Whether the substantial truth of the 4th, 5th or 7th imputations has been proven
167 It is convenient to turn first to the imputations that I have found were conveyed as to sexual abuse, harassment or sexual harassment to address the question of whether Ms Hanson has proven substantial truth, namely that Mr Burston:
(a) sexually abused a female staffer in his parliamentary office (Today Show interview, 4th imputation);
(b) harassed a female staffer in his parliamentary office (Today Show interview, 5th imputation);
(c) sexually harassed numerous female staff (Text message to Mrs Burston, 7th imputation).
168 As the detailed consideration and assessment of the evidence of Ms Leach and Ms Vairy above makes clear, I accept their evidence mostly without any significant reservation except as to the issue of whether it went so far as to prove, by the requisite quality of evidence, sexual abuse as alleged by Ms Hanson. To the extent that their evidence differed from that of Mr Burston in any material respect, I prefer and accept their evidence and reject his. In places, that leaves only the assessment of how far their evidence goes on the issues in dispute.
169 I find that the evidence of Ms Leach, which I accept, clearly establishes that Mr Burston sexually harassed her on 1 May 2018 by sexually propositioning her in the coarse and blunt terms that she deposed to, and reject his evidence that it was she who propositioned him. It does not matter in reaching that conclusion whether Mr Burston had any intention of actually carrying out what he suggested, or even that he was physically capable of engaging in sexual intercourse. What matters is that the sexual proposition was made by Mr Burston and that it was, both in its terms and in its impact on Ms Leach, wholly unexpected and wholly unwelcome. Despite grabbing Ms Leach's face as he sexually propositioned her, Mr Burston's conduct was at the higher end of verbal sexual harassment. This took place at Mr Burston's electoral office, which is relevantly and substantially the same as a parliamentary office. Necessarily, such sexual harassment is a form of harassment more generally, such that this finding encompasses both.
170 I also find that Mr Burston sexually harassed Ms Vairy, and therefore necessarily also harassed her, over a prolonged period from about mid 2018 when Ms Vairy said his conduct escalated by starting to kiss her on the lips from time to time and began asking her inappropriate personal questions, until the letter he sent to her on 18 December 2018, which constituted sexual harassment because it inappropriately commented upon and inquired about her private sex life. This protracted pattern of behaviour within the ambit of sexual harassment involved words both spoken and in writing that commented upon her body or appearance, were sexualised or otherwise suggestive in nature, physical touching, kissing, leering and humiliation including by placing her in awkward positions such as attending lunches with him on her own at which some of this conduct sometimes also took place. Some of this conduct took place at other work-related events and locations, which I readily infer included Mr Burston's parliamentary office.
171 I am therefore satisfied that Ms Hanson has discharged the onus of proving, by evidence of sufficient quality for the purposes of s 140(2) of the Evidence Act, the substantial truth of the 5th and 7th imputations.
172 I turn now to the question of whether Ms Hanson has proved with evidence of sufficient cogency that Mr Burston's conduct towards Ms Leach, or towards Ms Vairy, or towards anyone else for that matter, extended to the considerably more serious conduct of sexual abuse. While there is some scope for higher end sexual harassment to crossover into sexual abuse, for the reasons given above in assessing the 4th imputation, what was conveyed was not just sexual harassment at a level crossing over and also constituting sexual abuse, but sexual abuse beyond anything that would also constitute sexual harassment. The key and clearest area where that might have occurred on the evidence was the incident when, upon Ms Vairy refusing to accept the $100 accompanying the birthday card given to her by Mr Burston, he tried to return that money to her. The evidence about unwanted kissing, repeated several times, was deposed to in a way that indicated that was in the intermediate category of perhaps meeting both descriptions, being sexual harassment that might in some circumstances also constitute sexual abuse, but not in the category implied of conduct that could not be considered to constitute sexual harassment. So as not to downplay the seriousness of this conduct, it was certainly egregious due to its repetitive nature and the power imbalance that existed between Ms Vairy and Mr Burston.
173 In relation to the incident involving the birthday card and the $100, Ms Vairy provided to Comcare information about her claim of sexual harassment (not referring in terms to sexual abuse) by Mr Burston in the form of a list of events or conduct dated 24 January 2019. She stated on this topic that Mr Burston had given her "A birthday card with money in it, and when I tried to hand it back he tried to shove it down my top". In her evidence in chief on 9 June 2022, she said "Brian called me into his office, handed me a card. When I opened it $100 fell out. I tried to give that back to Brian. He then forcefully shoved it between my breasts." She also said that she was in shock at the way in which Mr Burston had returned the money. It was not overtly submitted by Ms Hanson that this conduct constituted sexual abuse, but it is necessary to address it all the same. Her argument was more directed to the imputation not being conveyed.
174 In cross-examination, Ms Vairy did not accept that there was any difference between the two accounts she gave. It is no criticism of her to say that, objectively, there is a degree of difference, both as to whether the money was actually returned, and as to how far Mr Burston had gone and precisely what he had done. She rejected the suggestion that the event did not take place, and I accept that evidence. There was no re-examination on this topic.
