Dutton’s defamation win chills debate. Is that what the law intends?

Like all law, defamation law is a construct — its only reason to exist is to deliver a social good. In the case of Peter Dutton and Shane Bazzi, it’s not quite clear that the social good of the law outweighs the harm.

(Image: Private Media/Tom Red)

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.

What does Peter Dutton’s defamation win say about the law and its social utility? Read on.

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