An appeal court has overturned a decision awarding Defence Minister Peter Dutton $35,000 in damages over a tweet, after the author successfully argued the post did not convey the defamatory meaning Dutton had claimed.
Dutton launched defamation proceedings in April last year against refugee advocate Shane Bazzi over a six-word tweet accusing him of being a “rape apologist”.
Defence Minister Peter Dutton sued a refugee advocate over a tweet.Credit:Rhett Wyman
The federal Liberal MP’s lawyers argued the tweet conveyed the defamatory meaning that he “excuses rape”.
Justice Richard White found in Dutton’s favour in November last year and awarded him $35,000 in damages and $825 in interest, plus some of his legal costs. The damages award fell well short of the statutory maximum of $432,500 that could have been awarded.
Bazzi launched an appeal in December, arguing the tweet did not convey the defamatory meaning alleged by Dutton’s lawyers, namely that Dutton excuses rape.
In a decision on Tuesday, the Full Court of the Federal Court – Justices Steven Rares, Darryl Rangiah and Michael Wigney – agreed the tweet did not convey this meaning and dismissed the proceedings.
The court ordered that the parties file submissions relating to the payment of legal costs of the trial and the appeal.
In his February 25 tweet last year, Bazzi posted a link to a Guardian Australia article reporting Dutton’s assertion on Sky News in 2019 that some women on Nauru “have claimed that they’ve been raped and came to Australia to seek an abortion”. Dutton suggested they were “trying it on” in order to secure a medical transfer to Australia.
Bazzi wrote above the link: “Peter Dutton is a rape apologist.”
The court heard the tweet was published in the wider context of reporting on sexual assault allegations made by former federal Liberal staffer Brittany Higgins. Those allegations have separately been denied.
In a joint judgment, Rares and Rangiah said the ordinary reasonable reader of the tweet “would understand that the point that the tweet was conveying was that a ‘rape apologist’ behaves in the way Mr Dutton had in expressing scepticism about the claims of rape”.
“That is a far cry from conveying the meaning that he excuses rape itself,” the judges said.
“By themselves, Mr Bazzi’s six words can mean that Mr Dutton defends rape or is a defender of rape. But it is unlikely that such a meaning would occur to the reader, reasonably, from the content of the tweet including The Guardian material.
“The reader would be drawn to the conclusion that the tweet was saying something else and that ‘apologist’ as used in it did not have its literal meaning.”
The judges said it was “not sufficient that the tweet was offensive and derogatory” and Dutton “had the onus to establish, on the balance of probabilities, that the reader reasonably would have understood that the tweet conveyed the imputation that he asserted it conveyed”.
In a separate judgment, Wigney said he agreed substantially with Rares and Rangiah and also concluded the tweet did not convey the meaning alleged by Dutton.
He said White, the trial judge, had “unduly focused on the first six words of the tweet and downplayed the significance of the balance of the tweet, which his Honour referred to as ‘the link’.”
Wigney said the tweet “no doubt conveys an impression that is derogatory and critical of Mr Dutton’s attitude to rape or rape allegations, but it does not go so far as to convey the impression that Mr Dutton is a person who excuses rape”.
“It may, particularly when read in the context of the discussion and debate which was occurring at the time concerning the specific rape allegation referred to earlier, have conveyed that Mr Dutton may on occasion be dismissive of rape claims, or lack empathy towards people who make rape claims.
“That again, however, is different to defending or excusing the act of rape.”
Before the defamation trial, White had urged the parties to try to settle the case out of court.
Bazzi deleted the tweet, which the court heard was viewed by fewer than 1221 people, after Dutton’s lawyers wrote to him, and White said readers “would not have understood it to be the measured assessment of a serious political commentator”.
The law firm acting for Bazzi, O’Brien Criminal & Civil Solicitors in Sydney, said their client was “extremely happy and relieved” with the appeal decision.
“This has been a significant and stressful fight for Mr Bazzi. He has had to defend a legal action brought by one of the most powerful men in Australia.
“It should only be a rare case where a politician sues a citizen, and not one like this where Mr Bazzi was clearly making a comment about Dutton’s statements about women in Nauru.”
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