Burston v Hanson

Facebook Post - first matter complained of 2 The reproduction of the Facebook Post published on Ms Hanson's account is as follows (verbatim, with added line numbering for ease of later reference): Pauline Hanson calls out a sexual harassment by a sitting Senator 1. You'll be disgusted to know that taxpayers are footing the bill for multiple unfair dismissal cases in one Senators office who doesn't have the guts to dismiss people face-to-face. 2. Instead, he sacks them by text, email or letter with no warning. 3. This same Senator is now under investigation for serious sexual harassment. 4. Just because we wear a little red pin that signifies we're Senators, should not excuse shocking behaviour by elected members. 5. If you don't have respect for your staff, how can employees respect you? 6. #Auspol #OneNation #PaulineHanson #NoToSexualHarassment 3 Mr Burston pleads that the Facebook Post conveyed the following defamatory imputations: 1st imputation: The applicant sexually harassed staff in his office. 2nd imputation: The applicant, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment. 3rd imputation: The applicant, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff. 4 Ms Hanson denies that the Facebook Post identified Mr Burston as the subject of the publication. Ms Hanson further denies that any of the eight people who posted comments on Ms Hanson's Facebook Page, as particularised in paragraph 3.5 of the Further Amended Statement of Claim (FASOC), identified Mr Burston as the subject of the publication. Ms Hanson relies on the fact that any identification occurred after Mr Burston publicly named himself as the subject of the publication. 5 Ms Hanson also denies that the imputations as pleaded by Mr Burston were carried. In the alternative, Ms Hanson relies on the following defences: (a) justification of substantial truth under s 25 of the Defamation Act 2005 (NSW); and (b) qualified privilege under s 30 of the Defamation Act.

Today Show interview - second matter complained of 6 The following is a transcript of Ms Hanson's interview with Deborah Knight that aired on Friday, 29 March 2019 on the Today Show television programme (the relevant transcript segment in bold, preceded and followed by context): 00:01 Knight Pauline Hanson is facing what could be the toughest week of her political career, as the firestorm over the gun-lobbying sting continues to engulf her party. She came out swinging in a fiery press conference late yesterday, where she didn't take any questions. But not long after, I was invited to sit down with the One Nation leader for her only breakfast TV interview. 00:21 Knight Well Pauline, thank you for the time. 00:23 Hanson My pleasure, thank you. 00:24 to 03:14 [Questions and answers about what Ms Hanson was recorded saying forming part of the documentary involving a sting operation by an Al Jazeera journalist posing as someone from the National Rifle Association and attending meetings with representatives of One Nation and about the Port Arthur massacre, including whether it was a conspiracy] 03:19 Knight Do you want to water down the gun laws? Does ... do you and One Nation want to water down the gun laws in Australia? 03:23 Hanson No. No. Deb ... 03:25 Knight Absolutely not? Categorically? 03:42 Hanson Categorically. Deb, I've been in a position now that if l wanted to, I could've had the ... had watered-down gun laws. I don't. I have one of the strongest gun law policies in the country that is acknowledged by a lot of gun organisations. They believe we've got it right. 03:43 Knight So why did James ... 03:55 Hanson Even now ... and I ... let me finish up this. That even ... it is stronger than the new gun laws that the Prime Minister Jacinda Ardern wants to bring into New Zealand. Mine's stronger than that. 04:02 Knight So why did James Ashby and Steve Dickson then talk about wanting to get millions of dollars from the NRA, wanting to win power ... 04:03 Hanson No, I'm sorry ... 04:04 Knight ... and wanting to water down the gun laws in Australia? 04:06 Hanson No Deb, let's just pull that up, lets pull that up. They never, ever, ever asked the NRA for any money. 04:11 (segment of a recording played to Ms Hanson) Dickson: If they threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate. 04:16 Knight They talked about what they could achieve if they were to get money from the NRA. 04:23 Hanson No, that was ... No, that was Muller putting words into their mouth. 04:26 Knight They said it out of their own mouths, Pauline. 04:27 Hanson That's why I say it was taken out of context. No, if you look at it, they were led to believe ... you know, if you can get some funding, what would that mean? What would you do? How could you actually change the politics in Australia? That we could have representation on the floor of Parliament to represent the people, of what the major political parties are not doing. You know, the sale of our country, the sale of our assets, the Paris Agreement, free trade agreements, all these things. That's what the change that we want, is getting representation for the people and speaking on behalf of the people of this nation. Steve said some stupid things, or inappropriate things, and I agree, alright. But I know Steve. Steve is a family man. He's a good man. And Steve Dickson would never ever want to water down the gun laws in Australia, the same as I won't. And I'll tell you another thing ... 05:18 Knight So you'll stand by Steve and you'll stand by James Ashby? 05:20 Hanson And I ... I've made that quite clear today. 05:21 Knight How many chances will they get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston. 05:27 Hanson No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... 05:33 Knight OK, but that incident ... 05:34 Hanson James Ashby never laid a hand ... 05:35 Knight ... prompted a banning from Federal Parliament. 05:36 Hanson ... never laid a hand. And James Ashby has been trying to bring it to the President's attention about the sexual abuse and harassment that was going on with a female staffer in his office. And the President just said "You go to someone else". 05:48 Knight But the outcome is that he's been banned from Parliament House, correct? 05:51 Hanson For the time being. 05:52 Knight That's the outcome, though? 05:53 Hanson It's not ... it's not definitely. 05:54 Knight You're fired up about this Pauline, I can see it. 05:56 Hanson Well I am, because I ... 05:57 Knight Because to me ... you seem to be, though, pointing the finger of blame to a lot of people here ... 06:02 Hanson Sorry, I'm not being ... 06:04 Knight ... with regard to the documentary. 06:06 Hanson Alright, not blame. I am actually telling you the truth here Deb. 06:09 to 10:26 [Questions and answers return to the Al Jazeera documentary and the Port Arthur massacre]

7 Mr Burston pleads that the Today Show interview conveyed the following further imputations: 4th imputation: The applicant sexually abused a female staffer in his parliamentary office. 5th imputation: The applicant harassed a female staffer in his parliamentary office. 6th imputation: The applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation. 8 Ms Hanson denies any of those defamatory imputations were carried and, in the alternative, places further reliance on the following pleaded defences: (a) justification of substantial truth under s 25 of the Defamation Act; (b) statutory qualified privilege under s 30 of the Defamation Act and at common law as a reply to an attack.

Text to Mrs Burston - third matter complained of 9 A reproduction of the text message sent by Ms Hanson to Mrs Burston on 14 February 2019, and her brief reply, is as follows (again, with line numbering added for ease of reference): Ms Hanson 1. Ross [sic] I have a lot of time for you especially because you were there for me when I broke up with Chris. 2. You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever. 3. He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can't all be wrong. 4. Everyone at Parliament knows that he is infatuated with Terry­lee and in his own words love her. 5. You won't get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged. 6. He considers you to be nothing but a winging [sic] old bag turning out to be just like your mother who he wants to drop dead. 7. He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect. 8. This is the man who said he would never hurt me or try to destroy One Nation. 9. He turned on me because I couldn't endorse him for another 6 years. 10. I am sorry that was a political decision because he never worked enough to keep it. 11. You may think differently but please be objective. Mrs Burston 12. Please stop contacting me 10 By way of context, there was a degree of familiarity between Ms Hanson and Mrs Burston as the two had shared a friendship spanning some twenty years. There was no evidence that this friendship had continued after Mr Burston had left One Nation in mid-2018, long before the Text to Mrs Burston was sent on 14 February 2019. In the absence of such evidence, and in light of the clear evidence of significant animosity between Mr Burston and Ms Hanson prior to June 2018, I am unable to accept that as at the time that the Text to Mrs Burston was sent by Ms Hanson there was any extant friendship between the two women, or that Ms Hanson had any basis for believing that there was any such friendship. 11 Mr Burston pleads that the Text to Mrs Burston conveyed the following additional imputations: 7th imputation: The applicant sexually harassed numerous female staff. 8th imputation: The applicant behaved disgracefully by cheating on his wife with one of his female staffers. 12 Ms Hanson argues that none of the pleaded defamatory imputations were carried. In the alternative, Ms Hanson relies on the following pleaded defences: (a) justification of substantial truth under s 25 of the Defamation Act; (b) statutory qualified privilege under s 30 of the Defamation Act; (c) common law qualified privilege on two bases: (i) the relationship between Ms Hanson and Mrs Burston and the subject matter being the conduct of Mr Burston; (ii) reply to attack; and (d) unlikelihood of harm under s 33 of the Defamation Act.

BACKGROUND, CONTEXTUAL FACTS AND FACTUAL DISPUTES TO BE RESOLVED

Background 13 Mr Burston is now 74 years old. He grew up in Cessnock, and after starting his career as a boilermaker, qualified as a design draftsman in mechanical and structural disciplines. From 1987 onwards, he became self-employed as a commercial draftsperson, specialising in architectural design. It was around this time Mr Burston developed an interest in politics, serving on the Cessnock City Council for 12 years and subsequently as Deputy Mayor for Cessnock in 1997. 14 Mr Burston became involved with One Nation shortly after this, becoming a member of the party after its inception in around 1998. The party later endorsed him as the lead Senate candidate for New South Wales in the 2016 Federal Election. It was that election where Mr Burston was elected as Senator to represent One Nation for the State of New South Wales. 15 Ms Hanson is a well-known Australian political figure and the incumbent Senator representing Queensland in the Australian Senate since the 2016 Federal Election, having been re-elected in the election on 21 May 2022. In February 1997, she co-founded the right-wing populist political party, One Nation, later also known as PHON. 16 After meeting in 1998 at the One Nation senate pre-selection in Sydney, Mr Burston and Ms Hanson's friendship grew over time. Mrs Burston also grew close to Ms Hanson, presumably through her working relationship with her husband. Mr Burston gave undisputed evidence of this, as he recounted Ms Hanson attending his wedding with Mrs Burston in 2008 and what he described as many subsequent outings, including dinners and lunches. This friendship continued, until the falling out between the two in mid-2018, as detailed below. This culminated in Mr Burston announcing his resignation from One Nation on 14 June 2018, to sit in the Senate as an independent and later joining the United Australian Party (UAP), until he lost his seat in the 2019 Federal Election. As noted above, I am unable to accept that any inference can be drawn that the friendship between Ms Hanson and Mrs Burston continued after Mr Burston left One Nation; and in particular, I am not satisfied that there was any such friendship as at the time that Ms Hanson sent the Text to Mrs Burston on 14 February 2019, nor that Ms Hanson had any basis for believing that there was any such continuing friendship at that time. 17 The events giving rise to this proceeding developed from antipathy between Mr Burston and Ms Hanson, as well as antipathy between Mr Burston and Mr Ashby.

Mr Burston's Senate staff 18 The staff Mr Burston employed after he took his seat in the Senate after the July 2016 federal election are relevant to many of the defamatory imputations, but two are more central than the rest, being Ms Wendy Leach and Ms Terrie-lea Vairy. 19 On 1 September 2016, Ms Leach commenced working for Mr Burston as office manager in the electoral office at Belmont, a suburb of Newcastle in New South Wales and later from July 2017, at his new electoral office in Toronto, a lakeside suburb in the city of Lake Macquarie in the Greater Newcastle region. 20 Mr Burston and Ms Leach had previously shared a working relationship built during Ms Leach's time as an architectural sales consultant at a Gold Coast-based architectural firm referred to as Superdraft. Ms Leach's primary role at Superdraft had been to acquire new clients for architectural work and to refer the work to various licensees, of which Mr Burston was one. In his evidence in chief, Mr Burston spoke highly of Ms Leach's work at the time, particularly her loyalty and managerial experience. These were the primary drivers for him, on 19 August 2016, offering her the Office Manager position in his electoral office. The offer was made without ever having met her face to face as the two had built up a rapport over telephone conversations in the past. After her offer of employment, Ms Leach relocated from the Gold Coast to Belmont to take up this position. As detailed below, Ms Leach's employment with Mr Burston ceased when she was dismissed by him on 29 October 2018. 21 On 1 May 2017, Ms Vairy commenced employment in Mr Burston's office, undertaking the role of electoral officer. Mr Burston said this role predominately consisted of administrative tasks. For ten years before Ms Vairy commenced this role, she performed part-time work as a cleaner at Mr and Mrs Burston's home, and upon her taking up this position, she went from earning about $16,000 a year as a cleaner to just over $65,000 a year. As detailed below, Ms Vairy ceased performing work for Mr Burston at the end of 2018, but her employment did not formally end until his term in the Senate expired on 30 June 2019. 22 During his time as a senator, Mr Burston also employed Diana Allen, who worked as his personal assistant until 20 October 2016, and Peter Breen, who was employed as his chief of staff until June 2018, when he was dismissed upon the ground of breach of trust. Other staff members were Dr Frank Salter, Peter Kelly, and Mary-Ann Martinek.

Mr Burston's split from One Nation on 14 June 2018 23 It emerged during the trial that there are starkly differing perspectives as to the events that culminated in Mr Burston's fallout with Ms Hanson and his subsequent split from One Nation. 24 Mr Burston's position is that the falling out between him and Ms Hanson can be sourced from around May 2018. He attributed that to his express intention to support the government's corporate tax cut legislation in 2018, from which Ms Hanson had withdrawn her prior support not long before the legislation was to be introduced into Parliament. In summary, Mr Burston alleges that it was for this reason that Ms Hanson summarily sacked him as party whip on or about 24 May 2018. Ms Hanson's contrary case is that the removal of Mr Burston from the position of party whip was solely based on his incompetence in the discharge of his duties as party whip, not due to his position on the government's tax cut legislation. The difference is as much subjective as objective. Ultimately, it is unnecessary to decide which version is correct, if indeed only one version is correct and the other is not, rather than elements of both being true, as neither ultimately affects the facts requiring determination. 25 Whatever the reason, One Nation decided not to endorse Mr Burston as the lead Senate candidate for the 2019 federal election. After some months following this decision, he resigned from One Nation on 14 June 2018. He then joined the UAP, where he was endorsed as a Senate candidate for New South Wales for the 2019 election. Mr Burston was not re-elected, so his senate term ended on 30 June 2019.

