Tim Anderson, 17 May 2024

A panel of three federal court (FCA) judges, by a 2 to 1 majority, has effectively dismantled the right to “intellectual freedom” at the University of Sydney (USyd), negating previous rulings. This means that the case against USyd managers brought by the National Tertiary Education Union (NTEU) and myself has failed. After five years the FCA has cast a muddy trail of sophistry over what intellectual freedom is and how it can be exercised and defended.

We brought this case following my 2019 dismissal (for ‘misconduct’) as a senior lecturer in Political Economy, linked to my public comments against various pretexts for war in the Middle East and in particular claims that I had made “offensive” comments against some war propaganda journalists and against the Israeli regime.

Contrary to some media misinformation, there was no finding that I had engaged in anti-Jewish hatred. After the first Appeal trial judge Tom Thawley concluded, in relation to my Gaza Graphic which explained how to read sources over the 2014 Israeli massacres of civilians in Gaza, comparing those racial massacres to the practices of Nazi Germany. Thawley said:

“I do not draw an inference “that the superimposition of the swastika over the flag of Israel was a form of racial vilification intended to incite hatred of Jewish people”.

In principle a panel of three FCA judges cannot overturn decisions of an earlier FCA panel of three, as they are courts at the same level. However, by a tortuous line of logic, relying on a reversal of the normal onus of proof, they (Justices Nye Perram and Michael Lee) have done so. The ruling reflects classical reactionary values which try to maintain the authority of managers and diminish any practical effect of a “right to intellectual freedom” by academics subject to censorship directions.

An earlier FCA panel decision (Justices Allsop, Jagot and Rangiah) in 2021 found that there was a right to intellectual freedom, under USyd’s enterprise agreement and that, if I was exercising that right, I was entitled to resist unlawful censorship directions by managers. Trial judge Thawley subsequently found that I had been disciplined and dismissed as a result of unlawful orders. Over 2022-2023 he ordered my reinstatement and some compensation.

The recent panel, which heard an appeal from USyd managers in August 2023 and delivered its judgement on 17 May 2024, swung on the finding by two judges (Perram and Lee) that there was an onus on me to prove that I had NOT breached the standards of the Enterprise Agreement (clauses: 315-317), which define certain limits to intellectual freedom. Clause 315 prohibits “harassment, vilification or intimidation”; but the USyd managers had never accused me of these. Clause 317 calls for “the highest ethical, professional and legal standards” and Perram and Lee found that I had not met my obligation to prove this. Justice Perram asserted:

“It was for [the NTEU and “Dr Anderson] to prove that Dr Anderson’s various comments had complied with the highest ethical, professional and legal standards referred to in cl 317.”

However, when trial Judge Thawley asked Counsel for USyd managers this question: “In what way do you say Dr Anderson didn’t meet that standard [of cl.317], and what do you say the standard is?” she could give no specific answer, either orally or in writing.

So managers could not say in which way I had not “complied with the highest ethical, professional and legal standards” but the FCA expected me to have proven the positive case that I had. When standards disappear we are subject to arbitrary opinions.

This was the basis for upholding the management appeal. Justice Perram found that the NTEU and I “did not advance a positive case that sought to identify the standards applicable as a result of cl 317 and to demonstrate that Dr Anderson had complied with such standards.”

He relied on this reversed onus argument, while pretending to remain agnostic on the substance of the various comments, saying: “I cannot be satisfied that Dr Anderson’s comments met the highest ethical, professional and legal standards. This of course does not entail a positive finding that Dr Anderson’s comments did not meet those standards.” Perram ignored the earlier FCA panel finding that exercise of the right to intellectual freedom implied the right to resist unlawful censorship orders, saying that the USyd managers’ argument that “defiance by Dr Anderson of lawful and reasonable directions is persuasive”.

Justice Lee agreed and was more obviously upset about my Gaza Graphic, which had compared Israeli massacres to those of Nazi Germany, saying “this image … is self-evidently offensive and obviously disturbing to a section of the University community”, but he noted that Counsel for USyd managers did not argue that the Gaza graphic was “vilification [nor] apt to incite hatred toward, revulsion of, or serious contempt for, a group of people.” Yet insubordination was on Lee’s mind. He referred to my “wilful defiance” of orders and asserted that my intellectual freedom was not being exercised “reasonably”. He reverted to the management argument rejected by the first FCA panel, which held that ‘causing offence’ could not constitute misconduct.

 In a longer judgement, the dissenting judge, Justice Geoffrey Kennett, set out the history of the case and generally backed the reasoning of the first full court decision and the final decision of Trial Judge Thawley, who found that I had acted lawfully in the exercise of my intellectual freedom.  Kennett rejected most of the management arguments, as also the attempt to raise a new (and often vague) argument on appeal about ‘highest standards’. He said ”it is not open to the University to raise issues in this appeal concerning compliance with cl 317.” He also rejected management arguments that some of my comments were not “responsible” exercises of intellectual freedom, adding that “exercises of the [intellectual] freedom cannot form any part of the foundation for a discretionary decision to terminate employment or impose any other form of disciplinary action.” Because of the attempts to repress my right to intellectual freedom, he was less concerned about “disobedience” to illegal orders. He concluded that “None of the University’s grounds of appeal has been made out. As such, I would order that the appeal be dismissed.”

The majority decision in this judgement has allowed arbitrary views on the limits of “intellectual freedom”, rendering it a meaningless slogan, imposing a ridiculous burden of defending one’s speech without criteria, an uphill task which would confront management and judicial prejudice and reaction.

No doubt the USyd managers are happy with this decision. I have long believed that they are corrupted by their many anonymous donors, which include Israeli and US government entities. They may receive bonuses for their work.

As an individual I have no means to pursue any further Appeal options, which are in any case limited. That question may face the NTEU.

Now and over the past five years I will continue my international work, popular education and writing, which I regard as more important than ever, since those who were “offended” by my words in 2017-2018 are now engaged in some of world’s worst genocidal savagery. I need to update my Gaza graphic.

Here is the most recent FCA judgement:

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