable provision(s) of the Act.

86    That last proposition is established by Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222; (2012) 208 FCR 386 and Regulski v State of Victoria [2015] FCA 206.

    In Sunstate, Logan J held that the question was not whether the Civil Aviation Act 1988 (Cth) or Civil Aviation Regulations 1988 (Cth) as a whole could be characterised as a “workplace law” or “workplace instrument”. The question was instead whether the particular provisions relied on in that case (which had a “discrete meaning and effect”) had the character of laws regulating the relationship between employer and employee: Sunstate at [24].

    Similarly, in Regulski, Jessup J held that the Accident Compensation Act 1985 (Vic) (AC Act), taken as a whole, might not have the purpose of regulating the relationship between employers and employees, but that ss 195 and 196 in Pt VIIB (which obliged employers to plan their workers’ return to work) did have that character and were “workplace laws” within s 341 of the FW Act: Regulski at [198], [200].

87    Mr Gillham contends that Regulski actually supports his argument that provisions extending beyond common law employers and employees can be “workplace laws”. Mr Gillham points out that ss 195-196 of the AC Act applied to workers, and that “worker” was a broader term than “employee”, although this term did not expressly include an independent contractor. At December 2012, a “worker” was defined in s 5(1) of the AC Act to mean an individual:

(a)     who—

(i)     performs work for an employer; or

(ii)     agrees with an employer to perform work—

at the employer's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or

(b)     who is deemed to be a worker under this Act[.] (emphasis added)

Accordingly, Mr Gillham argues, Regulski establishes that a “workplace law” can include a State law that extends beyond the relationship between common law employers and employees.

88    I do not accept that interpretation of Regulski. The applicant in that case was a common law employee: Regulski at [2], [189]; see also Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458; (2025) 339 IR 239 (Gillham (summary judgment)) at [86] (Mortimer CJ). Jessup J refers to the rights and obligations of “employers” and “employees” under Pt VIIB in Regulski at [199]-[200], and does not use the statutory term of “worker”. I would interpret his Honour as meaning that Pt VIIB is a workplace law to the extent that it regulates the relationship between common law employers and employees, reflecting the facts of that case. Otherwise, his Honour’s reasoning in Regulski (handed down on 13 March 2015) would contradict his own reasoning in Tattsbet v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 (argued on 13 February and handed down on 11 May 2015). Tattsbet is considered below.

89    If the regulation of the relationship between employer and employee does not define the parts of a State law that are treated as a “workplace law” under para (d) of the definition, then it is not clear what criterion would determine the additional parts of the State law that would be included. Perhaps it might be said that a State provision that applies indifferently to employees and independent contractors can be picked up in its entirety, even if a State provision dealing with independent contractors separately from employees cannot. But the reach of the FW Act is unlikely to turn on such matters of drafting. And here, the extension of s 18 of the EO Act to independent contractors arises from a separate paragraph in the definition of “employee” in s 4 of the EO Act (para (c)). That paragraph is severable from that part of the definition of “employee” that covers common law employees (para (a)). Or perhaps it might be said that those anti-discrimination provisions dealing with the workplace can be applied, because the FW Act uses the labels “workplace law” and “workplace rights”. But it would be quite circular to construe the words of a definition by reference to the term that is being defined: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 419 (the Court).

90    Definition of “industrial association” includes independent contractors? Mr Gillham’s second argument is that the definition of “industrial association” in s 12 expressly contemplates that an association of independent contractors could be established by a workplace law. Paragraph (a) of that definition provides that an industrial association includes:

(a)    an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law[.] (emphasis added)

This is said to be express recognition that a “workplace law” may regulate the relationship between an employer (or principal) and an independent contractor.

91    However, this reference to independent contractors is explained by the types of organisations that can be registered under the Registered Organisations Act (which is expressly a “workplace law”: see para (b) of the definition in s 12). Under s 18B(1)(b) of the Registered Organisations Act, an association of employees is federally registerable if (relevantly) some or all of its members are federal system employees. “Federal system employee” is defined in s 6 to mean:

(a)     a national system employee within the meaning of [s] 13 of the Fair Work Act; or

(c)     an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee who could be characterised in the way mentioned in paragraph (a). (emphasis added)

92    In other words, the reference to an association of independent contractors being registered under a “workplace law” in the definition of industrial association recognises that one of the workplace laws expressly mentioned (the Registered Organisations Act) provides for the registration of an association of employees or independent contractors. This reference does not require para (d) of the definition of “workplace law” to extend beyond the relationship between common law employers and employees in order to give the reference to independent contractors in para (a) of the definition of “industrial association” some work to do.

93    Mr Gillham observes, however, that State laws provide for the registration of associations of independent contractors, such as s 335 of the Industrial Relations Act 1996 (NSW) (NSW Act) (providing for the registration of associations of contract drivers and contract carriers). Mr Gillham submits that, unless “workplace law” includes State provisions of this sort, then an “industrial association” in s 12 will not, contrary to its plain words, include associations of independent contractors formed under the NSW Act. But that argument assumes the answer: only if these provisions in the NSW Act are treated as “workplace laws” would the plain words of s 12 cover those State associations of independent contractors. The general scheme of the FW Act is that provisions of the NSW Act dealing with independent contractors operate of their own force, and are not displaced by the FW Act: see FW Act s 26(1), which excludes State and Territory industrial laws “so far as they would otherwise apply in relation to a national system employee or national system employer”. And the definition of “industrial association” includes (in para (b)) an association of independent contractors “(whether formed formally or informally), a purpose of which is the protection and promotion of … their interests as independent contractors”. An association registered under s 335 of the NSW Act may well come within this part of the definition (although I did not receive submissions on the point).

94    Qantas v TWU requires broader approach? Mr Gillham’s third argument is that to confine para (d) of the definition of “workplace right” to laws that regulate the relationship between common law employers and employees would be contrary to Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571 (Qantas v TWU). However, the reasoning in Qantas v TWU does not assist the resolution of this issue, in either direction.

    The issue in Qantas v TWU was the meaning of “to prevent the exercise of a workplace right” in s 340(1)(b) of the FW Act. Qantas argued that s 340(1)(b) only applies if a workplace right is presently in existence at the time the adverse action is taken. The High Court rejected that argument, and held that a person who takes adverse action against another person for the substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s 340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken: Qantas v TWU at [5]-[6] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); see also [88] (Gordon and Edelman JJ).

    In that context, Kiefel CJ, Gageler, Gleeson and Jagot JJ stated at [20] that there is a long and complex history of provisions in Commonwealth industrial legislation that protect workplace participants against unfair treatment. Their Honours continued:

At a high level of generality, the historical arc of the protections against adverse action has generally tended to expand the scope of workplace rights, the classes of persons who are covered by the general workplace protections, and the limits upon adverse action.

and continued:

The complex legislative history does not support any narrower reading of s 340(1)(b) than is otherwise suggested by the text, context and purpose of the provision.

95    No doubt Qantas v TWU cautions against importing limits into the text of s 340 that do not appear in its text. But that does not suggest that para (d) of the definition of “workplace law” should be given a broader meaning beyond its actual terms. And the “historical arc” of expanding the classes of persons who are covered by general workplace protections is much too general a consideration to overcome a textual limit contained in the definition of “workplace law” (and the definitions of “employer” and “employee”).

96    Statutory objects and international law require a broader reading? Finally, Mr Gillham contends that a broader reading of para (d) of the definition of “workplace law” is required by the object in s 3(a) of the FW Act of providing workplace relations laws that “take into account Australia’s international labour obligations”. Mr Gillham submits that the meaning of “employee” under the International Labour Organisation (ILO) instruments is more akin to “worker”, and includes an independent contractor.

97    I will assume that interpreting para (d) of the definition of workplace law to extend to laws governing the relationship between principal and independent contractor would be more in keeping with the definition of “employee” contained in Australia’s ILO obligations. However, that factor is not a reason to interpret para (d) as extending beyond laws regulating the relationship between common law employers and employees. As noted, the FW Act expressly sets out the definition of “employer” and “employee” for Pts 1-1 and 3-1 in ss 11 and 335: see [81] above. The object in s 3(a) is put at a general level, as one of a number of objects, and does not reveal how far the FW Act goes in pursuing that purpose, or how that purpose is balanced against other, perhaps competing, purposes: see Ambulance Employees Association of Western Australia Inc v United Workers' Union [2026] FCAFC 62 at [20]-[21] (Jackson and Dowling JJ). In other words, the object in s 3(a) is again much too general to overcome a textual limit contained in para (d) of the definition of “workplace law”, when read with the express definitions of “employer” and “employee”. Part 3-1 does not depend on the external affairs power for its constitutional support, so there is no occasion to give the terms “employer” and “employee” a broader meaning than they have at common law in order to accommodate Australia’s compliance with international obligations: C v Commonwealth at [37].

98    Mr Gillham then refers to the objects of Pt 3-1, which include to “provide protection from workplace discrimination” (s 336(1)(c)), and to “provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part” (s 336(1)(d)). However, these objects are referrable to the specific provisions in Pt 3-1, and do not suggest that para (d) of “workplace law” extends to laws regulating the relationships between principals and independent contractors.

    Mr Gillham observes that s 336(1)(c) refers to workplace discrimination, not just discrimination in employment. However, that reference is explained by the fact that one type of adverse action is discrimination against an independent contractor in the terms and conditions on which the principal offers to engage the independent contractor (s 342(1) item 4(b)). The other anti-discrimination provisions in Pt 3-1 apply to employees or prospective employees: see s 351 (adverse action against employees and prospective employees); s 342(1) item 1(d) (discrimination between an employee and other employees), and item 2(b) (discrimination against a prospective employee in the terms and conditions of prospective employment). The fact that the express protections against discrimination apply to employees, prospective employees and (in one case) independent contractors explains why s 336(1)(c) refers to “workplace” discrimination.

    Mr Gillham submits that s 336(1)(d) refers to providing protection to “persons” who have been “discriminated against”. However, s 336(1)(d) describes compendiously the remedial operation of Pt 3-1, and must be read as a whole. As some of the provisions in Pt 3-1 apply to “persons” (such as s 340), it is necessary to use persons to describe those who may have the benefit of Pt 3-1 remedies. The whole phrase “discriminated against, victimised or otherwise adversely affected” describes in general terms the conduct for which Pt 3-1 provides remedies: it does not mean that “persons” generally are protected by Pt 3-1 against discrimination or victimisation. Accordingly, s 336(1)(d) does not suggest that para (d) of the definition of “workplace laws” extends beyond laws regulating employers and employees.

99    Finally on this point, the general principle that legislation should be interpreted consistently with Australia’s international obligations does not overcome the textual limits in para (d) of the definition of “workplace law”, read with the definitions of “employer” and “employee”. Mr Gillham refers here not just to ILO obligations, but also to the International Covenant on Civil and Political Rights (ICCPR). However, international law obligations do not displace the actual text used, so there is no room for the interpretive principle if the statutory language used is sufficiently clear: see Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2011] FCAFC 100; (2011) 194 FCR 562 at [105]-[107] (the Court) (ss 38 and 39 of the Native Title Act 1993 (Cth) are not read down by reference to Art 27 of the ICCPR); see also Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33; (2020) 275 FCR 42 at [31]-[32] (the Court) (the meaning of “person” in s 501CA(3A) and (4) of the Migration Act 1958 (Cth) is not read down by reference to Art 12(4) of the ICCPR).

100    Cases on para (d) definition of “workplace laws” and independent contractors: Each party referred to cases that were said to establish that para (d) of the definition of “workplace laws” either does or does not extend to laws regulating the relationship between principals and independent contractors. However, as explained below, none of these cases is conclusive.

101    Tattsbet (Full Court): The most detailed consideration of the issue was in Tattsbet. In that case, Jessup J (with White J agreeing and Allsop CJ agreeing on this ground) found in the appeal that Ms Morrow was not an employee of Tattsbet: see Tattsbet at [64], [72]. In her cross-appeal, Ms Morrow challenged the primary judge’s rejection of her claim under s 340 that her employment was terminated because she proposed to exercise a right under a “workplace law”, that being the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act): see Tattsbet at [74]-[75]. Jessup J stated that this ground of cross-appeal was advanced in the context of a finding that Ms Morrow was an employee, and the ground could not be sustained once that finding was reversed: Tattsbet at [94].

102    However, Jessup J held that two issues would remain. The first issue was Ms Morrow’s contention that s 340 of the FW Act applied no less to her as an independent contractor than as an employee: Tattsbet at [94]. On this issue, Tattsbet submitted that the SGA Act was not a workplace law within the meaning of the FW Act to the extent that it dealt with independent contractors: Tattsbet at [95]. Jessup J dealt with that argument as follows:

    Under s 12(3) of the SGA Act, a person who worked “under a contract that is wholly or principally for the labour of the person” was deemed to be an employee of the other party to the contract: see Tattsbet at [99]. Jessup J was not prepared to assume, without the benefit of argument, that Ms Morrow came within the extended definition in s 12(3): Tattsbet at [100].

    Jessup J then asked whether Ms Morrow was entitled to the benefit of a Commonwealth law that regulated the relationship between employers and employees. His Honour stated (Tattsbet at [103]) that, even assuming Ms Morrow’s agreement with Tattsbet came within s 12(3) of the SGA Act, any entitlement she had under the SGA Act:

… arose under the provisions of that Act that extended its operation beyond the circumstances of employees strictly so called. Those provisions did not regulate the relationships between employers and employees. (emphasis added)

    Jessup J held that Ms Morrow, considered as someone who was not a common law employee, was not entitled to the benefit of so much of the SGA Act as was a “workplace law” within s 341(1)(a) of the FW Act. His Honour stated he had two independent, sufficient reasons for that conclusion: (1) it had not been established that the agreement between Ms Morrow and Tattsbet came within s 12(3) of the SGA Act; and (2) the provisions of the SGA Act that entitled non-employees to superannuation were not a “workplace law” within Pt 3-1 of the FW Act: Tattsbet at [104]. That is, his Honour relied on both of these conclusions: cf Gillham (summary judgment) at [80].

103    Jessup J ultimately decided the cross-appeal in Ms Morrow’s favour under s 341(1)(b) of the FW Act: that provision was not dependent on the existence of an entitlement, and Tattsbet had conceded below certain factual matters: see Tattsbet at [107], [117]. So much of Ms Morrow’s case relying on s 341(1)(b) and (c)(i) was remitted to the Federal Circuit Court to be determined conformably with the Full Court’s reasons: Tattsbet at [134]-[135].

104    Given the terms of remitter (and the fact it did not include the s 341(1)(a) claim), I would regard Jessup J’s rejection of Ms Morrow’s claims relying on s 341(1)(a) of the FW Act in Tattsbet at [104] as forming part of the ratio decidendi of the decision, and not merely obiter dicta. However, it is far from clear the extent to which the Full Court received any argument on these points from both parties: Ms Morrow’s cross-appeal seems to have been advanced primarily on the basis that she was an employee. For that reason, I have not treated Tattsbet as foreclosing Mr Gillham’s arguments on this aspect of the case, but have considered his arguments on their merits: see Gillham (summary judgment) at [87]. My reasoning set out above leads to the same result as that of Jessup J in Tattsbet at [103].

105    Other cases: The other cases cited by the parties can be dealt with briefly. For the most part, any statement in these cases about the application of the FW Act in respect of independent contractors was either assumed or the subject of an express concession: see Gillham (summary judgment) at [86], and the cases referred to. It is only necessary to refer to two cases here.

106    First, in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268, John Holland had conceded at first instance that the Work Health and Safety Act 2011 (Cth) (WHS Act) was a “workplace law” for the purposes of s 341(1) of the FW Act, even in its application to persons who are not employees: Auimatagi at [67]. On appeal, John Holland sought to argue that the WHS Act was not a workplace law insofar as it imposed duties in relation to persons who were not employees: Auimatagi at [63]. The Full Court held that John Holland was bound by this concession at first instance.

107    Mr Gillham’s contends that the Full Court in Auimatagi should be taken to have implicitly endorsed the correctness of John Holland’s concession, given that a court is not bound to accept a concession of law. However, the Full Court held that the submission John Holland sought to advance on appeal involved a factual matrix, concerned with the operation of the law and the relevant policy as they affected John Holland’s own employees. There had been no attention to this factual issue before the primary judge, as there would have been if the point had been taken. In any event, there was an importance to parties being bound to the cases they ran below: Auimatagi at [68]. That is, the reasons the Full Court held John Holland to its concession at first instance did not involve the Full Court endorsing the correctness of that concession (which was not solely a concession of law in any event).

108    Second, in CFMMEU v BM Alliance Coal Operations Pty Ltd [2023] FCA 30, Collier J held that certain standard operating procedures made under the Coal Mining Safety and Health Regulations 2017 (Qld) were “workplace instruments”; in particular, that they “concern[ed] the relationships between employers and employees” within para (b) of the definition of workplace instrument at the time (as set out in BM Alliance at [114]).

109    Mr Gillham contends, by reference to the facts of that case, that Collier J proceeded on the basis that the standard operating procedures were “workplace instruments” in their application to an independent contractor. However, her Honour’s reasons for finding that the standard operating procedures were workplace instruments focused on their application to employers and employees: Collier J was “satisfied that the standard operating procedures ‘concern[ed]’ the relationship between employers and employees as submitted by the applicant, including by prescribing the way employees perform duties for the employer, and directions the employer may give to the employee regarding the performance of those duties”: BM Alliance at [133], emphasis added. I would not treat her Honour as implicitly determining that an instrument that concerns the relationship between employers and employees is also a “workplace instrument” in its application to independent contractors. That point was not discussed in BM Alliance.

110    Conclusion on independent contractors argument: I therefore accept the MSO’s first argument that the EO Act is not a “workplace law” in its application to Mr Gillham, who is an independent contractor. The EO Act to this extent does not “regulate[] the relationships between employers and employees” (meaning common law employers and employees), and therefore falls outside para (d) of the definition of “workplace law”.

D.1(c)    Structural reading of FW Act

111    There is a second, structural reason why the EO Act is not a workplace law. When the scheme of the FW Act is considered as a whole, that Act expressly preserves the operation of State and Territory anti-discrimination laws, and confers specific federal anti-discrimination rights, principally on “employees”. It would be contrary to this careful scheme if State or Territory anti-discrimination laws were also applied as federal law, in relation to any person, as a workplace right under ss 340-342 of the FW Act. That is, the EO Act is not a “workplace law” even in its application to common law employers and employees. This implied limit is akin to the principle in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J).

112    Interaction between FW Act and State anti-discrimination laws (Pt 1-3): The application of the FW Act, and its interaction with State and Territory laws, is dealt with in Pt 1-3. “Employer” and “employee” have their common law meanings in that Part (s 25).

113    FW Act ss 26-27(1A): By s 26, the FW Act excludes State and Territory “industrial laws”, meaning (relevantly) the State and Territory laws named in s 26(3); and a State and Territory law that applies to employment generally and has one of the purposes in s 26(2)(b) as one or more of its main purposes (including providing rights and remedies connected with the termination of employment: s 26(b)(v)). However, s 27(1A) expressly preserves the effect of State and Territory anti-discrimination laws (as State and Territory law), including the EO Act (s 27(1A)(b)).

114    The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (2008 Fair Work EM) explained the intended operation of these provisions as follows:

    The FW Act is intended to cover the workplace relations field by excluding the application of State and Territory industrial laws to national system employers and their employees. The FW Act does not exclude State and Territory laws that impose obligations on national system employers and employees in relation to matters outside the central area of workplace relations (2008 Fair Work EM at [128]-[129]).

    The FW Act expressly preserves the operation of State and Territory anti-discrimination laws in their application to national system employers and employees. The 2008 Fair Work EM states at [140]:

A person whose employment has been terminated … for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under either a State or Territory anti-discrimination or equal employment opportunity law or a remedy for contravention of the protections under Division 5 of Part 3-1 (General protections), but not both (see Division 3 of Part 6-1 (Multiple actions)). (emphasis added)

115    Legislative scheme of Pt 1-3: It can be seen that the Commonwealth Parliament turned its mind to the potential overlap between the FW Act and State or Territory anti-discrimination laws. State and Territory anti-discrimination laws were to continue to operate of their own force, supplemented by the specific anti-discrimination provisions in Div 5 of Pt 3-1 (but not the workplace rights in Div 3 of Pt 3-1). That is because laws specifically preserved by s 27 (such as anti-discrimination laws) fall outside the central area of workplace relations.

116    It is true that State and Territory occupational health and safety laws are expressly preserved by s 27 of the FW Act (see s 27(1)(c) and (2)(c)), but are also expressly made “workplace laws”, by para (d) of the definition. However, rather than suggesting that other laws preserved by s 27 are also “workplace laws”, this express inclusion suggests that occupational health and safety laws might otherwise have fallen outside the definition in para (d). Consistently with that analysis, in Sunstate at [34], Logan J stated that the express inclusion of occupational health and safety laws in para (d) of the definition of “workplace law” was to quell debate about whether these provisions have as their object the relationship between employer and employee, and also “sets the limit of the additional reach of the definition”.

117    Mr Gillham contends, correctly, that ss 26-27 of the FW Act only deal with the interaction of the FW Act with State and Territory law in its application to national system employers and employees, whereas s 340 confers a workplace right on “persons” generally. However, the FW Act “for the most part confers rights and imposes obligations on, and in respect of the relationship between, an employer and employee”: CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 at [93] (Gageler and Gleeson JJ). That is, ss 26 and 27 deal with the interaction between the “heartland” of the FW Act and State and Territory laws.

118    Mr Gillham also contends, correctly, that the statement in the 2008 Fair Work EM set out above is not comprehensive, and that the FW Act contains other protections against discrimination that are not referred to (particularly s 772, which prohibits an employer from terminating an employee’s employment on certain grounds, but also ss 153(1) and 195(1), dealing with discriminatory terms in a modern award or enterprise agreement). That much may be accepted, but again these other specific protections against discrimination apply only to employees or prospective employees. (The definition of adverse action in s 342(1) includes a principal discriminating against an independent contractor in the terms and conditions on which the principal offers to engage the independent contractor (item 4(b)). However, that provision uses “discriminates” in its ordinary sense, and does not incorporate State and Territory anti-discrimination laws: see [127], [166] below.)

119    These other specific anti-discrimination provisions in the FW Act do not detract from the general legislative scheme identified in [114]-[115] above: the FW Act preserves State or Territory anti-discrimination law to operate of its own force, to be supplemented by specific anti-discrimination provisions in the FW Act. The FW Act anti-discrimination provisions do not merely duplicate State and Territory anti-discrimination norms, but have their own distinct fields of operation.

    Section 351 protects only employees and prospective employees, and contains the defences in s 351(2)(a), (b) and (c). The defence in s 351(2)(a) ensures that the protection against discrimination in s 351 does not go beyond the protection afforded by State or Territory anti-discrimination law in force where the action took place, but s 351(2)(b) and (c) provide substantive defences that operate regardless of the content of State and Territory anti-discrimination law. Further, the grounds in s 351 (such as political opinion) are not protected attributes in all States or Territories.

    Section 772 only applies to discrimination in termination of employment. Some of the prohibited grounds of discrimination (in particular political opinion) go beyond the grounds that are covered by the anti-discrimination laws of some States, as occurred in Lattouf.

