Dutton insult was honest view, court told

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A tweet calling Peter Dutton a "rape apologist" may have been insulting and extreme, but it was a legitimate expression of an honest opinion, a court has heard.

The defence minister is suing refugee advocate Shane Bazzi over the now-deleted tweet.

Mr Dutton says it was defamatory because it suggested he condones or excuses rape.

Mr Bazzi's lawyer, Richard Potter SC, on Thursday told the Federal Court the tweet was an honestly held opinion that was based on facts.

The tweet linked to a 2019 news article reporting comments by Mr Dutton that some refugee women on Nauru who complained of rape were "trying it on" in order to come to Australia.

The article referred to a 2016 court ruling that found the Queensland MP in breach of his duty of care to a refugee woman who became pregnant as a result of rape.

Readers of Mr Bazzi's tweet would also have known that earlier that day Mr Dutton gave a press conference about a rape allegation made by former Coalition staffer Brittany Higgins, Mr Potter argued.

At that press conference, Mr Dutton referred to the "she said, he said" details of Ms Higgins' complaint, a phrase which drew criticism.

Though the tweet may have been insulting and extreme, the opinion was rationally based on those facts, Mr Potter said.

Honest opinion is a defence to a defamation claim, even if the court agrees the tweet was defamatory.

In a tweet issued the next month, Mr Bazzi repeated his claim that Mr Dutton was a "rape apologist", adding the descriptors "fascist", "f***en scumbag" and "c***".

Mr Dutton's lawyers say it shows Mr Bazzi didn't really believe the insult he lodged at the minister, and was instead motivated by malice.

The MP's barrister, Nick Ferrett QC, questioned why Mr Bazzi didn't appear to give evidence.

He would have asked the refugee advocate to explain why his language shouldn't be interpreted as an attempt to wound Mr Dutton, rather than a discussion of a matter of public importance.

"(Mr Bazzi) hasn't bothered to exercise his right (to freedom of speech) in this trial," remarked Mr Ferrett.

The sole witness in the two-day case, Mr Dutton told the court on Wednesday he had been "deeply offended" by Mr Bazzi's tweet because it was the opposite of who he was.

Mr Potter on Thursday said the tweet didn't mean that Mr Dutton condones rape.

Instead, readers would interpret it as saying that Mr Dutton "lacks sympathy or empathy with those women who allege they've been raped".

Mr Dutton is seeking aggravated damages if he wins.

Justice Richard White has retired to consider the case.

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