Ms Leach's termination of employment on 29 October 2018 26 One of the events relating to the 2nd and 3rd imputations sued upon, being that it was conveyed that he had "behaved disgracefully by improperly dismissing numerous staff from their employment" and had "brought the Senate into disrepute by his shocking behaviour towards his staff", was the termination of Ms Leach's employment on 29 October 2018, and the events that had occurred in the lead up to that termination. Most of the circumstances behind that termination are either uncontentious or not disputed. As such, the majority of the description below is derived from unchallenged portions of Mr Burston's evidence unless expressly indicated, supplemented by evidence from Ms Leach. 27 On or around 26 October 2018, Mr Burston purchased tickets to the Hey Mate: Buy a Bale charity concert to provide support for drought-affected farmers. The concert was held in Tamworth, New South Wales. While Mr Burston had three tickets to this concert, he was not able to attend due to an injured knee. After an unsuccessful attempt to donate the tickets to a local commercial radio station in return for an acknowledgement, he gave the tickets to Ms Leach instead, who had requested them for her and her boyfriend. 28 The conditions behind the gifting of the tickets by Mr Burston to Ms Leach were disputed at trial. Mr Burston maintains that the tickets were gifted to Ms Leach on the basis that she was to conduct official parliamentary business at the concert, which entailed taking photographs of the concert for Mr Burston's social media pages. Further to this, Mr Burston maintains that he made an explicit instruction to Ms Leach that she was not to drink more than a minimal amount of alcohol at the concert. 29 Ms Leach's evidence confirms most of Mr Burston's account. However, she maintains that she denied ever accepting the conditions for attending the concert set by Mr Burston, particularly any limitation on her alcohol consumption. She states that she said words to the following effect, "If I have anything to do with Parliamentary business, I am not going. I am drinking, I'm going on my boyfriend's motorbike, I'm going for a good time on Saturday night. I'm not having anything to do with anything political". In his evidence, Mr Burston conceded that Ms Leach said words to that effect and confirmed Ms Leach's objections to the conditions imposed and her offer to pay for the tickets if the conditions were to be imposed. His reply to this was, "Don't be silly. You don't have to pay for the tickets". It follows that I find that Ms Leach genuinely and reasonably understood that she was attending this concert on a recreational basis, and not in any official capacity. 30 On 27 October 2018, Ms Leach invited her boyfriend and Ms Vairy to accompany her and as she felt entitled to do, at the concert she had "heaps to drink". At 2.55 pm on the same day, Mr Burston texted Ms Leach to remind her not to forget the "pics" (pictures, meaning photographs) and inquiring on whether she and Ms Vairy had arrived in Tamworth safely. About an hour after this, Mr Burston called Ms Leach, who told him that the three were having a drink at the pub. Mr Burston says he then told Ms Leach she should not be drinking. This was followed by a further text requesting photos of the concert. Ms Leach replied immediately to this request by sending two daytime photographs of the concert. Mr Burston then texted Ms Leach, "where's TLV [Ms Vairy] with you two?" and asked for some more photographs Ms Leach replied to this request with two-night photographs. This was followed by a further enquiry regarding Ms Vairy, with Mr Burston replying, "I assume Terrie-lea isn't with you at the concert". Mr Burston then followed this up by calling Ms Leach and Ms Vairy. The two women did not respond. Mr Burston then asked Ms Leach to respond or "you both might be looking for another job on Monday." 31 Shortly after this, Ms Leach returned Mr Burston's missed call. The now intoxicated Ms Leach exploded in a verbal outburst against Mr Burston. The source of the frustration, according to Ms Leach, was her perception of Mr Burston's continuing infatuation with Ms Vairy. In cross-examination, Ms Leach did not dispute that she said words to the effect of "don't threaten my fucking job, it's a fucking ridiculous infatuation you've got with Terrie-lea." Further details of this outburst are set out in the letter of termination from Mr Burston to Ms Leach described in the next paragraph. 32 The next day, Sunday, 28 October 2018, Mr Burston wrote and signed a letter of termination, which on its face terminated Ms Leach's employment immediately based upon the way she had spoken to him the night before (Saturday night). The letter was left out for her, and intended by him to be received by her the next morning, Monday, 29 October 2018 when she came in to work, and was in fact received by her at that time. The letter gave her until 10.00 am that day to collect her personal belongings and to return her office keys and other parliamentary office property. 33 Following her termination, on 16 November 2018, Ms Leach commenced an unfair dismissal claim to the Fair Work Commission against Mr Burston. Subsequently, on 5 February 2019, she lodged a workers' compensation claim with Comcare. On 15 November 2019, she lodged a complaint to the Australian Human Rights Commission, alleging sexual harassment, sex discrimination and victimisation. 34 Later, Ms Vairy reported what she said Mr Burston had done to her to Ms Hanson's chief of staff, Mr James Ashby.

Events during Ms Vairy's employment 35 The important aspects of Ms Vairy's employment are in dispute, and the subject of contrary evidence from Mr Burston. It suffices at this point to record that she gave evidence of a prolonged period of sexual harassment by him, which he denies, both in evidence and in suing upon the 1st, 3rd, 4th, 5th, 7th and 8th imputations of sexual harassment, sexual assault and the characterisation of such conduct. 36 Ms Vairy stopped attending work for Mr Burston at the end of 2018, but remained in formal employment on stress leave until the end of his term as a Senator on 30 June 2019. It follows that, as a matter of law as well as fact, she was not actually dismissed from her employment by Mr Burston, constructively or otherwise.

Events leading up to the Facebook Post on 12 February 2019 37 It became apparent at the trial, in Mr Ashby, Ms Leach and Ms Vairy's evidence, that sometime during the latter half of 2018, Ms Leach began communicating via telephone with Mr Ashby regarding her experiences and observations working in Mr Burston's office. The following is a brief outline of these issues. A more detailed consideration of the evidence on those issues appears later in these reasons. 38 Ms Leach maintains that she told Mr Ashby of Mr Burston's infatuation with Ms Vairy. It quickly became apparent at trial, with further corroborative evidence from Mr Ashby, that he served as a confidant from time-to-time in listening to Ms Leach's experiences through numerous telephone conversations. In January 2019, Ms Vairy initially contacted Mr Ashby and first disclosed to him the more serious sexual harassment allegations she made against Mr Burston. 39 Ms Vairy gave evidence that she disclosed the numerous unwanted approaches made by Mr Burston, including an incident where she had received a birthday card with money inside it. Her evidence was that when she attempted to hand the money back, Mr Burston put or attempted to put the money down her blouse or top. Ms Vairy gave evidence of raising conduct by Mr Burston in the subsequent telephone conversations with Mr Ashby, including, physical touching and comments relating to her "sexiness" which made Ms Vairy "very, very uncomfortable". While Mr Burston in his closing submission concedes to on occasion saying things such as "I love you" to Mrs Vairy or referring to her as a "beautiful lady", he asserts that his conduct in its totality did not amount to sexual harassment. I will return to this point when I deal with the imputations relating to the sexual harassment and abuse. 40 Leading up to the publishing of the Facebook Post, Mr Ashby had conversations with Ms Hanson regarding any further steps that should be taken in regards to the information received from Ms Leach and Ms Vairy. With Ms Hanson's approval, Mr Ashby drafted a speech to be read in the Australian Senate by Ms Hanson concerning the sexual harassment and unfair dismissal allegations made against Mr Burston by Ms Leach and by Ms Vairy. 41 On the night of 12 February 2019, Ms Hanson delivered a speech in the Australian Senate. This speech is recorded in the Hansard of the Australian Senate bearing the same date. This speech was subsequently uploaded by Mr Ashby to Ms Hanson's verified Facebook Page as a video accompanied by the reproduced text at [2] of these reasons. As such, it is critical to note that it is only the text portion as reproduced on the Facebook post that accompanied this video that forms the first matter complained of. While the delivery was undoubtedly accusatory, Ms Hanson apparently deliberately omitted to name anyone, a stance that Mr Ashby confirmed was intended. Instead she stated that the serious allegations raised were directed to a married, male senator.

Mr Burston's response to the Facebook Post on 14 February 2019 42 It is not disputed that Mr Burston spoke to a news reporter on the same Tuesday night, 14 February 2019, following Ms Hanson's speech to Parliament. As a consequence of this, he named himself as the married male senator that was referred to in Ms Hanson's speech. However, the exact time of this self-identification by Mr Burston, and its publication, is unclear from the evidence. The earliest article in evidence that refers to this self-identification was an article published by the Sydney Morning Herald, online the next day, Wednesday, 13 February 2019 at 11.14 pm. It is in this same article that Mr Burston accused Ms Hanson of sexually harassing him twice. Ms Hanson unequivocally denied this counter-allegation at the time, and ever since.

The Burston-Ashby altercation on 13 February 2019 43 On the evening of 13 February 2019, Mr and Mrs Burston attended the Minerals Council of Australia dinner hosted in the Great Hall at Parliament House. Mr Burston and Mr Ashby sat at the same table at that dinner that evening. While Mr Ashby concedes that he at least greeted Mrs Burston, it is common ground that the two men did not interact prior to the altercation that night despite their proximity. 44 Later on, Mr Ashby took a telephone call, and left the table. The caller was a journalist who told him about sexual harassment allegations made by Mr Burston against Ms Hanson that were about to be published, seeking a comment from him. Mr Ashby spoke to Ms Hanson, who indicated that she would stay for the Prime Minister's speech. Mr Ashby then went outside, with his evidence being that he intended to take photographs of Ms Hanson as she left the dinner, saying to Mr Bainbridge that was the reason he was waiting outside the dinner. 45 The subsequent series of events which culminated in a physical altercation between Mr Burston and Mr Ashby, can be conveniently described in two stages by reference to tendered photographs by a third party and a video taken by Mr Ashby depicting the incident in two stages as follows:

Stage 1 of the physical altercation between Mr Burston and Mr Ashby 46 Mr Ashby next observed Mr Burston coming out of the Great Hall where the dinner was taking place into the marble foyer at Parliament House, followed by Mrs Burston. The series of photographs tendered then commence with a depiction of Mr Ashby with his mobile phone held out in front of him walking towards Mr Burston. Mr Ashby's evidence was that he was intending to video Mr Burston, but did not get the settings right to do more than take still photographs. None of those photographs were tendered in evidence. 47 In the successive photographs, Mr Burston walks past Mr Ashby with Mrs Burston remaining only a few metres behind as Mr Ashby continued to photograph Mr Burston. At some point, Mr Burston abruptly stops, turns around and starts walking towards Mr Ashby. At this point, Mr Ashby is depicted backing away from Mr Burston with his mobile now held with both hands as he continued to photograph Mr Burston. In the following photographs, Mr Burston made several attempts to take Mr Ashby's mobile phone off him, succeeding on the fourth attempt, and throwing it away so that it slid along the floor. Mrs Burston was not closely proximate to any of this taking place. 48 Mr and Mrs Burston are then depicted walking towards the exit, away from the marble foyer. The final photograph in this sequence then shows Mr Ashby retrieving his mobile phone from the floor and following Mr and Mrs Burston as they proceed to walk away.

Stage 2 of the physical altercation between Mr Burston and Mr Ashby 49 This stage is depicted in a video taken by Mr Ashby on his mobile phone. The video commences with his mobile phone aimed at Mrs Burston who responds to this by saying, "go away James". Mr Ashby then asks her "how do you feel about the sexual harassment cases?" At this point, Mr Burston quickly moves towards Mr Ashby, puts his hand over the phone, and pushes Mr Ashby in the chest through the exit door and out of the marble foyer, saying to Mr Ashby, "listen here", and Mr Ashby asks, "what are you doing champ?". Mr Burston says, "I'll call the federal police. You are harassing me". While this altercation took place, Mrs Burston can be heard repeatedly and loudly saying to Mr Ashby that the claims were "all your concoction". The video ends at this point. 50 It is reasonably clear that this is where the altercation between Mr Burston and Mr Ashby ran its course. Mr Ashby apparently returned to the marble foyer to wait for Ms Hanson, and Mr Burston and his wife exited the area. Subsequently, after this, and on the same night, a public statement was issued on the UAP website in the name of Mrs Burston where she expressed support and belief for her husband despite allegations made against him in the media. As a consequence of this altercation, Mr Ashby was barred from Parliament House by having his parliamentary pass revoked by the President of the Senate at the time, Mr Scott Ryan.

