University unlawfully sacked lecturer over Nazi swastika incident, court finds
The Sydney Morning Herald
October 28, 2022
The higher education union is calling for Sydney University to reinstate controversial lecturer Tim Anderson after a court found he was unlawfully sacked over comments about Israel and other matters – including superimposing the Nazi swastika on the Israeli flag in a lecture slide.
Federal Court Justice Thomas Thawley ruled Anderson was exercising his intellectual freedom and accepted the lecturer’s argument that he created the swastika graphic for academic purposes, to encourage critical analysis and point out comparisons between “fascist systems”.
While he acknowledged the imagery would be offensive to many people, Thawley said the context meant it should not be considered vilification intended to incite hatred of Jewish people.
Thawley found the university had not established that Anderson breached a clause in his workplace agreement obliging him to exercise intellectual freedom “with the highest ethical, professional and legal standards”.
Lawyers have been directed to confer within the next week to discuss penalties and remedies. National Tertiary Education Union secretary Damien Cahill said the union had always called on Sydney University to reinstate Anderson.
“This case was never about what Dr Anderson said,” the union said in a statement. “We don’t always agree with our members, but we will defend their right to academic freedom – a cornerstone of universities.”
The political economy lecturer was sacked from his post at Sydney’s oldest university in February 2019. The swastika incident followed years of controversial statements and activities, including several trips to North Korea and Syria and expressions of solidarity with their dictatorial regimes.
After previous warnings, in October 2018 the university began the termination process after Anderson published lecture slides about civilian deaths in Gaza resulting from Israeli military operations. Anderson included an image of the Israeli flag superimposed with the Nazi swastika.
At the time, the university told Anderson the altered image served “no legitimate academic or intellectual purpose” and he should have been aware that it would cause offence.
In an affidavit, Anderson told the court, “While some may feel offended by Nazi-Zionist analogies, I say the inclusion of the analogy in that graphic was appropriate. The purpose of the slide was to encourage critical analysis … No student raised any issue with the slide during the seminar.”
In Thursday’s judgment, Thawley accepted Anderson created the graphic for academic purposes. He said he did not infer – as contemplated in a previous judgment – that the inclusion of the swastika was “a form of racial vilification intended to incite hatred of Jewish people” in this context.
“Whilst I consider that the [slide] would be offensive to many people, in the context in which the Israeli flag superimposed with the swastika was used, I do not consider that its use involved ‘harassment, vilification or intimidation’,” Thawley wrote.
“It is necessary to consider the matter in the context which existed at the time of publication and not by reference to later events, including the escalation in the dispute between Dr Anderson and the university.”
The judge also found several other comments by Anderson – including disparaging remarks about journalists who wrote about him – all constituted the exercise of intellectual freedom. Therefore, Anderson could not have engaged in serious misconduct and his sacking was unlawful.
Thawley also found Professor Stephen Garton – acting vice chancellor at the time but recently retired – liable for the wrongful dismissal.
Sydney University said it was disappointed with the court decision, “which focused on just one aspect of the proceedings initially brought against the university”.
“We note that we previously succeeded in having all other aspects of the proceedings dismissed,” the university said in a statement. “We will now take time to review the decision and consider our response and next steps.”
The NSW Jewish Board of Deputies was also “deeply disappointed” by the outcome. “This display was grossly insensitive and caused deep offence, not only to the Jewish community but to every well-meaning Australian, including our veterans who fought against the tyranny of the Nazi regime,” said chief executive Darren Bark.
“Nazi symbols – used in such an offensive manner – should have no place in academic institutions or anywhere in NSW.”
Anderson referred the Herald to a statement on his Centre for Counter Hegemonic Studies website in which he said the court had finally recognised that intellectual freedom “means just that”.
Anderson and the union were represented by Bret Walker, SC, while Kate Eastman, SC, appeared for the university and Garton.