    Section 153(1) prohibits terms of a modern award discriminating against an employee on specified grounds (which correspond to the grounds in s 351(1)). This prohibition is subject to the qualifications in s 153(2) and (3), such as the inherent requirements of a particular position (s 152(2)(a)). Section 195 makes similar provision in relation to enterprise agreements. Although these provisions apply to national system employees, rather than common law employees, the point remains that these provisions deal with the employment relationship and not independent contractors.

120    By contrast, on Mr Gillham’s argument, the FW Act also imports the entirety of State and Territory anti-discrimination laws (as far as those laws apply in the workplace), conferred on any person who has rights under those laws, as a “workplace right” under ss 340-342 of the FW Act. That possibility was not averted to in the 2008 Fair Work EM, and it runs counter to the general legislative scheme just described. The Commonwealth Parliament was aware of a potential overlap between the FW Act and State and Territory anti-discrimination laws insofar as those laws apply in the workplace, and the 2008 Fair Work EM referred in particular to the overlap with the anti-discrimination rights in Div 5 of Pt 3-1 (but not to Div 3). Given the Parliament’s specific attention to the matter, it is unlikely that the FW Act was also intended to duplicate, as federal law, those parts of State and Territory anti-discrimination laws dealing with workplace discrimination in their application to any person, in the form of “workplace rights”.

121    Application in a referring State (Pt 1-3, Div 2A): This conclusion about the structure of the FW Act, and the intended interaction with State and Territory anti-discrimination laws, is supported by the reference of powers provisions.

122    Division 2A of Pt 1-3 of the FW Act deals with the application of that Act in a State that refers matters before 1 July 2009 (that is, Victoria). This reference operates for the purposes of s 51(xxxvii) of the Constitution. Two aspects of this reference are relevant for present purposes.

    First, the “referred subject-matters” (which inform the scope of the Commonwealth’s power to make express amendments to the FW Act) are defined in s 30A(1) to include:

(c)     rights and responsibilities of persons, including employees, employers, independent contractors…, being rights and responsibilities relating to any of the following:

…

(ii)     protection from discrimination relating to employment;

… (emphasis added)

    Second, the “excluded subject matters” (which limit the scope of the referred subject-matters) are defined to include “a matter dealt with in a law referred to in [s] 27(1A)”; relevantly the EO Act.

123    In other words, the Commonwealth has been referred legislative power to make amendments dealing with protection from discrimination relating to employment for independent contractors, but this referral does not include a matter dealt with in the EO Act. The 2009 State Referral EM explained the intended effect of these provisions as follows:

    The definition of excluded subject matters does not prevent the Commonwealth from amending the FW Act in relation to any of these matters, to the extent that the FW Act as originally enacted deals with them (directly or indirectly) (2009 State Referral EM at [31]).

    This framework reflects that s 27 of the FW Act preserves the operation of laws on the specified matters by providing that they are not excluded from the workplace relations field covered by s 26 of the FW Act. Most of the preserved State laws under s 27 deal with matters that are also subject to concurrent or related regulation in the FW Act, including for example (2009 State Referral EM at [32]):

[Section] 27(1A) of the FW Act preserves the named State anti-discrimination and equal opportunity Acts, and [ss] 27(1)(c) and 27(2)(c) preserve State laws relating to OHS. However, Part 3-1 of the FW Act (General protections) provides protection from discrimination in relation to employment, and protects workplace rights (including those set out in a State OHS law).

124    Mr Gillham observes, correctly, that the State references of power only operate to the extent that the Commonwealth does not otherwise have legislative power (see FW Act s 30B(1)(a)), and submits that the application of Pt 3-1 of the FW Act to the MSO would be supported by the corporations power, because it can be assumed that the MSO is a trading corporation. Even accepting these points, it is striking that the matters dealt with in the EO Act are expressly excluded from Victoria’s reference of power. That fact sits uneasily with a construction of “workplace law” that would see the EO Act (at least the provisions relevant to employment) being given effect as federal “workplace rights” under ss 340 to 342 of the FW Act.

125    Mr Gillham’s arguments against structural reading of FW Act: Mr Gillham makes a number of arguments against this structural reading of the FW Act. His arguments based on Qantas v TWU, the objects of the FW Act, Australia’s international obligations, and the particular objects of Pt 3-1, should be rejected for essentially the same reasons as set out in section D.1(b) above. These matters are too general in nature to overcome the particular structural features set out earlier in this section. Two further arguments require consideration.

126    Anti-discrimination laws are applied by FW Act s 342(1)? First, Mr Gillham contends that State anti-discrimination laws are applied by or incorporated into those parts of s 342(1) (adverse action) that refer to discrimination. This result is said to follow from Sayed at [161].

127    For the following reasons, Sayed did not treat s 342 itself as incorporating State anti-discrimination laws; rather, any incorporation arose from the application of s 351(2)(a). The issue in that case was whether the employer had taken adverse action against Mr Sayed, within s 342(1) item 1(d), because of his political opinion. Mortimer J analysed the operation of s 342(1) item 1(d) and s 351 of the FW Act as follows:

    Section 342(1) item 1(d) asks whether the employee is treated differently from other employees. By s 351, the “irrelevant” reasons for different treatment are then specified. The inquiry under s 342 is a straightforward one, and looks only for differential treatment: Sayed at [160].

    However, s 351(2) and (3) then incorporate the detailed provisions in State, Territory and federal anti-discrimination statutes, such as the requirements of “less favourable treatment”, the requirements of indirect discrimination, and the exceptions. These matters in anti-discrimination statutes are incorporated through “these provisions” (ie s 351(2) and (3)) “so as to limit the protections given by Div 5 of Pt 3-1 of the [FW] Act in a way that is intended to mirror the limits under those other legislative schemes”. Read as a whole, ss 351 and 342(1) item 1(d) only render conduct that is prohibited under other anti-discrimination regimes as conduct contravening s 351. That limit derives not from the meaning of “discriminates” in item 1(d) of s 342(1), but at the subsequent step of applying s 351 (ie s 351(2) and (3)): Sayed at [161].

128    That is, Sayed at [160]-[161] held that the detailed provisions of State and Territory anti-discrimination laws are applied through s 351 (meaning s 351(2) and (3)), not through the references to “discrimination” in s 342(1). In particular, s 351(2) and (3) applies the detailed limits in State and Territory anti-discrimination laws.

129    And whatever the position in Sayed, it arises from a specific textual reference to discrimination in particular provisions in Pt 3-1. Section 342(1) items 1(d) and 2(b) are linked textually to the specific anti-discrimination provision in s 351, because s 351 prohibits taking adverse action (defined in s 342) against employees and prospective employees. Section 342(1) item 4(b) prohibits discrimination against an independent contractor in the proposed terms and conditions of engagement, without specifying the prohibited grounds of discrimination. It is doubtful whether the term “discriminates” in s 342(1) item 4(b), by itself, could incorporate the detail of State and Territory anti-discrimination laws: see [166](b) below. Instead, item 4(b) would prevent a person treating an independent contractor differently, and unfavourably, for any of the reasons in s 340 (such as because the independent contractor has a workplace right). So understood, these specific references to discrimination in s 342 do not detract from the general legislative scheme described in the 2008 Fair Work EM, by which State and Territory anti-discrimination laws operate of their own force, supplemented by the specific provisions in Pt 3-1 Div 5. Sayed does not suggest that State and Territory anti-discrimination laws should be treated as a “workplace law” under para (d) of the definition in s 12.

130    Exclusion of EO Act would unduly narrow other provisions of FW Act? Second, Mr Gillham contends that excluding the EO Act from para (d) of the definition of “workplace law” would mean that other provisions of the FW Act would not operate in the way that they were intended to operate, citing Gillham (summary judgment) at [54], which referred to ss 341(2), 558B and definitions in s 12 (particularly “industrial association”). Those matters are considered in turn.

131    Section 341(1)(b) provides that a person has a workplace right if the person is able to initiate or participate in a process or proceeding under a workplace law. A process or proceeding under a workplace law includes court proceedings or any other process or proceeding under a workplace law (s 341(2)(b) and (k)). Mr Gillham contends that it would be anomalous if the FW Act expressly preserved the operation of State anti-discrimination laws (in s 27(1A)), but did not protect a person’s right to bring proceedings under a State anti-discrimination law under s 341 (which is said to be the effect of excluding State anti-discrimination laws from the definition of “workplace law”).

132    As the MSO submits, any anomaly is answered by s 341(1)(c) of the FW Act: even if the EO Act is not a “workplace law”, any proceeding under the EO Act alleging a contravention of s 18 of the EO Act would be a complaint or inquiry “in relation to his or her employment”, meaning that the ability to make this complaint or inquiry would be a “workplace right”. Mr Gillham responds that s 341(1)(c) only applies to common law employees, not independent contractors. However, the apparent anomaly arises from s 27(1A), which is a qualification to s 26(1). In combination, ss 27(1A) and 26(1) preserve State and Territory anti-discrimination laws so far as they would otherwise apply in relation to national system employees and employers. Section 341(1)(c) does answer that anomaly: the people for whom State and Territory anti-discrimination laws are preserved by s 27(1A) have a workplace right under s 341(1)(c) of bringing a complaint or inquiry about their employment under those anti-discrimination laws.

133    Section 558B imposes a responsibility on responsible franchisor entities and holding companies for contraventions of the civil penalty provisions listed in s 558B(7). In determining whether a person took reasonable steps to prevent a contravention by a franchisee entity or subsidiary, a court may have regard to (relevantly) the extent to which the person’s arrangements (whether legal or otherwise) with the contravening employer encourage or require the contravening employer to comply with the FW Act or any other workplace law (s 558B(4)(f)). Mr Gillham contends that it would be anomalous if compliance with State anti-discrimination laws was not part of this “reasonable steps” analysis.

134    Any anomaly in result is not immediately apparent. Resort to the anomalous or incongruous consequences of legislation should be approached with caution, to ensure that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament: see ConnectEast Management Ltd v Commissioner of Taxation [2009] FCAFC 22 at [41] (the Court), citing Esso Australian Resources Ltd v Federal Commissioner of Taxation [1998] FCA 1655; (1998) 83 FCR 511 at 518-519 (Black CJ and Sundberg J); see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21 at [29] (the Court).

135    Finally, the definition of “industrial association” is relevant to the issue of whether para (d) of the definition of “workplace law” extends to laws regulating independent contractors (see [90]-[93] above), but says nothing about whether anti-discrimination laws should be treated as “workplace laws” within para (d) of that definition. The other definitions in s 12 referring to “workplace laws” do not bear on whether a workplace law applies to independent contractors.

136    Conclusions on structural reading of FW Act: For these reasons, I do not accept Mr Gillham’s arguments against the structural reading of the FW Act, and find that the EO Act is not a “workplace law”, even in its application to common law employers and employees. The general structure of the FW Act is that State and Territory anti-discrimination laws operate of their own force, supplemented by specific federal provisions (such as ss 351 and 772). It would be contrary to this structure for State and Territory anti-discrimination laws (in their application to employment or to the workplace more generally) to be re-applied as federal law in the form of a “workplace right”.

D.1(d)    What workplace right is conferred by the EO Act?

137    If the EO Act were treated as a “workplace law” (contrary to the analysis above), there would be a further question about the nature of the workplace right conferred by the EO Act: does s 8(1) of the EO Act prohibit unfavourable treatment because of holding a particular political belief (here, a pro-Palestine belief), or does s 8(1) prohibit unfavourable treatment because of holding “a” political belief of any sort (as opposed to another kind of belief)? This issue arises because, as discussed in section D.3 below, the MSO sought to limit any discussion of the Israel-Gaza conflict from its stage, in support of either side.

138    EO Act s 8(1) does not require a comparator: Mr Gillham observes, correctly, that s 8(1) of the EO Act prohibits treating a person with an attribute “unfavourably” because of that attribute. There is no need for a comparator. Further, the objectives of the EO Act are to eliminate discrimination “to the greatest possible extent” (s 3(a)).

139    Holding or not holding “a” political belief or view: However, once the definition of “political belief or activity” is read into s 6(k) of the EO Act, the relevant attribute for direct discrimination under s 8(1) is “holding or not holding a lawful political belief or view”.

    The reference to “a” political view suggests that s 8(1) is concerned with a particular political view. Although the singular can include the plural, the inquiry then would still be into the view or views actually held by a person. The MSO accepts that the inquiry can extend into political views that a person is perceived to have by reason of a protected attribute: see Sayed at [195]. Even so, that situation is concerned with particular political views (albeit apprehended or perceived views), not political views in the abstract. Further, as the MSO submits, the requirement that the political view be “lawful” suggests it is necessary to consider the content of the particular political view.

    More generally, it would be surprising if an employer could not direct that there was to be no discussion at all in the workplace of a political issue, on either side, without that amounting to direct discrimination. That result would convert a right to be free from discrimination in holding or expressing political views into a positive right to express a political view or views. Perhaps there might be situations where an apparently neutral rule prohibiting any discussion of an issue would have a disproportionate impact on one political view over another, but that would be a question of indirect discrimination, which is not argued here.

140    Comparator is a permissible tool of analysis: In any event, although s 8 of the EO Act no longer requires the use of a comparator, Austin Health v Tsikos [2023] VSCA 82; (2023) 324 IR 1 establishes that a comparator is still a permissible tool of analysis.

    In Austin Health, Ms Tsikos claimed that she had been directly discriminated against in her employment on the basis of her age and sex, in that she had been denied the opportunity to negotiate and receive remuneration above the rates in the enterprise agreement: Austin Health at [9]. That claim was dismissed by the Victorian Civil and Administrative Tribunal (VCAT), which compared the position of Ms Tsikos against one of her colleagues (a Mr Spalding): see Austin Health at [47]-[48]. In an appeal on a question of law, the primary judge found that VCAT had erred, by limiting its consideration to whether Ms Tsikos had been treated less favourably than Mr Spalding: see Austin Health at [63]-[64].

    However, the primary judge held that in many cases a comparator will be probative as to whether there has been unfavourable treatment and whether the treatment was because of a particular attribute: Austin Health at [58]. The Court of Appeal endorsed that conclusion, stating there was “no barrier to using a comparator to assist to establish the existence of unfavourable treatment, as well as to establish the reason for the unfavourable treatment”: Austin Health at [86].

141    I therefore accept the MSO’s submission that a comparator can be used as a tool of analysis in determining whether action was taken for a prohibited purpose. That use of a comparator is supported by the reasoning of Mortimer J in Sayed, in applying ss 342(1) item 1(d) and 351 of the FW Act.

    In Sayed, Mr Sayed contended (relevantly) that he had been subjected to adverse action because of his political opinion, contrary to ss 342(1) item 1(d) and 351 of the FW Act. His political opinions included political opinions he shared with the Socialist Alliance, of which he was a member: Sayed at [47]-[48].

    Mr Vickers (the decision-maker for the employer) contended that the immediate suspension of Mr Sayed was not because he was a member of the Socialist Alliance, but because he was a liar (having lied about when he had ceased his involvement with the Socialist Alliance): Sayed at [209]-[210]. Mortimer J rejected that argument, stating (Sayed at [215]):

It may be, as the respondent submitted in substance, that Mr Vickers would have taken the same approach had “assurances” been given at an earlier time about a person’s involvement in the Australian Labor Party, which then turned out to be false. The difference is, I find, questions about involvement in the ALP would never have been asked. In that sense, the applicant’s political opinion remains a reason which was “involved” in Mr Vickers’ decision to suspend the applicant immediately. (emphasis added)

(I note that Sayed was decided before Endeavour Coal, which confirmed that it is not sufficient that a prohibited reason is simply involved or interconnected with adverse action: see [54]-[56] above.)

142    Relationship with actuation under FW Act: Here, the purpose of the alleged discriminator is an element of the claimed workplace right under s 8(1) of the EO Act: was the unfavourable treatment “because” of that attribute? That is a matter on which the person alleging discrimination (Mr Gillham) bears the onus. However, the purpose of the alleged discriminator is also an element of the claimed contravention of s 340(1)(a) of the FW Act: any adverse action must be “because” the person has or has exercised a workplace right (sometimes described as a matter of “actuation”). That is a matter on which the MSO bears the onus, to show that this was not a substantial or operative reason for the action. A considerable body of evidence has been led by the MSO to discharge this onus.

143    The tests of purpose under the EO Act and under the FW Act are not identical: the EO Act asks whether the unfavourable treatment (adverse action) was because of the protected attribute (here, Mr Gillham’s political belief), whereas the FW Act asks whether the adverse action was because of the workplace right; that is, the right to be free from discrimination in relation to the protected attribute. Further, the test of purpose under anti-discrimination laws may be more objective: see Milardovic at [61]. However, as a practical matter, if the MSO can discharge the reverse onus of proof under ss 360 and 361 of the FW Act, then it is unlikely that Mr Gillham will have discharged his onus of proof under s 8(1) of the EO Act. In that situation, Mr Gillham’s claim would fail in any event. For that reason, the MSO’s purpose(s) for the relevant actions will be considered in section D.3 below as a matter of actuation under the FW Act. As will be seen, I have chosen for convenience to assess the actuation inquiry under the FW Act by asking whether Mr Gillham’s political beliefs (rather than his workplace right to be free from discrimination in holding and expressing his political beliefs) were a substantial or operative reason for the MSO’s actions: see [175] below.

D.2    Identifying the relevant “adverse action(s)” within FW Act s 342

144    The second broad issue is whether the actions identified by Mr Gillham are “adverse actions” within s 342 of the FW Act. The MSO correctly accepts that the Cancellation is an adverse action (see FW Act s 342(1) item 3(a)), but contends that none of the other actions is an “adverse action” as defined.

D.2(a)    Is the Cancellation Message an adverse action?

145    Mr Gillham contends that the Cancellation Message is an adverse action, because it altered his position as an independent contractor to his prejudice (see FW Act s 342(1) item 3(c)). That argument raises two issues:

    whether, as a matter of law, the reference in item 3(c) to a principal taking action that “alters the position of the independent contractor to [his] prejudice” applies to the principal taking an action after an independent contractor’s engagement has been terminated; and

    if so, whether, as a matter of fact, the Cancellation Message was capable of damaging Mr Gillham’s reputation.

146    Altering Mr Gillham’s position to his prejudice? The first issue identified above arises because the Cancellation Message was sent after Mr Gillham’s contract had been terminated. As discussed below, the question is the scope of an independent contractor’s “position”, and whether this position can be affected by any reputational damage incurred after the engagement as an independent contractor has ended. (I would accept that damage to reputation is otherwise capable of being an adverse action, because it makes a person’s position less secure: see, for example, Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [298] (Barker J).)

147    The MSO contends that s 342(1) item 3(c) only applies if there is a contract in force at the time of the action, as it is expressed to apply when a principal “has entered into a contract for services with an independent contractor”. The other paragraphs in item 3 require that there be a contract on foot at the time of the adverse action, as they refer to (a) terminating the contract, (b) injuring the independent contractor in relation to the terms and conditions of the contract; (d) refusing to make use of, or agree to make use of, services offered by the independent contractor; and (e) refusing to supply, or agree to supply, goods or services to the independent contractor.

148    I would analyse this issue as turning on the scope of the independent contractor’s “position”: if the independent contractor’s position were to include the prospect of future engagements, then that position could be prejudiced by actions that occur after the immediate engagement has ended. Mr Gillham contends that prejudicial alteration can occur to a person’s position, even after they have ceased to be in a contractual relationship with the other party, relying on Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 at [72]-[76] (North J), and Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 at [31]-[32] (the Court). However, both of those cases concerned employees, not independent contractors.

149    Belandra does establish that a prejudicial alteration to an employee’s position can occur even if an employment relationship does not exist at the time of the alteration. The employees in that case were meat workers whose employment was terminated when their employer’s premises were destroyed by fire. The employer told them they would be re-employed when the operation resumed. However, the employer subsequently decided not to resume that operation and not to re-employ those employees. The employees had no legal right to re-employment. North J held that the disappointment of the employees’ expectation was an alteration of their position to their prejudice: Belandra at [74], [76].

150    However, an important part of North J’s reasoning was that “employee” in the previous Workplace Relations Act 1996 (Cth) (WR Act) was defined to include “a person whose usual occupation is that of employee”. In Belandra, the employees had been employees of Belandra, were waiting to be re-employed by Belandra when the works reopened, and were therefore “employees within the extended definition of employee in the Act”: Belandra at [74].

151    Australian Licensed Aircraft Engineers did not raise the same sorts of temporal issues as Belandra.

    The Full Court summarised Belandra, then stated that Belandra and Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 26; (2001) 107 FCR 93 established that:

a prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or infringement of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.

Australian Licensed Aircraft Engineers at [31]-[32].

    Telstra is discussed by the Full Court in Australian Licensed Aircraft Engineers at [30], and established (relevantly) that prejudicial alteration to an employee’s position covered “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question” (emphasis added): Telstra at [17]. Thus Telstra held that a reduction in job security, without any loss of legal rights, could alter an employee’s position to their prejudice.

152    Neither of the considerations identified in Belandra or Telstra applies here. Unlike Belandra, there is no extended definition providing that “independent contractor” includes a person whose usual occupation is an independent contractor. Mr Gillham contends that s 340 applies generally to a “person”, and therefore should be interpreted even more broadly than the extended definition of “employee” in the previous WR Act. However, the relevant issue is not the scope of “person”, but the meaning of the “position” of an “independent contractor”. Unlike Telstra at [17], a statement issued after an engagement has ended does not reduce the advantages enjoyed by the independent contractor before the conduct in question. These “advantages” are those that are referrable to the person’s previous contractual arrangement, not advantages held by the person generally: see Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 239 at [127] (Branson J), holding that a comparison of a person’s position as an employee of the Commonwealth Bank before the decision and that person’s later position as employee of CommSec was irrelevant.

153    Accordingly, the Cancellation Message did not alter Mr Gillham’s “position” to his prejudice, because it was made after his engagement with the MSO had been terminated.

154    Damage to Mr Gillham’s reputation? The second, factual question is whether the Cancellation Message was capable of damaging Mr Gillham’s reputation. (As this hearing is not dealing with questions of compensation, I have deferred the issue of causation on whether the MSO’s statements did in fact damage Mr Gillham’s reputation, and will only consider whether the statements were capable of damaging his reputation, as an objective matter.)

155    The Cancellation Message states that Mr Gillham expressed personal political views on the MSO stage without authority from the MSO, which caused “offence and distress”. It can also be inferred that the MSO considered that Mr Gillham’s remarks were contrary to the MSO’s values of “Respectful, Collaborative, Innovative and Diverse”. These statements, and the implied statement that the MSO thought Mr Gillham’s remarks were reason to cancel a future MSO concert with him, are capable of damaging Mr Gillham’s reputation.

156    That said, the real damage to Mr Gillham’s reputation appears to have come from a writer in London (Norman Lebrecht, writing for the classical music website Slipped Disc on 12 August 2024) characterising Mr Gillham’s remarks as an “anti-Semitic rant”. Ms Armstrong’s email to Mr Moore at 12.35pm on Wednesday 14 August stated:

from several messages from Mr Gillham’s peers and colleagues in the UK/Europe and US, not to mention the incredibly damaging Norman [L]ebrecht article, the situation has been interpreted internationally as an accusation of Antisemitism.