The Text to Mrs Burston from Ms Hanson on 14 February 2019 51 In the preceding timeframe to the publication of the text message sent by Ms Hanson to Mrs Burston, various media sources had reported on the sexual harassment allegations made by Mr Burston against Ms Hanson in the aftermath of Ms Hanson's speech and Mr Burston naming himself as the subject of that speech and thus the Facebook post. Apparently, in part to address the now published sexual harassment allegations raised by Mr Burston, Ms Hanson sent a text message to Mrs Burston at 6.24 pm on the evening of 14 February 2019. The contents of this text message form the third matter complained of (published second in time) as reproduced at [9] of these reasons. The text message commences with Ms Hanson expressly addressing the sexual harassment allegations against her as the purpose of her communication. On a fairly impressionistic level, this can be viewed as Ms Hanson's attempt to protest her innocence concerning the allegations Mr Burston raised and repeating the unfair dismissal and sexual harassment allegations in respect of which Mrs Burston had already publicly supported Mr Burston by texting the following (with line numbering added): 1. Ross [Ros] I have a lot of time for you especially because you were there for me when I broke up with Chris. 2. You are being taken for a fool by Brian. He is the last man I would ever hit on. I am definitely not attracted to him now or ever. 52 While Ms Hanson contends that the text messages were published in the circumstances in which Ms Hanson and Mrs Burston had a friendship spanning twenty years, as noted above, I find it is impossible on the evidence and all reasonable inferences able to be drawn to accept that there was any residual friendship between the two women, or that Ms Hanson genuinely believed that to be so, in the absence of any evidence from her, considering the events that had transpired both eight months earlier with Mr Burston resigning from One Nation as well as the events of the previous day. It was never suggested to Mrs Burston in cross-examination that she was still a friend of Ms Hanson by 2019. I am confident that had any such proposition been put to Mrs Burston, she would have denied it, but she was not given that opportunity. In the same text message thread, Ms Hanson then goes well beyond the allegations Mr Burston had made against her, by making other serious allegations against him, texting the following to Mrs Burston (with continuing line numbering added): 3. He is vindictive as you well know, Oldfield, Hinch, Dury, James and me. He is being investigated for sexual harassment by more than one of his former female staffers. They can't all be wrong. 4. Everyone at Parliament knows that he is infatuated with Terry­lee and in his own words love her. 5. You won't get to see the evidence all on text from him to her because it will be a closed decision and she will get her pay out and gagged. 6. He considers you to be nothing but a winging old bag turning out to be just like your mother who he wants to drop dead. 7. He tells his staff he owns your home. Wake up to him. I have nothing to gain. I just believe you deserve to be treated with a bit more respect. 8. This is the man who said he would never hurt me or try to destroy One Nation. 9. He turned on me because I couldn't endorse him for another 6 years. 10. I am sorry that was a political decision because he never worked enough to keep it. 11. You may think differently but please be objective. 53 On a fair assessment, the text message continues well beyond mere vindication, culminating in what can best be described as a scornful diatribe. Mrs Burston's reply at [12] of the reproduced text message thread above, "Please stop contacting me", clearly enough indicates that the communication was neither welcome, nor received as being from a friend.

The Today Show Interview on 29 March 2019 54 By way of broader context, which is a matter of public record, on 26 and 28 March 2019, the Australian Broadcasting Corporation broadcasted a widely publicised television documentary made by the media organisation Al Jazeera titled "How to Sell a Massacre" (the Al-Jazeera documentary), based upon a lengthy investigation into gun rights lobbying in the United States. During the Al Jazeera documentary, a journalist had posed as a member of the National Rifle Association (NRA), a very well-known United States gun rights lobby group. That journalist, in that ostensible NRA capacity, met in Washington DC with Ms Hanson, Mr Ashby, and a member of One Nation and party leader at the time in Queensland, Mr Steve Dickson. 55 The covertly recorded footage from that meeting included the apparent soliciting of political donations by Mr Ashby and Mr Dickson from the Al Jazeera journalist, whom they had had been duped into thinking represented the NRA, in return for seeking to soften gun laws in Australia. The recorded footage includes a portion that the Today Show interviewer, Ms Deborah Knight, played to Ms Hanson of what Mr Dickson had said as follows: "If they [that is, the NRA] threw $10 million at us, we could fucking win a heap of seats, plus a shitload of seats in the Senate". 56 Segments of the video of the meeting with the Al Jazeera journalist are also displayed during the Today Show interview. Ms Hanson states during that interview that Mr Ashby and Mr Dickson were "led to believe that if you could get some funding, what would that mean?" Some of the subtitles of the interview are cut off by the large Today Show graphic at the bottom of the screen. However, in the video played to Ms Hanson during the interview, Mr Ashby and Mr Dickson apparently refer to One Nation holding a certain number of seats in government, and that if they held eight senate seats they would "have the whole Government by the balls", amongst other matters. 57 Upon examination of the tendered transcript and footage from the Today Show interview, Ms Knight's line of questioning was primarily based on the aforementioned Al Jazeera footage, the resultant public reaction to One Nation's alleged attempt to solicit funds from the NRA in return for attempts to soften gun laws in Australia and an allegation against Ms Hanson that she suggested the Port Arthur massacre was a government conspiracy. Separate to this primary line of questioning, at 05:21 of the transcript reproduced above at [6] of these reasons, Ms Knight asked Ms Hanson the following questions: 05:18 Knight So you'll stand by Steve and you'll stand by James Ashby? 05:20 Hanson And I ... I've made that quite clear today. 05:21 Knight How many chances will they get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston.

58 Ms Hanson responded by saying the following words that are said to give rise to the pleaded imputations (emphasis added): 05:27 Hanson No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... 05:33 Knight OK, but that incident ... 05:34 Hanson James Ashby never laid a hand ... 05:35 Knight ... prompted a banning from Federal Parliament. 05:36 Hanson ... never laid a hand. And James Ashby has been trying to bring it to the President's attention about the sexual abuse and harassment that was going on with a female staffer in his office. And the President just said "You go to someone else".

59 It follows that the transcript reproduced at [6] of these reasons which includes the preceding impugned excerpt from the Today Show interview, is the key aspect of the second matter complained of (published third in time). Further analysis follows below. Non-witness evidence 60 Most of the evidence apart from that of witnesses, comprising documentary records of various kinds, text messages, emails, media or social media posts or recordings and transcripts, was contained in the Court Book, being formally tendered by one side or the other without objection. There was a relatively small number of additional documents tendered, again without objection. 61 Greater weight is naturally to be given to documents that are themselves the manifestation of actions or communications, such as a text or email, than records created in order to achieve an objective, such as a complaint or document created to achieve a particular objective. That said, contemporaneous accounts of events can be corroborative of oral testimony on the same events, but must be approached with some caution due to the possible agendas being deliberately advanced.

Overview of witness evidence 62 The witness evidence given and called by Mr Burston and called by Ms Hanson ended up being largely directed to a competing narrative of key events and the context in which those the events took place, especially those the subject of the pleaded imputations, the pleaded justifications, and seeking to counter such justifications, including by seeking to explain the non-witness evidence. The following witnesses gave evidence at the trial and were cross-examined: (a) in Mr Burston's case, him and his wife, Mrs Burston; (b) in Ms Hanson's case, Ms Vairy, Ms Leach, Mr Bainbridge and Mr Ashby. 63 Ms Hanson elected not to give evidence, upon the basis conveyed by her counsel that she saw no need to do so, relying instead upon the witnesses that she called. That meant that she was inherently reliant upon the testimony of Mr Ashby and the acceptance of his evidence in relation to what he told her, and what her state of mind was as a result as relevant to the justification defence of qualified privilege that she relied upon. The problem with that strategy is that Mr Ashby's testimony was cast at a level of generality inadequate for the task of discharging the necessary burden of proof and he ended up being a witness of doubtful veracity in key respects, especially in relation to events in which he was personally involved, such as the altercation with Mr Burston. 64 These reasons reflect the substantial challenge posed in the assessment of contradictory evidence about the disputed events. In any trial, some witnesses may simply be obviously sound and give evidence which can therefore be accepted without reservation, while other witnesses may be inherently unsound such that their testimony has to be approached with caution. Sometimes, a Court as the tribunal of fact is faced with having to decide upon facts as deposed to by a skilled liar against an account given by a bad teller of the truth. Lesser versions of that stark dichotomy are more common. 65 The evidence of a particular witness may be wholly accepted or wholly rejected, but it is more common that there is a spectrum with different degrees of evidentiary weight or acceptance. The High Court has cautioned against drawing conclusions about the acceptance or rejection of witness evidence based upon demeanour alone: Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ. The sounder approach is to examine key testimony carefully and by reference to the logic and sequence of events about which evidence is given, as aided by contemporaneous and objective evidence. 66 For the reasons detailed below, I reach the following overall conclusions about the witnesses who gave evidence.

Mr Burston 67 Mr Burston was in many respects an unsatisfactory witness whose testimony I am unable to accept on the topic of the allegations of sexual harassment made against him. This is largely because the objective material such as text messages, coupled with the compelling and credible evidence of Ms Vairy and of Ms Leach, left no serious room to accept the benign interpretation and account that he advanced in relation to his conduct. His evidence in other areas was at its best when it aligned with objective contemporaneous non-witness testimony, such as photographs or recordings. However, I do not accept, as Ms Hanson submitted in substance, that virtually none of his testimony could be accepted as either truthful or reliable. His account of the altercation with Mr Ashby, although not flawless, was generally more credible and more consistent with both the objective evidence, and the logic and sequence of events, than the evidence of Mr Ashby on that topic.

Mrs Burston 68 Mrs Burston was an honest witness doing her best, but she said she had little recollection of certain key events. She was plainly personally very upset by the sexual harassment allegations made against her husband and deposed to not accepting that the events occurred when aspects of these events became public or were otherwise communicated to her in the context of this litigation, especially in the matters complained of, or in the witness box. That denial has to be understood in the context that the alleged conduct took place in circumstances that were not apparently known to her. Again, her evidence was at its best when it aligned with objective contemporaneous non-witness testimony.

Ms Vairy 69 Ms Vairy was an impressive witness because she obviously listened to the questions and did her best to answer them with dignity despite the unedifying events that she deposed to. She was a calm and careful witness, with an understated manner. I perceived her as finding the process of giving evidence personally difficult and challenging both in chief and in cross-examination. However, she was obviously determined to give that evidence and was not reticent in her answers. 70 On occasion, Ms Vairy had difficulty in understanding questions, but in the greater part that was due to the convoluted nature of the question, or its ambiguity. She also made concessions at appropriate points. Importantly, her evidence at key points was consistent with, and corroborated by, contemporaneous records, such as texts sent to her by Mr Burston which on their face plainly supported her understanding of them. 71 This assessment of her as a reliable and truthful witness readily carried over to most aspects of evidence that were not able to be corroborated, such as the behaviour, both physical and verbal, of Mr Burston that she deposed to. I address her evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.

Ms Leach 72 Ms Leach was a credible witness. While not as compelling a witness as Ms Vairy, I found her account of events believable, and generally accept her account of events, mostly preferring her version when it conflicted with that of Mr Burston. She sometimes reacted strongly to what was being put to her, especially when challenged in cross-examination, but not in a way that was in any significant measure disproportionate to what she was being asked. I accept all the key aspects of her evidence, especially as to her observations about Mr Burston's conduct towards Ms Vairy. 73 I accept and prefer Ms Leach's account of being sexually propositioned by Mr Burston, and correspondingly reject his account of her propositioning him, which I found improbable and even absurd. I do not need to go so far as to find that Mr Burston in fact intended to have sexual relations with Ms Leach, noting that the evidence he relied upon to assert an incapacity to do so was insufficient to form any concluded view about that. What matters is that I find that he sexually propositioned her. As with Ms Vairy, I address Ms Leach's evidence in greater detail when assessing the truth defence to the pleaded imputations of sexual harassment.

Mr Bainbridge 74 Mr Bainbridge came across as a partisan witness, voluntarily characterising Mr Burston on the night of 13 February 2019 in a conclusory and non-responsive way as being "aggressive" towards Mr Ashby, and Mr Ashby as not being "aggressive" at all, when no question asked of him naturally led to either characterisation. I perceived him as being primed to give that evidence irrespective of the question that was asked. He did not give much if any evidence to explain the basis for either conclusion, or even what he really meant by it. 75 Mr Bainbridge was not the impartial witness he was represented to be by counsel for Ms Hanson. While I accept that he did not know Mr Ashby before the night of 13 February 2019, he met with him and Ms Hanson later that night, so it can be readily inferred that he was no longer a wholly independent witness by the time he gave evidence. That said, little of what he had to say added much to the key factual issues in dispute.

Mr Ashby 76 Mr Ashby was a slick and polished performer in the witness box. The problem with such an impression is that it can be affected by objective evidence and circumstances which reveal it to be untrue or unreliable in particular respects. When that happens, doubt may be cast on the acceptance of the rest of the evidence that has been given. In this way, a positive demeanour cannot necessarily be safely relied upon in the assessment of the evidence given. This is considered in further detail below. 77 At this stage of these reasons it suffices to record the following conclusions: (a) Mr Ashby's evidence about his dealings with Ms Vairy and with Ms Leach can generally be accepted to the extent that it is broadly consistent with their testimony. His general evidence of the complaint they made at the time served to provide circumstantial corroborative support for their evidence by confirming, supporting or strengthening it in the sense of rendering it more probable that it was true: see Doney v The Queen [1990] HCA 51; 171 CLR 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh JJ. (b) Mr Ashby's evidence about his dealings with Ms Hanson must be confined to the precise content of what he deposed to, and treated with considerable caution and reservation. I am not prepared to infer that anything more was communicated than what he actually said in evidence, especially in the absence of Ms Hanson giving evidence of what she was told and the views she formed as a result, despite her sitting in Court for several days. (c) Mr Ashby's evidence about his altercation with Mr Burston on the night of 13 February 2019 must be treated with great caution. In particular, Mr Ashby's evidence that he was not asking or intending to ask Mrs Burston about the allegations of sexual harassment made against her husband is firmly rejected as being, at best, unreliable and self-serving. His contemporaneous diary note does not support his account, not least because it was itself an unreliable record of what took place, being manifestly incorrect in parts. The recording that Mr Ashby made on his mobile phone of his question to Mrs Burston, and the logic and sequence of events, makes it clear that he was deliberately provoking Mr Burston by asking Mrs Burston about those allegations. (d) Because Mr Ashby has been willing to give untrue evidence about his motivation for filming Mr Burston and Mrs Burston, I am unwilling to accept his account of what took place during the course of the altercation as truthful unless it is objectively supported by the photographs that were taken by apparently independent observers, or by his own video and thereby sound recording of a small portion of what transpired.

