Union backs ‘free speech’ appeal over academic Tim Anderson’s sacking

A union chief who claims ‘cancel culture’ led to the sacking of a Sydney University academic is backing a Federal Court appeal by the controversial lecturer.

Sacked Sydney University lecturer Tim Anderson.

A union chief who says “cancel culture” led to the sacking of Sydney University academic Tim Anderson is backing a Federal Court appeal by the lecturer after he was fired for posting an image that featured a Nazi swastika superimposed on the Israeli flag.

Dr Anderson, a political economy lecturer, was sacked 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 a badge that said “death to Israel”, “curse the Jews” and “victory to all Islam”.

Federal Court justice 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 is seeking to appeal against the ruling 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 can constitute misconduct, and that the Facebook photo was “sufficiently connected” to Dr Anderson’s job.

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

He said it was similar to a judgment last year that found James Cook University did not breach workplace laws when it sacked contrarian physics professor Peter Ridd for publicly criticising the Townsville-based institution and his colleagues over their climate change science.

“It’s not a matter of supporting what Tim or Peter have said, it’s about them as scholars being able to express their academic opinions,” Mr Thomson said.

“We are concerned the judge dismissed the enterprise agreement and basically said when it came to clauses around academic freedom, it had no standing.”

In a Notice of Appeal filed with the Federal Court, the NTEU says the university has “no lawful right” to discipline Dr Anderson over the photo with PhD student Jay Tharappel, arguing that an order to remove the post was not a “lawful and reasonable direction”.

In the photo taken at a restaurant, Mr Tharappel was wearing a jacket with a patch bearing an emblem of Ansar Allah, a Yemeni group that US Secretary of State Mike Pompeo designated a terrorist organisation on Sunday.

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

A spokeswoman for Sydney University said it was “confident” Justice Thawley’s ruling would be upheld by the Full Court. “We strongly defend freedom of speech and the ability of staff to express their expert opinion,” she said.

“Staff must also meet obli­gations to engage in respectful debate in line with our policies and codes of conduct.”

In October 2018, the university’s now vice-chancellor Stephen Garton accused Dr Anderson of deliberately flouting the warning issued over the lunch photo, after he posted a six-month old lecture slide on social media that featured a Nazi swastika superimposed on the Israeli flag.

In dismissing Dr Anderson’s fair work action, the court found that his decision to post the altered image on Twitter and Facebook was “deliberately provocative”.

“It was intended by Dr Anderson as an assertion of an unfettered right to exercise what he considered to be intellectual freedom,” Justice Thawley said.

He dismissed the NTEU’s argument that Dr Anderson’s lunch photo was “private conduct”, ruling that he chose to use his personal Facebook page to express his “intellectual freedom” as an academic employed by Sydney University.

Dr Anderson, a high-profile champion of Palestine, is highly critical of Israel and the US. He also made “solidarity” trips to Syria and North Korea during his tenure at Sydney University.

In 1990, Dr Anderson was convicted of three counts of murder in connection with the 1978 Hilton bombing in Sydney, but was acquitted and released in 1991.