Federal Court decision puts academic freedom in the spotlight

University of Sydney. Credit: Unsplash

A recent Federal Court ruling has raised questions for Australian scholars about university codes of conduct, free speech and academic freedom.

The ruling on August 31 found Sydney University staff have the right to express offensive views in their area of expertise, and to be exempt from disciplinary action when exercising their academic freedom.

Former University of Sydney academic Tim Anderson, who was sacked in 2019 over controversial behaviour and a series of contentious social media posts, won the right to appeal his original case after the Federal Court found mistakes in the prior judgement that academic freedom was merely an aspirational goal.

The appeal decision found the university’s code of conduct was subordinate to the National Tertiary Education Union collective workplace agreement, which contains a legally enforceable right for staff to exercise academic and intellectual freedom.

Three Federal Court judges ruled that a right to academic freedom bound the university, so long as staff conducted themselves in accordance with high ethical, professional and legal standards and did not harass, vilify or intimidate anyone.

Credit: Tim Anderson on Twitter

In the previous case last November, Federal Court judge Thomas Thawley upheld the university’s decision to terminate Anderson’s employment on the grounds he had engaged in serious misconduct.

The judge ruled Anderson’s social media posts were “deliberately provocative”, but did not amount to a “genuine exercise of intellectual freedom” and so were not protected under his employment contract .

Curtin University lecturer in law Pnina Levine, said the case brings into question what power, if any, university codes had to regulate staff behaviour.

“The issue that concerned me most about the case was that the judges said even if someone could express their academic freedom in accordance with the code [of conduct] and they didn’t, then they still would be immune from any disciplinary action,” she said.

“Whereas a code might have provisions related to not causing offence…what this case holds is that it doesn’t matter what the standards say.”

Levine points out the judges did not define what the highest professional or legal standards were; “I would think that would include not causing offence,” she explained.

“If the conduct can be carried out in a different way, respectfully, courteously…then to me that’s the only way you should act, in order to comply with the highest ethical and legal standards,” she said.

Levine said academics may rightfully express their academic and intellectual freedom, but in doing so need to consider a duty of care to students and fellow staff.

She cited the example of Anderson superimposing a swastika over the Israeli flag in a PowerPoint presentation, one of the incidents that led to his dismissal.

“Being opposed to Israel is fine, but a swastika is a symbol of absolute hate. It is possible to put forward viewpoints without making people feel like they don’t belong in your class”, she said.

Academics are required to speak the truth but need to be careful in doing so, according to Monash University lecturer in media and communication Dr Elizabeth Coleman.

She said academics should not necessarily lecture in the same way they would express themselves on a social media page.

In the case of Anderson, she explained “there is an obligation to the employer in the precision with which they were speaking and articulating ideas, and also a duty of care to the students, knowing that there would be a number of students who would be offended”.

Coleman said there will always be topics and positions that are subject to strong rebuttal and it is important to argue such positions carefully.

“Obviously, we don’t have a right to say whatever we want. There are the limits of the criminal law, but we also have obligations to our employers,” she said.

Coleman argues while there are some genuine issues with free speech in universities, there will always be positions which are not easily argued in academia.

She cites an example from a seminar that she attended in the US where an academic suggested there was an ideology of free speech in the USA, which made it hard to argue for things like hate speech legislation.

“There was the implication that you can’t question the idea that this extreme notion of free speech was good,” she said.

“There are always things that are extraordinarily difficult to argue, and this can include what the shape of free speech should look like.”

Nevertheless, both Levine and Coleman believe diminishing academic freedom is a real threat academics face, both from within and outside their institutions.

Levine said academics are increasingly being victimised for things they have said or done, both on and offline.

She said this issue led to the French Review Model Code being introduced in 2019.

“When we start to remedy this issue, we have to be careful that other issues don’t arise as a result, we need to be aware of potential consequences,” she said.

Levine pointed to the case of Professor Peter Reid, who was fired from James Cook University in 2018 for allegedly breaching its code of conduct by making highly critical comments about the research of colleagues which linked the declining health of the Great Barrier Reef to climate change.

Coleman said there is increasing sensitivity around student sensibilities, for example around trigger warnings, and this could be seen as a threat to academic freedom.

“This is about controversy, but it also reminds staff that they do have a duty of care around students’ sensitivities. It shouldn’t stop you making a point but it may change how you make that point,” she said.

Debates around, and interpretations of, academic freedom and its relation to university codes of conduct and enterprise agreements are ongoing.

In the case of Tim Anderson, a Federal Court decision on whether his conduct departed from “the highest ethical, professional and legal standards” is yet to be determined.

Levine said if he was found to be acting within those standards, then the university was incorrect in disciplining him and the termination of his employment would be unlawful.

“What a primary judge is going to have to do is interpret what the highest ethical, professional and legal standard is.”

She also suggested there needs to be a balance between the elements of academic and intellectual freedom, free speech and obligations to institutions and students.

“You really don’t want the pendulum to swing too far one way or the other”.