The sexual harassment allegations 78 On the topic of the sexual harassment allegations, I accept and prefer the evidence of Ms Vairy and Ms Leach to the evidence of Mr Burston. I find that their evidence was coherent and consistent and aligned better with the objective material such as the content of key texts and was also supported by other contemporaneous records, as developed in more detail below. 79 Adding to the assessment of Mr Burston as a witness earlier in these reasons, I observe that he was a man of his age, background and social views who, at the time, probably genuinely saw nothing wrong with his behaviour, however objectively wrong and inappropriate it was. Whenever there was a possible benign explanation for something he said or did, he clung to that, even if it was inherently improbable. On its own, some of those attempts might have succeeded in the sense that cross-examination of him alone might not have been enough for Ms Hanson to discharge the onus of proving truth on the balance of probabilities, having regard to the quality of evidence required to prove such serious allegations: see s 140(2) of the Evidence Act 1995 (Cth), being the statutory rendering of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-2 per Dixon J. 80 Mr Burston had apparently not kept up with changes in society in relation to the rights of women, with the tide having turned even more decisively in recent years, most particularly in relation to the conduct of and around elected representatives and their staff. Women in such positions who might have feared the consequences of speaking out have been more supported and encouraged to do so than was previously the case, although doubtless this remains a daunting thing for anyone to do. Ms Vairy and Ms Leach took the ultimate personal risk of giving evidence and being exposed to cross-examination. Very fortunately for both of them, they were much better than merely sound witnesses. It was no close call to prefer their evidence both as to what had objectively occurred, but also as to how their interpretation of objective material should be preferred to that of Mr Burston. 81 Unfortunately for Mr Burston, his desperation to have his perception and recollection of events accepted went beyond merely giving a different perspective or explanation for what took place, including what was said and done. He crossed an important line in key areas between giving evidence of merely a different recollection of what had taken place, and giving an account that he must have known was not correct. I find that his allegation that Ms Leach had sexually propositioned him on 1 May 2018 to be false, but do not need to reach any conclusion as to why this was said as this is not necessary. I accept Ms Leach's evidence that Mr Burston said to her words to the effect, "Oh Wendy, you probably just need a good fuck."

The altercation between Mr Burston and Mr Ashby on 13 February 2019 82 On the topic of the altercation at Parliament House on the night of 13 February 2019, I generally accept the evidence of Mr Burston over the evidence of Mr Ashby, notwithstanding that Mr Ashby was a smooth and polished performer - a term I use deliberately and advisedly - while Mr Burston was more bumbling. This is for a number of reasons. 83 First, the evidence of Mr Burston better aligns with the objective photographic evidence both by way of still photographs and by way of video footage taken by Mr Ashby, including the soundtrack of the video. 84 Secondly, I found Mr Ashby's evidence in a number of respects to have been evasive and directed to avoiding conclusions that were inconsistent with the narrative of the events that he was, to my perception, ardently attempting to present. For example, he gave evasive evidence about whether he was walking forward when he was photographing Mr Burston in the first stage. He gave an implausible denial that he intended to provoke Mr Burston by that photography and by his video action in the second stage. Plainly he was being deliberately provocative, and is, to my perception, too intelligent not to have been fully aware of that. His suggestion that there was nothing provocative in filming someone with whom he had an antagonistic relationship simply cannot be accepted as reliable, reasonable or credible. 85 Thirdly, and perhaps most importantly, having listened to the sound recording on the video footage taken by Mr Ashby, I am unable to accept as reliable, reasonable or credible that Mr Ashby's objective in speaking to or filming either Mr Burston or Mrs Burston was to raise with either of them the allegation that Senator Hanson had sexually harassed Mr Burston. While the logic and sequence of events is consistent with Mr Ashby's actions that night being motivated, at least in part, by the allegations Mr Burston had made being published the next day, about which Mr Ashby had received a call from a journalist a short time earlier that night, the question he asked Mrs Burston was "how do you feel about the sexual harassment cases". There was no sexual harassment case involving Ms Hanson, let alone more than one such case. I reject Ms Hanson's submission that because Mr Burston's allegation involved more than one instance of sexual harassment by her, this explained his use of the word "cases". There was not even a published allegation as Mr Ashby had been contacted for comment an hour or so ahead of publication. 86 Moreover, Mr Ashby's question to Mrs Burston was an odd one if understood as being directed to Mr Burston's allegations against Ms Hanson, defying logic itself. That is because there is no evidence that Mrs Burston was aware of the unpublished harassment allegations at that time. Mr Ashby recognises this fact in his evidence in chief as he states that "perhaps she would have been unaware of what was about to come out too". The only sexual harassment allegations that could reasonably be referred to as "cases" were the complaints by Ms Vairy and Ms Leach, both of which had been the subject of written complaints by then. 87 The parties cooperated as requested and produced a joint statement of background facts and issues, both agreed and disputed. Opening and closing submissions were then structured to address the issues in dispute as well as the different key factual conclusions sought to be reached. This approach was of considerable assistance in narrowing the areas requiring adjudication. In particular, there was no dispute about the applicable legal principles, although their proper application to the facts and circumstances in this case was contested in a number of key areas. 88 The following is a description of facts and issues that remain in dispute between the parties but otherwise verified by witness testimony which primarily relates to the events surrounding Ms Leach and Ms Vairy's sexual harassment allegations against Mr Burston. It follows that with respect to these facts and issues in dispute, I accept and prefer Ms Leach and Ms Vairy's evidence to that of Mr Burston for reasons that will be further illuminated by the analysis below.

Ms Vairy 89 In her examination-in-chief, Ms Vairy gave evidence of the pejorative comments Mr Burston would make concerning Ms Leach. Ms Vairy described an instance during the first days of her employment where Mr Burston said words to the following effect, "she's quite loud", "she's not as attractive as I thought she was and had I had known that, I would not have hired her" and further comments like "she is old and hitting her 50s." 90 Further evidence was adduced from Ms Vairy, in particular pertaining to the unwelcomed comments Mr Burston made regarding her appearance and the physical advances that would often follow. Ms Leach recounted an event where, during a phone call with his brother in the office conference room, Mr Burston said, "I have Miss World sitting in front of me" with reference to Ms Vairy and subsequently thereafter, on the same day, Mr Burston said to Ms Vairy "nice to have a good-looking sheila in the office." 91 Ms Vairy gave further evidence more physical advances were made by Mr Burston. She states in her oral evidence that in or about May 2017, a few days after the preceding events, in the back room of the senatorial office in Belmont, after Mr Burston had come to give her a hug as a form of greeting, "he then leaned in and kissed me, which I felt extra uncomfortable because I knew that another staff member - or I thought that another staff member had seen that and that it was deliberately done so this person could see. So, again I just - I was just in shock." 92 Ms Vairy described herself as growing increasingly uncomfortable working for Mr Burston as time progressed. She said that Mr Burston's repeated one-on-one lunch invitations particularly exacerbated this, which left her "really concerned" due to a feeling of being "singled out." When Ms Vairy told Mr Burston of these concerns and requested that Ms Leach be at least present at these lunches, Mr Burston, according to Ms Vairy, replied that he would much rather her (that is, Ms Leach) not to be there. 93 At the lunches, Mr Burston paid the bill and purchased alcohol. While Ms Vairy was initially undisturbed by the one-to-one lunch invitations and the alcohol ordered and consumed, she grew increasingly uncomfortable as she grew concerned over how it looked to other people and due to the comments Mr Burston would make at these lunches. Ms Vairy said that he would say words to the following effect: (a) "you look sexy in what you are wearing"; (b) "your legs look sexy"; (c) "You look sexy in that dress, it accentuates your figure"; (d) "You're wearing your hair the way I like it." 94 Ms Vairy recalled that Mr Burston also began to make statements in the vein of those set out above in front of other people at the office, including her daughter who was also employed by Mr Burston. 95 Ms Vairy recounted an incident in a car in December 2017 on the way back from a staff training program that Mr Burston had attended with Ms Leach and Ms Vairy. Ms Leach entered into the car's front seat, and Mr Burston entered into the back of the car next to Ms Vairy. Ms Vairy said that Mr Burston began to ask questions such as whether or not she had a fake tan and proceeded to touch the fabric of her dress, her legs, her hands and jewellery. 96 It was around May 2018 when Ms Vairy apparently expressed her concerns over the comments other staff were making with respect to these lunches. Due to these concerns, Ms Vairy gave evidence of her becoming hesitant to attend Mr Burston's lunch invitations. Perhaps in expressing his frustration over this, Mr Burston apparently responded to this by saying that if anyone complains he would sack them, and warned Ms Vairy not to give "an eff" about what anyone else says or thinks. Ms Vairy also said that it was also about this time Mr Burston's conduct would escalate from kissing her goodbye on her cheeks to kissing her lips. Ms Vairy recounted several events in 2018 where Mr Burston kissed her on the lips, which can conveniently be described as follows: (a) The first of these instances happened in February 2018 in Canberra, after Mr Burston accompanied Ms Vairy back to her accommodation. As he stood at the door, he said, "I'll just come in for one wine and then I'll leave." As he was leaving, he lent in and passionately kissed Ms Vairy. (b) The second instance occurred in late March 2018 in Canberra after Mr Burston dropped Ms Vairy off at her accommodation. In the car that day was Ms Vairy's daughter who left the car before she did, and Mr Burston lent in quickly and kissed Ms Vairy. (c) Ms Vairy's evidence is that Mr Burston's conduct had escalated by around mid-2018, after about a year of working for him. The third instance occurred on a Saturday around early September or early October 2018 after a work meeting, Mr Burston walked Ms Vairy to her car. After this, as Ms Vairy opened her car door, he said, "Thank you very much" and then "cupped" Ms Vairy's face and proceeded to kiss her. She described the kiss in a vivid manner by saying it was a "long kiss - but not passionate - a long, hard kiss." 97 On or about 22 February 2018 during work hours, Mr Burston gave Ms Vairy a card that said, "Beautiful Pretty Lovely Birthday Lady!" The inside of the birthday card had the following message, "Terrie-lea that's you! XOXO have a great day, Brian" (The "XOXO" was already printed on the card). When Ms Vairy opened the birthday card, $100 fell out. Mr Burston's evidence was that the money was $60 and was a payment for house cleaning, but I do not accept that evidence, regarding it as a desperate attempt to manufacture a benign reason for giving her money. Ms Vairy made an attempt to return the money to Mr Burston. Her evidence is that he returned the money. She said that he did so by forcefully shoving it between her breasts, a topic to which I return below. 98 Furthermore, Ms Vairy maintains that from time to time throughout 2018 Mr Burston: (a) made comments about her appearance and touched her in the presence of other staff, with the comments usually with respect to her clothing, particularly her accessories; (b) said things like "I like that" and he would lean in and touch, whether it be her hand or skin; (c) suggested that Ms Vairy looked stressed and that she needed a good hug. 99 In addition to this, Ms Vairy said that Mr Burston purchased gifts for her. She gave evidence of four or five instances where Mr Burston purchased alcohol for her as a gift. 100 Ms Vairy said that during her employment in 2018, Mr Burston would ask her personal questions that were sexual in nature, such as "what kind of men do you go for?". In addition, Mr Burston is said by Ms Vairy to have made further comments with regards to her chest. In particular, a comment was made in March 2018 in Mr Burston's office where Mr Burston said Ms Vairy has perfect size breasts. Mr Burston followed this question up by asking whether Ms Vairy has breast implants. 101 In late March 2018, Ms Vairy in her evidence-in-chief said that Mr Burston declared that he was in love with her. Mr Burston then proceeded to say he was not saying this because he wanted to "fuck" Ms Vairy, not that he did not want to, because "what man wouldn't".

Ms Leach 102 Ms Leach recounted an incident where Mr Burston sexually propositioned her. Her evidence was that this incident occurred on or about 1 May 2018, after a staff meeting convened to address some difficulties Ms Leach was facing at the time with a work colleague. Ms Leach gave evidence of how she grew upset due to how Mr Burston had handled the staff meeting when she and the work colleague were both present. After the staff meeting, Ms Leach, in her upset state, walked into Mr Burston's office. At this point, she recalled now being in tears as she tried to explain further how she felt, and Mr Burston responded by saying, "I am a softie for a woman in distress, go in the ensuite, clean yourself up and come back out". After Ms Leach returned to Mr Burston's office, he said, "Oh Wendy, you probably just need a good fuck". Initially, Ms Leach says her response was one of bemusement, responding with words to the effect of "Ha, ha, ha. Thanks for trying to make me laugh." However, it quickly became apparent to her that he was not joking when he responded by grabbing Ms Leach by the face and said, "I'm not joking. I can come around to your place. No one would need to know. It will be the best fuck you've ever had." 103 Ms Vairy was not present when this incident occurred. However, in her evidence in chief she recalled Ms Leach telling her what Mr Burston had said. When asked by senior counsel about her reaction to this, she responded by saying, "I was in shock," and proceeded to describe how she consoled a distressed Ms Leach with a hug. 104 With respect to the preceding disputed events set out above, I have no reason not to accept Ms Leach and Ms Vairy's account. I am in no doubt that Ms Vairy suffered continued harassment from Mr Burston during her employment, predominantly of a sexual nature. Nor am I in any doubt that that Mr Burston sexually propositioned Ms Leach. Ms Leach and Ms Vairy gave evidence that was full of adjectives to describe the profoundly unbearable workplace they endured under the employ of Mr Burston.

