By Paul Gregoire and Ugur Nedim
Dedicated refugee rights advocate Shane Bazzi posted a tweet late night on 25 February last year, which stated, “Peter Dutton is a rape apologist”.
The tweet also featured a link to a June 2019 Guardian article titled, Peter Dutton Says Women Using Rape and Abortion Claims as Ploy to Get to Australia.
The article outlines the controversy that then home affairs minister Dutton had sparked by stating that some offshore detainee refugee women had been “trying it on” by stating they’d been raped and needed to come to Australia to have an abortion in an attempt to resettle here.
Bazzi tweeted the statement with the accompanying article on the same day that Dutton said during a press conference that he’d been made aware of the Brittany Higgins rape allegations on 11 February, but police had not informed him of the “she said, he said details”.
Dutton’s comments caused Senator Larissa Waters to post a media release in which she accussed him of being a “rape apologist”. The Australian Greens politician went on to publish a retraction of her statement the following month, outlining, “there was no basis for those allegations”.
Then, in late April last year, Dutton, who was by then defence minister, went on to file an initially successful statement of claim against Bazzi with the Federal Court of Australia over the tweet that had been cited by 1,221 Twitter users prior to it being deleted on 9 April.
Dutton victorious
On 8 December 2021, Federal Court Justice Richard White ruled that Bazzi’s tweet had conveyed the imputation that Dutton excuses rape, and to compensate the minister for the damages caused, the activist should pay him $35,825 in compensation.
In doing so, his Honour rejected Bazzi’s defence that, under section 31 of the Defamation Act 2005 (Cth), he was protected from such litigation, as the comment that had made been was an “honest opinion” that was in the “public interest”.
Justice White consulted several dictionaries and definitions of the word apologist before coming to the conclusion that it means someone who excuses something that happens. The judge then further defined an apologist as “one who speaks or writes in defence of someone or something”.
Bazzi argued that in the context he’d presented it, apologist had signified that Dutton lacked empathy for the women who’d been raped whilst detained on the island of Nauru.
But his Honour rejected this, finding “the ordinary reasonable reader would have understood Mr Bazzi to be asserting that Mr Dutton was a person who excuses rape”.
Appealing the White’s definition
Bazzi appealed the original decision to the Federal Court on 17 May this year. He did so on the sole ground that Justice White had made an error in judgement by considering the original tweet to convey the imputation that Peter Dutton excuses rape.
The appellant submitted that it was wrong to have dissected the tweet into two parts as the original judge had done, which saw his Honour consider that a reader would initially take in the statement about the minister being a rape apologist, before noting the article being presented as back up.
Rather, Bazzi put, that when the tweet is taken as a whole, the reader would understand from the the headline that Dutton was a “rape apologist” in the sense that he’d made accusations about refugee women on Nauru making false sexual assault allegations to gain advantage.
The refugee rights advocate also argued it’s wrong to consider the word apologist on its own apart from the expression rape apologist. And further, he claimed a reader would have been aware of the broader context around the Higgins allegations occurring on the same date the message was posted.
Dutton, however, contended that the judge was correct in dissecting the meaning of the tweet and how it would be conceived differently to traditional news sources. This meant that the focus would be on the rape apologist comment, in the sense that he excuses the act of rape in general.
Considerations on appeal
Federal Court Justices Steven Rares and Darryl Rangiah last week outlined that whether a publication “conveys an imputation is an objective fact”. And so, the “ordinary reasonable reader” test cannot result in a multitude of possible outcomes.
Their Honours found that Justice White had come to the conclusion that the tweet would mean Dutton “excuses rape” without indicating how he came to this specific interpretation, especially as the article implied that the minister was actually questioning whether certain rapes had occurred.
The justices further stated that they rejected Bazzi’s assertion that the external context of what happened on the day of the tweet would have contributed to the meaning of the publication, as it cannot be assumed a reader would have been aware of such matters.
“The primary judge appears to have approached the question of whether the tweet conveyed the imputation as a binary choice between the meaning he elicited from Mr Bazzi’s then counsel and the one Mr Dutton had pleaded,” their Honours set out.
“However, that approach did not address whether the imputation, in fact, was conveyed by the tweet.”
From there, the justices found that Bazzi’s six word statement conveyed a derogatory view of what Dutton had said about rape, and then a quick glance of the Guardian headline below gave expression to the minister’s questioning attitude to accusations of rape made for ulterior motives.
Their Honours found that this was the way in which the tweet was designed to be consumed, together as a whole.
So, there was no implication at all that Dutton was excusing any rape, whereas there was the assertion that he was instead expressing scepticism about rape claims.
Judgement overturned
Justices Rares and Rangiah overturned the original decision as it hadn’t shown on the balance of probabilities that a reader would have taken the meaning that Dutton excused rape from the tweet, as there was clearly no such message conveyed within it.
And Federal Court Justice Michael Wigney agreed with his colleagues’ orders, and provided his own three point reasoning as to why.
Image: “Peter Dutton” by thecameramatt is licensed under CC BY-SA 2.0.
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