157    Mr Gillham contends that this accusation of antisemitism was a direct (or at least foreseeable) consequence of the MSO’s message. That argument contains a number of steps. The Cancellation Message did not refer to Israel or Gaza. The MSO emailed the message to audience members from the Recital, and did not publish it more broadly (unlike the Final Public Statement). Audience members published that message on social media, and stated that the MSO had silenced Mr Gillham for making statements in support of Gaza. A music writer in London characterised Mr Gillham’s statements in a certain way, drawing on material not contained in or apparent from the MSO’s message (such as statements in Mr Gillham’s social media).

158    It is not necessary to resolve these issues at this stage. I accept that, on its face, the Cancellation Message was capable of damaging Mr Gillham’s reputation, as set out in [155] above. However, as already explained, the Cancellation Message did not alter Mr Gillham’s position to his prejudice, so it is not an adverse action.

D.2(b)    Is the Second Condition an adverse action?

159    Mr Gillham contends that the Second Condition is an adverse action, on two bases.

    First, it is said the Second Condition altered his position to his prejudice by imposing a contractual term that violated Mr Gillham’s right to freedom of expression and to express a lawful belief, and would require him to contract out of this right to perform at the Concert (see s 342(1) item 3(c)).

    Alternatively, it is said that the imposition of the Second Condition was unfavourable treatment that discriminated against Mr Gillham in the terms on which the MSO was proposing to re-engage him, by treating him unfavourably because of him holding or expressing a lawful political belief (see s 342(1) item 4(b)).

160    Mr Gillham had decided not to return before Second Condition conveyed: The first argument above fails at a factual level. Ms Armstrong emailed Mr Moore at 4.21pm on Wednesday 14 August stating that Mr Gillham was not going to return to play at the Thursday concert. Mr Ross sent the email and text to Mr Davies communicating the Second Condition (among other things) at 4.45pm; that is, after Mr Gillham had decided he would not accept the MSO’s offer to return. Mr Gillham confirmed in his oral evidence that he had already decided not to return before he saw the Second Condition. He referred to the fact that he and the musicians had run out of adequate time to rehearse by then, and that changing the program back and forth was not fair on the young conductor.

161    It follows that the Second Condition could not have altered Mr Gillham’s position to his prejudice because, at the time of Mr Ross’ messages, Mr Gillham had already rejected the MSO’s offer to enter into a new contract to play the Thursday concert. There was no prejudice to Mr Gillham.

162    Mr Gillham seeks to answer this point by saying that he understood throughout the day on Wednesday 14 August that negotiations were being conducted on the basis that the MSO would require Mr Gillham not to say anything from the stage, but he had not seen that condition written down before it was conveyed by Mr Ross. However, Mr Gillham does not rely on any of this earlier negotiation (or earlier communications such as the text message from Mr Moore to Ms Armstrong on the Wednesday morning after 9.40am) in describing the adverse action in his pleading. The adverse action, as pleaded, is constituted solely by Mr Ross sending the text message at 4.45pm.

163    The argument that the Second Condition altered Mr Gillham’s position to his prejudice must also fail as a matter of law, for the reasons set out in [152]-[153] above. The only relevant “position” could be Mr Gillham’s previous engagement, and the Second Condition was proposed after that engagement.

164    Did the Second Condition “discriminate” against Mr Gillham? The timing point just identified does not answer Mr Gillham’s second argument that the Second Condition discriminated against him in the terms and conditions of proposed re-engagement. At the time that Mr Ross sent his messages containing the Second Condition, the MSO Board Working Group did not yet know that Mr Gillham had already rejected the MSO’s offer to return.

    Dr Galaise sent a message at 5.09pm to the MSO Board Working Group stating that she had heard from Mr Davies that Mr Gillham would not be performing, but that information had not reached “us” (I infer, MSO management) yet.

    At 5.17pm, Dr Galaise sent a further message stating that Ms Armstrong had just told MSO management that she had sent an email stating that Mr Gillham “is officially [not returning]”.

165    MSO was still “proposing to enter into a contract”: Accordingly, at 4.45pm when Mr Ross sent his messages, the MSO (acting through the MSO Board Working Group) was still “proposing to enter into a contract with” Mr Gillham so as to engage s 342(1) item 4, because the MSO did not yet know that Mr Gillham had rejected their offer. It might seem anomalous for an adverse action to include an action that could have no real impact on an independent contractor, as is the case here when Mr Gillham had already refused to enter into the contract for unrelated reasons at the point when the allegedly discriminatory terms and conditions were proposed. But that simply means that the amount of compensation would be zero in this situation. It is not anomalous that a principal could potentially be subject to a penalty in that situation: the principal has still proposed terms and conditions to an independent contractor that are discriminatory, and the principal did not know at the time of proposing those conditions that the independent contractor had decided to refuse to enter into a contract. I note that “adverse action” includes threatening to take action covered by the table in s 342(1) (s 342(2)), so s 342 applies to at least some actions that have not taken effect.

166    Meaning of “discriminates” in s 342 item 4(b): It is therefore necessary to consider whether the Second Condition discriminated against Mr Gillham. As noted when addressing the structural reading of the FW Act, Mr Gillham contends that the term “discriminates” in s 342 item 4(b) impliedly incorporates the prohibited grounds of discrimination contained in the EO Act. The alleged ground of discrimination here is political belief.

(a)    Sayed at [160]-[161] indicates that “discrimination” in the other items of s 342(1) simply means differential treatment: see [127] above. However, unlike those other items in s 342(1) (items 1(d) and 2(b)), item 4(b) is not linked to s 351 (which applies to employees and prospective employees). Discrimination could well include indirect discrimination, as a matter of ordinary meaning: see Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178 at [97], [102] (Gordon J).

(b)    But it would be difficult as a matter of text to incorporate into the general word “discriminates” the different grounds of discrimination, and defences, contained in laws such as the EO Act: see Sayed at [155]. One textual difficulty is that political belief is not a protected attribute in every State and Territory, and s 342(1) item 4(b) does not specify which anti-discrimination law would apply (unlike s 351(2)(a), which directs attention to the anti-discrimination law “in force in the place where the action is taken”). A related difficulty is that direct discrimination under s 8(1) of the EO Act does not require the use of a comparator, whereas the other State Acts that prohibit discrimination on the grounds of political belief do require a comparison between the treatment of a person with a protected attribute and another person without that attribute (see Anti-Discrimination Act 1991 (Qld) s 10(1); Anti-Discrimination Act 1998 (Tas) s 14(2)). Section 342(1) item 4(b) does not provide any guidance on that issue.

(c)    Sayed suggests that “discriminates” in s 342 item 4(b) simply means different and unfavourable treatment of an independent contractor. Section 340 then provides the prohibited bases of this differential treatment; such as because the independent contractor has or has exercised a workplace right. On this reading, “discriminates” in s 342(1) item 4(b) means something similar to treating unfavourably under s 8(1) of the EO Act. However, even on that reading, it might sometimes be necessary to use a comparator to determine whether treatment is different or unfavourable (similar to the analysis in Austin Health at [86]).

167    It is not necessary to reach a final view on the meaning of “discriminates” in this context. If (as Mr Gillham argues) the term “discriminates” in s 342(1) item 4(b) incorporates State and Territory anti-discrimination laws, a necessary part of discrimination under s 8(1) of the EO Act is that the person is treated unfavourably “because” of the protected attribute; here, political belief. As explained in section D.3(e) below, I find that the Second Condition was not imposed because of Mr Gillham’s political beliefs for the purposes of s 340(1) of the FW Act (read with ss 360, 361); that is, that Mr Gillham’s political beliefs were not a substantial or operative reason for imposing this condition. It follows that the Second Condition did not “discriminate” against Mr Gillham within s 342(1) item 4(b), if “discriminates” has the meaning it has under s 8(1) of the EO Act.

168    Alternatively, on my preferred analysis of s 342(1) item 4(b), there would be “discrimination” against Mr Gillham if he was treated differently and unfavourably. However, the onus is on Mr Gillham to establish the existence of an adverse action (see [50](a)-(b) above), and therefore he bears the onus of establishing that the imposition of the Second Condition is both different and unfavourable (which would seem to require the use of a comparator). I would accept the Second Condition is unfavourable on its face, but I would not be prepared to assume that Mr Gillham was treated differently from any other artist. There is little evidence going to this precise point: the evidence considered in section D.3 below goes to the MSO’s reasons for the actions it did take, and the narrower point of whether the MSO would have taken the same actions against an artist who expressed the opposing political view. However, on this interpretation of “discriminates” in s 342(1) item 4(b), the question is what the MSO would have required of any artist.

    After Mr Gillham’s initial statements, Dr Galaise stated that she wanted the MSO to draft a note to all artists that week to ensure that the artists did not use the MSO stage as a forum for displaying their personal beliefs: see [228] below.

    The apparent purpose of this note would be to engage cl 2.1(c) and (d) of the standard form contract, which required artists to comply with reasonable directions from the Orchestra, and with policies and procedures of the Orchestra which were notified to the artist. Mr Gillham has not established that a condition along the lines of the Second Condition would not have been sought of any artist at that particular time, given the heightened context of the Thursday concert.

D.2(c)    Is the Final Public Statement an adverse action?

169    Mr Gillham contends that the Final Public Statement is an adverse action on two bases:

    First, it is said that this statement altered Mr Gillham’s position to his prejudice by making statements damaging to Mr Gillham’s reputation, and by diluting and misrepresenting Mr Gillham’s political beliefs (cf s 342 item 1(c)).

    Second, it is said that this statement discriminated against Mr Gillham in the terms on which the MSO was proposing to re-engage him, by treating him unfavourably because of him holding or expressing a lawful political belief (by requiring Mr Gillham to recognise that the MSO stage was not an appropriate platform for political comment) (see s 342(1) item 4(b)).

170    Final Public Statement did not alter Mr Gillham’s position to his prejudice: The first argument fails as a matter of law, for the reasons set out in [152]-[153] above. Mr Gillham’s contract had been terminated at this time. The Final Public Statement did not reduce the advantages referrable to his previous engagement, and thus did not prejudice Mr Gillham’s “position”.

171    This argument also fails on the facts.

    I would not interpret the second sentence in the statement (“The MSO earlier today sought independent security advice considering events that have occurred since last Sunday’s concert with Jayson Gillham”) as blaming Mr Gillham for the security situation. The statement is neutral on the cause of the security concerns: I would expect that Mr Gillham’s supporters on reading this statement would attribute the security concerns to the MSO’s own actions in cancelling Mr Gillham’s performance.

    The absence of an apology and the reference to the MSO’s “error” (not “mistake”) do not damage Mr Gillham’s reputation. The inclusion of an apology and a reference to a “mistake” by the MSO might have ameliorated an existing damage to reputation resulting from the Cancellation Message, but it does not follow that the absence of those matters means that the Final Public Statement itself causes any damage to Mr Gillham’s reputation.

    The MSO’s acknowledgment of Mr Gillham’s “concerns for those in the Middle East and elsewhere” is by no means an accurate summary of Mr Gillham’s views, but it does not damage Mr Gillham’s reputation either. Even if that statement makes Mr Gillham sound like a hippie (as his senior counsel contended), that could hardly be said to be a damaging imputation requiring remedy.

172    MSO not at this time proposing to enter into a further contract with Mr Gillham: The second argument as to why the Final Public Statement is an adverse action fails at the factual level: as appears from the background set out in section D.3(f) below, by the time the Final Public Statement was issued, the MSO had given up on trying to re-engage Mr Gillham to return on Thursday night. The Final Public Statement does refer to the MSO “seeking to reschedule the concert”, but those plans were much too indefinite at the time of the Final Public Statement to amount to the MSO “proposing to enter into a contract for services with the independent contractor”, so as to engage s 342(1) item 4. At most, there might have been a general agreement to agree to a performance at some future date.

173    That conclusion means it is not necessary to determine whether the word “discriminates” in s 342 item 4(b) incorporates, by implication, the various prohibited grounds of discrimination contained in the EO Act: see [166]-[168] above.

D.3    Was any adverse action taken “because” Mr Gillham had exercised, or proposed to exercise, a workplace right?

174    The third broad issue is whether an adverse action identified in section D.2 above was taken “because” Mr Gillham had exercised, or proposed to exercise, a workplace right, being a benefit of a workplace law. This is sometimes described as a matter of “actuation”.

    I will assume for these purposes (contrary to the conclusions in section D.1 above) that the EO Act is a “workplace law”. The relevant benefit of this law is the protection against the MSO discriminating against Mr Gillham by terminating his employment, or subjecting him to any other detriment (EO Act s 18(b) and (d)). The claimed discrimination consists of the MSO treating Mr Gillham unfavourably because he held (in the sense of expressed) a political belief (EO Act s 8(1), read with s 6(k)). The workplace right is not a right to hold (express) a political belief in itself: it is a right not to be discriminated against (treated unfavourably) because of holding a political belief.

    I will also assume in this section that each of the actions complained of by Mr Gillham is an “adverse action”, despite the conclusions reached in section D.2 above that none of the Cancellation Message, the Second Condition, or the Final Public Statement is properly considered an adverse action.

    By ss 360 and 361 of the FW Act, the onus is on the MSO to establish on the balance of probabilities that Mr Gillham having exercised, or proposing to exercise, this workplace right was not a substantial or operative reason for the MSO taking any of the alleged adverse actions.

175    Notwithstanding the first point above, it is convenient to test the MSO’s purposes by asking whether a substantial or operative reason for the MSO’s actions was that Mr Gillham had expressed a political belief. That more direct inquiry is close to the question posed by s 8(1) of the EO Act (albeit with a reversed onus of proof). However, a negative answer to that direct question will also mean that the substantial and operative reasons for the MSO’s actions did not include that Mr Gillham had or proposed to exercise a right to be free from discrimination in holding a political belief, which is the inquiry for the purposes of s 340 of the FW Act.

D.3(a)    Approach to fact finding

176    It is convenient to begin with three comments about the approach to fact-finding.

177    Documentary cf oral evidence: First, the evidence in this matter consists of contemporaneous documentary evidence (mainly in the form of emails, text messages, WhatsApp messages, and Board minutes), and oral evidence given at the hearing.

178    Many cases have stated that ordinary human experience is that human memory is fallible, and the degree of fallibility increases over time. That is particularly so where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said: see Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 318-319 (McLelland CJ in Eq); Martin v Norton Rose Fulbright Australia [2021] FCAFC 216; (2021) 289 FCR 369 at [147] (the Court). Similarly, in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31], Gleeson CJ, Gummow and Kirby JJ stated that scientific research has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of a witness’ demeanour. These considerations have encouraged judges “to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events” (emphasis added).

179    In Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244, Lee J applied these principles to a proceeding alleging breaches of ss 340 and 346 of the FW Act. His Honour stated (at [16]) that, in determining contested factual issues, what matters most is usually the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and other objective facts. Rangiah J took a similar approach in Lattouf at [351]-[353].

180    Identifying the decision-makers: Second, as noted in section C.1 above, s 793(2) of the FW Act provides that the state of mind of an officer, employee or agent of the MSO (acting within the scope of their actual or apparent authority) can be attributed to the MSO.

    When a decision is made by an individual, the existence or non-existence of a reason as a substantial or operative reason for taking the adverse action turns on an inquiry into the mental processes of that individual. The reasoning process is more complex where the relevant act is the product of a collaborative or group-based decision-making process: Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323; (2024) 335 IR 197 at [288]-[289] (Shariff J).

    A further complexity is that the Court interrogates not merely the state of mind of the person(s) who engaged in the conduct, but also any person whose contribution to that conduct rose above a threshold level (whether that is described as “significant”, “substantial” or “essential”): Pilbrow v University of Melbourne [2024] FCA 1140; (2024) 334 IR 141 at [78] (Snaden J), summarising the effect of Wong.

181    For these reasons, I will identify the persons who were in fact the real decision-makers for each adverse action (including persons such as Mr Smith who had a “substantial” involvement with the Second Condition and the Final Public Statement), and examine their individual states of mind.

182    In practice, it is necessary for the Respondents to identify the relevant decision-maker(s) for each adverse action, because only then can the Court be satisfied that a prohibited reason is not a substantial and operative reason for taking the adverse action: see Pilbrow at [47], [140]. At the same time, however, that does not mean that it is necessary for the MSO to call evidence from every person involved in the decision-making processes. There is no need to conduct a wide-ranging inquiry into the conduct and states of mind of persons within a corporation if that conduct or state of mind could have no ultimate bearing on the actual reason(s) in fact for taking the adverse action: Laing O’Rourke at [296]-[297]. As explained below, I am satisfied that I have heard evidence from and about the real decision-makers for each of the adverse actions. I would not draw any of the adverse inferences that Mr Gillham says should be drawn from the absence of other persons (being Mr Imber, Mr Luff and Ms Jameson).

183    Difference between pleadings and evidence: Third, the MSO submits that the case should be determined on the evidence that emerged at trial, even if that evidence does not accord precisely with the case as pleaded. One example is if the relevant custom or practice relating to the statements made by classical musicians from the stage is found to be narrower than the custom or practice that is pleaded in the MSO’s further amended defence. Another example is if the Court were to find that it is sufficient to conclude that Mr Gillham withheld information from the MSO about the piece “Witness”, and that it is not necessary to determine whether Mr Gillham deliberately misled the MSO, as is pleaded.

184    The main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party and to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds. However, pleadings are not an end in themselves: Dare v Pelham [1982] HCA 70; (1982) 148 CLR 658 at 664 (the Court); Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] (the Court). Some departure from the pleaded particulars may be tolerated: a practical assessment is to be made to determine whether or not a case has proceeded in a manner that is fair to the parties: Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71; (2019) 367 ALR 393 at [251] (Burley J); Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356 at [50]-[52] (the Court). On the two matters set out above, I consider that the relevant issue is sufficiently raised in the pleadings, and Mr Gillham is on notice of the somewhat narrower way in the which the MSO’s case emerged at trial.

D.3(b)    General matters

185    The following general matters are relevant to each of the adverse actions.

186    Comments on MSO witnesses: The first matter is to make some general comments about the witnesses called by the MSO. Mr Gillham submitted that the MSO’s witnesses were well-rehearsed and contrived (because they would resolutely address their evidence to me rather than the cross-examiner, and as a group tended to pepper their answers with frequent “your Honour[s]”). Senior counsel for Mr Gillham went so far as to say that the only honest witness was Mr Moore.

187    It may be that the evidence of many of the MSO witnesses could be described as somewhat stilted, but I would not draw any adverse inferences on that account. There were instances where MSO witnesses would not make concessions that Mr Gillham’s counsel no doubt thought should be made (such as whether the MSO’s 2023 policy on Israel and Gaza is properly described as “neutral”, whether an Acknowledgment of Country is “political”, or whether it is inaccurate to state that Mr Gillham was “asked” to “step back”). However, this dynamic tended to occur when Mr Gillham’s counsel were asking MSO witnesses to accept their characterisation of events or circumstances. Contrary to Mr Gillham’s overarching attack on their honesty, I found that the MSO’s witnesses were doing their best to tell me honestly what happened and (as relevant) their reasons for their conduct. That is not to say that I accept every aspect of the evidence given by the MSO witnesses. However, in those situations when I do not accept their evidence, it is not for reasons of dishonesty.

188    I make the following general observations about the MSO’s key witnesses. The first four witnesses are members of the MSO Leadership Group who are the key players in relation to the Cancellation and the Cancellation Message.

(a)    Dr Galaise was very quietly spoken and on occasions had some difficulty in answering questions directly in cross-examination (such as when asked why her email to the Board on the morning of 13 August 2024 stated that Mr Gillham had “withdrawn”). Even the MSO does not ask me to accept some of her answers: in particular, her evidence in chief that her WhatsApp message stating that the MSO will probably want to “tally o” Mr Gillham might have been a typographical error. Her recollection of the extent of her involvement in the Cancellation and the Cancellation Message did not match the consistent recollection of the other members of the MSO Leadership Group, who saw her as the key player in these decisions. I do not draw any adverse inferences as to her honesty, but it was clear from her evidence that the events with Mr Gillham were going on at a very stressful time for Dr Galaise, when her relationship with the MSO Board was under some considerable strain. And her engagement with the MSO was terminated shortly afterwards on 26 August 2024. These stressful surrounding circumstances make it likely that Dr Galaise’s recollection has been overlaid subconsciously by perceptions of what could or should have been said: see [178] above. I treat her oral evidence with some caution.

(b)    Mr Ross came across as a hard-working individual who in August 2024 was attempting to do his best in a difficult situation. I find that he had a good understanding of the motivations and actions of others in the MSO Leadership Group (most relevantly, Dr Galaise and Ms Dembo), but was not always able to articulate his own motivations with the same clarity and subtlety as someone like Mr Moore. For example, Mr Ross struggled to explain his thinking on what he might have done in different situations that were put to him by Mr Gillham’s counsel (such as if Mr Gillham had spoken in support of bringing the Israeli hostages home). However, I find that this was an honest attempt by Mr Ross genuinely to engage with a difficult hypothetical, and any awkwardness in the way he answered these questions does not detract from his credibility.

(c)    Mr Moore was by far the most fluent and articulate of the MSO witnesses. He was also careful: he explained that he did not think that he had spoken to Dr Galaise before the meeting on 9.30am on Monday 12 August, because there was no record of this discussion in his phone and message records, and he had no recollection of meeting with Dr Galaise in person. I have placed great reliance on his explanation of the MSO position on the making of comments from the MSO stage, and also relied on his evidence about how in practice the MSO Leadership Group operated.

(d)    Ms Dembo was the only member of the MSO Leadership Group with strong personal views (in favour of Israel) on the Gaza conflict. She was very frank in her evidence about these views, and I accept that she did her best at the time to try to separate out her personal views from her views on what was in the best interests of the MSO. However, I do not take at face value her statement that she could “compartmentalise” the substance of what Mr Gillham said from the fact that his remarks were unauthorised, and separate her personal and professional views. For example, it seems likely that Ms Dembo’s personal views contributed to her including or supporting the inclusion of a sentence in an internal email to MSO staff (repeated in emails to donors) that Mr Gillham’s statements were “highly offensive”, even if that is not Ms Dembo’s recollection now.

189    The next three witnesses were the members of the MSO Board Working Group, who (together with Mr Smith) were the key players in the Second Condition and the Final Public Statement.

(a)    Ms Jackson was very clear and forceful in explaining her reasons for her actions. She gave powerful evidence that the arts in Australia are fragile, and that funding is short. I find that she was driven by a strong commitment to preserving the reputation of the MSO, and to the arts generally. The other MSO witnesses (and Ms Jackson herself) were unanimous that she was the strongest voice on the MSO Board when discussing what steps to take late on the evening of Tuesday 13 August 2024 and throughout the day and evening on Wednesday 14 August 2024. It might be noted that, during the period 11-15 August 2024, Ms Jackson was in hospital, had sepsis and was undertaking dialysis. She was quite frank that she was feeling “ragged” in the period from 7pm onwards on Wednesday 14 August, and she has poor recall for this period.