Issues in dispute (in the form of questions jointly posed by the parties) 105 Ms Hanson does not dispute that if the pleaded imputations across the three matters complained of were conveyed they would be defamatory, nor take any issue as to publication. Beyond that, the pleaded imputations and the pleaded justifications give rise to the consideration and application of the legal principles corresponding to the following issues in dispute, organised in the form of a series of questions agreed between the parties, and paraphrased as follows: (a) Was Mr Burston reasonably identified as the subject of the first matter complained of, being the Facebook post, because it does not name him? This logically precedes the issue of whether the pleaded imputations were conveyed. (b) Were each of the eight imputations ultimately pressed across the three publications conveyed as a question of fact (there having been no issue raised as to legal capacity to convey the imputations as a question of law)? (c) Were any of the eight imputations substantially true? (d) Was the text message to Mrs Burston published on an occasion of common law qualified privilege? (e) Was either: (i) the relevant portion of the second matter complained of, being the part of the Today Show interview on 29 March 2019 concerning the confrontation between Mr Burston and Mr Ashby on 13 February 2019; or (ii) the third matter complained of, being the 14 February 2019 text sent by Ms Hanson to Mrs Burston about Mr Burston, an occasion of common law qualified privilege, as a reply to attack? (f) Were any of the three matters complained of published on an occasion of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) (in the form of that provision prior to the 1 July 2021 amendments)? (g) Were the circumstances of publication of either of the first or second matters complained of such that Mr Burston was unlikely to sustain any harm? (h) In defeasance of qualified privilege, was the publication of any of the three matters complained of actuated by malice, being a predominant motive by Ms Hanson to hurt, embarrass and humiliate Mr Burston, or additionally in the case of the second matter complained of, to otherwise divert or deflect public attention and criticism from her own and Mr Ashby's behaviour? (i) If Mr Burston succeeds in relation to any aspect of his case, what, if any, general or aggravated damages is he entitled to, taking into account the question of whether any of the matters pleaded in support of the defences mitigate any such damages?

Principles as to identification 106 There is a single cause of action for multiple defamatory imputations "about" a person, even if more than one such imputation is conveyed: s 8, Defamation Act. Thus, it is essential that the publication sued upon be of and concerning the person who sues in defamation: Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739 at [58] per McColl JA, with whom Beazley P and Basten JA agreed. That does not mean that the person alleging defamation must be named in a publication sued upon. It is sufficient if the words used are such that they would in the circumstances reasonably lead persons acquainted with the person who sues to believe that was who was being referred to: David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234 at 238 per Issacs J; see also Plymouth Brethren at [59]-[60] and the authorities on this topic extracted in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 at [35]-[36]. That is so even if the belief held by such a person is erroneous, but the nature of the error may defeat the conclusion as to identification, noting that, in keeping with imputations generally, the perspective is that of a layperson with a greater capacity for implication and loose thinking than a lawyer: Plymouth Brethren at [68], [76]-[77]. The trial judge as the tribunal of fact must decide whether, on the evidence, a lay reader with knowledge of the person asserting defamation would reasonably have understood that person was being referred to: Plymouth Brethren at [77]. 107 It is the substance of the basis asserted to give rise to identification that matters, avoiding technicality and over-analysis: Plymouth Brethren at [90]. The intention of the publisher, even as to capacity to identify, is irrelevant because the inquiry is objective, not subjective: Plymouth Brethren at [61], [82]-[92]. A mistaken identification may be drawn by a reasonable reader, so long as it is the product of the matter complained of: Plymouth Brethren at [93]. The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76]-[78]. 108 In reaching the conclusion about subsequently acquired extrinsic information contributing to identification, the Court of Appeal in Pedavoli read down a blanket proposition sourced in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825 per Lord Denning MR to the effect that a person suing for defamation cannot rely upon subsequent reports to establish identification and to link that person with the published words. However, Grappelli was a true innuendo case rather than identification case. As was pointed out in Pedavoli at [78]-[79], "[i]n virtually every case where identification is in issue, it may be supposed (depending, perhaps, at least in part on the level of salaciousness, or gravity of the allegations) that recipients will seek (with a greater or lesser degree of vigour) to identify the subject", and "such an invitation is, in any event, implicit in almost any defamatory publication that does not name its subject". 109 In Pedavoli, while the plaintiff, a schoolteacher, had not been identified by name, the highly defamatory information published was incorrectly linked to her by the information that was provided about a position that only she occupied at the school, aided by website inquiries at the school. There was no later event, but rather inquiries made as to existing information, based upon what was in the publication. At that point, the defamatory meaning was received by the recipients of the publication. The facts in Pedavoli also reveal that it is important not to treat the outcome of the identification process in other cases as the principle itself as opposed to its application; factual findings in a prior case must not be confused with the proper application of the underlying legal principle to the case at hand. 110 When the person sued is not named in the publication, the answer to the necessary question of identification at the factual determination stage, rather than capacity stage, turns on the adequacy of the pleaded basis for the identification to have occurred, and the adequacy of the evidence adduced in support of that pleading, the onus being on the person suing: see David Syme at 238; see also Pedavoli at [46]. Direct evidence is not essential: Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aust Torts Reports 81-675 at [54]. But if indirect evidence and inference is to be relied upon, care must be taken that the source of the identifying information from which the ultimate conclusion of identification is sought to be reached is not the product of information that is possibly unrelated to the text of the publication, a circumstance that the person asserting the identification may have to exclude.

Application of the identification principles to the Facebook post 111 In the case of the Facebook post comprising the first matter complained of, the pleaded case for identification is to list the names of eight persons who posted comments in response to that post, or in response to prior comments, and to assert that an inference should be drawn that those comments were read by other persons to whom the matter complained of was published. The basis for the inference being drawn was only identified in submissions, and not in the pleadings. There is no plea of reasonableness as is properly required, but I would be reluctant to deny identification on that basis, no matter how sound it may be in legal theory, when there could not be any doubt that was required. In any event, there are more substantive deficiencies in Mr Burston's case on identification, which no amendment to the pleading could apparently rectify (none having been suggested). This beneficial approach in the particular circumstances of this case is not intended to give licence to inadequate pleading. 112 None of the eight individuals listed in the statement of claim as to identification in its various iterations gave evidence. Nor did anyone else give evidence of identification of Mr Burston as the person being referred to (noting that no such person was pleaded). Even Mr Burston's wife only became aware of the suggestion that the publication was about him when he raised it with her, so published it to her, such that she could not be relied upon (and in fairness, was not sought to be). While direct evidence of identification is not indispensable, it will often and even usually be the best and most compelling evidence. Direct evidence is not confined to witness evidence. 113 If such direct evidence is not adduced, the indirect evidence relied upon to prove the pleaded basis for identification has to exclude reasonable alternative explanations to the point of making the pleaded version more probable than not. Thus, such indirect evidence needs to be reasonably robust. Yet the posted comments lack any such robustness, being short bursts in a conclusory way, with inference or even mere conjecture required to try to identify the extrinsic source or basis for what is said in the comment. To the extent that any of the persons posting comments identified Mr Burston, there is no explanation given as to how that identification took place, and thus no means of assessing (and thus proving) the reasonableness of that identification. The rhetorical question to be answered is: what was the basis, within the text of the Facebook post, aided by any appropriate extrinsic material, to separate Mr Burston from the other male Senators from among the total number of 76 Senators? 114 The evidence was confined to inferences able to be safely drawn from the face of the posted comments, to be read in the context of other posted comments. In further aid of that inference-drawing exercise, Mr Burston submits in closing that it should further be inferred that inquiries would have been made by readers, relevantly the named persons who posted the comments, as contemplated by Pedavoli at [78]-[79], quoted above. The problem with this approach is that it does not exclude sources of identification that are wholly unrelated to the published words, yet such exclusion is a burden imposed upon Mr Burston. 115 Mr Burston's own evidence made it clear that: (a) he identified himself as being the subject of the antecedent speech by Ms Hanson in the Senate at the time the speech was given, which was not and could not be sued upon by reason of parliamentary privilege - that self-identification was also published by the following night, if not sooner, in an on-line article in evidence bearing the date and time of 11.14 pm on 13 February 2019 and further published a short time later at 11.40 pm on the same day on the ABC News website; (b) he always checked Facebook pages, particularly with other Senators and saw the Facebook post probably a bit after 12 February 2019 (it being published later that night, after the speech which took place in the later evening); (c) he named himself as the person who was referred to in the Facebook post; (d) no-one mentioned the material that was published to him, but he was shunned by members of Parliament and staff, which he attributed to both the speech and the Facebook post as they went hand in hand. 116 In particular, it is not possible to exclude the reasonable possibility that the identification was not based upon later inquiry, but rather upon later identifying events that did not exist at the time of publication. That is particularly problematic because there is no evidence as to precisely when any of the comments were posted: the printout of the Facebook page and comments in evidence is hand annotated with the date 15 February 2020, so just over a year later, a timing that Ms Hanson does not dispute, doubtless because it helps her. The comments bear the information "1y" or "52w", indicating that they were made a year ago, or 52 weeks ago, so at some time proximate to the post that is sued upon, but not the precise date, let alone time. This leaves open the real possibility, or even distinct probability, of media reports of subsequent events, and not the Facebook post itself, being the source of the identification of Mr Burston. 117 The subsequent events that may have been the source of the identifying information ultimately posted upon which Mr Burston relies include not just identifying himself as the subject of the speech, which was posted at about the same time as the first matter complained of, as noted above, but also addressing the comments posted that are relied upon. The comments relied upon, as highlighted in the printout of the Facebook post and comments, are as follows: Person posting Comment (1) William Roberts In response to a comment "Name the Grub", comments "clue: he was elected as a One Nation Senator" (2) Michelle Kaplan In response to the second comment after William Roberts, "which grub do you need the name", comments "Looks like he ended up outing himself [numerous laughing emojis] He always was a silly basket." (3) Stephen Rodgers (not particularised, but highlighted) In the next comment after Michelle Kaplan, comments "Who has blood on their hands?" (4) Chris Breed In response to a comment "Name and shame him", comments "Pauline Hanson has been accused of 3 counts of sexual harassment" (5) Lyn Aspinall In response to a comment "I would love to know who this person is" comments "Brian Burston. Ex One Nation." (6) Chris Breed In response to Lyn Aspinall's comment above, comments "And Pauline Hanson has been accused of 3 counts of sexual harassment" (7) Kim Davis (not particularised, but highlighted) In response to a comment "Ashby is uncontrollable" comments "dunno I didn't see Ashby doing any of the pushing today it was the gutless wonder" (8) Lou Matthews Two comments after the Kim Davis comment, posted a link to a News.com.au article titled "One Nation harassment row explodes" (9) Chris Breed Posts a third version of his prior comments "Pauline Hanson has been accused of 3 counts of sexual harassment. Will she apply the same to herself and leave Parliament?" (10) Bonnie Griffiths In response to the Chris Breed comment above, comments "Chris Breed let's see the proof … I say Brian has been coached on his accusation by another party hoping to pick up the votes she loses from his little story …" (11) Chris Breed Responds to Bonnie Griffiths comment above by commenting "Just as PH tried to do to him using Parliamentary Privilege to bring up accusations against BB whilst she had organised James Ashby to harass him and his wife left Parliament to get PHON media attention." (12) Lyn Aspinall A few posts after Chris Breed above, and in response to a comment "Hmm … wonder who", comments the link to the News.com.au article titled "One Nation harassment row explodes" (13) Cherie Landamore-Harper Comments "We all know who it is now." (14) Lyn Aspinall After a number of other comments, and not in apparent response to any of them, comments "It was an ex one nation pollie, Pauline is talking about", accompanied by another link to the News.com.au article titled "One Nation harassment row explodes" (15) Chris Jones (perhaps incorrectly particularised as Chris Skafte as there does not appear to be any post by that name, and this post is highlighted) Close to the end of the comments reproduced in the form of a printout, and following a comment "Only one senator speaks out. Rape must be ok with the others. Maybe yhey [sic] can send their own daughters to this animals office for work experience, The silent majority of sexual assault approvers." posts a lengthy diatribe commencing "How do we as a taxpayer have no right to know who this grub is …" and concluding "Remove the gag order and remove this POS from parliament. Name and shame. 200k a year to grope staff is NOT ACCEPTABLE"

118 None of the 15 comments extracted above provide any overt identification of, or basis for safely inferring, the source of extrinsic information relied upon and therefore necessarily do not exclude a post-publication identifying event unrelated to the Facebook post. Those events that are known include Mr Burston choosing to identify himself despite the publication not doing so. They also include the plausible and even more problematic reliance upon the publicity attendant upon the altercation with Mr Ashby the following night. Specifically: (a) While Comment (1) points in a direction, it does not of itself take matters very far as it falls short of any sufficient basis for identification on its own. (b) Comment (2) expressly refers to Mr Burston outing himself, which is also not of itself sufficient because it is not tied to the publication. (c) Comment (3) is an apparent reference to Mr Burston smearing blood on the door of Ms Hanson's parliamentary office after the altercation with Mr Ashby, so is a separate post-publication event, not a post-publication inquiry brought about by the publication itself. (d) Comment (4) is about Mr Burston's separate allegation the next day that Ms Hanson had sexually harassed him, so again is a separate post-publication event, not a post-publication inquiry brought about by the publication. Each of the remaining comments come after references to the separate post-publication events rather than post publication inquiries brought about by the publication. (e) In particular, Comments (6) to (12) and (14) make or repeat references to the altercation between Mr Burston and Mr Ashby, or references to the allegations of sexual harassment Mr Burston made against Ms Hanson. (f) Comment (13) is a cryptic conclusion, not an identification. (g) Comment (15), by being unaware of Mr Burston having been named in earlier comments suggests that at least some readers of the Facebook page comments do not scroll back to preceding entries in any event. 119 The conclusion I have reached based upon the foregoing is that Mr Burston has not discharged the onus of establishing that an ordinary reasonable reader would have identified him as the subject of the Facebook post made on behalf of Ms Hanson on 12 February 2019. Despite that conclusion being fatal to Mr Burston's case in relation to the first matter complained of, it is appropriate to consider the remaining issues advanced for and against that case because of the risk, however slight, that I may be wrong on the question of identification.

