An appeal court has overturned a defamation decision ordering One Nation leader Pauline Hanson to pay $250,000 in damages to a former senator who sexually harassed two female staff members, including by attempting to put $100 down one woman’s top.
Brian Burston, a former One Nation senator and later leader of Clive Palmer’s United Australia Party in the Senate, sued Hanson for defamation after she accused him on Nine’s Today program in 2019 of “sexual abuse and harassment” of a female staff member. Burston had split from One Nation in 2018.
In a judgment last year, Federal Court Justice Robert Bromwich ruled in Burston’s favour and awarded him $250,000 in damages. He found Hanson had proven Burston sexually harassed two former staff members but had not proven sexual abuse, which he said “connotes a higher level of physical contact”.
The judge also found Hanson had defamed Burston by suggesting an altercation between the former senator and Hanson’s chief of staff James Ashby at Parliament House in February 2019, during which Burston threw Ashby’s phone across the floor and pushed him, was unprovoked. He said there was provocation because Ashby had been filming and questioning him.
Hanson lodged an appeal. Her barrister, Sue Chrysanthou, SC, argued that “it shouldn’t be allowed that a senator of the Australian parliament who’s found to have conducted himself in this way ... should be given a cent by this court”.
The Full Federal Court – Justices Michael Wigney, Michael Wheelahan and Wendy Abraham – upheld the appeal on Wednesday and entered judgment for Hanson. The court ordered Burston to pay Hanson’s legal costs.
The court found Hanson had proven it was substantially true that Burston sexually abused a female staffer in his parliamentary office. It concluded Hanson had not conveyed a separate defamatory meaning that Burston physically assaulted Ashby “without provocation”, when the words she had used were that Ashby “never laid a hand” on Burston.
Bromwich had found Burston sexually harassed one staff member, Terrie-lea Vairy, over a prolonged period in 2018, including unwanted physical touching, kissing on the lips and leering, and had on one occasion either tried or succeeded in putting $100 down Vairy’s top or in her cleavage.
He said the evidence surrounding the incident with the $100 note was not sufficient to make a finding of sexual abuse, which he regarded as more serious, but “it was clear that this was part of a serious episode of sexual harassment”.
Bromwich said he was not in “any doubt” that Burston sexually propositioned another former staffer, Wendy Leach, by saying: “Oh Wendy, you probably just need a good f---.” He then grabbed Leach’s face, the judge found, and said: “I’m not joking. I can come around to your place. No one would need to know. It will be the best f--- you’ve ever had.”
But Bromwich said sexual abuse “connotes a higher level of physical contact that is sexual in nature where a power imbalance exists; where the behaviour is persistent and not merely transient; something in the nature of molestation of an ongoing kind”.
The Full Federal Court said that “on the unchallenged findings of [Bromwich] ... the evidence established that Mr Burston repeatedly and on an ongoing basis inflicted non-consensual, unwanted and unwelcome verbal and physical sexual behaviour on Ms Vairy and Ms Leach”.
The court said Bromwich had taken an “unduly narrow” approach to interpreting sexual abuse.
“Recognising that each case turns on its facts, at least some of the physical conduct of the nature that occurred in this case is arguably capable of fitting the description of indecent assault,” the court said. “If that is so, it would be rather unusual if such ongoing conduct perpetrated in a workplace by an employer on an employee was not properly described, in the circumstances, as sexual abuse.”
The court said that Burston, “a man in his seventies, undoubtedly held a position of power over his employees”, and both women needed the employment. That power differential “necessarily colours” Burston’s conduct, the court said.
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