(b)    Mr Foley, as might be expected of a former member of State Parliament, was used to dealing with intense questioning, and could describe his thinking clearly (although perhaps not with the same subtlety as Mr Moore). He returned often to his view that he wanted “no surprises” from the MSO stage. Although he was chided by Mr Gillham’s senior counsel at one point for not wishing to engage with her hypotheticals, I find that Mr Foley’s evidence is an accurate statement of his thought processes at the time. His state of mind is particularly important in relation to the Final Public Statement, because he obtained the MSO’s security advice and was able to explain why certain changes were made to the Final Public Statement.

(c)    Mr Myer is the remaining member of the MSO Board Working Group who was seen by the other MSO witnesses as playing a significant role on Wednesday 13 August. Mr Myer is a man of commerce, and his oral evidence (like his text messages) often referred to the “short to medium term” and like phrases. He also referred to the MSO as “the company”. Dr Galaise gave evidence that she thought that Mr Myer was Jewish, but he stated that although he is one-eighth ethnically Jewish, he has not been raised in the Jewish faith and does not consider himself Jewish. Mr Myer stated that his personal view was that the 7 October 2023 attack by Hamas, and the Israel response, were both tragic. I did not form the impression that Mr Myer was motivated in any way by the substance of Mr Gillham’s remarks; rather, I find he was very concerned to protect the reputation and business position of the MSO.

(d)    Mr Smith is the founding partner of Bespoke Approach, a consulting firm hired by Ms Jackson on Tuesday 13 August to provide communications and strategy advice to the MSO. His evidence is particularly important in relation to the removal of the apology from the Final Public Statement: Mr Smith in his own mind saw this as a decision solely for the MSO Board, but some MSO witnesses such as Ms Jackson and Mr Moore clearly placed weight on the fact that Mr Smith (an experienced consultant hired by the MSO Board) had circulated a version of the statement without an apology, and had given reasons why the apology had been removed. Mr Smith’s state of mind is therefore relevant. I find that Mr Smith’s only concern was how to address the damage to the MSO’s reputation that had occurred following the cancellation decision, and I accept his evidence that he would have given the same advice, irrespective of what position had been taken in the initial remarks at the Recital.

190    Common factual issues: The second general matter is to address three factual issues that are common to all adverse actions.

191    MSO position on Israel-Gaza conflict: The first factual issue is the MSO’s position on the conflict in Gaza, approved by the MSO Board in December 2023. The MSO witnesses all made statements to the effect that the MSO had taken a “neutral” position on this conflict, and it was apparent that this perception of the MSO’s neutrality was an important contextual matter in the thinking of the key MSO decision-makers identified above.

192    The Briefing Note to the MSO Board dated 15 December 2023 set out the MSO’s position on the Israel-Gaza conflict as follows:

OUR POSITION

After consultation with our funding partners and our people, management will take the following position.

With a Sidney Myer Music Bowl 2024 concert, the Melbourne Symphony Orchestra and its audience will call for the release of all Israeli hostages, and for the protection of the Palestinian and Israeli civilian population.

The human suffering in the Middle East continues relentlessly. In the wake of the murderous attack by Hamas on Israel on 7 October 2023, and amidst a humanitarian crisis of devastating proportions in Gaza, more than a hundred hostages kidnapped from Israel are still held captive. Their lives, as well as those of civilians in Gaza and in Israel, are in danger.

With this dedicated concert, the Melbourne Symphony Orchestra will seek to set an example by calling for the release of all hostages and for the protection of all civilians.

193    The reasoning behind this position is set out in Minutes of an MSO Consultative Committee Meeting on 13 December 2023. When addressing the MSO’s position on a global movement called Creatives for Palestine, Dr Galaise outlined the reasons why the MSO was not going to take a stance supporting either side but instead would adopt a stance of neutrality:

Two of the MSO's board members are Jewish and have expressed an interest in the Company taking a pro-Israeli stance, to show support for Jewish creatives in Australia but to also condemn antisemitism at large. However, taking a pro-Israeli stance will open the Company up to unnecessary criticism from the Pro-Palestinian side. Likewise, a P[ro]-Palestinian stance would, as we have seen in the likes of Sydney Theatre Company and Collingwood Yards, negatively affect the Company by putting future funding and board members at risk.

194    Mr Gillham submits that the MSO’s position is not, in fact, “neutral” but is actually pro-Israel. For example, Mr Gillham observes that the MSO position (set out in [192] above) attributes responsibility for the 7 October 2023 “murderous attack” to Hamas, but does not attribute responsibility to anyone for the resulting humanitarian crisis. Mr Gillham submits that there is a considerable body of international opinion that the humanitarian crisis has been caused by Israel. Further, the MSO position refers to the more than 100 Israeli hostages taken, but does not provide any figures for Palestinian civilian casualties. The MSO submits that its position is modelled on the position taken on the Israel-Gaza conflict by the Berlin Philharmonic Orchestra, but Mr Gillham responds that this does not answer whether the position is in fact “neutral”.

195    There is force in Mr Gillham’s arguments that the description of the Israel-Gaza conflict in the MSO position is not really “neutral”. However, those criticisms do not detract from a broader point that I consider can be drawn from the MSO position: the MSO was very concerned that the MSO not be seen to take a position on the Israel-Gaza conflict, in support of either side. The MSO considered that expressing support for either side would cause damage to the MSO’s reputation and its business, albeit of different kinds.

(a)    As noted, the discussion of the issue in the MSO Consultative Committee meeting minutes recognises that a position on either side of the dispute would damage the MSO: taking a pro-Israeli stance “will open the Company up to unnecessary criticism from the Pro-Palestinian side”, but a pro-Palestinian stance would “as we have seen in the likes of Sydney Theatre Company … , negatively affect the Company by putting future funding and Board members at risk”. The reference to Sydney Theatre Company is a reference to a performance of Anton Chekhov’s The Seagull in November 2023, where three members of the cast wore Palestinian keffiyehs on the opening night curtain call in a gesture of solidarity with Palestinians in Gaza.

(b)    Ms Dembo (who had strong personal pro-Israel views) said in cross-examination that she would still have agreed to the cancellation of Mr Gillham’s Thursday performance if he had instead dedicated a new piece to the Israeli hostages and calling for their release. She said that the MSO Leadership Group were discussing unauthorised comments from the stage. Although she thought the Jewish community might have been happy in the hypothetical situation put to her, there would have been other audience members who were not. She said that the MSO has a diverse audience and the MSO’s responsibility is to “all of our audience and concertgoers”.

(c)    When Mr Foley was informed of the Cancellation and Cancellation Message in the morning of Tuesday 13 August, he sent a text message to Ms Waldron (another MSO Board member) stating the Cancellation Message was a:

pretty good and standard response. Don’t take sides. Avoid the politics overtly but make it clear we object to stage being used for such purposes.

That said, Mr Foley (along with other MSO Board members) expressed concern that these decisions had been made without consulting the MSO Board, as discussed below.

196    This finding is important in understanding the states of mind of the MSO decision-makers. It may be that the MSO’s description of the position in Gaza was not really “neutral”, but I find that there was a commitment among the members of the MSO Leadership Group and the MSO Board that the MSO not be seen to be taking a position in support of either side in the Israel-Gaza conflict.

197    Mr Gillham refers in this context to statements by Dr Galaise and Ms Jackson to the effect that the MSO would be taking steps to determine the political views of guest artists.

    At a 10.30am meeting on 13 August, Dr Galaise referred to the MSO reviewing the social media accounts of upcoming guest artists. In cross-examination, she denied that the purpose of this review was to ensure that any artist with pro-Palestinian views was not invited. She said the MSO would engage with the artist to discuss the situation, to manage the situation appropriately.

    On 13 August, Ms Jackson referred in separate emails to Dr Galaise and to Mr Foley, and in a text to Ms Waldron, to the possibility of the MSO “vetting” guest performers. In cross-examination, Ms Jackson said that the MSO should know their performers better, and know if they have an active philosophy of support for a cause, whether that be pro-Palestine, pro-Israel (or pro-Ukraine). The MSO would then pro-actively ask a performer who had an active philosophy of support if they were proposing to make any comments, and what those comments might be.

198    I find these statements by Dr Galaise and Ms Jackson to be consistent with the MSO’s view that it did not want any statements made from the MSO stage about controversial and sensitive topics, such as the Israel-Gaza conflict. I do not accept that these statements show that the MSO was biased against pro-Palestinian political beliefs in particular.

199    Custom or practice that classical musicians do not make unauthorised statements? The second factual issue is whether there is a custom or practice that classical musicians do not make social or political statements from the stage that are not authorised by the host. The MSO contends that this custom or practice informs the MSO decision-makers’ subjective states of mind.

200    The description of this custom or practice was refined over the course of the hearing: the MSO witnesses accepted that it was commonplace in a recital for the performer to introduce the pieces being played, and that performers did not obtain permission to make remarks of a purely historical or musical nature. For example, Mr Gillham introduced a Beethoven piece at the Recital by linking that piece to contemporary improvements to the piano. That is, at least some statements from the stage do not require permission. Further, some of the MSO witnesses accepted that some remarks were commonly made from the MSO stage that could be described as “political”, such as an Acknowledgment of Country. However, that did not detract from the custom or practice contended for by the MSO. Ms Jackson said that the MSO’s Acknowledgment of Country was part of a commitment by the MSO to supporting Aboriginal Australians, that this position had been adopted by the MSO Board after extensive discussion, and she made it clear that Acknowledgments of Country would be continuing at the MSO, even if some audience members had made complaints about this practice. Mr Ross gave evidence to the same effect about Acknowledgments of Country, and made a similar point about the MSO’s participation in NAIDOC (National Aboriginal and Islanders Day Observance Committee) Week.

201    The MSO’s position was articulated most clearly by Mr Moore: he said that in his view Mr Gillham had behaved inappropriately by making an unauthorised statement that had taken the MSO into a politicised and highly sensitive area, and had put the MSO in a very difficult position with audience members, stakeholders and supporters. That is, the custom or practice is said to relate particularly to unauthorised “political” statements that would be controversial and likely to attract complaints from the audience and the community more generally. Mr Moore said that he would have been less concerned if Mr Gillham made remarks about the gender pay gap or the environment, but that he would have been concerned if Mr Gillham had dedicated a piece to the Israeli hostages, because these remarks would have entered into significantly more sensitive and controversial matters. To similar effect, Dr Galaise said that it was unlikely that the MSO would have cancelled Mr Gillham’s Thursday performance if he had made remarks about the environment at the Recital, because the MSO probably would not have received complaints.

202    Mr Gillham contends, however, that no such custom or practice exists. He provides in his witness outline in reply (which was treated as part of his evidence in chief) evidence of eight different occasions on which classical musicians have made comments on stage that can be regarded as of a sensitive political nature. Mr Moore in cross-examination provided a further example of statements made by violinist Nigel Kennedy in 2013 at the BBC Proms concert, and Dr Angus McPherson (called by Mr Gillham) provided some other examples. However, this evidence establishes only that the custom or practice is not always observed: the fact that there are exceptions does not deny the existence of a general custom or practice. Other evidence provides an ample basis for concluding that there is a general custom or practice that classical musicians do not make political statements from the stage, without permission.

    Lorraine Hook (a professional musician with more than 40 years’ experience) gave evidence that she had never seen a guest artist make political statements from the stage without the approval of the host. Professor Gary McPherson (the Ormond Chair of Music at the Melbourne Conservatorium) gave evidence that he could not remember attending a concert or recital where the artist had made a political comment, having attended thousands of concerts and hundreds of recitals. Mr Hayes (a Professor of Composition at the Royal Academy of Music in London, called by Mr Gillham) said that he had only seen a classical musician make a political statement at a concert once in person, over a period of seeing 3-4 concerts per month for 35 years. This evidence underscores how unusual the counter-examples referred to by Mr Gillham are.

    It is true that Mr David Li (former Chairman of the MSO and a very experienced classical musician in his own right) said in cross-examination that he had not heard of a convention or public custom or practice that classical musicians do not make political statements from the stage. However, he also said in re-examination that his personal opinion was that audiences come for music and not political statements, and that he did not believe that the classical music platform should become “the personal political stage”. He said making a personal political statement “[p]rior to get the approval” (which I interpret as meaning without prior approval) is not the right way. English is not Mr Li’s first language (although he did not ask to give evidence through an interpreter), so his initial answer in cross-examination may be affected by his understanding of what was meant by a “convention”, or a “public custom or practice”. His evidence taken as a whole is consistent with the views of the witnesses set out above, even if Mr Li would not couch his personal opinion in terms of a convention or custom.

    Mr Ross gave evidence that he has put on about 1500 concerts, and he thought there is a convention that classical musicians do not make political statements from the stage other than with permission. Mr Ross’ direct involvement with engaging musicians allows me to be satisfied that one aspect of the custom or practice is that a classical performer would usually obtain prior permission from the host before making any sensitive comments that the performer might wish to make. Mr Ross gave evidence that in 2024 a young composer wished to make a statement about the piece she had written, which was inspired by gendered violence against women, and that the MSO had worked with the composer about how this statement might be presented.

203    Mr Gillham then contends that the MSO’s reliance on this custom or practice involves a mistake of law, because a custom or practice cannot restrict a legal right (being Mr Gillham’s protection against discrimination conferred by the EO Act). This argument misunderstands the reliance that the MSO places on the custom or practice. Plainly it is correct that a custom or practice cannot operate as a legal restriction on a right conferred by statute. But the MSO does not contend that the custom or practice has this effect: rather, it is said that the existence or the MSO’s belief in the existence of a custom or practice that classical musicians do not make unauthorised statements of a sensitive political nature from the stage helps explain the subjective states of mind of the MSO decision-makers when dealing with Mr Gillham. That is, the MSO decision-makers thought that, whether or not Mr Gillham could lawfully make these remarks, that he should not have without discussing with the MSO first. That use of the practice or custom does not involve any mistake of law.

204    For that reason, it is not necessary to go as far as to positively find that the relevant custom or practice exists. It is sufficient to find that the MSO decision-makers did subjectively believe that such a custom or practice existed, and this belief was reasonably held by them. I make those findings. But I would not accept the MSO’s submission that it is an inherent requirement of the position of classical musician that an artist does not make unauthorised social or political comments from the host’s stage. Nothing in the evidence supports that submission.

205    Did Mr Gillham mislead the MSO? The third factual issue is whether Mr Gillham misled the MSO by not telling the MSO in advance that “Witness” was dedicated to the journalists of Gaza, and not informing the MSO of the statements that Mr Gillham proposed to make when introducing the piece.

206    As noted, the MSO’s pleaded case is that Mr Gillham deliberately misled the MSO in this regard. Mr Gillham’s response went as far as accusing the MSO and Mr Ross of deliberately inventing this claim. As the MSO’s case was refined at trial (particularly with the MSO not pursuing its contractual case), the relevance of any misleading by Mr Gillham became that it helped explain the states of mind of the MSO decision-makers in deciding to cancel the Thursday performance, and to impose the Second Condition.

207    There is no doubt that Mr Gillham did not, in fact, provide the MSO with prior notice that “Witness” was dedicated to the journalists of Gaza, and did not provide the MSO with the remarks he proposed to make when introducing the piece. All he told his agent Ms Armstrong (and therefore all that she told the MSO) was that the piece was called “Witness” and it was a “mediative piece” of about four minutes. Given the MSO witnesses’ subjective belief in the custom or practice mentioned above (which belief is reasonably based), this failure by Mr Gillham to inform the MSO of the dedication and the nature of his proposed remarks helps explain the MSO decision-makers’ various reactions of surprise and shock on finding out what Mr Gillham had said. Those reactions are set out in section D.3(c) below.

208    In addition, for the following reasons, I find that Mr Gillham deliberately withheld this information, knowing that it was information that the MSO would want to have.

    On 29 July 2024, Mr Gillham exchanged messages on Instagram with Mr D’Netto, the composer of “Witness”. Mr Gillham stated:

I should probably send a note to [Ms Armstrong] about it, but I’m worried that she will say no, or that the presenters will not allow it. Particularly MSO. I feel that MSO will say no.

    On 31 July 2024 (after Mr Gillham had emailed Ms Armstrong on 30 July), Mr Gillham sent Mr D’Netto another message on Instagram, stating (relevantly):

… I am a bit worried [Ms Armstrong] will try to find a way to say no I’m not allowed to change my program. But fingers crossed.

I just said that you have written a beautiful meditative piece called Witness and I said it was only 4min (even though it is 6min) because I’m worried MSO will say that it will make the program too long or something like that.

I didn’t mention Gaza or anything like that. Really what can they object to? But I don’t trust them - esp MSO.

    In his oral evidence, Mr Gillham stated:

I was trying to protect my ability to speak on the issue, because I had a very strong suspicion that should my agent or the MSO come to know that the piece was dedicated to the journalists of Palestine or of Gaza, that they would take steps to make sure that it could not be performed, and that would then deprive me of my ability to express my political belief.

209    In the afternoon of 8 August 2024, Mr Gillham sent Mr D’Netto an Instagram message asking if Mr D’Netto had a message or program note that he would like to be read out. Mr Gillham stated that otherwise he:

will probably say that it is dedicated to the journalists of Gaza, and say that Israel (with the full backing of western nations including Australia) has killed x number of journalists in the last ten months, which is the most in any conflict etc (I will get the statistics). a number of these have been targeted assassinations to try to prevent the world from seeing and witnessing the crimes and from hearing first hand accounts. The journalists of Gaza are witnesses and we are also witnesses, and many of us including myself believe it is part of our duty as fellow humans to bear witness.

…

Let me know what you think! xx

It appears that Mr D’Netto gave this message a “” symbol.

210    At the Recital, Mr Gillham presented his remarks (set out in [25] above) as though they were remarks from Mr D’Netto. Ms Bartholomeusz-Plows (who was at the Recital) sent Mr Moore a text message at the time stating that Mr Gillham had “relayed a note from [Mr D’Netto]”. After the Recital, Mr Gillham sent Mr D’Netto an Instagram message stating that he (Mr Gillham) “actually ended up writing a note and said it was from you [Mr D’Netto]. I hope you don’t mind.” Mr D’Netto replied that targeting of journalists “wasn’t exactly the angle I was thinking” but, once he was told what Mr Gillham had said, he wrote in a reply message that “all is entirely reasonable to have said”. When Mr Gillham sent his notes to Ms Armstrong on 12 August 2024, he made clear that Mr D’Netto’s only note was the dedication and the remainder was by him (Mr Gillham).

211    Mr Gillham submits that none of the above matters were known to the MSO witnesses, and therefore (it is said) these matters could not be relevant to the MSO witnesses’ subjective state of mind. However, the facts that Mr Gillham considered that the MSO might refuse him permission to play “Witness” if they knew its subject matter, and that Mr Gillham presented the remarks at the Recital as though they were from the composer, indicate that Mr Gillham had some awareness of the behaviour expected by the MSO (even though Mr Gillham contends there is no such general convention, custom or practice). That in turn supports the evidence of the MSO witnesses as to their state of mind. When asked in chief why he had presented his notes as being from the composer, Mr Gillham said:

I was under the impression that Connor agreed with what I had said earlier, and I wanted to say that it was from both of us in a way. I didn't really intend to give the impression that Connor had prepared the note himself in those exact words, but that he had agreed with the message in the introduction that I had prepared.

212    This answer does not really explain why Mr Gillham presented his notes as being from Mr D’Netto alone.

213    Rumble cf Lattouf: The third general matter is to analyse the central legal difference between the parties on the actuation issue, which turns on the understanding of two key cases.

    The MSO contends that its actions were taken to address the consequences of Mr Gillham’s (admittedly political) statements, and therefore these actions were not taken “because” he had expressed a political belief (relying particularly on Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2020] FCAFC 37; (2020) 275 FCR 423).

    Mr Gillham contends that the consequences of his actions cannot be separated from his expression of a political belief, and therefore Mr Gillham’s expression of a political belief was one of the substantial and operative reasons for the actions taken by the MSO (relying on Lattouf), or at least the MSO has not rebutted the presumption that it was not one of those reasons.

214    Rumble: Mr Rumble contended that the respondent firm had contravened s 351 of the FW Act, by terminating his employment because of the appellant’s political opinion.

    Mr Rumble was a former partner in the firm who was engaged as a casual consultant from July 2011. As a consultant, he provided a second volume of a review into allegations of abuse in the military for the Department of Defence in April 2012: Rumble at [8]-[10].

    Mr Rumble engaged in criticisms of the Government of the day’s implementation of the recommendation of the 2011 review for four years after the delivery of the second volume of the review: Rumble at [11]. In May 2014, the firm introduced a policy that prohibited its employees from making negative or critical comments about the firm’s clients, and required its employees to obtain prior approval before proceeding with any media interviews: Rumble at [15].

    In October 2016, Mr Rumble applied for, and was refused, approval to speak to the press about his concerns that the Government was not responding appropriately to the 2011 review. In November and December 2016, Mr Rumble wrote articles critical of the Government: Rumble at [18]-[20].

    In February 2017, Mr Martinez of the firm terminated Mr Rumble’s employment: Rumble at [23]. The primary judge found that Mr Rumble was not dismissed because he had expressed a political opinion, but because he disobeyed instructions and a policy not to discuss the firm’s clients in public without first getting permission: Rumble at [25].

215    The Full Court dismissed an appeal. Rares and Katzmann JJ held that the FW Act did not require Mr Martinez to establish that his decision had nothing to do with Mr Rumble’s political opinion; rather, s 351 prohibited Mr Rumble’s political opinion being a substantial and operative factor in the reason(s) for termination: Rumble at [41]. On the facts, Mr Martinez’s only substantial and operative reasons for terminating Mr Rumble’s contract were protection of the firm’s business interests and Mr Rumble’s repeated acts of insubordination: Rumble at [42]. The fact that the firm’s media policy was worded to prevent Mr Rumble from criticising the Government over its response to the 2011 review did not mean that the adverse action must have contravened s 351: Rumble at [44]. The media policy prevented any employee, partner or consultant of the firm from criticising the firm’s clients in breach of the policy, regardless of the subject matter of the actual or proposed criticism: Rumble at [48]. Further, Mr Rumble was free to express his political opinion through means other than the media, such as to Ministers, Parliamentary Committees, and so on: Rumble at [49].

216    To similar effect, Flick J stated that there was unquestionably a “connection” between Mr Rumble’s expression of a political opinion, the firm’s media policy, and Mr Martinez’s decision to terminate Mr Rumble’s service. However, BHP Coal (discussed in section C.1 above) established that the fact that an employee’s industrial activity may be “inextricably entwined” with the adverse action does not necessarily mean that the adverse action is because of that protected industrial activity: it is necessary to determine the “true motivations” of the employer. In Rumble, the primary judge’s findings of fact meant that Mr Rumble’s employment was not terminated because of his political opinion, but for reasons relating to the earning of fees and the elimination of insubordination: Rumble at [75]-[77].