Were each of the eight imputations across the three publications conveyed as a question of fact?

Principles 120 It is common ground, based on a long line of authority, including Lewis v Daily Telegraph [1964] AC 234 at 260; Mirror Newspapers v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 at 646; Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 and 78; and John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; 201 ALR 77 per McHugh J at [26], cited by Ms Hanson in opening written submissions and agreed to by Mr Burston, that a person suing in defamation must satisfy the Court on the balance of probabilities that an ordinary reasonable reader or viewer or listener would understand the publication sued upon bears the meaning as pleaded and particularised. The phase "ordinary reasonable person" will be used in these reasons to refer to the hypothetical person used to gauge whether a pleaded imputation has been conveyed. 121 It is also common ground that such a hypothetical person is taken to have the following general characteristics: (a) to be of fair average intelligence; (b) to be a fair-minded person; (c) not to be overly suspicious; (d) not to be avid for scandal; (e) not to be naïve; (f) not to search for strained or forced meanings; (g) to view the entire matter complained of; and (h) to consider the context as well as the words alleged to have been defamatory. 122 Such a person tries to strike a balance between the most extreme and most innocent meaning capable of being conveyed: Lewis at [260], cited for that proposition by McHugh J in Rivkin at [26]. 123 Both a pleaded imputation, and the question of whether it has been proven to be substantially true, requires attention to context, most acutely as provided by the balance of the publication as a whole and any wider context within which it is to be understood, as words do not necessarily have a fixed or literal meaning that applies in all circumstances, and even benign words may convey a worse, or better, impression when regard is had to how and when they are deployed: see the discussion by Mason P (agreed with by Wood CJ at CL) in Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 54 NSWLR 165 at [21]-[27]. 124 The Court as the tribunal of fact is required to arrive at a single meaning which is the only natural and ordinary meaning conveyed by the words used in the publication: Slim v Daily Telegraph Ltd [1968] 2 QB 157 per Diplock LJ (as Lord Diplock then was) at 172-175. 125 In Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004 at [64], I observed that the single meaning rule is necessary in order to balance the competing interests of freedom of expression and protection from damage to reputation, citing Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 per Kourakis CJ at [45-[46], [49]-[50]. That balance is to be struck in the putative shoes of an ordinary reasonable person as a reader, viewer or listener, which encourages avoidance of the lawyer's fondness for precision and careful reasons in favour of a general impression and understanding gleaned from the words used. As the High Court observed in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [32], albeit in the context of an appeal concerning legal capacity rather than the ultimate factual determination, the ultimate question for the tribunal of fact (omitting footnotes): … is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject". 126 The single meaning rule is an entrenched part of the law of defamation for a very good reason. It is the means by which defences of confession and avoidance are framed and assessed, so the meaning must be fixed before that enquiry can be embarked upon. For example, if a defence of truth is to be advanced, there must be clarity as to what is sued upon as being false, but said by the publisher to be substantially true. The same need is present for framing and then assessing defences of qualified privilege and honest opinion. 127 When it comes to social media posts, a phenomenon which did not exist when most of the long-standing principles in defamation law were developed as to the conveying of imputations, the recent authority of the Supreme Court of the United Kingdom (quoted by Rares and Rangiah JJ in Bazzi v Dutton [2022] FCAFC 84; 402 ALR 219 at [29]) is of some assistance. In Stocker v Stocker [2019] UKSC 17; [2020] AC 593, Lord Kerr JSC observed: [41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read. [42] In Monroe v Hopkins [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter: "The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter." [43] I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on. 128 When it comes to a publication on the topic of serious wrongdoing, especially criminal or otherwise illegal conduct, but also morally blameworthy conduct of a serious kind, it is necessary to draw a distinction between an allegation of suspicion or investigation on the one hand, and an allegation of guilt or the equivalent on the other. A publication that does no more than state the former will not convey the latter: Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 300-301 per Mason J (with whom Gibbs CJ and Wilson and Brennan JJ agreed; Aickin J predeceasing judgment). And, generally speaking, if a publication does not cross that line it may be relatively easy to justify the fact of there being suspicion or an investigation unless even that much is unfounded: Harrison at 302 per Mason J. The concurrence of both Gibbs CJ and Brennan J in that case was qualified by a question that did not need to be determined on the facts in Harrison, concerning when the distinction between an imputation of suspicion or investigation and an imputation of guilt may be lost. Brennan J said at 303-304: … I would join the Chief Justice in reserving for future consideration the question whether a report stating merely that a person has been arrested and charged by police with a particular offence is capable of bearing an imputation to the ordinary reasonable reader that the police officer who made the arrest had reasonable cause for suspecting that the person arrested had committed that offence, the article complained of in this case is not so limited in its text. As Lord Devlin observed in Lewis v Daily Telegraph·Ltd [19641 AC 234 at 285]: "... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 129 Whether the line between smoke and fire has been crossed is evaluative in nature. A publication may go so far as to imply guilt, or no more than reasonable grounds to suspect, or even nothing more than the fact of an investigation taking place: Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 at [45]-[46] per Brooke LJ with whom Rix and Keene LJJ agreed (England and Wales Court of Appeal). However, Chase should not be regarded as some kind of binding, strict categorisation in this area. The Full Court in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC; 271 FCR 632 at [28]-[29] endorsed the observation of White J at first instance in Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 at [45] to the effect that Chase and like cases should not be regarded as an exhaustive statement of all the possible imputations and shades of meaning which a statement as to a suspicion may convey, noting that his Honour was upheld on appeal. While such classifications may be useful analytical tools and provide a useful general description, they should not be converted into strict categories and cannot dictate meaning. The meaning under consideration might fit into a category, but the category does not determine the meaning. 130 With the foregoing principles in mind, I turn to the question of whether each of the eight pleaded imputations were in fact conveyed from the perspective of the ordinary reasonable person, noting that this is addressed in the alternative for the first three imputations, despite the identification issue being resolved in Mr Burston's favour and also in the alternative for other imputations found not to have been conveyed, because of the desirability in having the key issues in dispute addressed.

1st imputation: The applicant sexually harassed staff in his office (Facebook Post) 131 It is faintly suggested by Ms Hanson that the "staff in his office" aspect of this pleaded imputation is not conveyed because the reference is made to "being under investigation for serious sexual harassment" in the Facebook post, and not to any particular number of employees being referred to. That argument both suggests that the ordinary reasonable person is going to read that phrase out of context, and ignore the fact that the post is about what is happening to employees in a Senator's office. In context, the initial reference is to "multiple unfair dismissal cases" and then a follow up point about the same Senator in relation to the same office "being under investigation for serious sexual harassment". That clearly enough implies that this investigation may involve more than one employee as it already does for the employment issue. In any event, it is highly unlikely that the ordinary reasonable person is going to linger over fine points of the singular and plural in relation to the use of the word "staff" in the pleaded imputation. I therefore reject this argument. 132 It follows that the only real issue is whether the Facebook post conveys only suspicion of, or an investigation into, allegations of sexual harassment because the word "investigation" is used, or whether it goes further and conveys that such conduct has in fact taken place. While line 4 of the post refers only to an investigation, other lines both individually and in combination clearly infer that it is an investigation into something that has in fact occurred, not merely an investigation into whether or not something has occurred: line 1: calling out an event that has occurred, namely "a sexual harassment" line 5: actual "shocking behaviour" line 6: something has in fact happened: "if you don't have respect for your staff" line 7 "#NoToSexualHarassment", opposing such conduct actually occurring 133 The ordinary reasonable reader would readily read the Facebook post, in this respect, as conveying not just that sexual harassment is suspected to have happened or is being investigated, but has in fact occurred. The mere smoke of suspicion or inquiry has been exceeded and the reasonably ordinary reader is plainly being told a fire is burning. This imputation as pleaded has been conveyed insofar as it alleges that a Senator sexually harassed staff in his office, but as already found on the question of identification, it has not been conveyed about Mr Burston.

2nd imputation: The applicant, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment (Facebook Post) 134 The Facebook post is to be properly understood as being directed to impropriety in the manner of the dismissal of staff (not just a single member of staff), rather than the reasons for the dismissal. While reference is made to "multiple unfair dismissal cases", there is no reference to the reasons for dismissal being improper. Rather, the thrust and express focus of this aspect of the Facebook post is that the Senator in question "doesn't have the guts to dismiss people face-to-face" and "[i]nstead he sacks them by text, email or letter with no warning". To the extent that the competing evidence and submissions were directed to the reasons for the dismissal of Ms Leach in particular, they were misdirected on the question of what was conveyed, although had some more work to do on the justification of substantial truth, noting that Ms Hanson's written closing submissions correctly embraced this more limited reading as to what was being conveyed. 135 It is obvious enough that employment and the loss of employment is likely to be of singular importance, whether directly or indirectly, to the putative ordinary reasonable person. This is an issue that is frequently in the news and media; and it is inextricably tied to the economic well-being of anyone in the workforce, or wishing to be in the workforce, as well as their family and dependents. It follows that the concept of unfairness in the loss of a job is something that may readily be seen to engender sentiments of both sympathy and empathy. A "fair go" is a celebrated aspect of the Australian ethos. That is all the more acute when it is suggested that it has been departed from by a politician. Elected officials are more likely expected to be exemplars in their conduct, especially towards employees. 136 Once the Facebook post is read in the sort of practical context outlined above, and when due regard is had to an allegation of employment being terminated in a way that is effectively described as gutless because it is done by means of a text, email or letter without warning, the ordinary reasonable reader would readily conclude that this was being said to be improper behaviour on the part of a Senator. It is then but a small step to understand that such improper conduct is being said to be disgraceful, given the status of the person said to have engaged in that conduct. The ordinary reasonable person would therefore readily read the Facebook post as conveying the pleaded imputation that "an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment", but as already found on the question of identification, it has not been conveyed about Mr Burston.

3rd imputation: The applicant, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff (Facebook Post) 137 Taking into account the reasoning above concerning the 2nd imputation, and accepting that there is an express statement about "shocking behaviour" which is directed without differentiation both to the sexual harassment aspect and to the dismissing staff aspect, the key question is whether an ordinary reasonable person would read the Facebook post as going beyond the individual Senator and his conduct, and read it as implying that this went further and brought the entire Senate into disrepute. I am unable to see why that ultimate step would be taken by almost any reader, let alone a reasonable one. While an ordinary reasonable person might form that view themselves based on their own view of how bad conduct by one Senator affects the standing of all Senators, that is a separate question from what is conveyed. The Facebook post does not, viewed reasonably, go that far, and as already found on the question of identification, it was not in any event conveyed about Mr Burston.

4th imputation: The applicant sexually abused a female staffer in his parliamentary office (Today Show interview)