175 Ms Leach was not present when this incident occurred, but said in her evidence in chief that Ms Vairy had told her about it and in relation to the $100 said Ms Vairy "was really upset by it and tried to give it back and then apparently he put it between her cleavage", which falls somewhat short of the description that Ms Vairy gave about the use of force. Mr Ashby said that Ms Vairy "said to me that she received a card with some money in it, and when she attempted to hand that money back, he - he put that money down her - her blouse or top". Again, this falls short of a reference to the use of force. It follows that none of these witnesses describe Ms Vairy telling them about the use of force of the kind that she deposed to.
176 Thus, three accounts, being from Ms Vairy in 2019, and from what she told Ms Leach and Mr Ashby in 2018 or 2019, refer to Mr Burston trying to or succeeding in putting the $100 down Ms Vairy's top or between her cleavage, while Ms Vairy's evidence in chief refers to the money being shoved forcefully between her breasts. There was no greater clarity sought about what took place than that, perhaps because that evidence was ample to prove sexual harassment. But such inconsistency as to the detail that was deposed to and the lack of additional detail must be taken into account when regard is had to the quality of evidence required for such a serious finding as "sexual abuse", especially as that is not a characterisation that Ms Vairy ever gave to what took place, despite her reference to being shocked at the way in which Mr Burston tried to return the money.
177 The evidence referred to above clearly proves sexual harassment. However, an allegation of sexual abuse is considerably more serious. I am unable to be satisfied that what took place in relation to Mr Burston pressing Ms Vairy to keep the $100 goes so far as to constitute sexual abuse, having regard to the quality of evidence required to make such a serious finding. That is especially so as the words that Ms Hanson deliberately used connoted something going beyond sexual harassment. I am therefore unable to be satisfied upon the basis of sufficiently cogent evidence that what took place did constitute, or was capable of constituting, sexual abuse, although it was clear that this was part of a serious episode of sexual harassment.
178 I am therefore not satisfied that Ms Hanson has discharged the onus of proving the substantial truth of the 4th imputation. Ms Hanson has failed to prove to my satisfaction that Mr Burston has ever gone so far as to sexually abuse a female member of staff in his parliamentary office.
179 As the 4th imputation arising out of the Today Show interview has not been proved to be substantially true, the defence of justification under s 25 of the Defamation Act is not made out for the second matter complained of, the Today Show interview.
180 In the Today Show interview, Ms Hanson was deflecting criticism of Mr Ashby in relation to his participation in attempts to solicit political donations from whom he believed was a representative of the NRA, in return for seeking to weaken Australia's gun laws. That was undoubtedly a very serious set of circumstances to put to Ms Hanson and to ask her why she continued to support Mr Ashby, including in light of him being banned from attending Parliament House by reason of the altercation with Mr Burston. But in doing so, Ms Hanson took the opportunity to stray beyond Mr Ashby's conduct in relation to the soliciting of political donations and beyond the altercation between Mr Ashby and Mr Burston. She sought, in an entirely unrelated way, to divert from what was being put to her in the interview, apparently to distract from the adverse matters going to Mr Ashby's standing, by saying, falsely, that he had reported one of the more serious allegations that can be made against anyone - sexual abuse - when there is no suggestion in the evidence that she had been provided with anything to indicate that anything as serious as that had ever taken place. It is worth noting in that regard that Ms Hanson's submissions did not attempt to identify any proper basis for making such a serious allegation.
181 I infer that not only was this objectively the position, but also that Ms Hanson most likely knew that nothing as serious as that had ever taken place or had ever been reported to her by Mr Ashby, because he gave no evidence to that effect, and she gave no evidence at all to resist that obvious inference being drawn. It needs to be remembered that she likely would have known the true metes and bounds of what she had been informed was alleged Mr Burston had done by way of the substantially lesser, although still serious, conduct of sexual harassment because of the content of the Facebook post some six weeks earlier which went no further than to refer to sexual harassment, albeit without naming Mr Burston. I have already rejected the submission made by Ms Hanson on the topic of the imputation that was conveyed to the effect that what she said about sexual abuse was substantially on the same topic as sexual harassment.
182 A further inference more readily able to be drawn in the absence of any evidence of an innocent explanation for why Ms Hanson said this, is that she was actuated by malice. The drawing of that inference of malice is supported by the obvious bad blood between Ms Hanson and Mr Burston from just under a year earlier in the period between May and August 2018. In that period, Mr Burston refused to support the change of position by One Nation in relation to company tax cuts, was removed from the position of whip for One Nation, left One Nation for the UAP, and was preselected by UAP for the next federal election. After what was once a close friendship, it is unsurprising these events would lead to malice.
183 Further, the imputation of sexual abuse is considerably more serious than the imputations that have been proven true of sexual harassment. There was no evidence that Ms Hanson had any proper basis for suspecting, let alone believing or knowing, that Mr Burston's conduct went so far as to constitute sexual abuse. She has not proven that she had any basis for even the barest suspicion that any instance of conduct by Mr Burston rising to the level of sexual abuse had taken place, and she gave no evidence to explain why she had said it, leaving it more readily open to draw adverse inferences in that regard. As Mason CJ, Deane and Dawson JJ pointed out in Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217 at 227, after referring to copious authority on the topic (emphasis added):
… it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.
184 The 4th imputation that Mr Burston sexually abused a female staffer in his parliamentary office was conveyed without any of the justifications falling within the rubric of any form of qualified privilege, including by way of reply to attack, but even if it had fallen within such a privilege by statute or common law, that would have been defeated by the finding I make that this imputation was actuated by malice, a point I return to below at [245].