217    Lattouf: Ms Lattouf was employed by the Australian Broadcasting Corporation (ABC) to present a morning radio program from Monday 18 December to Friday 22 December 2023: Lattouf at [4]. The ABC received complaints from pro-Israel lobbyists, who sought to have Ms Lattouf taken off air: Lattouf at [5]. Ms Lattouf was given advice by ABC senior management that it would be best not to post anything controversial about the Israel-Gaza war: Lattouf at [6]. On Wednesday 20 December 2023, ABC managers became aware that on the previous day Ms Lattouf had reposted on Instagram a Human Rights Watch video report, and added the words “HRW reporting starvation as a tool of war” (called the HRW post): Lattouf at [8]. Her employment was terminated without notice on the Wednesday by a Mr Oliver-Taylor: Lattouf at [8]-[9], [25]. Ms Lattouf contended that the ABC had terminated her employment for reasons that included her political opinions, her race and national extraction, contrary to s 772(1)(f) of the FW Act.

218    Rangiah J found that the ABC had not proved that its substantial and operative reasons for the termination of Ms Lattouf’s employment did not include that Ms Lattouf was attributed with holding a political opinion opposing the Israeli military campaign in Gaza. His Honour therefore found that the ABC was in breach of s 772(1) of the FW Act: Lattouf at [633]-[634].

(a)    Ms Lattouf had not been given a direction not to post anything about the Israel-Gaza war, so her employment could not be terminated for failing to comply with a lawful and reasonable direction: Lattouf at [599].

(b)    Rangiah J found that Mr Oliver-Taylor had made the decision to terminate Ms Lattouf’s employment for several reasons, “each of which was multifactorial, but stemmed from, and was interconnected with, Ms Lattouf having made the HRW Post”: Lattouf at [600]. In particular:

(i)    Mr Oliver-Taylor suspected that Ms Lattouf had engaged in misconduct by posting about the Israel-Gaza war when she had been advised or requested not to do so, and believed that Ms Lattouf had expressed a biased view about the Israel-Gaza war in breach of some ABC editorial guideline. These two reasons for taking action against Ms Lattouf could not be separated from Ms Lattouf making a politically charged post: Lattouf at [601]-[602].

(ii)    Mr Oliver-Taylor sought also to mitigate the anticipated complaints and criticism of the ABC for employing a presenter who pro-Israel lobbyists perceived as having anti-Semitic and anti-Israel views: Lattouf at [603].

(c)    Rangiah J held that these three reasons were “interconnected with Ms Lattouf having made the HRW post, and with [Mr Oliver-Taylor’s] opinion that [Ms Lattouf] was thereby expressing support for the view that Israel was adopting starvation tactics as part of its military campaign in Gaza.” Rangiah J found 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 to terminate Ms Lattouf’s employment: Lattouf at [605].

(d)    The particular issue on the pleadings in Lattouf was whether a substantial or operative reason for the decision to terminate Ms Lattouf’s employment was that she held a political opinion (as distinct from expressing an opinion): Lattouf at [608]-[616]. Mr Oliver-Taylor stated that he was not concerned with whether Ms Lattouf held an opinion, but rather whether she expressed an opinion that may affect perception of the ABC’s impartiality. Rangiah J stated that there is not always a clear line between the expression and the holding of an opinion: in most cases, if a person expresses an opinion, they will be attributed with holding that opinion: Lattouf at [617]-[618].

(e)    Rangiah J held that Rumble was distinguishable: in that case, the primary judge found that no-one cared about the appellant’s political opinion. However, in Lattouf, Rangiah J found that Mr Oliver-Taylor was not merely concerned by the fact that Ms Lattouf had expressed controversial opinions in her HRW Post, but also by the content of those opinions: Lattouf at [619]-[620].

(i)    In particular, a Mr Anderson (in senior management) stated in texts to Mr Oliver-Taylor that Ms Lattouf’s views were anti-Semitic. Rangiah J found that Mr Oliver-Taylor had adopted this opinion: Lattouf at [622]-[627].

(ii)    Further, Mr Oliver-Taylor was influenced by complaints already received, which criticised the ABC for employing a presenter who (it was said) had made anti-Semitic and anti-Israel posts. Rangiah J found that the reasons for the decision included the desire to mitigate further complaints about the ABC employing someone attributed with holding a political opinion opposing the Israeli military campaign in Gaza: Lattouf at [632].

219    Comparison of Rumble and Lattouf: The different outcomes in Rumble and Lattouf illustrate the point made earlier that determining the actual subjective reasons for adverse action is a question of fact, which necessarily will turn on the particular circumstances of each case. There are important factual differences between Rumble and Lattouf: Mr Rumble was given a binding and lawful direction but Ms Lattouf was not, and Mr Rumble was engaged by a private firm with commercial interests but Ms Lattouf was employed by an independent national broadcaster. That said, I accept the MSO’s submission that the finding in Lattouf (the fact that adverse action was “interconnected with” Ms Lattouf holding a political opinion established that the action was taken because of Ms Lattouf holding that political opinion) cannot be treated as stating the relevant test. Cases such as BHP Coal and Endeavour Coal make clear that the bare fact of interconnection between adverse action and a matter that would be a prohibited reason (political opinion or protected industrial action) does not establish that the adverse action was taken because of that prohibited reason.

220    Lattouf should instead be understood as finding that, on the facts of that case, the “true motivations” of the decision-maker could not be separated from Ms Lattouf holding a political opinion. His Honour’s analysis of Mr Oliver-Taylor’s first two stated reasons (in Lattouf at [601]-[602], summarised in [218](b)(i) above) is readily understood in that light.

221    The same is true of Mr Oliver-Taylor’s third stated reason, that he was seeking to preserve the impartiality of the ABC. Rangiah J appeared to accept that protecting the ABC’s impartiality would be a permissible reason for taking adverse action; however, the problem was that it was not the only substantial or operative reason: see Lattouf at [604]. His Honour accepted that a factor influencing the conduct of the ABC managers was their motivation to maintain the ABC’s impartiality and appearance of impartiality. However, his Honour found that did not necessarily exclude Ms Lattouf’s political opinion from being a substantial and operative reason for terminating her employment: the ABC had not argued that impartiality, or perceived impartiality, was an inherent requirement of an ABC presenter within s 772(2)(a) of the FW Act: Lattouf at [348]-[349]. As noted, Rangiah J found that the termination of Ms Lattouf’s employment was not just because she had expressed controversial opinions in the HRW post, but also because of the content of her opinions. Among other things, Mr Oliver-Taylor wished to mitigate complaints about the ABC employing someone attributed with holding her particular political opinion: Lattouf at [619]-[620], [632], see [218](e) above.

222    This reasoning in Lattouf shows that it is not sufficient for an employer merely to assert that it was concerned with the consequences of an employee’s political opinion (or belief), not its content. The Court will look behind that assertion to determine the “true motivation” for the action. Rangiah J did not pose the question of whether the ABC would have taken the same steps if Ms Lattouf had expressed a pro-Israel opinion instead. As noted, that type of inquiry is permitted but not required by s 8(1) of the EO Act (Austin Health at [86]), and in Sayed at [215] Mortimer J posed the counter-factual of what would have happened if the employer had made false statements about being a member of the ALP. I consider that inquiry is relevant here to determine whether the actions taken by the MSO were because of the content of Mr Gillham’s particular political belief, or rather because of the consequences or impact of Mr Gillham expressing that belief from the MSO stage. Contrary to Mr Gillham’s submission, I consider that a concern about an artist expressing a controversial political belief from the MSO stage can be separated from the content of that belief, in principle at least.

D.3(c)    1st adverse action: the Cancellation

223    The first adverse action is the Cancellation. This decision was made by the MSO Leadership Group, without any involvement of the MSO Board. The decision was communicated by Mr Moore calling Ms Armstrong around 3.30pm on Monday 12 August, and confirmed by an email he sent to Ms Armstrong at 6.29pm on Monday 12 August.

224    Background (Cancellation): The reactions of the MSO Leadership Group to learning that Mr Gillham had said something about the Israel-Gaza conflict at the Recital are set out in text and WhatsApp messages between the MSO Leadership Group and other MSO staff on 11 and early on 12 August 2024.

225    Ms Bartholomeusz-Plows-Mr Moore texts: Ms Bartholomeusz-Plows (who was at the Recital) immediately left the Recital to text Mr Moore around 12.28pm on the Sunday. These texts continued to about 8pm that night.

    Ms Bartholomeusz-Plows stated that Mr Gillham had asked to add a piece from a composer that the MSO had worked with in the past. It was only a 5-minute addition “and no other context was flagged”, so Ms Bartholomeusz-Plows said yes. At the Recital, Mr Gillham relayed a note from Mr D’Netto that “the work is called Witness and about the Israeli killing of Palestinian Media in the Gaza war as a war crime”. She said “[t]here’s only 170 in the audience. But I wanted to flag this in case there are any complaints given the sensitive subject matter”.

    Mr Moore asked whether there was “any reaction from the audience in the moment – any muttering or chit-chat?” Ms Bartholomeusz-Plows said “[n]o, not that I heard re audience reaction”. Mr Moore asked Ms Bartholomeusz-Plows to ask Mr Gillham for a copy of the note from Mr D’Netto.

    Around 7.56am (after he had received texts from Mr Ross), Mr Moore texted that the MSO had received “quite a few” complaints, and that he thought there would be pressure on Mr Gillham to withdraw from the concerto later in the week. Ms Bartholomeusz-Plows replied “Oh no. I’m so sorry. Damn”. Mr Moore replied “[n]ot your fault”, and asked whether Ms Bartholomeusz-Plows had any ideas for a replacement pianist.

226    Ms Bartholomeusz-Plows said in oral evidence that she was “quite surprised” by Mr Gillham’s remarks. She said that she texted Mr Moore because the Israel-Gaza war “is quite controversial in society at the moment”, and she predicted there would be some members of the audience that would not like to hear that (meaning Mr Gillham’s remarks) ahead of a work in a recital. Similarly, Mr Moore stated in oral evidence that he was frustrated that Mr Gillham had made the remarks, as he anticipated that words about the war in Gaza and accusations of war crimes might cause upset.

227    Mr Moore and Ms Bartholomeusz-Plows accepted in cross-examination that they did not say in their text messages that Mr Gillham had acted contrary to a custom or practice (or convention), and did not say that Mr Gillham had misled them. At the same time, it is implicit in the texts set out above (as explained in oral evidence) that the witnesses were surprised that these remarks had been made without any prior notice, and Mr Moore’s statement that the complaints about those remarks were not Ms Bartholomeusz-Plows’ fault carries an implication that Mr Moore felt that Mr Gillham should have provided that information to the MSO himself.

228    MSO Leadership Group WhatsApp messages: The MSO Leadership Group team exchanged WhatsApp messages on Sunday afternoon into Monday morning before the 9.30am meeting.

    Mr Moore sent a WhatsApp message to the MSO Leadership Group at 12.38pm on Sunday relaying what Ms Bartholomeusz-Plows had told him. He stated “KBP reports there was no audience reaction in the moment but I guess that doesn’t mean there won’t be”. He said in oral evidence that he felt it was reasonable to anticipate that there might be complaints received after the Recital about Mr Gillham’s remarks, because remarks about the war in Gaza and an accusation of war crimes might cause audience upset.

    Dr Galaise replied at 4.07pm asking for a copy of the text read out by Mr Gillham, and continued:

Can we draft this week a note to all artists playing until the end of the season to ensure they don’t take upon themselves to use our concerts as a forum to display their personal believes and opinions. For next season we can have a clause in artist[s]’ contracts to reinforce this.

In cross-examination, Dr Galaise said that she was really worried when she learnt of Mr Gillham’s remarks because it was a highly sensitive political message that had not been approved, and that it would have an impact on the MSO going forward. She wrote the above message because she was concerned that these remarks were a surprise, and that the MSO probably needed to tighten its contracts to ensure that it would have a mode of engagement that was agreed with the artist before they entered the MSO stage.

    At 7.35am on Monday morning, Ms Dembo stated that “we will need to move quickly with the audience from yesterday”, that the MSO had worked carefully “to ensure that the MSO is not used as a pawn”, and that “[t]his is an important moment”. Dr Galaise stated at 8.09am that we will “probably want to tally o [Mr Gillham] today.”

229    Mr Moore-Mr Ross, Mr Ross-Ms Dembo texts: On the Monday morning Mr Moore and Mr Ross exchanged text messages, and Mr Ross sent a text message to Ms Dembo.

    At 7.16am, Mr Ross sent Ms Dembo a text message stating:

Crappy situation from Jayson. Bloody hell, I’m furious. I knew at some point something like this would happen but not from a soloist FFS. Hope you’re ok. We’ll work through this. Here for you

In oral evidence, Mr Ross said he was furious because he was very concerned about the impact of Mr Gillham’s remarks on the MSO. He asked whether Ms Dembo was ok, because she was a close colleague, and he sought to comfort her as she had previously been upset by comments critical of Israel. Mr Ross denied that his statement “[w]e’ll work through this” meant he thought Mr Gillham should be punished, and I would not read it that way.

    As will be seen, Mr Moore and Mr Ross exchanged texts between 7.40am and 8.27am, where Mr Ross stated (among other things) that Mr Gillham might be counselled by Ms Armstrong to withdraw from the Thursday concert, and that the MSO “can look at termination”: see [232](d) below.

230    Cancellation decision made at MSO Leadership Group meeting (Monday 9.30am): The MSO Leadership Group held a meeting at 9.30am on Monday 12 August 2024. Most of the people present recalled that the decision to cancel Mr Gillham’s Thursday performance was made at that meeting: that was the recollection of Mr Moore, Mr Ross, Mr Stewart and Ms Walker. On the other hand, Dr Galaise’s recollection was that the decision to cancel was not made until the afternoon, after the MSO had obtained legal advice. Mr Moore confirmed that there was a second meeting in the afternoon of a smaller group after legal advice had been obtained, and Mr Moore called Ms Armstrong around 3.30pm to convey the decision to cancel Mr Gillham’s Thursday performance (I infer, after that second meeting).

231    I find that the decision to cancel was made at the 9.30am meeting, and I infer that the legal advice was obtained to determine how that decision could be implemented (noting that the MSO terminated Mr Gillham’s contract for convenience under cl 17.3). Dr Galaise herself sent a WhatsApp message to the MSO Leadership Group before the 9.30am meeting stating “[w]e will probably want to tally o [Mr Gillham] today”, which I interpret (consistently with a submission from the MSO’s senior counsel) as referring to cancelling Mr Gillham’s Thursday performance.

232    Key decision-makers (Cancellation): Although formally the decision to cancel was made by the MSO Leadership Group collectively, I find for the following reasons that the key decision-makers were Dr Galaise, Mr Moore, Ms Dembo and Mr Ross. They were the main contributors before and at the 9.30am meeting.

(a)    Mr Stewart said that Dr Galaise led the 9.30am meeting, while Ms Walker said that Dr Galaise was leading the meeting, with lots of input from Mr Moore.

(b)    Mr Moore’s recollection is that, after Dr Galaise made an opening statement, Ms Dembo stated that action needed to be taken to show the community (which he understood to mean the Jewish community) that the MSO was taking this very seriously. Mr Moore thought that Dr Galaise and Ms Dembo had a close working relationship (in particular, that Ms Dembo “had Dr Galaise’s ear”). Mr Ross also recalls Ms Dembo referring at the 9.30am meeting to the Sydney Theatre Company’s experience (referred to in [195](a) above), and saying that the MSO needed to move quickly to show support for its audience and to affirm the MSO’s position, given the impacts that a delay had had on the Sydney Theatre Company.

(c)    Ms Dembo said that she spoke to Mr Ross before the 9.30am meeting, and said to him that the MSO had to be careful because this was their “STC moment” (meaning the Sydney Theatre Company performance). Earlier that morning Ms Dembo stated in a WhatsApp message to the MSO Leadership Group that “[w]e will need to move quickly with the audience from yesterday”, and that “[w]e have worked carefully over the last 10 months in particular to ensure the MSO is not used as a pawn”.

(d)    Mr Moore and Mr Ross had also exchanged texts in the morning before the 9.30am meeting. Mr Ross suggested that the MSO (through Mr Moore) include Mr Gillham’s agent, Ms Armstrong, on the issue. Mr Ross stated that he could “see a world in which through [Ms Armstrong’s] counsel [Mr Gillham] withdraws from this week”, meaning the Thursday performance. Mr Ross stated “[r]eckon we can look at a termination, but need to review all the comms/docs. If we get to that he [Mr Gillham] will need to be called to a show ca[u]se meeting first”.

(e)    Mr Moore sought a copy of Mr Gillham’s comments from Ms Armstrong before the 9.30am meeting. A message from Ms Armstrong to Mr Gillham at 8.58am reports Mr Moore as having said to her that the Thursday performance was “in jeopardy”.

233    Stated reasons of key decision-makers (Cancellation): The key decision-makers identified above said that their only reasons for supporting the Cancellation were as follows.

    Dr Galaise said that Mr Gillham had made a highly sensitive political statement and the MSO had not been informed. She was highly concerned for the stakeholders and the audience. She said that the situation would have to be “operationally managed”.

    Mr Moore said that Mr Gillham had inappropriately made an unauthorised statement which had taken the MSO into a politicised and highly sensitive area. This statement had put the MSO in a very difficult position with audience members, with stakeholders and supporters, because it was possible that members of the audience, members of the public, and stakeholders would think that Mr Gillham’s words were the opinion of the MSO.

    Ms Dembo said that it was important to her that the MSO’s audience and people were protected from unauthorised political agendas being shared from the stage. The MSO had a duty of care to its people “to remain impartial and not to weigh into matters of unauthorised opinion”, and people were there to hear the music. Ms Dembo repeated in cross-examination that the MSO Leadership Group was responding to the fact that Mr Gillham had made an unauthorised political point from the MSO stage.

    Mr Ross said that Mr Gillham’s statement would have a significant impact on the MSO’s reputation, and its audience, donors and sponsors. Mr Gillham’s statement was contrary to the MSO’s “very careful position” on the Israel-Gaza conflict, and was a significant breach of the established way that an artist and an organisation such as the MSO would work together. He said it was completely inappropriate for Mr Gillham’s comments to be made from the MSO stage, which would have upset the audience, which was a senior audience with a lot of Jewish people.

234    These witnesses (and the other MSO witnesses) said that they would have taken the same action if Mr Gillham had expressed a view in favour of Israel or against the actions of Hamas in Gaza.

235    Substantial and operative reasons (Cancellation): The MSO submits that, taken together, the substantial and operative reasons for the Cancellation were:

(1)    Mr Gillham’s comments were unauthorised political statements on a sensitive topic made from the MSO stage in breach of custom and practice;

(2)    The MSO did not wish to be seen as making any statement in support of either side in the Israel-Gaza conflict (whereas the audience and the public generally might think that statements from the MSO stage were endorsed by the MSO);

(3)    The MSO was concerned about the potential impact on the MSO’s donors and partners, and its audience.

236    Each of the three reasons set out in [235] above are supported by the WhatsApp and text messages summarised earlier. The MSO Leadership Group was very concerned about the impact that Mr Gillham’s remarks could have on the MSO, because those remarks entered on a sensitive political topic and had been made without notice to the MSO. Mr Ross went so far as to say he was furious. Dr Galaise was concerned to ensure that no other artist made similarly controversial comments, on any topic, without notice to the MSO. Mr Stewart (the MSO’s marketing and sales person) said in cross-examination that his first thought on learning of Mr Gillham’s remarks was “oh no”, because any mention of Gaza and killing was something to be alarmed by. Although Mr Stewart was not one of the key players in the cancellation decision, I find that his reaction encapsulates the feeling of the MSO Leadership Group generally.

237    Whether MSO Leadership Group felt misled by Mr Gillham: It is true that no one at this time used the specific language of being “misled” by Mr Gillham. However, it is sufficiently implicit in Mr Moore’s texts to Ms Bartholomeusz-Plows (“It’s not your fault”) that Mr Moore thought that Mr Gillham should have raised this issue with the MSO. Mr Moore said when discussing the Cancellation Message that he was frustrated that Mr Gillham had expressed a political view at the Recital which went against the accepted custom and practice of not making such statements. Mr Ross stated in a text message to Ms Dembo that he was “furious” with Mr Gillham’s conduct, which he explained in oral evidence as meaning that he was angry that Mr Gillham had made controversial political remarks from the MSO stage without any notice. Dr Galaise referred to Mr Gillham’s remarks as being a surprise. These witnesses all gave evidence that they believed there was a custom or practice that classical musicians did not make comments of a sensitive social or political nature from the stage without permission from the host. As noted, I have found that this belief is reasonably held, and I have also found that Mr Gillham deliberately withheld from the MSO the dedication of “Witness” and his proposed remarks, knowing that this was information the MSO would have wanted to have.

238    On Tuesday 13 August (after the Cancellation and Cancellation Message), Mr Ross texted Mr Moore at 8.04am stating “[w]hen I spoke to Ben [the MSO’s principal guest conductor] he was comforted in knowing that [Mr Gillham] misled us – that’s the line” (emphasis added). I do not accept Mr Gillham’s submission that the phrase “that’s the line” shows that Mr Ross invented the idea that Mr Gillham had misled the MSO. In the circumstances, Mr Ross stating that he felt that Mr Gillham had misled the MSO was open to him, given that he (along with the other MSO decision-makers) thought that Mr Gillham had acted contrary to an accepted custom or practice. I would interpret Mr Ross’ statement “that’s the line” as suggesting that the MSO response should focus on this aspect of the (true) circumstances, and not that Mr Ross was suggesting that the MSO engage in falsehood.

239    Role of Ms Dembo’s personal pro-Israel beliefs: I find that it is likely that Ms Dembo had a strong personal reaction to the content of Mr Gillham’s remarks, as Mr Ross (a close colleague) thought that she had previously been upset by criticism of Israel. But she sought to persuade her colleagues by reference to the impact that Mr Gillham’s remarks could have on the MSO, stating that the MSO could not be a “pawn” in a broader political debate. She also referred to the Sydney Theatre Company, a recent example where a pro-Palestine statement had had severe impact on an arts company. I find that Ms Dembo’s reference to the Sydney Theatre Company at the 9.30am meeting is likely to have struck a chord with other members of the MSO Leadership Group because it illustrated the potential impacts of Mr Gillham’s remarks on the MSO. Dr Galaise and Mr Moore were already attuned to the potential impacts of Mr Gillham’s remarks. That is, Ms Dembo’s reference to the Sydney Theatre Company (and its apparent influence on the 9.30am meeting) is entirely consistent with the MSO Leadership Group as a whole being motivated by the potential impact of Mr Gillham’s remarks, rather than the particular political belief expressed by him. Consistently with that view, it might be noted that the first reaction of Ms Jackson (who does not have strong pro-Israel personal views) to learning on Tuesday 13 August of the Cancellation and the Cancellation Message was also to refer to the Sydney Theatre Company’s experience, and its impact on philanthropic giving and likely impact on Jewish patrons.

240    It should also be noted that Mr Ross and Mr Moore were not absolutely committed to the MSO unilaterally cancelling Mr Gillham’s performance at the time of the 9.30am meeting, although they had previously raised cancellation as an option, and ultimately went along with the decision to cancel.

    Mr Ross said in oral evidence that he said at the 9.30am meeting that it was a very big call to be cancelling an Australian artist, and that the MSO would need to seek legal advice. Although no one else at the meeting remembers Mr Ross saying that cancellation was a very big call, I accept that Mr Ross had some internal reservations about cancellation (as opposed to other courses such as a negotiated withdrawal).

