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The National Tertiary Education Union (NTEU) in Australia has welcomed a landmark Federal Court judgment ruling that University of Sydney staff have a legal right to be protected from disciplinary action when exercising intellectual and academic freedom.

The appeal decision released on 31 August 2021 finds that the NTEU collective workplace agreement contains a legally enforceable right for University of Sydney staff to exercise intellectual and academic freedom.

It outlines that the employer-written Code of Conduct was subordinate to the union’s collective agreement when it came to protecting the rights of staff to express academic and intellectual opinions.

Primacy and importance of collective agreements

“We are very pleased with this result, it reinforces the primacy and importance of our collective agreements in protecting intellectual and academic freedom,” NTEU General Secretary Matthew McGowan said, celebrating this as “a significant win”.

NTEU has long advocated for the rights of all higher education staff to speak freely about their work and express ideas, whether they be controversial or unpopular, and to criticise higher education institutions, so long as they do so in accordance with scholarly norms, he noted.

“As is often the case, we do not get to champion many academic freedom cases that are without controversy” he stressed. “The Tim Anderson case is no exception,” he said, referring to a staff member who was dismissed from the University of Sydney over a number of issues, most notably for showing his class an image of the Israeli flag superimposed with a swastika.

McGowan acknowledged that, while his union did not endorse Anderson’s views or actions, it did believe that the University breached the collective agreement and the principle of academic freedom. “When the matter first went to the Federal Court, the Court alarmingly found that the University had acted appropriately, and that the University’s Code of Conduct was the primary document governing behaviour and that the [collective] agreement was subservient to it.”

He welcomed the fact that the Federal Court did not adhere to this position.

Federal Court judgement

In its judgement, ‘National Tertiary Education Industry Union vs. University of Sydney’ dated 31 August 2021, the Federal Court of Australia found that:

• The commitment to protect and promote intellectual freedom including the exercise of the specified rights must include a duty on the University, at the least, not to punish or threaten to punish a member of academic staff for exercising the right of intellectual freedom in accordance with clauses (cll) 315-317.
• Conduct either is or is not the lawful exercise of the right in accordance with cll 315-317; if it is, and the University takes or threatens to take disciplinary action against the member of academic staff for that conduct, the University will breach the commitment, that is, the duty, in cl 315.

According to the court, “no matter what view is taken of Dr Anderson’s conduct, this case concerns his livelihood and profession. He is no more and no less entitled than anyone else to a fair determination of his application in accordance with law”.

Right to express unpopular or controversial views

The court agreed that “the right of intellectual freedom expressly includes the right to express unpopular or controversial views. The expression of such views is bound to cause offence to some, perhaps even many, people. It may also cause ‘objective’ offence in the sense that the taking of offence to the expression of unpopular or controversial views may be objectively reasonable in all of the circumstances.”

However, the court was adamant that “this does not mean that employees of the University are free to engage in such disrespect, discourtesy and insensitivity as they see fit. It means that if a member of academic staff is engaging in the exercise of the right to intellectual freedom, the fact that so doing may reasonably be characterised as disrespectful, discourteous and insensitive to some people (contrary to the Code of Conduct) does not, of itself, take the conduct outside of the scope of cll 315-317.”

Freedom to express ideas absolutely fundamental to university work

Without the right to intellectual and academic freedom, university staff cannot perform their important work on the development and expansion of knowledge, McGowan insisted. “The freedom to express ideas without fear or favour is absolutely fundamental to university work. Those ideas are best tested by the academy itself,” he added. “Universities must stop being obsessed with protecting their reputations and their ‘brands’ and start ensuring their staff are provided with the freedom to do their important work.”

Proud record of defending principles of intellectual and academic freedom

McGowan added that the NTEU has a “proud record” of defending the principles of intellectual and academic freedom. “We do not take a position about what academics say when we are defending this integral principle – it is not our role to do that. It is our role to protect the right to say it.

“NTEU has supported several academics on academic freedom issues. We support our members who face adverse responses from university management while doing their work, and we always will,” he concluded.