Judge rules University of Sydney academic who added a swastika to Israeli flag cannot be fired
A controversial Sydney academic who superimposed a swastika over an Israeli flag did so under intellectual freedom and could not be fired as a result, a judge has said.
Dr Tim Anderson
Dr Tim Anderson worked at the University of Sydney from February 1988 until he was dismissed in February 2019. At the time he left, he was a senior lecturer in the Department of Political Economy.
During his time at the university, he made a number of statements, including that a News Corp journalist was a “traitor” because of a story on the Armenian genocide and that United States Senator John McCain was a “key US war criminal”.
He also said News had spread “deceitful war propaganda” supporting what he called a terrorist war in Syria and superimposed a swastika over an Israeli flag in a slideshow presentation about media coverage of the Palestine conflict.
Dr Anderson was part of a delegation that travelled to Syria in 2013, meeting with government and non-government figures, including President Dr Bashar al-Assad.
In response to his statements, the University of Sydney issued two separate warnings to Dr Anderson in August 2017 and October 2018 before dismissing him in February 2019.
Backed by the National Tertiary Education Union, he initiated Federal Court proceedings against his former employer two months later.
After initially losing the lawsuit in November 2020, Dr Anderson then launched a successful appeal.
The Full Court found academics at the institution were allowed to express even “deeply offensive and insensitive” views under the banner of intellectual freedom as long as they did not harass, vilify or intimidate anyone.
The case was then sent back to Justice Tom Thawley, who, on Thursday, found Dr Anderson’s comments were made under the protections of intellectual freedom and that the terms of his employment contract meant he could not be fired for them.
Warnings made over the statements were a breach of contract as was the university’s decision to dismiss him, the judge found.
Professor Stephen Garton, who was deputy vice-chancellor while Dr Anderson worked at the University of Sydney, also breached employment law by issuing the warnings, Justice Thawley said.
In a statement, the university said it was “disappointed” by the decision.
“We note that we previously succeeded in having all other aspects of the proceedings dismissed. We will now take time to review the decision and consider our response and next steps. We won’t make further comment on this matter at the current time.”
A spokesperson said the university remained deeply committed to the expression and protection of intellectual freedom, which should be exercised responsibly and to the highest ethical, professional and legal standards.
“We also believe that civility and respect should be particularly valued when people disagree with each other,” they said.
An NTEU spokesperson said there had been a long wait for justice and called the decision a “win for academic freedom” as well as the workplace contract enshrining this principle.
“This case was never about what Dr Anderson said,” the spokesperson told AAP.
“We don’t always agree with our members but we will defend their right to academic freedom – a cornerstone of universities.”
In a statement, the University of Sydney said it was “disappointed” by the decision.
“We note that we previously succeeded in having all other aspects of the proceedings dismissed. We will now take time to review the decision and consider our response and next steps. We won’t make further comment on this matter at the current time.”
A spokesperson said the university remained deeply committed to the expression and protection of intellectual freedom which should be exercised responsibly and to the highest ethical, professional and legal standards.
“We also believe that civility and respect should be particularly valued when people disagree with each other,” they said.
The co-CEO of The Executive Council of Australian Jewry, Peter Wertheim, told J-Wire: ”
“Although we are still examining the judgment, it is incomprehensible how a graphic comparison of Israel to Nazi Germany, utilising a contemporary anti-Jewish trope, can be characterised as an exercise of intellectual freedom. The fact that this content was disseminated as part of the teaching materials for an accredited University course made it all the more disturbing.
The IHRA Working Definition of Antisemitism, which Australia has embraced with the endorsement of both major parties, tells us that such conduct is antisemitic. Granting any kind of permission to such conduct is, therefore, contrary to community standards in contemporary Australia, even after allowing for the wide scope for academic freedom which a democratic society necessarily safeguards. The decision may well be seen as granting a license for more conduct of this type.
No freedom is absolute. The conduct which was the subject of this case was an abuse, not an exercise, of intellectual freedom.
Given the public importance of the principles at stake, we sincerely hope that the University gives serious consideration to appealing this decision.”
NSW Jewish Board of Deputies CEO Darren Bark said, “We are deeply disappointed by the Court’s decision and, as a matter of principle, vehemently reject any assertion that imposing a Nazi swastika over an Israeli flag is acceptable conduct befitting a university lecturer in a position of influence.
“This display was grossly insensitive and caused deep offence, not only to the Jewish community but to every well-meaning Australian, including our veterans who fought against the tyranny of the Nazi regime.
“Under legislation recently passed by the NSW Parliament, Dr Anderson’s conduct may well have been illegal if undertaken today,” Mr Bark said.
Mr Bark added, “Nazi symbols – used in such an offensive manner – should have no place in academic institutions or anywhere in NSW. They are a symbol of hate and we again commend and thank the University of Sydney for the principled position it has taken on this matter.”
Dr Anderson has been approached for comment.
AAP
Almost unbelievable, isn’t it! The Full Court: stupid and a travesty of justice … that they find what this man has said and done would not vilify, harass or intimidate is quite extraordinary. On what grounds was this opinion reached? What in the opinion of the Full Court does it take then to vilify or harass a Jewish person or the Jewish people? Or perhaps the point there is, that no actual Jewish person was present with Tim Anderson at the time?
Kafka could not have written this episode better.
I do hope there is an appeal and that it’s successful, as it should be. What a terrible precedent the Full Court has set for all the antisemites who wish to ply their trade in academia to follow.