    Mr Moore said in oral evidence that he suggested at the 9.30am meeting that a course of action would be to speak with Ms Armstrong and Mr Gillham and explain that it might be better if Mr Gillham withdrew from the Thursday performance. On Tuesday 13 August at 7.58am, Mr Moore sent Mr Ross a text stating that he (Mr Moore) felt “like I perhaps got swept along a bit too quickly yesterday”. In cross-examination, Mr Moore stated that with the benefit of hindsight he wished he had spoken more about the negotiated withdrawal option.

241    The relevance of these matters is that neither Mr Ross nor Mr Moore had any strong personal view about the content of Mr Gillham’s remarks. If either of them felt that the MSO Leadership Group was taking action because of the particular views expressed by Mr Gillham, rather than the potential impact of those remarks on the MSO, it could be expected that they would have been more vocal in expressing these existing reservations about cancellation.

242    It is also relevant that Dr Galaise did not have a strong personal opinion about the content of Mr Gillham’s remarks, as distinct from those remarks being unauthorised. Dr Galaise talked briefly with Mr Buggle before the MSO Finance Committee meeting on the afternoon of Monday 12 August. Mr Buggle sent Mr Myer a text before that meeting, stating that a pianist (Mr Gillham) had “made a speech on Gaza, quite ant[i]-Zionist by all accounts”. Mr Buggle said that “anti-Zionist” was his term used to describe what Dr Galaise had said to him, and that he understood that it was the making of an unauthorised political statement that was the core of the issue. Dr Galaise said in re-examination that she did not have a personal view about the Israel-Gaza conflict.

243    Mr Gillham’s arguments in response: Mr Gillham makes two broad arguments in response. First, he contends that the MSO Leadership Group was clearly motivated by the fact that Mr Gillham had said something of a political nature, and this is sufficient to show that he was treated unfavourably because he held or expressed a political belief, contrary to s 8(1) of the EO Act (said to be the relevant “workplace law”). On this argument, it does not matter whether the MSO would have taken the same steps if Mr Gillham had made pro-Israel or anti-Hamas statements; all that matters is that a substantial and operative reason for the Cancellation is the expression of “a” political belief. Second, Mr Gillham contends that, despite the oral evidence of the MSO witnesses, the surrounding circumstances suggest that the MSO would not have taken the same steps if Mr Gillham had made pro-Israel or anti-Hamas statements, so that a substantial and operative reason for the Cancellation was that Mr Gillham had expressed a pro-Palestine political belief specifically (or at least that the MSO has not rebutted the presumption that it was).

244    It is convenient to start with the second of these arguments.

245    Was the MSO biased against a pro-Palestine message? Mr Gillham contends that the MSO generally was biased against a pro-Palestine message, by reason of the following:

    Mr Gillham contends that the MSO’s policy on Israel and Gaza, although described as “neutral”, is actually pro-Israel.

    Mr Gillham contends that the MSO exaggerated the number of complaints made about Mr Gillham’s remarks (and treated these complainants with respect), and minimised or ignored the much greater number of complaints about the Cancellation (and referred to these complainants pejoratively). Mr Gillham also contends that communications from the MSO Leadership Group shortly after the cancellation decision was made show that the decision was motivated by Mr Gillham’s particular pro-Palestine beliefs.

    Mr Gillham contends that the MSO Leadership Group was motivated to placate important Jewish donors, including the Gandel and Besen Foundations.

    Mr Gillham contends that the swiftness and inflexibility of the MSO Leadership Group’s actions also show that they were motivated by Mr Gillham’s particular political belief (referring to Sayed at [200]).

246    Whether the MSO policy is “neutral”: I have dealt with the first of these matters above. It could be said that the description of the Israel-Gaza conflict in the MSO’s policy is not really “neutral”. I note also that the perceived damage of taking a pro-Israel view is opening the MSO up to “unnecessary criticism”, but the perceived damage of taking a pro-Palestinian position is putting funding and board members at risk: see [193] above. However, I find that the MSO Leadership Group (and the MSO generally) did have a strong commitment that nothing should be said from the MSO stage about this conflict, in support of either side.

247    For completeness, I note that Mr Gillham’s counsel observed in cross-examination of Dr Galaise that the MSO held a concert in October 2024 commemorating the Holocaust, but did not have any similar commemoration of Nakba (which the United Nations describes as the mass displacement and dispossession of Palestinians during the 1948 Arab-Israeli war). An important difference between these two events (at least from an Australian perspective) is that the Holocaust occurred in World War II, to which Australia was a combatant party. The MSO’s commemoration of the Holocaust does not detract from the immediate point that the MSO was committed to saying nothing about the current Israel-Gaza conflict, on either side.

248    Differing treatment of complaints about Mr Gillham and complaints about Cancellation? Mr Gillham contends that MSO communications around the time of the Cancellation and immediately afterwards show a favouritism towards complaints about Mr Gillham’s remarks (which are pro-Israel views), and a bias against complaints about the Cancellation (which are pro-Palestinian views). Mr Gillham contends further that these communications show a hostility towards Mr Gillham’s remarks because they were pro-Palestinian.

    The evidence is that, on 11 August 2024, a single written complaint was made to the MSO about Mr Gillham’s remarks, and three verbal complaints were made to the MSO Box Office (one of whom was made by the person who provided the written complaint). And once the Cancellation Message was published on social media on the evening of Monday 12 August, the MSO received over the following days and weeks 56 messages supporting the decision to cancel Mr Gillham, and 487 messages opposing that decision.

    At 7.56am on Monday 12 August, Mr Moore stated to Ms Bartholomeusz-Plows that there had been “quite a few” complaints about Mr Gillham’s remarks (which he described in cross-examination as a “sloppy paraphrase”). At 9.44pm that day (after the Cancellation Message had been emailed to the audience members from the Recital), Ms Dembo sent a WhatsApp message to the MSO Leadership Group that the Cancellation Message had been posted to X. At 10.22pm, Mr Stewart stated that he had turned off the comments on the MSO’s Facebook and Instagram pages, and there were “dozens (hundreds?) of comments already”.

    On Tuesday 13 August at 6.41am, Dr Galaise sent an email to the MSO Board members stating (relevantly) that the MSO had “received complaints from angry customers who felt betrayed by the MSO”, but did not refer to the reaction on social media to Mr Gillham’s cancellation. On the same day at 8.48am, Dr Galaise sent an email to MSO staff stating that the MSO had received “numerous complaints” about Mr Gillham’s remarks, but did not refer to the complaints the MSO had received by then about the decision to cancel Mr Gillham’s performance. Dr Galaise’s latter email described Mr Gillham’s remarks as “highly offensive”, and stated that, after the Cancellation Message was shared on social media, “pro-Palestinian activists” had started calling for the boycott of the MSO.

    The language of “numerous complaints” and “highly offensive” was repeated in emails sent by Ms Dembo between 9.15 and 9.30am to the Commonwealth and Victorian representatives of Creative Australia, and to the Gandel and Besen Foundations (two major donors of the MSO whose founders are Jewish). At 11.04am, Ms Walker sent an email to significant donors and partners of the MSO. This email stated that the MSO had received “numerous complaints” about Mr Gillham’s performance. These emails sent by Ms Dembo and Ms Walker did not refer to the complaints that the MSO had received by then about the cancellation of Mr Gillham’s performance.

    Mr Gillham also observed that Dr Galaise sent an email (and made a telephone call to) the person who had made the one written complaint about Mr Gillham’s remarks. Dr Galaise did not respond to any of the 487 people who made complaints about the Cancellation, even a person who Dr Galaise had met (a Mr Barnes SC). It appears that other people in the MSO, such as Mr Stewart, may have responded at a later point in time. And when Dr Galaise discussed the Gillham incident in a later newspaper interview, she is reported as saying that, after the Cancellation, the MSO was “bombarded by keyboard warriors”.

249    The communications set out above occurred after the Cancellation had occurred and Cancellation Message sent out. These communications were sent to inform relevant persons of those decisions, and to justify the decisions that had been made. It could perhaps be said that these communications were self-serving, because they set out the circumstances that had led to the MSO Leadership Group’s decisions without acknowledging the impact that those decisions had had on the MSO. However, given the purpose of the emails was to explain the reasons for the decisions that had been made, I would not interpret the focus in these communications on the complaints about Mr Gillham’s performance (and lack of reference to complaints about the Cancellation) as showing that the MSO Leadership Group favoured pro-Israel views and disfavoured pro-Palestinian views, or that the particular content of Mr Gillham’s remarks was a substantial and operative reason for the Cancellation (or Cancellation Message). Equally, the statement in certain emails that Mr Gillham had “withdrawn” from the Thursday performance, although inaccurate, does not evidence any bias in favour of pro-Israel views or against pro-Palestinian views.

250    Similarly, I find that the disparaging terms used to describe the critics of the MSO (such as “activists” and “keyboard warriors”) is because those people were critics, not because those critics held pro-Palestinian views. Nor would I draw anything from the fact that Dr Galaise found time to respond to the audience member who complained about Mr Gillham’s remarks: Dr Galaise’s view was that Mr Gillham (like any performer) should not be saying anything controversial from the stage on any topic precisely because it was likely to cause upset. That is why she was concerned to tighten up the MSO’s contracts with soloists in future seasons.

251    By contrast, several of the communications set out above also state that Mr Gillham’s remarks were “highly offensive”, which relates to the content of Mr Gillham’s remarks and not just its impact. This language does not appear in the Cancellation Message. This language first appears in Dr Galaise’s email to MSO staff on Tuesday 13 August. That email was drafted by Mr Ross and Ms Dembo, although Dr Galaise said she agreed with its contents. Dr Galaise said she meant that Mr Gillham had made personal political statements about a conflict that the MSO was trying to keep a neutral position on. It may be that a different word such as “divisive” would have captured that idea better, but I accept that this is what Dr Galaise intended to convey. I find that it is likely that the language “highly offensive” came from Ms Dembo, because she said that she personally did find Mr Gillham’s remarks highly offensive. However, as already explained, I do not consider that Ms Dembo’s personal views about Mr Gillham’s remarks were a substantial and operative reason for the MSO Leadership Group’s decision: see [239]-[242] above.

252    Concern about Jewish donors? Mr Gillham also contends that the MSO Leadership Group was concerned with the content of his pro-Palestinian remarks, because they were concerned not to offend major Jewish donors, such as the Gandel and Besen Foundations. Mr Gillham observes that, on Monday 12 August, Dr Galaise presented to the MSO Finance Committee about (among other things) a proposed MSO trip to Europe and the United Kingdom in 2025. The minutes to that meeting record that the Gandel Foundation was providing $300,000 of the $900,000 required for that trip. Both Dr Galaise and Ms Sharon Li (the then Chief Financial Officer of the MSO) denied that a purpose of the Cancellation (or the Cancellation Message) was to avoid any threat to the funding from the Gandel or Besen Foundations.

253    Mr Myer sought to contextualise the significance of the Gandel and Besen Foundations: the MSO’s annual reports for 2022 and 2023 show that private funding comprised roughly between 1/6th and 1/7th of the MSO’s total revenues in those years, and Mr Myer’s evidence is that the donations by the Gandel and Besen Foundations comprise about 5% of private funding. Ms Jackson said that the MSO has a large number of Jewish patrons, but also a large number of non-Jewish patrons, and that protests about Israel-Gaza at the MSO would affect both groups. She said later that every dollar counts and the MSO does not want to upset any of its patrons.

254    I find that one of the MSO leadership’s concerns when deciding to cancel Mr Gillham’s performance was that it did not want to jeopardise funding from its donors, including its Jewish donors. The experience of the Sydney Theatre Company (referred to by Ms Dembo at the 9.30am meeting on Monday and repeated by Ms Jackson the next day) was that an expression of pro-Palestinian support had adversely affected funding, including from Jewish patrons. However, I accept the MSO’s submission that Jewish donors were not the only donors who would be affected: major corporate sponsors would also not want to be associated with such a divisive issue, as shown by Ms Walker’s evidence that the MSO removed the names of corporate partners from the advertisements and programs for the Thursday night performance. These corporate sponsors would have been equally reluctant to be associated with an MSO concert if Mr Gillham had made remarks that were pro-Israel or anti-Hamas. For that reason, the fact that the MSO Leadership Group was motivated in part by a concern that it did not want to lose funding from its donors (including Jewish donors) does not show that the “true motivation” of the Cancellation was that Mr Gillham had expressed a pro-Palestinian belief. These concerns are consistent with the MSO Leadership Group wanting to address the potential impacts of Mr Gillham’s remarks.

255    Mr Gillham contends, however, that this type of reasoning would allow private donors to operate as de facto determinants of acceptable expression, and that one interest group cannot through its financial support be allowed to silence the expression of lawful political beliefs by another. First, the MSO’s concerns were not limited to its Jewish donors. Second, this reasoning does not allow the MSO’s donors to “silence” Mr Gillham, but is to determine whether the MSO’s true motivations in cancelling Mr Gillham’s performance included that Mr Gillham had expressed pro-Palestine beliefs, when the MSO’s position was that any statement about the Israel-Gaza conflict, on either side, was likely to cause damage to the MSO (and had in fact caused damage). In that context, the fact that the MSO was concerned to address the impacts of Mr Gillham’s remarks shows that the political content of those remarks was not any part of the MSO’s true motivations. And Mr Gillham is free to express his political opinion through means other than making statements from the MSO stage: Rumble at [49].

256    MSO Leadership Group acted swiftly and inflexibly? Finally on this issue, Mr Gillham contends that the swiftness and inflexibility of the MSO Leadership Group’s response shows that the Cancellation was motivated by the particular political belief of his message. In Sayed at [200], Mortimer J found that the swiftness and inflexibility of the employer’s decision-making in that case was not because of Mr Sayed’s criticism of the Australian Workers’ Union, but because of his association with the Socialist Alliance (and the imputed political beliefs from that association).

257    The MSO Leadership Group certainly acted swiftly: the decision was made to cancel Mr Gillham’s Thursday performance by the end of the 9.30am meeting on Monday 12 August, not even 24 hours after the Recital. I find that the experience of the Sydney Theatre Company loomed large in the minds of the MSO Leadership Group, and they thought it was necessary to act decisively to reduce as much as possible the adverse impacts on the MSO of Mr Gillham’s remarks. The audience member from the Recital who made a written complaint also sent the MSO a message on Facebook which finished by saying “I have written to your CEO and expect a swift response”. Both the complaint and the Facebook message were sent to the MSO Leadership Group early on the morning of Monday 12 August, before the 9.30am meeting. Ms Dembo stated around this time in the MSO Leadership Group WhatsApp chat that “[w]e will need to move quickly with the audience from yesterday”, while Mr Ross stated in an email to the MSO Leadership Group that “[a] lot of people will be watching us to see what we will do next”.

258    The issue here is whether the MSO Leadership Group would have acted so swiftly if Mr Gillham had made statements in support of Israel. I consider that the same broad motivations would have applied in this hypothetical situation: the MSO Leadership Group were concerned that soloists should not make remarks on sensitive political issues from the MSO stage without permission from the MSO (and especially not about Israel and Gaza), and the Sydney Theatre Company experience showed that statements in support of one side (whichever side that was) received a strong negative response from the other side. Given those motivations, I consider that the MSO Leadership Group would ultimately have cancelled the Thursday performance, because the reaction that did occur to the Cancellation indicates that these hypothetical pro-Israel remarks would also have given rise to a very strong adverse reaction, and to the same security concerns that arose from the decision to cancel Mr Gillham’s performance. It is possible there may have been a more elongated process in this hypothetical situation, and the MSO Leadership Group may have consulted with the MSO Board before making a final decision. But the claimed adverse action is the Cancellation, and I find that it is most likely that the MSO would have cancelled the Thursday performance if Mr Gillham had made statements in support of Israel. I also find that the MSO’s reasons in this hypothetical situation would have been driven by the impacts on the MSO arising from the remarks, and not their political content.

259    Just to develop those last points, it is true that the MSO Board (particularly Ms Jackson, Mr Foley and Mr Myer) were critical of the Cancellation and Cancellation Message. However, as discussed below, those criticisms related particularly to the process of these decisions: the MSO Board was critical that these decisions had been made without consulting the MSO Board first, and Ms Jackson and Mr Myer both thought that the Cancellation Message was overly long (Mr Myer said “long-winded” and “heavy-handed”). Admittedly, Ms Jackson’s initial reaction was that cancelling a performance because of what was said to 157 people was an overreaction. However, I find it likely that, if the MSO Leadership Group had done nothing, Mr Gillham’s remarks could well have led to a similar sort of strong criticism on social media that followed the Cancellation; albeit in that situation from the pro-Israel side.

    It is true the MSO received many more complaints about the Cancellation than messages of support, but that may only reflect that people are more likely to make time to complain about something they object to, than to express support for something they agree with. The then recent Sydney Theatre Company experience indicates (and indicated at the time) that a statement from the MSO stage on either side of the issue would have attracted both vocal support and opposition, and was likely to have had damaging impacts on the MSO.

    As noted, Ms Jackson referred to the Sydney Theatre Company experience and its damaging impacts on first learning of the Cancellation and Cancellation Message. The decisions that the MSO Board did make (to impose the Second Condition and to send the Final Public Statement) show that the MSO Board was prepared to take decisive action quickly to respond to matters that were having damaging impacts on the MSO (albeit with those decisions, the impact on the MSO arose immediately from the MSO Leadership Group’s decisions).

260    For these reasons, I do not accept that a substantial or operative reason for the Cancellation was the fact that Mr Gillham had expressed a particular belief; that is, in support of Palestine. The substantial and operative reason for the Cancellation was the potential impacts of Mr Gillham’s remarks. I do not accept that it is impossible in this case to separate the impacts of Mr Gillham’s political beliefs from the content of those beliefs: all members of the MSO Leadership Group other than Ms Dembo did not have strong personal views about the Israel-Gaza conflict, and as noted I find that Ms Dembo’s own strong personal views were not a substantial and operative reason for the decision made collectively by the MSO Leadership Group: see [239]-[242] above. Lattouf is therefore distinguishable on the facts.

261    Sufficient that the Cancellation was motivated by the expression of “a” political belief? That leaves Mr Gillham’s broader argument: that there is a breach of s 8(1) of the EO Act if the MSO terminated his engagement because he expressed a political belief of any kind. I do not accept this argument either.

    First, I would interpret s 8(1) of the EO Act as prohibiting discrimination between different political beliefs, not between political beliefs generally and other beliefs: see section D.1(d) above. If s 8(1) prevented an employer from taking the position that there is to be no discussion in the workplace of political issue X of any sort, then that would convert a prohibition against direct discrimination into a positive right to express political beliefs.

    Second, even if that first point is incorrect, I find that the MSO’s actions were motivated by the adverse impacts on their business and reputation of a performer expressing a political belief on Israel and Gaza from the MSO stage. The MSO would take the same action against the expression of any type of belief that would lead to the same adverse impacts, whether political or not. It may be that in practice only political statements (and especially about Israel and Gaza) would have the same level of impact. Even so, the substantial and operative reasons for taking the action relate to the impact, not the political content, of the speech.

    Third, I would accept that the MSO’s actions are interconnected with Mr Gillham making statements of a political nature. But, as already explained, the statements in Lattouf about interconnection cannot be treated as the test under ss 360-361 of the FW Act: see [219] above.

D.3(d)    2nd adverse action: sending the Cancellation Message

262    The second alleged adverse action is sending the Cancellation Message. This too was taken by the MSO Leadership Group, without any involvement of the MSO Board. The Cancellation Message was emailed to audience members from the Recital around 7.05pm on Monday 12 August.

263    Key decision-makers (Cancellation Message): I find that the key decision-makers in sending the Cancellation Message are the same four members of the MSO Leadership Group who drove the Cancellation (that is, Dr Galaise, Mr Moore, Mr Ross and Ms Dembo), together with Mr Stewart (Director of Marketing and Sales) and Mr Imber (a public relations consultant engaged by the MSO Leadership Group).

    The MSO Leadership Group decided at the 9.30am meeting on Monday 12 August that a message should be sent to the audience members from the Recital. Mr Stewart prepared the first draft of the Cancellation Message, circulated at 4.23pm.

    Mr Ross said he assisted in editing the message, while Ms Dembo said she also reviewed the statement and made “minor tweaks” (although there are no drafts to show the exact changes made by either). Mr Moore said he was involved in reviewing drafts of the message once it had been created and initially reviewed by Mr Stewart, Mr Ross and Ms Dembo. Dr Galaise approved sending the Cancellation Message.

    Mr Imber was contacted by Mr Stewart on the afternoon of Monday 12 August. Mr Stewart and Mr Imber had a telephone discussion sometime between 3.30 and 3.52pm. Mr Stewart emailed Mr Imber a draft of the Cancellation Message at around 4.20pm, and Mr Imber emailed Mr Stewart a revised draft together with his comments at 5.20pm. Mr Imber was not called to give evidence.

    Ms Walker and Ms Sharon Li were not involved in drafting the Cancellation Message.

264    Stated reasons (Cancellation Message): The key MSO decision-makers for the Cancellation Message identified above stated that their only reasons for sending this message were as follows:

    Dr Galaise said that she was concerned that some members of the audience had been adversely impacted by Mr Gillham’s remarks and that this had happened on the MSO’s stage. She felt that the MSO had a duty of care towards these audience members, and it was the MSO’s duty to apologise. She said earlier that it was the MSO’s goal to provide a safe environment.

    Mr Ross said in chief that the Cancellation Message explained that Mr Gillham’s remarks had been made without authority and that the MSO did not condone the use of the MSO stage as a platform for expressing personal views, and offered a sincere apology to those who had been affected by those remarks. He said later that Mr Gillham’s remarks were a breach of trust and completely inappropriate because they upset people and were offensive. Mr Ross said in cross-examination that he thought Mr Gillham’s remarks went beyond a normal introduction, and the MSO was seeking to assure the audience that these were not the views of the MSO.

    Mr Moore said that audience members from the Recital needed to be made aware that the statement had been Mr Gillham’s and did not represent a position or view of the MSO.

    Ms Dembo said that she wanted to ensure that the MSO’s audience knew that the MSO’s position was that the stages of the MSO belonged to the MSO and it was not for other people to get up and take advantage and “hold our audience hostage.”

    Mr Stewart said that he supported the Cancellation Message to explain to the audience members who were there that Mr Gillham’s comments were not reflective of the MSO, and that the MSO had no knowledge that he was going to make those comments, and to say that the MSO stage should be free of political commentary.

265    These witnesses all said that they would have taken the same action if Mr Gillham had made pro-Israel or anti-Hamas remarks.

266    Mr Imber was engaged by Dr Galaise as a communication strategist because he had assisted the MSO in a previous matter. Mr Imber remarked in a text message to Mr Foley that Dr Galaise didn’t realise that Mr Imber was Jewish; that is, Mr Imber was not asked to bring a distinctively Jewish perspective to the Cancellation Message. As noted, Mr Imber emailed Mr Stewart a revised draft of the Cancellation Message together with his explanatory comments at 5.20pm.

