Justice Tom Thawley of the Federal Court of Australia has found that dismissed academic Dr Tim Anderson should be reinstated in his position as Senior Lecturer.
Enforcement of the decision will be stayed (delayed) as University of Sydney management is appealing the court rulings.
Dr Anderson, who was overseas in Lebanon, said “The Federal Court has taken its time, four years, but it finally got it mostly right. The NTEU has forced recognition of the fact that university staff have a right to intellectual freedom and, therefore, also a right to resist censorial and illegal orders by university managers.”
“However by appealing this decision, University of Sydney managers are demonstrating their ongoing inability to recognise the established rights of their staff. They claim to be “committed” to intellectual freedom but, to this day, have not accepted court rulings that there is also a “right” which applies to all staff.”
Justice Thawley, whose initial decision was overturned by the Full Bench, and who later found four breaches of the Fair Work Act by University managers, pointed out:
“The University [wrongly] argued that there was no enforceable right to intellectual freedom ..that issue was resolved against the University both at trial and on appeal.”
Most of the corporate media wrongly referred to Dr Anderson’s Gaza Graphic as a ‘Swastika graphic’, ignoring the fact that it was about the israeli army’s 2014 slaughter of over 1,000 Palestinians in Gaza, and how to read sources on details of that massacre.
“University managers and the corporate media showed more concern over offence to those who carried out these racial massacres”, Dr Anderson said. He had compared israeli racial massacres to those of Nazi Germany. “None of the corporate media reports showed the actual graphic, nor did they mention the Palestinian victims. This is gross racism. The corporate media, like the israelis, simply pretend the Palestinian people do not exist, or do not count.”
Justice Thawley commented:
“Dr Anderson created the Gaza Graphic for an academic purpose and .. the use and publication of the PowerPoint presentation .. was an exercise of intellectual freedom … taking into account the context in which it was published.”
“An astonishing anomaly in an otherwise sound judgement”, Dr Anderson continued, “was the finding that the University, through former Provost Stephen Garton, had made an honest mistake. Try arguing ignorance of the law next time you are in court and see how far you get. But it seems university managers are allowed such ignorance over the implications of one of their core values, the right to intellectual freedom.”
Justice Thawley said: “The conduct of the University in the litigation might be seen to be inconsistent with its actual conduct which was demonstrably to protect the intellectual freedom of its academics, even though it has now been held to have made a mistake in this particular case, giving rise to contraventions.”
Nevertheless, the judge found that reinstatement was the appropriate remedy.
“Reinstatement is an appropriate order where employment has been terminated for a prohibited reason and there is no particular reason why such an order should not be made.”
The judge agreed that compensation should be paid for lost earnings but not for hurt feelings and humiliation.
Specific orders will be made on 5 June.
Findings on Relief by Justice Thawley, 29 May 2023.
FCA Orders, 29 May 2023
Orders 5 June 2023
USyd management’s appeal is set for mid August 2023