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NTEU wins right to intellectual freedom in Tim Anderson appeal

Intellectual freedom “goes to the heart of the nature and character of the institution of the university itself.”

A Federal Court decision handed down today confirms that University of Sydney staff have a legal right to be protected from disciplinary action when exercising intellectual freedom.

The decision resulted from an appeal brought by the National Tertiary Education Union (NTEU) and Dr Tim Anderson, a former Political Economy academic, against the University of Sydney.

Anderson was sacked by the University in late 2018 after circulating an image of a swastika superimposed on the Israeli flag, in the context of a lecture slide telling students to “look for independent evidence and/or admissions” on civilian deaths in Israel and Palestine.

The decision found that the trial judge, Justice Thomas Thawley, erred in not recognising that cl 315-317 of USyd’s Enterprise Agreement, subtitled “Intellectual Freedom,” created a legally enforceable right for staff to exercise intellectual freedom and to be protected from disciplinary action when doing so.

Justices Jayne Jagot and Darryl Rangiah found that the specific rights and duties in cl 315-317 “prevail over any other rights and duties” in the Enterprise Agreement, including where the staff Code of Conduct is inconsistent with intellectual freedom.

They also said that “offence and insensitivity” are not relevant criteria for deciding whether an action breached those clauses on intellectual freedom.

According to the judgment, Anderson received a letter, pre-termination, which alleged “serious misconduct” against the Enterprise Agreement and the Code of Conduct, which the University said could justify his termination.

Chief Justice James Allsop reiterated that the subject of intellectual freedom “goes to the heart of the nature and character of the institution of the university itself.”

NTEU General Secretary Matthew McGowan said that the NTEU was “very pleased” with the decision, which in their eyes upheld the “primacy and importance of our collective agreements in protecting intellectual and academic freedom.”

“Universities must stop being obsessed with protecting their reputations and their ‘brands’ and start ensuring their staff are provided with the freedom to do their important work,” McGowan said.

A University of Sydney spokesperson said, “While we’re disappointed by today’s decision to allow this appeal, we will now take time to review the decision and consider it carefully as we plan our next steps.”

At the time of the 2020 decision, then-President Kurt Iveson said that it had “profound implications for the exercise of intellectual freedom for all university staff.”

The matter will now be remitted to a lower court to determine whether the University actually did dismiss Anderson, “in whole or part,” based on a lawful expression of intellectual freedom. 

The lower court will also decide whether certain posts Anderson made on his personal social media accounts were a valid exercise of his intellectual freedom. One such post included Anderson’s former colleague Jay Tharappel, wearing a Houthi Resistance badge which read: “God is the greatest, death to America, death to Israel, curse on the Jews, victory to Islam.”

This article was updated on 1 September with comment from a USyd spokesperson.