Swastika on Israel flag ‘well outside’ intellectual freedom

The use of a Nazi swastika superimposed on the Israeli flag by sacked academic Tim Anderson breached his employment conditions, court hears.

A sacked academic who displayed a slide of a Nazi swastika superimposed on the Israel flag during a lecture has been accused of behaving “well outside” the remit of intellectual freedom and breaching his employment conditions.

Tim Anderson, a political economy lecturer at the University of Sydney, lost his job in 2019 after a series of misconduct findings that included posting a photograph on Facebook of himself with one of his PhD students, who was wearing badges that said “death to Israel”, “curse the Jews” and “victory to all Islam”.

Federal Court judge Thomas Thawley in November upheld the university’s decision to sack Dr Anderson, ruling that the lecturer’s “deliberately provocative” posts were not protected under his employment contract and did not amount to a “genuine exercise of intellectual freedom”.

The National Tertiary Education Union appealed against the ruling in January on three grounds, including that the court erred in finding that the university’s enterprise agreement did not create an enforceable right to intellectual freedom, that an exercise of intellectual freedom could constitute misconduct, and that the Facebook photograph was “sufficiently connected” to Dr ­Anderson’s employment to constitute misconduct.

On Monday, barrister Kate Eastman SC, acting for the university, urged the Federal Court to dismiss Dr Anderson’s appeal, claiming the lecturer had ignored requests to distance himself from the image. “The afternoon (that he) received that request or direction, he then posted that afternoon and then the following day on both Facebook and on his Twitter accounts the same cropped swastika,” she said.

Dr Anderson – represented by barrister Brett Walker SC – argues the university had “no lawful right” to discipline him for posting the photograph of himself with PhD student Jay Tharappel.

According to court documents, the order to remove the post was not a “lawful and reasonable ­direction.”

The full bench of the Federal Court — Chief Justice James Allsop and judges Jayne Jagot and Darryl Rangiah — heard arguments about the validity of the appeal. In a tense exchange, Ms Eastman said the “whole appeal is moot” because Dr Anderson’s legal team had attempted to “depart” from arguments heard during the previous hearing.

“It’s simply wrong to have said, as my learned friend did today, that the case was not pleaded,” Mr Walker said. “It was an open proposition that the alleged conduct did not amount to misconduct.”

Michael Thomson, NTEU NSW secretary, has previously said Dr Anderson’s case was another example of vice-chancellors capitulating to “cancel culture” by choosing to ­silence “unpopular” academics.

“In posting the photo, Dr Anderson was not performing any ‘university duties or functions’ and the university’s code of conduct did not apply to his conduct,” the NTEU says.