Peter Dutton won his defamation case against refugee advocate Shane Bazzi via a reasonably uncontroversial application of the law. This is the simple breakdown:
- Bazzi tweeted a link to a Guardian Australia article reporting Dutton’s claims that some female refugees on Nauru were making false rape allegations to try to get to Australia, and added his comment: “Peter Dutton is a rape apologist”
- The judge found that the meaning ordinary readers would have taken from the tweet was that Dutton is a person who excuses rape. That’s defamatory
- Bazzi’s defence was honest opinion; to succeed, the opinion must be based on true facts which are either stated or “notorious”
- The judge found that Bazzi didn’t honestly hold the opinion, partly because he suspected Bazzi didn’t actually know what “apologist” means (Bazzi had chosen not to give evidence)
- Most importantly, Bazzi’s opinion wasn’t sufficiently “based” on the notorious news about Dutton, i.e. his false rape accusation claims or his public comments about Brittany Higgins.
The last point was the critical one: Dutton had (notoriously) referred to Higgins’ rape allegation as a “she said, he said” matter, causing social media to light up at the time. However, the judge said, Dutton’s comment did not “say anything at all about his attitude to rape”. I have some difficulty with that — “he said, she said” has a long and insidious cultural history — but it’s possible to see how the judge concluded that Bazzi’s tweeted opinion was too much of a stretch from that foundation.
So, Dutton wins and gets the pathetically small damages award of $35,000 for what the judge found were his temporarily hurt feelings. Of actual damage to his reputation or harm to his career, there was no evidence. Dutton is at serious risk now of an adverse costs order; he’ll almost certainly end up well out of pocket. That is, for wider purposes, by the by.
There is much discussion about the chilling effect on the public discourse and damage to democracy from politicians suing for defamation, especially their newfound enthusiasm for going after ordinary punters having a swing at them on social media.
Instead of diving straight into the politicised argument, let’s approach it from a different perspective: social utility. Defamation law, like all law, is a construct. It was invented and is constantly adapted for one purpose only: to deliver a social good. It has no other reason to exist.
The utility of a law should be regularly tested by asking what social good it is serving. How is it making our society better?
In Dutton’s case, the judge applied the law correctly in principle. Although one can argue with some of his conclusions, that’s not the point; the case demonstrates that defamation law as it is has certain very specific social effects.
What are the beneficial effects delivered by this application of the law? There are arguably two: first, Dutton’s hurt feelings have been vindicated by money; secondly, a deterrent has been communicated to everyone to be more careful with what they say about people who have the money and power to pursue defamation litigation.
The negative effects are obvious, and are exemplified by the calls I took from people in the immediate aftermath of the judgment’s publication, who wanted to tweet their views about Dutton’s decision to sue and what the case means, but were scared that he’d come after them next.
A society in which it is too risky to make public comments about public figures without getting legal advice first is not a free society.
That is what we are weighing in the balance, as the law of defamation stands right now: the hurt feelings of one man — who has limitless opportunity to defend his reputation, and the indemnity of parliamentary privilege to protect him from consequences — against the silencing effect that each case of this kind creates and compounds.
That is the description of a law which is clearly doing more harm than good. So much more, it’s laughable to think that we have just been through one round of major defamation law reforms and are about to finish another, neither of which even attempted to address this obvious, lethal flaw.
Australia is not as free a society as many think it is. Secret trials, gagging of public servants are examples of a not-so-free society.
It is remarkable that any politician believes they should be free from derogatory comments. They rarely show any hesitancy in doling them out, especially about someone who has no public arena in which to defend themselves. Mr Dutton is of course no stranger to this tactic, having spent a goodly part of his parliamentary career denigrating asylum seekers, anyone who says something he doesn’t like or indeed anyone with a different point of view.
He displays the common LNP/IPA trait of a thin skin and a dislike of any criticism, especially if it is warranted.
And while we’re on the subject of Mr Dutton, how did an ordinary cop end up a millionaire?
He’s from Queensland.
He may have inherited wealth…unlikely he earned it with honest work…but who am I to cast aspersions on his honesty or lack thereof? Like everyone else, I just have to await the inevitable Federal ICAC.
There will so many interesting money trails and hidden accounts to investigate.
Hard to marry this court action with the current Religious Discrimination Bill which Dutton is promoting as free speech and the freedom to offer criticism of others.
Ex drug squad until his ‘car crash’.
Analogous to Foul ‘Chook’ Fowler being invalided out of NPOL after slipping on a milkshake.
Remarkably quick granting of disability pension, just before the candid camera footage was shown on every TV.
Thank you Michael. Your clear and concise explanations are always welcomed in these matters.
I think most people were certain that Mr Bazzi would not win this case, from the very beginning. Had he done so, our illustrious pollies may have thought twice about racing to sue everyone who said something they felt was defamatory in the public domain.
It never ceases to amaze me that our pollies can call each other names, behave like naughty schoolchildren, lie through their teeth on any and every subject, scream and yell abuse at one another (all under the guise of Parliamentary Privilege) during parliamentary sittings – under the watchful eyes and ears of those in the Public Gallery (including at times, schoolchildren) and of course television cameras …. And then seemingly take offence to public comments.
Where else could anyone get away with the foolishness enacted on sitting days in Parliament?
Certainly not in corporate boardrooms, schools, universities, hospitals, or any “ordinary/real” job, that’s for sure.
I was certain he would, but it turns out the phrase in question was never correctly defined.
Meanwhile in QT today, the PM reckons people with opinions and suspicions on Twitter are cowards – how rich is that?
Of course Morrison and Dutton would never use the Cowards’ Castle of Parliament
From what I’ve seen of the decision, the judge does not know the meaning of the idiomatic phrase “rape apologist”. It’s not about ‘apologising’ – it’s about casting doubt on the motives of people who say they have been sexually assaulted, just like someone once did. I shake may head that such and important point was never clarified in court.
I’m with you, Jimbo. How does a judge living in his upper socio-economic ivory tower decide the exact meaning of an idiomatic phrase, and then allocate damages on that basis? How is it that these subjective (arbitrary, even) legal and linguistic decisions always happen to coincidentally favour the rich and powerful? Why do lawyers like Michael Bradley automatically believe that a judge saying something makes it legally and linguistically correct (a bit like a Catholic believing in the veracity of every word that comes out of the mouth of the Pope).
I would have thought the most common way of ‘excusing’ rape is to say it didn’t happen or wasn’t really rape (eg ‘she just made it up to get to Australia’, or ‘he said, she said – it’s just her version of events’). I would have thought this grub made very public comments to that effect. And to say that ‘he said, she said’ did not ‘say anything at all about his attitude to rape’ is simply breath-taking. And Michael’s comment: ‘the judge applied the law correctly in principle . . although one can argue with some of his conclusions’ is a logical non-sequitur.
Excellent article Michael. Thanks for highlighting the increasing tendency for politicians to go ‘after ordinary punters having a swing at them on social media’. Abuse of power by politicians in government to silence dissent is a hallmark of an authoritarian regime and should have no place in Australian politics.