Peter Dutton’s ‘she said, he said’ comment regarding Brittany Higgins used in defamation defence

Refugee activist Shane Bazzi will defend Peter Dutton’s defamation claim by invoking his record as home affairs minister and a comment attributed to him in an ABC news article that he didn’t know the “she said, he said” details of Brittany Higgins’ allegation of rape.

Bazzi’s defence, filed with the federal court on Friday, denies he defamed Dutton with a tweet labelling him a “rape apologist” and pleads that, if he did, the defences of honest opinion and fair comment should apply.

Dutton launched defamation proceedings against Bazzi in April after warning that he would take a more aggressive stance against false and defamatory statements made about him online.

The case relates to a tweet Bazzi sent on 25 February, at the height of the controversy surrounding former Liberal staffer Higgins’ allegation she was raped by a fellow Liberal staffer in the office of the defence industry minister in March 2019.

The tweet stating “Peter Dutton is a rape apologist” was sent on the same day Dutton revealed he did not disclose the Higgins’ allegation to the prime minister, Scott Morrison, and was quoted saying he “wasn’t provided with the ‘she-said, he-said’ details of the allegations”.

Bazzi’s tweet included a link to a June 2019 Guardian Australia article reporting comments the then-home affairs minister had made on Sky News alleging women had been “trying it on” in claiming they were raped and needed an abortion as part of a ploy to get to Australia for medical treatment from refugee centres on Nauru.

In his defence, Bazzi cites that article and the “she said, he said” comment to argue he had “proper material” on which to base his honest opinion, or that his tweet was a “fair comment” because it was “based on facts which were stated, sufficiently indicated or notorious”.

Bazzi noted that on 18 February, Dutton told 2GB Radio in relation to the Higgins’ allegation: “I’ve been here 20 years, this is the first allegation that I’m aware of, of somebody being raped. No doubt there will be other people who allege that they’ve been sexually assaulted or they’ve been in a circumstance where somebody believed there was consent and there wasn’t.”

The defence noted that on 6 May 2016 the federal court found Dutton failed to exercise reasonable care of an asylum seeker who became pregnant after being raped on Nauru by flying her to Papua New Guinea for an abortion.

Guardian Australia’s report of that court finding was “contained within the article” linked in the tweet, it said.

The defence noted that on 11 August, 2016 in response to Guardian Australia’s Nauru Files investigation Dutton said although he “won’t tolerate any sexual abuse whatsoever” he had “been made aware of some incidents that have been reported, false allegations of sexual assault, because in the end people have paid money to people smugglers and they want to come to our country”.

“Some people have even gone to the extent of self-harming and people have self-immolated in an effort to get to Australia, and certainly some have made false allegations in an attempt to get to Australia,” Dutton had told 2GB Radio.

Dutton’s case argues the tweet contains the defamatory imputation that he condones or excuses rape, which Bazzi denies.

Dutton is seeking aggravated damages, arguing Bazzi had “knowledge of the falsity” of the tweet, had used “extravagant language” and had communicated to a large number of people.

But Bazzi told the court that between 25 February and 8 April the tweet had received just 14 likes, 13 retweets and one reply.

The case against Bazzi follows an apology from the Greens senator Larissa Waters that she had “no basis” to allege Dutton is a rape apologist or that he has sought to conceal and dismiss reports of rape, or that he has no sympathy for victims of rape.

In April, Bazzi’s lawyers, O’Brien Criminal and Civil Solicitors, told Guardian Australia Dutton’s decision to sue Bazzi raises “genuine concerns about freedom of speech in Australia” and that politicians “must expect to be subject to adverse opinions and society is entitled to expect a greater level of tolerance from such persons”.

“[Bazzi’s] opinion was based on a number of publicly reported statements that had been attributed to Mr Dutton,” he said in a statement. “Statements that were about matters in the public interest and that would undoubtedly provoke a number of different opinions, including that expressed by Mr Bazzi.

“A robust and vibrant democracy like ours should cultivate and encourage a diverse array of expressions of opinion on matters of public interest.”