5th imputation: The applicant harassed a female staffer in his parliamentary office (Today Show interview) 138 The question is whether the words "And James Ashby has been trying to bring it to the President's attention about the sexual abuse and harassment that was going on with a female staffer in his office" (impugned sentence), in the context of the rest of the interview comprising the second matter complained of, convey either or both of the pleaded 4th and 5th imputations. 139 Ms Hanson submits that the impugned sentence in the context of the rest of the Today Show interview arose from Ms Knight being highly sceptical about the answers Ms Hanson was giving about the Al Jazeera documentary and about Ms Hanson's response to the 1996 Port Arthur massacre in Tasmania. Ms Hanson asserts that this is analogous to what happened in the interview of Mr Don Burke in Dent v Burke [2020] ACTCA 22; 182 ACTR 13. 140 In Dent v Burke, Mr Burke, a media celebrity gardener who had been the long-time host of a television program called Burke's Backyard, was being interviewed about allegations made against him of bullying and sexual misconduct. Ms Dent was one of those who made such allegations. In the interview, Mr Burke suggested that she was lying about what he had asked her to do and that she had made a false allegation of sexual harassment. Ms Dent sued in defamation for those comments upon the basis that the publication conveyed, as a fact, that she was lying and making a false allegation. That suit failed upon the basis that, in the context of a sceptical interviewer, Mr Burke's denials and counter allegations would not be accepted as being conveyed as what had in fact taken place by the publication as a whole. The ACT Court of Appeal dismissed Ms Dent's appeal and found at [36] that the ordinary reader would place great weight on the interviewer's expressions of incredulity and disbelief as to what Mr Burke was saying, finding that the pleaded imputation was not conveyed. 141 The Today Show interview cannot be characterised in any way that is relevantly comparable to that in Dent v Burke. Ms Knight was certainly sceptical, and even incredulous, about some of Ms Hanson's responses to questions about the Al Jazeera documentary and about the Port Arthur massacre, not least because the suggestion seemed to be made by Ms Hanson that Mr Dickson had not been soliciting a donation from what he thought was the NRA, and did not express any intention to water down Australia's gun laws given the NRA's reputation, despite the plain recorded words that he used to that effect. As part of that, Ms Knight was also challenging Ms Hanson about her continued support for Mr Ashby, and in that context raised the fact of him being banned from Parliament House "because of his fight with Senator Brian Burston". But Ms Knight was also plainly keen not to go beyond the fact of that ban being put in place and Ms Hanson continuing to support Mr Ashby despite the existence of that ban. Ms Knight did not ask any question about the circumstances of that "fight", as opposed to the fact of the ban having been imposed. To the contrary, she repeatedly tried to bring Ms Hanson back to the fact of Mr Ashby being banned, rather than the reasons for it or the subject matter of the impugned sentence, expressing no view about either, let alone any sceptical view. That interpretation is reinforced by watching and listening to that part of the interview, and not just relying upon the transcript. 142 It follows that Ms Knight expressed no scepticism (or indeed any view at all) about what Ms Hanson conveyed regarding what had happened during the altercation between Mr Burston and Mr Ashby, or about the impugned sentence. More importantly, the impugned sentence had little, if anything, to do with the altercation based on Mr Burston's account of what took place, and nothing to do with the altercation on Mr Ashby's version of what he was saying to Mrs Burston (noting that Mr Ashby's version is elsewhere in these reasons rejected). Specifically in relation to the 4th imputation, Ms Knight expressed no scepticism about Ms Hanson's account of either the altercation or the allegation in the impugned sentence as to "sexual abuse and harassment". Accordingly, there is no proper basis for diversion from what was actually said by Ms Hanson in the impugned sentence by Dent v Burke reasoning. 143 Ms Hanson's reliance in written submissions upon Ms Knight saying to her that she was "pointing the finger of blame to a lot of people here" is misplaced, because that was overtly referring to the Al Jazeera documentary which was a primary subject of the interview, not the altercation between Mr Burston and Mr Ashby, a point that was ultimately and appropriately conceded in Ms Hanson's oral submissions. 144 Turning to the substance of what was conveyed in the impugned sentence, Ms Hanson submits that, at best, the imputation was that Mr Burston was allowing sexual abuse and harassment of a staffer to occur at his office, and not even his parliamentary office, which is significantly less than the pleaded 4th and 5th imputations of him having been the perpetrator. To read the sentence in that way entails ignoring the well-established principles that apply to the conveying of imputations detailed above. It entails a search for a strained meaning, and an exercise in decontexualisation by reading the impugned sentence in splendid isolation. 145 Relying upon the words that Ms Hanson used of "that was going on with a female staffer in his office", in the context of this segment of what she said being all about Mr Burston, is the kind of lawyer-like analysis that is especially inappropriate when it takes the consideration beyond that likely to be engaged in by the ordinary reasonable person. As Lord Devlin pointed out in Lewis at 277, approved by the High Court in Trkulja at [32], the lawyer's rule is that "the implication must be necessary as well as reasonable", whereas a layperson reads in an implication more freely: see also Plymouth Brethren at [73], dealing with the question of capacity, but equally apposite to the factual determination of whether an imputation has been conveyed. 146 I am comfortably satisfied that the ordinary reasonable reader would readily understand that, in keeping with the rest of this segment of the Today Show interview, Ms Hanson was describing adversely conduct by Mr Burston and therefore of "sexual abuse and harassment" by him of a member of his staff. In like fashion, the word "office" is readily able to be inferred by an ordinary reasonable person as referring to a parliamentary office and not to the much lesser known concept of an electoral office (especially for Senators who do not represent a geographic electorate within a State or Territory, but rather a whole State or Territory). 147 Ms Hanson next submits that Mr Burston is engaged in an "acontextual fastening to the word 'sexual abuse'" which is "misconceived" and that what she in fact referred to was the expression of a single idea by two connected words (a "hendiadys", as she puts it) that Mr Ashby was trying to raise with the President of the Senate rather than the police. She therefore submits that Mr Burston is "ripping the word 'sexual abuse' from its context" and has "pleaded the imputation far too high". I am unable to agree with this submission. This is another example of Ms Hanson relying upon lawyer-like parsing and dissecting, attempting to find a meaning that goes no further than is necessary when that is not a restrictive approach that a lay ordinary reasonable person would take. It is also an exercise in robbing words both of their ordinary meaning and of their separate and distinct, as well as common, meaning. Reference is being made separately both to "sexual abuse" and to "harassment", and thus both to conduct that is more serious than sexual harassment and to conduct that is either less serious than sexual harassment, or at most at the lower end of sexual harassment. An ordinary reasonable person is more likely to latch onto the much more serious allegation being made against a Senator, because that is more concerning. That is not an exercise in "acontextual fastening", but rather simple plain reading and giving weight and meaning to the words that were actually used. 148 The word "abuse" also bears a connotation of some use of force or other coercion such as threats or taking advantage of an imbalance of power. Indeed, one of the definitions of "abuse" in the online Macquarie Dictionary is "to inflict a sexual act on (a person), especially one whose relationship or proximity makes them vulnerable". The phrase "sexual abuse", comprising ordinary words used in combination, each placing an emphasis and an elevation to the other. It is not just abuse, but sexual abuse, and it is not just sexual, but sexual abuse. It literally conveys conduct which is both sexual and physically abusive in some way, going beyond bare physical contact, or even bare physical conduct with a sexual dimension or motivation. It is very much a phrase that can be taken quite literally: cf Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [156]. It 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. 149 By contrast "harassment", can be seen to refer to a wider range of conduct that has no necessary sexual dimension at all. It tends to suggest something less than sexual harassment because the word "sexual" is not used. Even if a step further is taken, so that what is implied is not just harassment, but also sexual harassment, the contrast with the use of the phrase "sexual abuse" suggests conduct that even if it is sexual harassment, it is at a level falling short of constituting sexual abuse. While some conduct could be both sexual harassment and sexual abuse, that overlap is not the ordinarily and reasonable person would understand was being referred to. That is too nuanced and lawyer-like. 150 While the concepts of sexual harassment and sexual abuse may be used in a way that covers conduct that overlaps between the two, insofar as more serious instances of the former may be encompassed within the latter, the ordinarily and reasonable person is most likely to understand the phrase used by Ms Hanson of "sexual abuse and harassment" as alleging that Mr Burston had engaged not just in conduct that could also be considered to be harassment or even sexual harassment, but conduct that was much worse beyond that, being sexual abuse. The real sting reflected in the pleaded 4th imputation is that of sexual abuse, not something that also might be less than that or at some nuanced lower level of conduct. 151 The ordinary reasonable person would be likely to understand that an allegation of sexual abuse was of very serious conduct, rather than a more serious type of otherwise less serious conduct such as sexual harassment, especially when the language used, by referring to both, tends to draw a distinction between the two: more serious conduct as well as less serious conduct. I am comfortably satisfied that such a person would understand that Ms Hanson was saying, as the plain words she used expressly convey, that Mr Burston both had harassed, and had gone much further to sexually abuse, a female staffer in his parliamentary office. Both the 4th imputation and the 5th imputation were conveyed.

6th imputation: The applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation (Today Show interview) 152 The key passage in the Today Show interview, removing Ms Knight's interruptions which did not change what Ms Hanson said, nor deflect her from what she was apparently determined to say, is: Ms Knight: How many chances will they [Mr Ashby and Mr Dickson] get? Because we know that James has been banned from Parliament House because of his fight with Senator Brian Burston. Ms Hanson: No, sorry. Not the fight with Brian Burston. The aggression came from Brian Burston to James Ashby ... James Ashby never laid a hand ... never laid a hand. 153 Ms Hanson's submission in relation to the pleaded imputation that "[t]he applicant, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation" is that it is not conveyed because: (a) the words "without provocation" are no more than a "device" designed to shut her out of a justification defence; and (b) there is nothing in the Today Show interview, and thus in this part of that program, that could give rise to any imputation that Mr Burston attacked Mr Ashby without provocation. 154 Ms Hanson submits that it is clear that she is referring to aggression as most people understand it in the context of a physical altercation, being physical aggression. That much may be accepted. She later submits in relation to justification that it is plain that what is being conveyed is that Mr Burston initiated the physical aggression and that accordingly the pleaded part of the imputation "without provocation" must be understood as referring to "without physical provocation". It is not apparent why the pleaded imputation should be read to say something different from the substance of what Ms Hanson was really saying when she twice said "never laid a hand". As Leeming JA pointed out in Massoud at [156]: … The words did not convey their literal meaning. That happens all the time, including in professional contexts. Consider "time slowed down during counsel's address" or "counsel addressed at break-neck speed" or "counsel's cross-examination was deadly accurate, and fatal to the case". Or consider much of the familiar language deployed to describe principles in the law of defamation: bane and antidote; carefully talking about smoke not fire, the "sting" of an imputation, taking the second fence in the same stride as the first, and so on. … 155 In ordinary parlance the phrase "never laid a hand" is used in the sense of not having done anything at all. That is, in the sense of not so much as having touched someone. That is how an ordinary reasonable person would understand what was being said. That phrase, in the context in which it was used by Ms Hanson, strongly implies that Mr Ashby had no responsibility at all for what took place between him and Mr Burston. That is plainly the sense that Ms Hanson was using that phrase, in the context of saying it was not a fight as Ms Knight suggested - that is to say, a two way altercation - but rather Mr Ashby had not done anything at all to cause Mr Burston to act in that way. 156 It was a simple response by Ms Hanson to Ms Knight's question, easily able to be understood as Ms Hanson saying that rather than there having been a fight between the then Senator Burston and Mr Ashby, which readily connotes the landing of physical blows both ways and both having responsibility in some way, all of the fighting in the sense of physical aggression came from Senator Burston, and Mr Ashby had done nothing whatsoever to provoke this. It clearly suggests that Mr Burston had physically assaulted Mr Ashby without any provocation. That is how an ordinary reasonable person would understand what was conveyed, being in accordance with the pleaded 6th imputation.

7th imputation: The applicant sexually harassed numerous female staff (Text to Mrs Burston from Ms Hanson) 157 Ms Hanson's argument as to this imputation focuses on the word "numerous" that has been pleaded. She contends that because her text message says that Mr Burston "is being investigated for sexual harassment by more than one of his former female staffers. They can't all be wrong", this means only that at least one of them is right, not that more than one of them is right. She submits that because the word "numerous" significantly increases the defamatory sting, it should be found that the pleaded imputation has not been conveyed. 158 This is again a too literal and limited a reading of the phrase in question, imbued with the pedantic eye of a lawyer. The sentence "They can't all be wrong" is used in ordinary parlance to imply not just literally that at least one person is right, but also that more than one person is likely to be right. It is a common language device of understatement, commonly used to convey more than is literally said. This is not being avid for scandal, or to search for strained or forced meanings, but rather to look in a clear-eyed way at the clear insinuation. 159 Ms Hanson's relatively rigid and limited literal interpretation is not looking at what was said from the necessary perspective of the ordinary reasonable person. The second sentence is not "both of them can't be wrong", so as, perhaps, to convey that only one of two female staffers has actually been sexually harassed. While literally the sentence "They can't all be wrong" does means at least one of them is right, in context that does not exclude conveying to an ordinary reasonable person that more than one of them is likely to be right. I am satisfied that an ordinary reasonable person would understand that Ms Hanson's text message is clearly insinuating that at least one of Mr Burston's former female staffers, and likely more than one of them, has been sexually harassed by him. The pleaded imputation has been conveyed. However, as I find later in these reasons, it was also at least substantially true.

8th imputation: The applicant behaved disgracefully by cheating on his wife with one of his female staffers (Text to Mrs Burston from Ms Hanson) 160 The word "cheating" is not used in the text message. The question of whether an imputation containing that word is conveyed very much depends on what the ordinary reasonable reader would understand it to mean when assessing this imputation against the contents of the text message. The text message can readily enough be read as conveying the past action of sexual harassment and to imply a desire by Mr Burston to cheat on his wife as a future act. But that is not the pleaded imputation. 161 The question is therefore whether the text message that Ms Hanson sent to Mrs Burston conveys that Mr Burston had already been cheating on his wife. At the risk of engaging in lawyer-like analysis in order to understand what an ordinary, reasonable person would comprehend, the answer depends on what such a person reading the text message would understand constitutes the current conduct of cheating. 162 The ordinary implication built into such a strong and morally disapproving word is that the third person is participating or otherwise voluntarily contributing in some way to what is taking place and tends to suggest some degree of responsibility for what is taking place. Yet a person who is being sexually harassed would not, in the mind of an ordinary reasonable reader, bear any responsibility for what is being inflicted upon them. I therefore conclude that sexual harassment would not, without more, be regarded as cheating on the part of the harasser except in the sense of disloyalty towards the spouse. From the perspective of the spouse it is likely to be seen as a betrayal. Due to uncertainty as to the role of third person, there may even be a suspicion of willing participation, but that too is not cheating, but suspicion of cheating. As the text message does not suggest anything beyond Mr Burston imposing himself upon at least Ms Vairy and most likely someone else as well, I am not satisfied that an ordinary reasonable reader of the text message would consider that cheating as pleaded was conveyed. 163 Had this imputation been conveyed, it would not have been able to be proved to be substantially true, because the sting went beyond what was able to be proven, namely that Mr Burston sexually harassed Ms Leach and Ms Vairy. Whatever his intentions, he not only did not go further, but there is no possibility he would have been able to do so. That is because I am quite certain that neither Ms Leach nor Ms Vairy would ever have engaged in any conduct with Mr Burston that would have constituted him cheating on his wife, because his sexual harassment conduct towards them was entirely unwelcome.

Were any of the eight imputations substantially true?

