Refugee advocate Shane Bazzi has won an appeal overturning a ruling that he defamed Peter Dutton in a tweet labelling him a “rape apologist”.
Last year, the federal court found Bazzi’s tweet, which read “Peter Dutton is a rape apologist”, was defamatory.
The tweet linked to a 2019 Guardian Australia article reporting comments by Dutton that some female refugees were “trying it on” by making claims they had been raped, and needed to travel to Australia from offshore detention to receive abortions.
Dutton argued the tweet clearly implied he “excuses rape”. The federal court agreed in November, ruling the tweet was defamatory and ordering Bazzi to pay $35,000 in damages.
But on Tuesday a full bench of the federal court overturned that decision, saying the tweet did not carry the imputation that Dutton excused rape.
Bazzi had claimed two defences: honest opinion or the common law defence of fair comment on a matter of public interest. He lost both at trial.
But Bazzi’s lawyers argued in their appeal that the tweet must be read in conjunction with the contents of the Guardian article.
“He contended that, if the tweet were read as a whole, the reader would have used the Guardian material together with the six word statement to discern that the criticism was directed at Mr Dutton’s remarks about some women making false allegations of rape to obtain a migration outcome,” the full court said on Tuesday.
The full court agreed that the primary judge had erred and that ordinary readers would have gone on to read the Guardian article.
“The Guardian material centres on allegations of rape, not the actual commission of it,” the court said.
“When that material is read with Mr Bazzi’s six words, the reader would conclude that the tweet was suggesting that Mr Dutton was sceptical about claims of rape and in that way was an apologist. But that is very different from imputing that he excuses rape itself.”
Reading the article would make it clear to readers that Bazzi had intended to convey something else about Dutton, and that the term apologist “did not have its literal meaning”.
“The reader would understand that Mr Bazzi’s six word statement was intended to convey a derogatory view of Mr Dutton in connection with what he said about rape,” the appeal court said.
“The reader would read on to absorb, in the fleeting way a reader of a tweet does, the content of the Guardian material.
“He or she would notice that its theme is Mr Dutton’s scepticism about the Nauru women’s claims of rape and his accusation that they had made them for an ulterior purpose.
“The reader would perceive that the message in the tweet consisted of both parts, Mr Bazzi’s six word statement and the Guardian material, read together.”
The court set aside the initial judgment and dismissed the proceedings.
The court concluded: “It is not sufficient that the tweet was offensive and derogatory. Mr 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 our opinion, he failed to discharge that onus so that the appeal must be allowed, the judgment entered for Mr Dutton in the sum of $35,825 must be set aside and the proceeding dismissed.”
The federal court, in last year’s ruling, found a serious defamation had occurred.
“It is understandable that, despite Mr Dutton being accustomed to bearing ‘the slings and arrows’ which are an incident of high political office, he found this statement of Mr Bazzi offensive and hurtful,” the court ruled.
But it also found the tweet was published to a relatively small pool of people, and was not published mainstream media.
The tweet was removed shortly after Dutton wrote to Bazzi and the court found that “ordinary reasonable readers of the tweet would not have understood it to be the measured assessment of a serious political commentator”.
“Many of those are likely to have recognised it as a statement reflecting political partisanship and, accordingly, to have not given it the same weight as they would had the statement been made in some other context,” the court found. “Those who did read the Guardian article for which Mr Bazzi provided the link (it seems only a small percentage), would have seen that it did not provide support for Mr Bazzi’s pungent assessment.”
The court also found that Dutton did not claim to have suffered more serious consequences due to the tweet’s publication, or even that his “hurt and distress had continued to the date of trial”.
“There is no suggestion that the tweet has affected Mr Dutton in his day-to-day political or ministerial activities, or in his relationships with other people.”