by Tim Anderson

The full bench of the Federal Court of Australia (Justice Jagot, Justice Rangiah and Chief Justice Allsop) has unanimously found that there was a miscarriage in the lower court, in the 2019 unfair dismissal case brought by me and the NTEU against the University of Sydney.

They found that Justice Thawley in 2020 made errors in his ruling that (1) academics had no right to intellectual freedom, established by the Enterprise Agreement, and that (2) it was for the delegated manager to be satisfied whether or not misconduct had occurred.

The court ordered that the matter be remitted back to a single judge to decide (1) whether social media posts I made in 2017 and 2018 were lawful expressions of my right to intellectual freedom (2) whether the University decided to dismiss me “in whole or part” based on my lawful expression of intellectual freedom. The court had to decide.

The Federal Court also recognised the substance of my complained about ‘Gaza Graphic’, which university mangers and much of the corporate media falsely depicted simply as a ‘Swastika Image’, offensive to Jewish people. They observed (268-269) that my presentation “involves the expression of a legitimate view, open to debate, about the relative morality of the actions of Israel and Palestinian people”, criticising the characterisation of Israeli “precision attacks” on Gaza and “indiscriminate” attacks by the Palestinian resistance.

They said that my graphic, (linked to a research article which explored Nazi-Zionist parallels) was “including Israel within a long history of colonial exploitation by one political entity over another weaker entity or people. It does not matter whether this comparison may be considered by some or many people to be offensive or wrong … offence and insensitivity cannot be relevant criteria for deciding if conduct does or does not constitute the exercise of the right of [lawful academic] intellectual freedom.”

In 2018 Provost Stephen Garton claimed that my Gaza Graphic served “no legitimate academic or intellectual purpose” and in 2019 Vice Chancellor Michael Spence told staff that the graphic “had no pedagogical value and was inflammatory”. Their sole reference point was the altered form of the Israeli flag, in the background.

The case is likely to be reheard within a few months.

The FCA judgement (31/8/21) and the key graphic in question are below.