267    Comparing the draft sent to Mr Imber with the revised draft he sent back, the major changes were to bring forward the statement that “Witness” had been accepted on the basis that it was a short meditative piece, and the inclusion in the final paragraph of a reference to the MSO’s values of “Respectful, Collaborative, Innovative and Diverse”, and a statement that “[t]he conflict in Israel and Gaza is distressing and we recognise the strong feelings many in our community have”. In his email, Mr Imber stated that his key rationale was to:

1.    Make clearer that while you accepted the work as a late inclusion you didn't authorise any commentary about it

2.     To take out some words which might be used against you (eg referring to comments about the conflict as being “a distraction”)

3.     Refer to values on your website- I couldn’t see the words about Humanity and Peace as clearly as I could find your general values page.

4.     I thought it important to mention Israel/ Gaza to be clearer about the context and not run away from it but I appreciate why you've kept it higher level.

268    Mr Stewart’s notes of his earlier conversation with Mr Imber make many of the same points, and also state (as recording advice from Mr Imber) “combat pro-Palestine argument with ‘we let him perform the work – he took the piss’”.

269    These documents (supplemented by Mr Stewart’s oral evidence about his dealings with Mr Imber) record clearly the contributions made by Mr Imber to the drafting of the Cancellation Message, and Mr Imber’s purposes for doing so. Mr Gillham’s arguments as to why the Cancellation Message amounts to an adverse action are not concerned with those parts that were added by Mr Imber. I therefore would not draw any adverse inferences from the fact that Mr Imber was not called to give evidence.

270    Cancellation Message was motivated by the political content of Mr Gillham’s remarks? Mr Gillham contends that it is clear on the face of the Cancellation Message that it is motivated by the political content of Mr Gillham’s remarks: the message states that Mr Gillham’s remarks were “an intrusion of personal political views”, and that the MSO does not condone the use of its stage “as a platform for expressing personal views” (which, Mr Gillham contends, in context can only mean personal political views).

271    It is certainly true that Mr Gillham’s political remarks were the instigating event that led to the Cancellation Message. I would also accept, as Mr Gillham submits, that the function of the Cancellation Message was not to inform people who needed to know that the Thursday performance had been cancelled, because this message was sent to the audience members from the Recital, not the ticket holders for the Thursday concert.

272    However, it does not follow that the political nature of Mr Gillham’s remarks (and the particular political belief expressed) was a substantial or operative reason for sending the Cancellation Message.

    As already noted, the fact that action (here sending the Cancellation Message) is interconnected with a matter (here the expression of political beliefs) is only the start of the “actuation” inquiry, and it is necessary to determine the decision-maker’s true motivations.

    The stated purpose (set out above) is to tell the audience from the Recital that Mr Gillham’s remarks were not those of the MSO, and to apologise for the offence caused to some audience members. Those purposes are concerned with addressing the impacts of Mr Gillham’s statements, and are informed by the MSO’s desire not to make comments of any sort about the Israel-Gaza war, and the belief of the MSO decision-makers in a custom or practice that classical musicians do not make comments of a sensitive or political nature from the stage without permission from the host.

    For the reasons set out above in relation to the Cancellation, I do not accept that the circumstances show that the MSO was biased against pro-Palestinian views. I accept the evidence of the relevant members of the MSO Leadership Group that they would have taken the same steps if Mr Gillham had made pro-Israel or anti-Hamas remarks. I therefore do not accept that it can be inferred that Mr Gillham’s particular political beliefs were a substantial or operative reason for sending the Cancellation Message.

273    Further, I find that the fact that Mr Gillham had expressed a political belief of any sort was not a substantial or operative reason for sending the Cancellation Message either. The analysis in [261] above concerning the Cancellation applies equally to the sending of the Cancellation Message.

D.3(e)    3rd adverse action: imposing the Second Condition

274    The third alleged adverse action is the imposition of the Second Condition (that Mr Gillham not make any physical or verbal statement from the MSO stage at the Thursday concert). As explained below, the decision to impose the Second Condition was made by the MSO Working Group (and endorsed by the MSO Board as a whole), and conveyed to Mr Gillham through an email and text message by Mr Ross to Mr Davies (a representative of the MEAA, an arts union) around 4.45pm on Wednesday 14 August 2024.

275    Background (Second Condition): As noted, the Cancellation and Cancellation Message actions were taken by the MSO Leadership Group on Monday 12 August without any input from the MSO Board. As noted, Dr Galaise spoke to Mr Buggle before the MSO Finance Committee meeting on the afternoon of Monday 12 August, and Mr Buggle sent a text to Mr Myer that afternoon relaying that a pianist had made an anti-Zionist speech, and the MSO Leadership Group was going to be apologising and rescheduling the Thursday performance.

276    Initial reactions of MSO Board (Tue 13 Aug): Dr Galaise informed the MSO Board as a whole of the Cancellation and the Cancellation Message in an email sent at 6.41am on Tuesday 13 August. The reaction of Ms Jackson and Mr Foley to that news from the morning into the evening of 13 August was as follows:

(a)    Ms Jackson sent an email at 7.21am to Dr Galaise asking whether this meant going forward that the MSO needed to vet outside performers. Ms Jackson referred to the significant impact on philanthropic giving at the Sydney Theatre Company, and stated “security for future concerts could be an issue”.

(b)    Ms Jackson emailed Mr Foley at 11.05am stating it “[p]robably would have been better to alert the board ahead of issuing the statement”, and asking whether Dr Galaise had spoken to Mr Foley as the coordinator of the working group. Mr Foley replied at 11.26am that he first heard about the incident that morning. He stated that given “the capacity for this issue to polarise and divide communities and organisations”, it fell to the MSO to:

•    minimise the chances of it going anywhere and being seen to “be even handed/not taking sides” but being clear this stance and activity was inappropriate and cannot be tolerated

•    Whilst ensuring steps to stop it again/avoid bad consequences for MSO

•    …

•    Prepare for activity both inside and outside up coming concerts and events from pro Gaza supporters

•    …

•    Engage with our Jewish community particularly – noting our upcoming Holocaust concert

He concluded “[b]ut yes – board should have been advised before hand”.

(c)    Ms Jackson emailed Dr Galaise at 1.37pm (copying in the MSO Board), stating “[i]n hindsight the board should have been alerted prior to the finalisation of the statement”. She suggested that the working group which had managed a prior unrelated issue be reinstated to deal with the Gillham issue, and stated that the “lessons from the [S]ydney theatre experience we would not want to repeat”. She asked whether Mr Imber was sufficient support for management, and suggested that the MSO consider “additional crisis management assistance”.

(d)    Mr Foley sent a text message to Dr Galaise (and her assistant), Ms Jackson and Ms Jameson at 2.37pm. He “assumed” a number of matters would occur, including that the “strong critical pro Gaza and anti Israel focus on MSO online and in media will ensure media attention” and “pro Gaza/ anti Israel groups will focus on us for a while and make the pianist a cause (upcoming concerts/events/targeting our major corporate supporters. Etc”. Mr Foley considered that the MSO faced a “potential uncertain environment” that “will need careful management”. He stated (among other things):

-    but let’s avoid any more causes celebs [causes célèbres, ie a controversial issue that attracts a great deal of public attention] and [e]nflaming

-    let[’s] make sure we are being scrupulous in not being seen to take sides – while wanting to engage with our staff/donors/audiences/ sponsors/stakeholders to demonstrate that we are capable of careful management

(e)    At 7.36pm, Ms Jackson sent Mr Foley a text stating “I don’t think we got all the story from [Dr Galaise] re Sunday”, and sent a further text to Mr Foley after 9pm stating (relevantly) that “no board members or musicians were spoken to in the decision-making process”. Mr Foley replied to the latter message, stating “to be presented a done deal and strategy is very poor form”, and that Creative Australia (both Victoria and Australia) were “[u]nimpressed that [the MSO] had given Mr Gillham a platform”.

(f)    At 10.47pm, Mr Foley sent a text message to the MSO Board Working Group stating there were “a host of questions”, which included what options were considered, why the decision to terminate was made, and the process around the draft statement. Mr Foley stated that “[t]o not advise the board as to the issue and seek approval seems on the face of it poor judgement”.

277    MSO Board Working Group takes advice from Bespoke Approach (13-14 August): In the afternoon of Tuesday 13 August, Ms Jackson contacted Mr Smith of Bespoke Approach for him to provide advice to the MSO Board. Mr Smith in turn engaged Mr Luff to assist him.

278    The MSO Board Working Group (at that time Ms Jackson, Mr Foley, Ms Jameson and Dr Galaise) agreed to engage Mr Smith and Mr Luff sometime after 5pm on Tuesday 13 August. (Mr Myer was later added to the MSO Board Working Group.) Mr Smith emailed Ms Jackson some “initial advice” at 5.20pm, which included the following:

    The response statement from MSO (the Cancellation Message) is good, and stick to that with public comment for the time being (point 1).

    The security concerns “are significant, as you [Ms Jackson] mentioned”. Engagement with police is paramount and a priority ahead of the Thursday Town Hall concert (point 3).

    The MSO should formally write to the State and Federal Governments, and should call the Prime Minister’s Office, the Premier’s Office, and the Federal Leader of the Opposition (points 5, 7-8). Other key players to contact are Peter Khali (special envoy for social cohesion) and Jillian Segal (anti-Semitism envoy) (point 6).

    The MSO should message all staff and MSO players and add that the MSO Board is conscious of everyone’s welfare. Staff should be provided with a contact point to raise any concerns or anxieties (points 9-10).

    The MSO should provide the Cancellation Message to the MSO’s donors and ask them to contact the MSO if they have any concerns (point 11).

279    Sometime on the Tuesday evening, Ms Jackson spoke to Mr Smith and Mr Luff. She sent Mr Foley a text at 9pm (and Mr Myer a text at 9.01pm) stating that Mr Smith and Mr Luff thought that the MSO should get Mr Gillham “to perform with agreed words”, and that Mr Moore should negotiate to get Mr Gillham back to perform on Thursday “to reduce his ability to inflame the media”. At 9.16pm, Mr Myer sent Ms Jackson a text message stating “I guess the issue is, how do we make this not look like a backflip?”.

280    The MSO Board Working Group and Mr Smith and Mr Luff met by Zoom around 9.30am on Wednesday 14 August. The Working Group decided to investigate whether Mr Gillham would agree to play on Thursday night.

(a)    Before that meeting (around 7.53am), Ms Jackson sent Mr Myer a text stating that she had just spoken to Mr Meltzer and that one option was “to reinstate [Mr Gillham] on Thursday without political comments”, and the second option was to “deal with the overreaction by management”.

(b)    At 10.11am, Dr Galaise sent an email to the MSO Leadership Group stating that “[a]s an outcome of our 9.30 meeting [of the MSO Board Working Group], our new PR strategists have advised us to do a backflip and re-invite Jayson to perform with us tomorrow”. Dr Galaise stated that Mr Moore was “tasked to reach out to [Mr Gillham’s] agent and discuss this possibility”.

(c)    Sometime after 9.40am, Mr Moore sent Ms Armstrong a text message stating that we (the MSO) “would like to investigate whether there is a world in which [Mr Gillham] would come and play the concerto tomorrow [ie Thursday] after all.” In a later text, Mr Moore stated the MSO “would also be looking to make a joint statement with him about Sunday [ie the Recital], which we would mutually agree, and would want a guarantee of no talking from the stage tomorrow night” (emphasis added). Mr Moore stated further that, although it was not a matter for Mr Gillham just then, “we’d obviously need to acknowledge a misstep on behalf of the MSO”.

(d)    At 10.37am, Dr Galaise sent members of the MSO Leadership Group a text stating that “FYI [Mr Meltzer] was approached by [Ms Jackson] and he, apparently, as a respected member of the Jewish community is approving” of Mr Gillham’s Thursday performance being reinstated.

(e)    At 1.33pm, Ms Jackson sent a text to the MSO Board Working Group stating they were “investigating alternatives of reinstating [Mr Gillham’s] performance Thursday with control v alternative performance and manage media”.

281    MSO Board approves decision to invite Mr Gillham to return (Wed 14 August 3pm): The MSO Board held an urgent meeting at 3pm on Wednesday 14 August, where the Board approved inviting Mr Gillham to perform on Thursday 15 August and issuing a joint statement. The minutes of that meeting record the following:

(a)    Ms Jackson and Mr Moore provided a verbal update. Relevantly, management (ie the MSO Leadership Group) removed Mr Gillham from an upcoming performance on Thursday 15 August, “given the MSO’s position that concerts are not a platform appropriate for political comments.” The MSO Board Working Group had received advice and guidance from Mr Luff and Mr Smith to the effect that:

•    The MSO should re-instate Jayson as pianist for the performance on Thursday;

•    A joint statement to be issued that covers 3 things:

•    1. That MSO made a mistake in asking Jayson to not play on Thursday;

•    2. The MSO acknowledges that sensitivities of the matter and political situation between Israel and Palestine; and

•    3. Jayson will perform on Thursday and continue his relationship with the MSO

(b)    The following matters were discussed by the MSO Board (emphasis added):

•    The MSO is not a platform for political or personal statements to be made and this should be noted within the statement and reinforced in future contracts with musicians;

•    This story has been picked up by media globally with different narratives which is impacting both the MSO and Jayson’s reputation therefore need to ensure if Jayson is reinstated then he makes no future comments on or off the stage;

•    Personal apology to Jayson not in statement, if required a quid-pro-quo apology could be included

•    Important to show an ongoing relationship between Jayson and the MSO into the future to assist with restoring confidence in Jayson's reputation;

•    …

•    The MSO to maintain being a safe space for its audiences and the stage not to be used as a platform for any person or organisational agenda. This is important for funders and sponsors.

(c)    The Board agreed to delegate to the Board Working Group to “pursue the current strategy of restoring relations with Jayson, issuing a joint statement and working with crisis management team”. A copy of the joint statement was “to be issued to the Board for final review with a 10 minute window of opportunity for approval or otherwise, given the urgency.”

282    Mr Ross communicates Second Condition to Mr Davies (Wed 14 August 4.45pm): At around 4.45pm, Mr Ross sent Mr Davies an email and then a text, both marked “without prejudice”. Mr Ross stated “[w]e propose:

1.     Reinstatement and performance of the Mozart concerto No. 12 with MSO at the performance on Thursday 15 August at Melbourne Town Hall (plus rehearsal tomorrow at MTH);

2.     No physical or verbal statement from the stage; and

3.     Agreement on the statement below (to be issued publicly by MSO).” (emphasis added)

The draft statement in Mr Ross’ email read as follows (emphasis added):

We acknowledge that there is enormous division in some parts of the community here and overseas, and after considering the evolving circumstances in recent days, the Melbourne Symphony Orchestra recognises the strength of feelings of artists, audience members, musicians and staff.

We acknowledge that a mistake was made in asking Jayson Gillham to step back from his performance on Thursday 15 August at Melbourne Town Hall and we apologise to him for doing so.

In seeking a positive way forward for everyone - the artists, musicians, staff and most importantly our audience members - we have engaged constructively with Jayson and his management.

We are pleased to confirm that Jayson will perform Mozart Piano Concerto No 12 at Melbourne Town Hall on Thursday 15 August as originally scheduled.

We look forward to welcoming Jayson back for further artistic projects in the future.

283    As explained below, Ms Armstrong emailed Mr Moore at 4.21pm (before Mr Ross’ messages to Mr Davies) stating that Mr Gillham could not perform at the Thursday concert: see [306](e) below.

284    Decision-makers (Second Condition): The background set out above shows that the key decision-makers for the Second Condition were the MSO Board Working Group; in particular, Ms Jackson, Mr Foley and Mr Myer. Bespoke Approach also made a significant contribution to this decision, in the sense used in Wong and Pilbrow: see [180]-[182] above.

285    Contrary to Mr Gillham’s submission, I would not draw any adverse inference from the fact that Ms Jameson and Mr Luff did not give oral evidence in this proceeding.

    Ms Jameson was also a member of the MSO Board Working Group. However, the evidence (particularly of Mr Myer and Ms Jackson) was that Ms Jameson’s involvement was peripheral in nature. That characterisation of Ms Jameson’s involvement is supported by the contemporaneous email, text and WhatsApp messages of the MSO Board Working Group and the minutes of the MSO Board meeting. I find that Ms Jameson was not a driver of the decision to impose the Second Condition (or to send the Final Public Statement), and therefore would not draw any adverse inference from the fact she did not give oral evidence.

    Mr Luff was brought in by Mr Smith to assist in providing strategic advice to the MSO Board. Mr Smith gave oral evidence about his reasons for the advice provided by Bespoke Approach. He was the person who was engaged by Ms Jackson. Nothing in the messages in evidence suggests that Mr Luff had any different perspective from Mr Smith. I therefore would not draw any adverse inference from the fact that Mr Luff did not separately give evidence.

286    Dr Galaise was also a member of the MSO Board Working Group; however, I find that she was not a driver of the decision to impose the Second Condition, even though Mr Ross’ evidence was that Dr Galaise and Mr Moore dictated the contents of the email that Mr Ross sent to Mr Davies. The decision of the MSO Board Working Group as a whole was to reverse course (do a “backflip”) on the decisions made by Dr Galaise and the MSO Leadership Group on Monday 12 August. Both Ms Jackson and Mr Foley’s messages on Tuesday 13 August were openly critical of the process followed by the MSO Leadership Group, headed by Dr Galaise: see [276] above. The oral evidence of Ms Jackson and Mr Myer indicated that by this time there had been a breakdown in the relationship between Dr Galaise and the MSO Board: they described the incident with Mr Gillham as the “final straw” or “last straw”. In any event, Dr Galaise’s reasons for supporting the Second Condition were entirely consistent with those of Ms Jackson, Mr Foley and Mr Myer: see [292] below.

287    It is true that the MSO Board as a whole approved the decision to impose the Second Condition at the 3pm MSO Board meeting on Wednesday 14 August. However, the decision to impose a condition on Mr Gillham not to make any statements from the stage had already been set in train by then: Mr Moore’s earlier email to Ms Armstrong stated that the MSO “want[ed] a guarantee of no talking from the stage tomorrow night”: see [280](c) above. I would therefore regard the MSO Board Working Group, rather than the MSO Board as a whole, as the relevant decision-making body.

288    The fact that the Second Condition was conveyed to Mr Gillham (via Mr Davies) by Mr Ross does not make Mr Ross one of the key decision-makers for the Second Condition: the decision to impose this condition was taken by the MSO Board Working Group, and approved by the MSO Board. Mr Ross was not a member of either group, although he was present at the 3pm Board meeting on Wednesday 14 August. Mr Ross stated in oral evidence in chief that he sent the email containing the Second Condition because he was asked to do it, and he stated in cross-examination that he did not consider that he had any authority to do anything other than what he was asked to do by the MSO Board. For completeness, I would if necessary reach the same conclusion about Mr Moore, who sent the earlier email to Ms Armstrong seeking “a guarantee of no talking from the stage tomorrow night” (noting that Mr Moore’s email is not relied on as the relevant adverse action).

289    Stated Reasons (Second Condition): The key decision-makers for the Second Condition identified above stated that their only reasons for imposing this condition were as follows:

    Ms Jackson said that she thought the MSO stage should not be a place for political comment. She said that people go to MSO concerts for the performance of music, not for political statements or personal views. Ms Jackson also said that one would not expect a guest artist performing a concerto (as was proposed for Mr Gillham at the Thursday concert) to make any comment. She said in cross-examination that Mr Gillham had made a political statement at the Recital, and the MSO did not want a repeat political statement on Thursday, which would inflame the situation again. The MSO was “trying to quieten things down”.

    Mr Foley said that the MSO needed to act in the interests of the organisation and protect its audience, and make sure there were no surprises on its stage. He said earlier that a key to resolving the unwarranted and unhelpful attention to which the MSO was subject was having Mr Gillham agree to perform on Thursday. But a condition of reinstatement was that the MSO Board did not want to have any further “unforeshadowed” statements as had been seen at the Sydney Theatre Company. He said in cross-examination that, insofar as the events had got the MSO to that point, he wanted to make sure that the Concert as advertised was delivered.

    Mr Myer said that the Second Condition was purely to make sure that the risk of something unauthorised being said was mitigated. He said it was not really about the opinion per se, but it was just a way to focus on the music being performed. My Myer said in cross-examination that it was prudent to manage the risk of there being unauthorised statements from the stage, as Mr Gillham “had form”. Mr Myer agreed that he thought the Condition was required in order to prevent Mr Gillham from making another political statement at the Thursday concert. When pressed whether he was particularly concerned to prevent Mr Gillham from making another comment about Israel, Mr Myer accepted it was “potentially” in part for that reason.

290    These witnesses stated that they would have sought to impose the same condition if Mr Gillham had expressed views in support of Israel, or against Hamas, at the Recital.

291    Mr Smith said that the Gillham matter had received a significant amount of coverage which was damaging reputationally to the MSO, as a result of people having views as to what Mr Gillham had said, and disquiet among the musicians. He said the Second Condition was proposed to avoid ongoing or repeated controversy, and to ameliorate the situation. He said that the key reason was to enable things to get back on track and Mr Gillham to play. He was also seeking to restore the reputation of the MSO and manage its reputation, given the fallout since what had occurred on Sunday at the Recital. Mr Smith said these were his only reasons, and he was seeking to manage what was an emerging crisis and to move forward for the MSO. He said that he absolutely would have taken the same approach, irrespective of the views held by Mr Gillham one way or another on the Israel-Gaza conflict.

292    To be clear, nothing in the evidence of the other MSO witnesses cuts across the reasons of Ms Jackson, Mr Foley, Mr Myer and Mr Smith. I mention two witnesses in particular.

    Dr Galaise was a member of the MSO Board Working Group (although I have found that the Second Condition was driven by Ms Jackson, Mr Foley and Mr Myer). Dr Galaise said that she supported the Second Condition to ensure that the MSO was providing its audience members with a safe environment. She said earlier that she did not want any spontaneous comment from Mr Gillham that could potentially put the MSO in a difficult position. She accepted in cross-examination that the reason for the Second Condition was that Mr Gillham had already expressed a political belief at the Recital and the MSO wanted to stop him doing it again. Dr Galaise said the MSO did not want more controversy.

    Mr Meltzer (unlike the other MSO Board members) had strong personal views in favour of Israel. However, he was not a member of the MSO Board Working Group, and he did not attend the 3pm MSO Board meeting on Wednesday 14 August. His views were sought, as a Jewish man, on whether he thought the Jewish community would object to the MSO inviting Mr Gillham back to play on Thursday: see [280](d) above. He said he thought the Jewish community would be okay with it. Mr Meltzer told the MSO’s company secretary that Ms Jackson had his proxy for the 3pm MSO Board meeting on Wednesday 14 August, but did not discuss with Ms Jackson what position she held. In these circumstances, I find that Mr Meltzer’s strong personal views in favour of Israel did not form any part of the decision-making process of the MSO Board, or the MSO Board Working Group.

293    Members of the MSO Leadership Group (including Mr Ross, Mr Moore and Ms Dembo) were present at the 3pm MSO Board meeting on Wednesday 14 August. However, they were not Board members, nor were they making recommendations to the Board. Mr Moore said that sometimes Ms Jackson would ask him to clarify factual matters and provide updates on the negotiations with Ms Armstrong. Mr Ross and Ms Dembo did not make any substantial contribution to the 3pm meeting. I find that any views of Mr Ross, Mr Moore or Ms Dembo about the Second Condition (or the Final Public Statement) did not form part of the substantial or operative reasons for those actions.

