Canceled musician Jason Gillham has lost his case against the Melbourne Symphony Orchestra over comments he made about the 2024 Gaza war.
Judge Graham Hill handed down his verdict in the Federal Court of Australia in Melbourne today, a month after the end of a three-week unlawful discrimination trial that tested the limits of free speech in Australian workplaces.
Justice Hill rejected Gillham’s claim that MSO took “adverse action” against him because of his statements about journalists killed in the Gaza Strip.
Those actions, Gillham alleges, included canceling a scheduled concert, apologizing for his remarks, requiring the pianist not to make similar comments about Gaza if the concert were to be resumed, and refusing to apologize for canceling the musician’s concert.
Gillham argued that under Victoria’s Equal Opportunity Act he had a right to a workplace not to be treated unfavorably because of his political opinions.
However, Justice Hill found that the MSO’s reasons for canceling Gillham’s concert were not related to his political beliefs.
“The political content of Mr. Gillham’s remarks was not a substantive or effective basis for any action by MSO,” he said.
Instead, they were required to “address the anticipated adverse impact” of Gillham’s statement on the orchestra’s business and reputation.
“I believe that MSO did have a policy of not expressing support for either side of the Israel-Gaza conflict,” Justice Hill said.
“I discovered that there is a tradition or practice that classical musicians do not make statements on stage on sensitive political or social issues without the approval of the presenter.”
Justice Hill also found that Gillham’s claims against whom he was discriminated against under the Equal Opportunity Act were not covered by federal workplace law.
Gillham’s lawyer Michael Bradley told the ABC he had just spoken to his client, who is currently in the United Kingdom.
“He’s obviously very disappointed with the result,” Mr Bradley said.
“It will take us some time to read the decision and understand what the outcome is.”
Gillham’s new composition, dedicated to the journalists killed in the Gaza Strip, called Witness, was written by Australian composer Connor D’Netto. (Attached: Jason Gillham)
Gillham’s case against the MSO arose from the orchestra’s decision to cancel one of its scheduled performances in August 2024 after it spoke about journalists killed in the Gaza Strip at a concert in Melbourne.
“Over the past 10 months, Israel has killed more than 100 Palestinian journalists,” Gillham said, introducing the article entitled “Witness.”
“Some of these were targeted killings of prominent journalists while they were traveling in marked cars or wearing press jackets. The killing of journalists is a war crime under international law and is committed to prevent war crimes from being documented and broadcast around the world.”
At least 268 journalists and media workers have been killed in the Gaza war since October 7, 2023, according to the International Federation of Journalists, an independent press freedom organization.
Gaza’s health ministry estimates that more than 73,000 Palestinians have been killed, including more than 1,000 since the ceasefire began in October.
In his decision, Judge Hill said the validity of Gillham’s comments was irrelevant to the case.
“Although these events are related to the conflict between Israel and the Gaza Strip, it is not my role to enter into a discussion of these issues, which are causing serious public controversy,” he said.
In response to Gillham’s remarks, the MSO canceled his next performance and apologized for the offense and distress caused, adding that it does not condone the “expression of personal views” on stage.
The MSO received one written and two oral complaints about Gillham’s concert, as well as 487 complaints about the decision to cancel his next performance.
Days later, despite growing public backlash, MSO said the cancellation was a “mistake” and committed to rescheduling, but negotiations between the parties soon stalled abruptly and Gillham filed suit in the Federal Court in October 2024.
Freedom of expression or breach of contract
Speaking to ABC Arts ahead of the trial in May, Gillham said he was taking the case to trial because he believes “everyone has the right to freedom of expression.”
Pianist in a fight with the MSO
“I think everyone has the right (to be themselves on stage), and that’s why I’m fighting this case.”
When Judge Hill adjourned the case on June 5, he encouraged Gillham and MSO to try to settle the case out of court.
“I will have to navigate some very difficult areas for both parties, and once I reach my conclusions … they will be public and permanent,” Justice Hill said.
“It would be to the advantage of both parties if it were at all possible to resolve this matter without having to say what I need to say in the judgment.”
In an October 2024 Instagram post, Gillham said it was “about artists being able to perform honestly and without fear of censorship.” (Attached: Bruce Marshall)
In June, Gillham’s lawyer Sherin Omeri K.S. stated that the pianist’s performance was canceled not because he did not have the orchestra’s permission, but because of its political content.
She said it was “inconceivable that it would be cancelled” if, instead of talking about the deaths of journalists during the Gaza war, it had called for the release of Israeli hostages – something the orchestra’s then managing director Sophie Galese did in December 2023.
Testifying on the first day of the trial, Gillham said he did not tell the MSO or his agent about his plans to play “Witness” because he was worried the orchestra “wouldn’t allow the performance.”
Concert pianist files lawsuit against MSO in Federal Court
In June, Justin Bourke KS, a lawyer acting for the MSO, said Gillham had violated “convention” by expressing a political opinion on stage, and the MSO’s decision to cancel the planned performance “will have monetary and ramifications,” potentially impacting ticket sales, sponsors and donors.
When the case began in May, Mr Bourke said the MSO felt he had been misled by Gillham: “He knew he was crossing the line. He knew he was going to make political statements about Gaza.”
“We have the right to control our stage, especially when highly controversial statements are made.”
Ms Omeri said the issue was whether workers’ freedom of expression could be limited by the implied terms of the contract, adding Gillham’s comments were legal and audience members could walk out of the performance.
“There is no right not to hear something that makes us uncomfortable, even very uncomfortable,” she said.
“There is a difference between feeling uncomfortable and feeling unsafe, and nothing (in) this speech would make anyone feel unsafe.”
Gillham is due to return to Australia in July when he embarks on an independent tour of the country with Jordanian Palestinian pianist Iyad Sugaier.