Wed, 06 Jul 2022

Dutton's defeat a victory for free speech

Independent Australia
19 May 2022, 16:52 GMT+10

In a win for free speech, refugee advocate Shane Bazzi has won an appeal against Peter Dutton over a tweet that would have cost more than $35,000, writes Dr Binoy Kampmark.

THE OCCASIONS when an activist, writer or commentator triumphs over defamation lawsuits launched by a thin-skinned politician are rare in Australia. When it comes to matters regarding the law of reputation, Australia remains a place where parliamentarians, as a species, thrive in the knowledge they can use favourable provisions to protect their hurt feelings and soiled reputations.

The country, in also lacking a bill of rights protecting free speech and the press, has further emboldened politicians. At best, the Australian High Court has only left an anaemic implied right to protect freedom of communication on political subjects, which should really be read as a restraint on executive and legislative power, never to be personally exercised.

Defence Minister Peter Dutton, ever the nasty enforcer of the Morrison Government, was one who had every reason to feel confident when he took refugee activist Shane Bazzi to court in April last year.

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In February 2021, Bazzi published a six-word tweet:

The tweet was made some hours after Dutton had told a press conference that he had not been furnished with the finer details of a rape allegation made by former Coalition staffer Brittany Higgins.

The context here was also important. Dutton had, when Home Affairs Minister, characterised refugee women being held on Nauru, one of Australia's carceral domains, as "trying it on" to get access to the Australian mainland for medical treatment.

The following month, this sadist-in-chief promised that he would start to "pick out some" individuals who were "trending on Twitter or have the anonymity of different Twitter accounts" posting "all these statements and tweets that are frankly defamatory". It was an informal declaration of war against critics.

In instigating proceedings against Bazzi, Dutton claimed in the trial that he was "deeply offended" by the contents of the tweet.

He accepted that...

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But Bazzi had gone one step too far:

His remarks "went beyond" the tolerably bruising nature of politics. "And it went against who I am, my beliefs... I thought it was hurtful."

In finding for Dutton in November and awarding $35,000 in damages, Justice Richard White ruled that the tweet had been defamatory and that Bazzi could not resort to the defence of honest opinion. Dutton failed to gain damages in three of the four imputations, while also troubling the judge with his hunger in pursuing the defendant for the full legal bill.

But in his remarks on Bazzi's claim of honest opinion, White was dismissive:

If this had been the case, "it would follow that he did not hold the opinion actually conveyed by the words".

On 17 May, Bazzi found that he had convinced the Full Court of the Federal Court that the reasoning behind the six-word tweet and the purportedly defamatory imputations it conveyed was flawed. Justices Steven Rares and Darryl Rangiah, in a joint judgment, found that Justice White had erred in not explaining 'how the reader would understand the whole (or any part) of the tweet to convey the imputation'.

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They also noted that Justice White had found the meaning of the word "apologist" was not that of an excuser but of a defender:

It was 'very different from imputing that he excuses rape itself'.

The judges put much stock in the context of the tweet and the need to read it alongside Dutton's previous remarks on the women held on Nauru as recorded in The Guardian:

When read together, the reader...

Justice Michael Wigney also found that the primary judge had erred in finding the tweet defamatory and "substantially agreed" with the two other justices. It was "tolerably clear" that Bazzi's statement "was about, or responsive to, the extract from The Guardian article". The primary judge had erred in how the ordinary reasonable Twitter user would have read the tweet, downplaying, for instance, the significance of the link to the article.

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Accordingly:

While the tweet did convey "an impression that is derogatory and critical of [Dutton's] attitude to rape or rape allegations," it did "not go so far as to convey the impression that [Dutton] is a person who excuses rape".

Dutton's litigious boldness was much in keeping with the Morrison Government's general hostility to social media outlets and the internet in general. Prime Minister Scott Morrison has shown a willingness to do battle with social media and make the platforms assume greater responsibility for material hosted on their sites.

Taking advantage of the killings in Christchurch in March 2019, he exploited the chance to pursue a global agenda of online censorship:

In the latter part of last year, the Government announced that it was drafting laws that would make social media companies gather user details and permit courts to force the divulging of user identities in defamation proceedings. While a re-elected Morrison Government will be a dark day for internet freedoms and expression, Dutton's defeat is a cause for genuine celebration.

It also heralds the need to water down the persistently draconian nature of laws that do all too much in protecting that strange animal known as the offended politician.

Dr Binoy Kampmark was a Cambridge Scholar and is an Independent Australia columnist and lecturer at RMIT University. You can follow Dr Kampmark on Twitter @BKampmark.

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