294    Substantial and operative reasons (Second Condition): The MSO contends that the substantial and operative reasons for imposing the Second Condition were as follows:

(1)    Protecting the MSO stage from unauthorised comments;

(2)    De-escalation of adverse media;

(3)    Ensuring that the audience was in a safe environment, which was important for funders and sponsors.

295    Each of these purposes is supported by the MSO Board minutes (summarised in [281] above), and by the oral evidence of Ms Jackson, Mr Foley, Mr Myer and Mr Smith (summarised in [289] and [291] above).

296    MSO Board was responding to a media controversy: A key contextual matter is that, by Tuesday 13 August and onwards (when the MSO Board became involved), the Cancellation and Cancellation Message had attracted considerable controversy in social media: senior counsel for the MSO described it as a “firestorm”. The MSO Board members were aware at the time of their decisions of the intense public scrutiny facing the MSO.

    At 1.37pm on Tuesday 13 August, Ms Jackson stated in an email to Dr Galaise (copied to the Board) that the situation with Mr Gillham had crossed into the mainstream media (lead article in The Age) as well as social media.

    Later that afternoon, Mr Foley stated in a text message to Dr Galaise (and her assistant), Ms Jackson and Ms Jameson that he assumed (expected) that the strong critical response to the MSO’s decision online and in the media would ensure media attention, and with the Sydney Theatre Company and other examples the media would want to look for more controversy.

    At 7.25am on Wednesday 14 August, Dr Galaise sent a text to Mr Stewart asking for information about the number of complaints to the MSO for a 9am meeting of the MSO Board Working Group. Mr Stewart sent a text to Dr Galaise at 8.48am stating that social media comments were not slowing down (with approximately another 150 since the previous afternoon), and there were 69 box office emails at the end of Tuesday and approximately 70 direct messages across Facebook and Instagram.

297    That is, the MSO sought to stop Mr Gillham from making any statements from the MSO stage to de-escalate the situation, in an attempt to stem the damage to the MSO’s reputation and business caused by the media controversy following the Cancellation and the Cancellation Message. In other words, this action was taken to address the impact of Mr Gillham’s remarks, even if it was prompted by Mr Gillham having made political remarks (and political remarks critical of Israel in particular).

298    Another relevant contextual matter is that each of the key MSO Board decision-makers (Ms Jackson, Mr Foley and Mr Myer) thought there was a custom or practice that classical musicians do not make unauthorised political statements from the stage.

    Ms Jackson said that she had attended MSO concerts for more than 40 years, and she had never heard a guest musician make controversial political or social statements on the stage.

    Mr Foley’s view is that there should be no surprises, and that the MSO’s stage is there for the MSO to protect its reputation, its audience and its status.

    Mr Myer’s view was that a concert is about the music, and if a performer decides to air unauthorised personal political views, it is fair to expect consequences.

299    I do not rely on these witnesses to establish that a custom or practice exists (Mr Myer, in particular, estimates that he has attended a few more than 100 classical concerts in his life). However, it is relevant that the Second Condition reflects what these decision-makers considered was expected behaviour of a classical musician in any event. It is also relevant that these decision-makers were committed to the MSO not expressing any view on the Israel-Gaza conflict, in support of either side. These matters support the conclusion that the decision-makers were concerned to prevent any further adverse impacts of Mr Gillham making unauthorised remarks from the stage, and were not concerned with the particular beliefs being expressed.

300    Second Condition was directed at preventing political expression? Mr Gillham contends, however, that it is obvious on the face of the Second Condition that it was directed at preventing Mr Gillham from making any political statements at the Thursday concert (and, in practice, was directed at him making political statements critical of Israel).

301    Again, I accept that Mr Gillham making political comments at the Recital was the instigating event that led to the MSO Board imposing the Second Condition, and in this sense the Second Condition is “interconnected” with his expression of a political belief. And in practice, the most likely subject of any political statement by Mr Gillham would be criticism of Israel, meaning that the intended effect of the Second Condition might be seen as preventing political statements critical of Israel in particular.

302    However, the fact that the Second Condition is interconnected with the past and anticipated expression of political belief does not mean that the action must have been taken “because” of the expression of a political belief within ss 360 and 361 of the FW Act. I do not accept that on the facts of this case that the MSO’s reasons for action cannot be separated from the political content of Mr Gillham’s remarks. On the evidence, the MSO Board Working Group was concerned to ameliorate the damage to the MSO’s reputation and business that was created by the Cancellation and Cancellation Message. This adverse impact would include an adverse impact on Jewish donors and sponsors, but (as with the Cancellation and Cancellation Message) the adverse impacts extended to other donors and sponsors too: see [254] above. That is, the Second Condition was designed to address the impact of any future statements, irrespective of the political beliefs being expressed. I accept that the MSO Board Working Group would have taken the same approach if the anticipated statements had been pro-Israel or anti-Palestine, because the level of public criticism actually experienced demonstrates that these hypothetical remarks would have generated a strong adverse public reaction and the same impacts on the MSO’s reputation and business.

303    Further, I do not accept that a substantial and operative reason for imposing the Second Condition was that Mr Gillham had expressed a political belief, as distinct from some other type of belief. The analysis in [261] above concerning the Cancellation can be applied to the imposing of the Second Condition as well.

D.3(f)    4th adverse action: publishing the Final Public Statement

304    The fourth and final alleged adverse action was publishing the Final Public Statement. As explained below, this action was taken by the MSO Board Working Group, with a significant contribution made by Mr Moore and Bespoke Approach. The Final Public Statement was emailed to the ticket holders for the Thursday concert at 9.51am on Thursday 15 August, and published on the MSO’s website at 10.28am.

305    Further background (Final Public Statement): As noted, the advice from Bespoke Approach (approved by the MSO Board at the 3pm meeting on Wednesday 14 August) was that the MSO should invite Mr Gillham back to perform on the Thursday, and the parties should issue a joint statement covering three things: 1. The MSO made a mistake in asking Mr Gillham not to play on Thursday; 2. The MSO acknowledges the sensitivities of the matter and the political situation between Israel and Palestine; and 3. Mr Gillham will perform on Thursday and continue his relationship with the MSO: see [281](a) above. Mr Ross’ email and text to Mr Davies at 4.45pm on the Wednesday included a draft joint statement, which referred to the MSO making a “mistake” and included an apology to Mr Gillham: see [282] above.

306    Drafting of the Final Public Statement: The MSO Board Working Group, Mr Moore and Bespoke Approach drafted the proposed joint statement over the course of Wednesday 14 August.

(a)    As noted, Mr Moore sent Ms Armstrong a text message sometime after 9.40am on Wednesday 14 August stating that the MSO was looking to issue an agreed joint statement with Mr Gillham: see [280](c) above. At 12.35pm, Ms Armstrong emailed Mr Moore stating that, before agreeing to anything, Mr Gillham “has asked for clarification on what steps [the] MSO will be taking to rectify the global reputational damage that he has suffered as a direct consequence of the organisation’s statement [ie the Cancellation Message]”.

(b)    Mr Moore emailed initial drafts to Dr Galaise and Mr Luff at 12.32pm, to Dr Galaise at 1.15pm, and then to Dr Galaise and Mr Luff at 1.51pm. This last draft stated that the MSO acknowledged that it had made a “mistake” in asking Mr Gillham to step back, and the MSO apologised “for the upset and distress caused over the last three days”. In this draft, the MSO was proposing that Mr Gillham note that the platform he used at the Recital “was not the appropriate one to make his statement”. Mr Myer sent a text message to the MSO Board Working Group at 2.45pm setting out a version of the statement fairly similar to the first version sent by Mr Moore.

(c)    At 2.36pm (before the MSO Board meeting), Mr Smith sent Mr Luff a message about a call he had had with the MSO Board Working Group. Mr Smith stated that Mr Gillham wanted an apology, but the MSO was “worried about opening up to defamation”. Mr Smith advised that the MSO should “get agreement that there’s no further action [meaning no further statements] and both should recognise errors”.

(d)    At 3.55pm (after the MSO Board meeting), Mr Moore emailed Ms Armstrong stating that the MSO “was happy to leave the door open to assisting with wider international reputation building/rebuilding, but at this point [the MSO] Board doesn’t feel comfortable including a line about reputation in advance of tomorrow”. Mr Moore stated that the MSO would “be happy to add an apology for asking [Mr Gillham] to step back”, and set out a revised draft (which referred to the MSO making a “mistake” and contained an apology to Mr Gillham).

(e)    At 4.21pm, Ms Armstrong emailed Mr Moore stating that Mr Gillham had decided that he could not perform on Thursday. At 4.36pm, Mr Moore emailed Dr Galaise a draft statement “for if/when [Mr Gillham] says no”. This version did not refer to an error or mistake by the MSO, and did not contain an apology to Mr Gillham.

(f)    At 6.31pm, Mr Moore sent an email to Dr Cairnduff (marked “without prejudice”) containing a draft statement. This draft included a sentence that the MSO “acknowledge[d] that a mistake was made in asking [Mr Gillham] to step back from [the Thursday performance] and we apologise to him for doing so”.

(g)    Around 8pm, Dr Galaise forwarded to Mr Smith and Mr Luff a draft statement prepared by Mr Moore. This draft included the statement set out above (about the MSO acknowledging a mistake and apologising to Mr Gillham). Around 8.13pm, Mr Smith sent his thoughts about a statement to the MSO Board Working Group, which would state that the decision was based on a security assessment and advice, and the MSO “regrets the events of the last week and decisions taken” (but without an apology to Mr Gillham).

(h)    There was a meeting of the MSO Board Working Group by Zoom around 8.40pm, by which time Mr Foley was obtaining security advice (as discussed below). At 8.51pm, Mr Moore emailed a draft to Dr Galaise, Mr Smith and Mr Luff. This draft stated that “[f]ollowing security advice” the MSO would not be performing on Thursday, and apologised to those who were planning to attend. This draft included an acknowledgment by the MSO that an error was made in asking Mr Gillham to step back, and an apology by the MSO for doing so.

(i)    At 8.50pm, Dr Cairnduff emailed Mr Moore with Mr Gillham’s amendments to the draft statement (which the MSO had sent at 6.31pm), and the following quote from Mr Gillham:

I accept the MSO’s apology. I hold my relationship with the MSO, its players and audience with the highest regard. And look forward to our continued working relationship in years to come.

Dr Cairnduff stated that, although he appreciated that the MSO had moved to a slightly different strategy, “[i]f you have an opportunity to include these comments, we would appreciate it”. Mr Moore replied that “the acknowledgment of error and apology is there, so I think we might still use the quote”, and said that the MSO would keep Dr Cairnduff in the loop.

(j)    At 10.05pm, Mr Smith emailed the MSO Working Group the “[f]inal version from us [Bespoke Approach]”. His email stated “[r]emoving apology, which can be said at a later date if necessary, and making the time line of decisions clear”. This draft was sent to the MSO Board for their approval, but it is substantially the same as the Final Public Statement.

307    MSO obtains security advice: Once it was clear that Mr Gillham would not be returning, the MSO obtained security advice about the Thursday concert at the Town Hall.

(a)    Security concerns were apparent to the MSO by the afternoon of Tuesday 13 August: Mr Smith’s initial advice to Ms Jackson included a statement that “[t]he security concerns are significant, as you have mentioned”: see [278] above. At 5.49pm that day, Mr Ross sent an email to Ms Jackson and Dr Galaise stating that he just had a productive conversation with the MEAA and other player representatives about safety concerns of musicians and the evolving risk assessment ahead of Thursday’s performance. Ms Jackson and Mr Ross said in oral evidence that the Town Hall presents particular security concerns for the musicians, because they are required to use the public entrance (whereas there is a private players’ entrance at Hamer Hall).

(b)    The MSO Board Working Group were told around 5.23pm that Mr Gillham would not be returning, and that position was confirmed around 6.35pm when Dr Galaise relayed a conversation that management had had with Mr Gillham’s “PR person” (Dr Cairnduff). Ms Jackson sent a text at 6.36pm to the Working Group stating that Mr Foley was looking into an independent threat assessment “that may also help with cancelling”.

(c)    At 7.17pm, Mr Foley stated in a text message to the MSO Board Working Group that he had had initial contact with a security consultant used by Creative Victoria, Ms Emily O’Brien. At 7.34pm Mr Foley stated that he would be talking to Ms O’Brien around 8.15pm. As noted, the MSO Board Working Group met by Zoom around 8.40pm.

(d)    At 9.13pm, Ms Jackson sent a text message to the MSO Board stating that independent security advice was that there was a risk in continuing with the Thursday concert, and therefore the Concert was cancelled. She stated that a release was being drafted along these lines. At 9.21pm, Mr Moore sent a draft of the statement to Dr Galaise and Bespoke Approach, which began “[f]ollowing safety advice the [MSO] will not be performing at Melbourne Town Hall tomorrow night”. Mr Moore said in oral evidence that by this time, he and Mr Ross had sat in on calls between Mr Foley and Ms O’Brien, in which Ms O’Brien had given verbal advice.

(e)    At 9.54pm, Mr Foley received an initial assessment report from Ms O’Brien about the Concert, which he forwarded to the MSO Board Working Group at 10pm. This report referred to an earlier phone discussion with Mr Foley, Dr Galaise and other key personnel. Ms O’Brien concluded that it was untenable to put in place sufficient risk treatments within the next 24 hours to adequately mitigate the human health risks for staff, artists and other key personnel, and she affirmed that cancellation was the most appropriate decision. At 10.34pm, Ms Jackson emailed the MSO Board Working Group stating that this report “back[ed] up the earlier verbal advi[c]e”.

308    Key decision-makers and their Stated Reasons (Final Public Statement): The further background above shows that, although the MSO Board was given a final opportunity to review the statement, the Board delegated the drafting of the statement to the MSO Board Working Group (in practice, Ms Jackson, Mr Foley, Mr Myer and Dr Galaise). The Working Group in turn relied heavily on Mr Moore and Bespoke Approach for the actual wording.

309    The MSO decision-makers said that their only reasons in drafting the Final Public Statement (including the change of “mistake” to “error”, and the removal of the apology) were as follows:

    Ms Jackson said that the MSO stage should belong to the MSO, and was not a place for individual positions or political statements. She had no recollection about changing the word “mistake” to “error”. Ms Jackson said the MSO Board discussed that it was prepared to include an apology to Mr Gillham if he was prepared to say something about performing the piece in the future, but when there was nothing coming back from Mr Gillham the apology was removed. Ms Jackson said she did not think it was her who removed the apology (contrary to Dr Galaise’s recollection), as Ms Jackson was happy for the apology to be there. She did not have a computer with her at the hospital, and was participating in MSO Board Working Group Zoom meetings on her phone. She said that when she saw the final version sent by Mr Smith (with no apology), she trusted the others who had worked through the drafting.

    Mr Foley said his reasons for supporting the Final Public Statement were first and foremost to protect the safety of the MSO’s players, its audience and the community, and secondly to protect the MSO’s reputation. Mr Foley said that the MSO was more than happy to have an agreed set of words when the outcomes met what Mr Gillham and the MSO were seeking, but once it became clear that Mr Gillham was not going to perform and there was not going to be a concert it became an “MSO only statement” to demonstrate why the MSO was in this position. Mr Foley accepted that “error” is less weighty than “mistake”, but thought it was a more accurate reflection of what had transpired.

    Mr Myer said that his single reason for supporting the Final Public Statement was that the independent security assessment made it untenable to have the Thursday concert. Mr Myer said that the MSO’s initial draft contained an apology, with a view to amending the situation. But when Mr Gillham was not going to perform, the situation changed to one of heightened security risk and any apology became moot. Mr Myer thought that “error” better reflected what had happened, because the error with the Cancellation was one of process.

    Dr Galaise said that the MSO had to inform their audience that the Thursday concert had been cancelled and briefly outline why. She thought the Final Public Statement described the situation: the MSO was cancelling the Thursday concert for safety reasons, and were apologising to the audience who were supposed to be coming to the Concert. Dr Galaise’s clear recollection was that Ms Jackson removed the apology from the statement. Dr Galaise’s personal view was that removing the apology was going to bring the MSO into a more difficult situation, but she followed what had been decided. Dr Galaise thought that “mistake” and “error” were quite similar, and the difference was only semantic.

310    These witnesses said they would have taken the same approach if Mr Gillham had made remarks supportive of Israel, or against Hamas.

311    Mr Smith said that the MSO had sought security and safety advice, and the Concert was cancelled as a result of that specific matter. He said he did not have any other reasons, and he would have taken the same approach irrespective of the political belief expressed by Mr Gillham at the Recital. Mr Smith believed that an apology should have been given to Mr Gillham for the way that the matter had been handled. Although he removed the apology from the statement, Mr Smith said this decision was made “more broadly than by me”, and would have been made by the MSO Board Working Group collectively. He said the final decision was ultimately for the MSO to determine what was published. Mr Smith thought there was little difference between an “error” and a “mistake”.

312    Mr Moore said that a statement needed to be issued to the public to make them aware that the MSO Board had decided to cancel the Thursday concert. He said he did not have any other reasons, and he would have taken the same approach if Mr Gillham had expressed a political belief at the Recital in support of Israel or against Hamas. Mr Moore said that the statement had been “workshopped” before the 3pm Board meeting on Wednesday 14 August by himself, Dr Galaise, Mr Smith and Mr Luff. Mr Moore thought Mr Ross and Ms Dembo were involved in some of those conversations as well. Mr Moore said that he was surprised that the final version of the statement sent by Mr Smith around 10pm did not contain an apology, but Mr Moore did not feel able to challenge a version sent by consultants retained by the MSO Board for their specific public relations and crisis management skills. Mr Moore believed that the apology was removed by Mr Luff and Mr Smith, not by Ms Jackson.

313    Although Mr Moore said that Mr Ross and Ms Dembo were involved in some of the conversations about the Final Public Statement, the evidence suggests that neither Mr Ross nor Ms Dembo had a sufficient involvement in the drafting of the Final Public Statement to make their states of mind relevant to the reasons for this action. Mr Ross said that he had no involvement with the Final Public Statement. Ms Dembo said she was not directly involved with the drafting of the Final Public Statement, but that she was present in the room and had made a few small suggestions. She said in cross-examination that she was not involved in the change of “mistake” to “error”, and that her recollection was that the MSO’s public relations people (ie Bespoke Consulting) had removed the apology.

314    Substantial and operative reasons (Final Public Statement): The MSO contends that the Final Public Statement speaks for itself as to reasons for taking this action: the substantial and operative reasons for this action were (1) to inform the public that the Concert had been cancelled for security concerns; and (2) to reaffirm that the MSO’s events were not an appropriate place for unauthorised political comment. These purposes are supported by the stated reasons of the key decision-makers set out above, and the documentary evidence summarised in the further background.

315    As with the Second Condition, the MSO Board Working Group was seeking to deal with the impacts of a media controversy. Mr Gillham’s political remarks at the Recital may have been the original instigating event, but the media controversy was the result of the MSO’s earlier decision to cancel Mr Gillham’s performance at the Thursday concert. The Final Public Statement is not concerned with any future expression of political beliefs by Mr Gillham (unlike the Second Condition). That is, the MSO’s action in publishing the Final Public Statement is not even “interconnected” with the earlier expression of Mr Gillham’s political beliefs (noting that this not the relevant test under ss 360 and 361 of the FW Act in any event).

316    I do not accept Mr Gillham’s argument that the reference to security concerns was not a genuine purpose. It is true that Ms Jackson sent a text to the MSO Board Working Group at 6.36pm stating that an independent threat assessment “may also help with cancelling”: see [307](b) above. However, the background shows that security concerns were raised on the Tuesday, and arose out of the particular features of performing at the Town Hall. The MSO received advice from an independent security consultant. No doubt it was more palatable for the MSO to be able to say that the Concert was cancelled because of security concerns, rather than having to admit that Mr Gillham had rejected the MSO’s offer to return. But that does not mean that the security reason was not genuine.

317    For similar reasons, it is not significant that the Final Public Statement refers to the MSO making an “error” (not a “mistake”), or that the Statement does not contain an apology to Mr Gillham. Again, these features might have the purpose of seeking to downplay the blameworthiness of the MSO, but that is wholly consistent with the MSO Board Working Group endeavouring to deal with the impacts of the Cancellation (and not the content of what Mr Gillham said). The statement that Mr Gillham was “ask[ed] … to step back” is an unhelpful euphemism for what actually occurred (which was that the MSO terminated Mr Gillham’s contract); however, that if anything softens the impact of the Final Public Statement on Mr Gillham’s reputation. It could also be said that the MSO’s acknowledgment in the Final Public Statement of Mr Gillham’s “concerns for those in the Middle East and elsewhere” is strikingly vague. But that is consistent with the MSO’s general commitment to not being seen to say anything about the Israel-Gaza conflict in support of either side. That statement does not suggest that a substantial and operative reason for publishing the Final Public Statement was that Mr Gillham had expressed a political belief (or a political belief of a particular kind): again, the MSO was dealing with the impacts of a decision it had made in response to political statements made by Mr Gillham. The motivations behind the Final Public Statement were much more immediate than, and separate from, the content of Mr Gillham’s original statements.

E.    Conclusions

318    For the reasons given above, Mr Gillham’s claims of adverse action under s 340 of the FW Act are rejected. First, the EO Act is not a “workplace law”, and therefore Mr Gillham does not have a “workplace right”. Second, Mr Gillham’s political beliefs were not a substantial or operative reason for any of the actions taken by the MSO against Mr Gillham. Third, although the Cancellation is an adverse action, I find that the Cancellation Message, the Second Condition and the Final Public Statement are not.

319    These conclusions make it unnecessary to determine the claim of accessorial liability against Mr Ross. The only factual finding I would make is that Mr Ross’ reason for sending the email and text message containing the Second Condition was that he was conveying the wishes of the MSO, and that he felt he did not have a voice or authority in this process of negotiation between the MSO and Mr Gillham about Mr Gillham’s possible return. That finding may not be relevant to whether Mr Ross aided or abetted or was knowingly involved in any contravention, but it is highly relevant to any level of culpability if a contravention had been established. Mr Gillham has joined Mr Ross as a respondent, and sought compensation and penalties from him individually, on the basis that Mr Ross sent an email and text message on the afternoon of Wednesday 14 August containing the Second Condition. Notably, Mr Gillham did not join Mr Moore as a respondent, who earlier that day sent a text message seeking in substance the very same thing (a “guarantee” of no talking from the stage). The evidence does not disclose a reason for this difference.

320    Finally, I repeat something I said to the parties at the end of the hearing. The role of the Court is to resolve legal disputes, and to make the necessary findings of fact to resolve the legal issues (and only those findings). In practice, the Court’s decision is not likely to vindicate one party’s view of events over another, even if the orders of the Court favour one party. Apart from anything else, the parties’ conflicting views of events are not matters that lend themselves to “binary analysis”: see Wong at [94]. The findings contained in these reasons for judgment do not present either Mr Gillham or the MSO to their greatest advantage. It is a matter of some regret that the parties were unable to resolve their differences by agreement.

Associate:

Dated:    10 July 2026