Principles 164 Section 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter if Ms Hanson proves that any imputation pleaded is substantially true. For each of the eight imputations ultimately pressed, Ms Hanson denies they are conveyed, but in the alternative asserts that they were true at the time of publication. That defence requires that every material part of the pleaded imputations must be true at that time. The material parts are those which carry the defamatory sting: Sutherland v Stopes [1925] AC 47 at 79, quoted with approval in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 per McColl JA at [138], with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed. 165 A defence of justification must fail unless all defamatory imputations carried by the matter complained of are proved to be substantially true, because the defence operates on an all or nothing basis: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 per Meagher JA at [38] and per Gleeson JA at [96]; see also the cases cited by their Honours. Thus, for each of the matters complained of, it will not suffice for the truth defence that some, but not all, of the imputations found to have been conveyed are proven to be substantially true. 166 The quality of the evidence required to prove, on the balance of probabilities, the substantial truth of any imputation rises with the seriousness of what Mr Burston is portrayed as having done: s 140(2) of the Evidence Act 1995 (Cth). However, any imputation found to be substantially true, without all imputations being so found, may be relevant to the question of mitigation of damages despite not being a defence by way of justification.

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].

Whether the substantial truth of the 6th imputation has been proven 185 I now turn to the justification defence of substantial truth in relation to the remaining imputation that I have found was conveyed, being the 6th imputation, arising from the Today Show interview, that "Mr Burston as an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation". Ms Hanson makes no serious attempt to justify the imputation as pleaded upon the basis of it being substantially true, but rather tries to justify it by reference to a different imputation ending in the words "without physical provocation", without even going so far as to attempt to plead a variant. That will not do. The pleaded words "without provocation" cannot be limited in this way. The very making of this submission may be seen to amount in substance to a concession that the imputation as pleaded cannot be shown to be substantially true, because there is no serious doubt that Mr Ashby's conduct in filming Mr and Mrs Burston, and asking questions of Mrs Burston (even on his version of what he was saying, which I do not accept) was not just provocative, but highly provocative. That much is borne out by close consideration of the justification arguments that are advanced, which rely upon the imputation having that additional word. 186 Ms Hanson relies upon the sequence of events to demonstrate the lack of any physical provocation by Mr Ashby in the sense of making good the literal comment that she made in the course of the Today Show interview about Mr Ashby not laying a hand upon Mr Burston. For the reasons already discussed, that is a red herring. As the following narrative should make clear, there is not really any issue that Mr Burston's later actions of taking Mr Ashby's mobile phone off him and throwing it across the floor to stop Mr Ashby filming him, a short time later trying again to take the mobile phone off Mr Ashby, and pushing him, including apparently pushing him against a wall, are capable of constituting a physical assault of Mr Ashby by Mr Burston. 187 The key issue is not whether or not it is true that Mr Burston did any act capable of constituting a physical assault of Mr Ashby. The key issue is whether Mr Burston did that without any provocation on the part of Mr Ashby. That is the real defamatory sting of the imputation, it being substantially more serious to physically assault someone without provocation, even in a minor way, than to do so with provocation. It is the absence of any provocation in accordance with the pleaded imputation that Ms Hanson must prove to be substantially true. As the sequence of events at [43]-[50] of these reasons make clear, not only did Ms Hanson fail to discharge that onus, there was never any serious prospect that she would be able to do so. 188 In addition, Mr Ashby said that there was nothing wrong in filming either Mr Burston, or later Mrs Burston as well. That is undoubtedly correct in the sense of there being no legal impediment to doing so, but it was also undoubtedly a provocative thing to do, especially in the context of the Facebook post the previous night and the bad blood between Mr Burston and One Nation, discussed elsewhere in these reasons. There is nothing remarkable about a provocation not being illegal. Most provocations are likely to be legal. 189 Upon Mr Burston observing Mr Ashby using a mobile phone to take images of him (but not Mrs Burston at that stage), Mr Burston approached Mr Ashby. There is no reason to doubt that Mr Burston was angry with Mr Ashby for photographing or filming him. Mr Burston made several attempts to take Mr Ashby's mobile phone off him, succeeding on the fourth attempt, and throwing it away so that it slid along the floor. As a result, Mr Ashby must have known that Mr Burston did not want to be photographed or filmed. Mrs Burston was not closely proximate to any of this taking place. 190 Mr Ashby retrieved his mobile phone, got the video function working and approached Mrs Burston, saying to her, as recorded on Mr Ashby's mobile phone, "how do you feel about the sexual harassment cases?" Mrs Burston responded by saying "go away James". Mr Ashby's evidence, and Ms Hanson's case, is that by saying this he was asking Mrs Burston about the allegations of sexual harassment that Mr Burston had made against Ms Hanson, not the allegations of sexual harassment made by Ms Leach and Ms Vairy against Mr Burston. Ms Hanson properly concedes that Mrs Burston could have understood the question was about the allegations made against Mr Burston, not the allegations that he had made about Ms Hanson. The suggestion that Mr Ashby would not have asked about the allegations made against Mr Burston because of the steps taken not to identify him in the Facebook post therefore does not assist. 191 I reject the evidence of Mr Ashby that he was asking Mrs Burston about the allegations that her husband had made about Ms Hanson, and not about the allegations made against Mr Burston, noting that this was being said directly to Mrs Burston, within earshot of Mr Burston, but not close to anyone else. It is clear, plain and obvious that the reference Mr Ashby made to "sexual harassment cases" could only credibly and logically be to the allegations made against Mr Burston. At that time, there was not even a published allegation by Mr Burston against Ms Hanson, let alone any existing "case". A journalist had sought comment prior to publication from Ms Hanson via Mr Ashby only a short time earlier, and Mr Ashby and Ms Hanson had not yet met to discuss that allegation, although he had told her about the allegation at the dinner immediately after the call from the journalist and they were going to meet to discuss it after the Prime Minister's speech. 192 I was, at the time this evidence was given, concerned about whether Mr Ashby's account of what he was asking Mrs Burston about was deliberately false evidence, as opposed to an incorrect reconstruction of what had taken place, aligning with his self-serving diary entry. However, it is not necessary to go so far as to find that Mr Ashby has deliberately given false evidence, and such a finding ordinarily should not be made unless it is truly necessary: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36; 176 CLR 256 per Deane J at 271-2 as to this principle and the important public policy considerations standing behind it. However, I do treat all of his evidence with caution, at least upon the ground of the real risk of him being an unreliable historian when it is his conduct that is in issue, although that does not affect much of the rest of his evidence that is relevant to this case. 193 While the question about the "sexual harassment cases" was put to Mrs Burston, in all the circumstances I readily infer that this was, and was intended by Mr Ashby to be, a deliberate provocation directed at Mr Burston. And it was a provocation that was aggravated by the prior filming by Mr Ashby to which Mr Burston had already taken objection, and was further aggravated by renewed filming up close of Mrs Burston and then Mr Burston. Mr Burston responded to that further provocation by attempting again to take the mobile phone from Mr Ashby, by pushing Mr Ashby, and, most likely, by pushing Mr Ashby against a wall. 194 Mr Burston's physical response to both sets of provocation, especially the second involving the pushing, may be regarded as disproportionate to the provocation, although on any view Mr Ashby was persistent in his provocation and knew that this would cause Mr Burston to react. But that is not the issue. The issue is whether that physical action, and even possible assault by Mr Burston, was unprovoked. Far from being unprovoked, Mr Burston's conduct towards Mr Ashby was clearly, deliberately and persistently provoked by Mr Ashby. Accordingly, Ms Hanson has not discharged the onus of proving that this critical aspect of the 6th imputation was true. 195 As the 6th imputation arising out of the Today Show interview has not been proved to be substantially true, for this additional reason, on top of the 4th imputation not being proved to be true, the defence of justification under s 25 of the Defamation Act is not made out. Further, the truth of the lesser imputations of and related to sexual harassment has little, if any, mitigating effect on these more serious imputations, especially the 4th imputation.

Whether the substantial truth of the 1st, 2nd or 3rd imputations arising out of the Facebook post, had they been conveyed about Mr Burston, would have been proven 196 It is not necessary or desirable to linger for long on the question of whether the substantial truth of the 2nd imputation (Mr Burston "an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment") would have been established had it found to be conveyed about Mr Burston, but I tend to the view that it would not. As reasoned above, the imputation is properly understood as being directed to the manner of the staff dismissals that were said to have taken place, not the reasons for those dismissals. However, that does not mean that proof of the truth of that imputation is necessarily so confined. In dealing with the more limited approach first, for the manner of the dismissals referred to in the Facebook post, namely that "he sacks them by text, email or letter with no warning", there was either no evidence, or insufficient evidence, that Mr Burston had improperly terminated anyone's employment in terms of manner by text or by email, meaning that this measure of impropriety was not established by reference to the allegation that was published. While it is true that Mr Burston terminated Ms Leach by a letter for which she received no warning, the express basis for that manner of termination without notice was that she had disobeyed a direction not to get seriously intoxicated (noting the finding at [29] above that she was entitled to believe that she was attending the concert on a recreational basis and not in any official capacity), and had repeatedly sworn at him. While a challenge to those reasons for termination as being improper might well have succeeded, I am not satisfied that has been established, or that the manner of termination itself, without a successful challenge to the reasons, would have been shown to be improper. 197 Ms Hanson also relied upon terminations of employment that took place independently of the manner identified as being the gravamen of the 2nd imputation. However, I am not satisfied, on the limited evidence that is before me, that Ms Hanson established that either the manner or reasons for any of those employment arrangements coming to an end was improper, for the following reasons: (a) Ms Hanson asserts that there is no doubt that Ms Diana Allen was dismissed. Reliance is placed on a text message which Mr Burston sent to Ms Leach, describing Ms Allen in unflattering terms. However, there was no real attempt to impeach the letter of resignation from Ms Allen to Mr Burston, except by relying upon material that does not impact upon Ms Allen's own stance in writing. In those circumstances it cannot be safely concluded that Ms Allen was terminated at all, let alone improperly. This conclusion goes both to the manner and reasons for that employment relationship ending. (b) Ms Hanson asserts that Mr Burston dismissed Dr Frank Salter, asking the Court to disbelieve Mr Burston's evidence that Dr Salter left by mutual agreement. She relies upon Mr Burston's evidence that he asked Dr Salter whether he wanted to resign or whether he wanted to be terminated. It is well-known that for an employee there are curriculum vitae advantages in resignation, and tax advantages in termination. This is said to be, and is, consistent with the text of a letter sent by Mr Burston to Dr Salter, referring to the termination of that employment. It follows that the sinister connotation placed on what Mr Burston said, and upon that letter, is most likely to be misplaced. The letter makes it clear that the basis for the termination was changing needs for employment, in the context of Dr Salter being given the option, which is very common when it comes to ending an employment relationship, of resignation or termination (in this case upon terms contemplated by the contract of employment). Dr Salter opted for termination. There is nothing inherently improper about this, certainly as to manner, but also as to reason. Evidence would have been needed to prove otherwise. (c) Ms Hanson asserts that Mr Burston terminated Mr Peter Breen for breach of trust by reason of leaking information, and did so by email without warning, effective immediately. Ms Hanson relies upon this having been done without Mr Breen being given an opportunity to be heard, and thus without procedural fairness or the courtesy of a face-to-face conversation or a telephone conversation. While it is certainly possible that termination of employment in this way could be found to be improper, that is far from clear or certain. Termination of employment by reason of a breach of confidence will quite often take place without warning because of the risks attendant upon the employment relationship continuing. Sometimes it will be possible to demonstrate that the reason for doing so, or some other reason discovered after termination (which, it is well-established, is permissible), was not sufficient. But that is far from an inevitable conclusion. Ms Hanson did not prove that this was the most likely conclusion. (d) Ms Hanson maintains that Mr Burston dismissed Ms Mary-Ann Martinek via email after an alleged failure to respond to a show-cause letter for leaking confidential information to the press. Ms Hanson relies on the fact that Mr Burston did not give Ms Martinek the courtesy of dismissal via telephone. While I readily accept that dismissing Ms Martinek by a telephone call may have been the more courteous thing to do under the circumstances, Mr Burston was overseas in Singapore and could not dismiss Ms Martinek in person, nor necessarily readily by telephone. I am not satisfied that a failure to do so constitutes any degree of impropriety in either manner or reason. (e) Ms Hanson argues that Mr Burston constructively dismissed Ms Vairy by a letter which contained series of allegations used as an excuse for a foreshadowed basis for terminating her employment. Ms Hanson alleges that while she may still have been employed, she remained unable to return to work due to stress leave and thus was improperly terminated. However, Ms Hanson's submission fails to grapple with the fact that Ms Vairy's employment contract remained on foot until its inevitable end date on 30 June 2022 which marked the end of Mr Burston's term as Senator due to the operation of s 23(1)(b) of the Members of Parliament (Staff) Act 1984 (Cth). Section 23 relevantly provides: 23 Termination of employment (1) The employment of a person under this Part terminates if the Senator or Member of the House of Representatives by whom the person was employed: (a) dies; or (b) ceases to be a Senator or a Member of the House of Representatives, as the case may be. 198 It follows that I am unable to be satisfied that Ms Vairy was in fact dismissed, or therefore constructively dismissed. 199 It is less clear that the same conclusion would have been reached about the substantial truth of the 3rd imputation concerning bringing the Senate into disrepute, had it been conveyed, based upon that conclusion as to the 1st imputation alone given that the conclusion on the 2nd imputation does not assist. It is likely that this would fall or rise on the imputation being established as having been conveyed. Had it been conveyed, it would have been difficult to prove that it was true, essentially for the same reasons for finding that it was not conveyed in the first place. It would have been difficult to prove that conduct of either of these kinds by an individual Senator in relation to staff would bring the entire Senate into disrepute.

Whether the substantial truth of the 8th imputation, had it been conveyed, would have been proved 200 If the 8th imputation had been conveyed because I have erred in my understanding of "cheating", then it would also have been likely to have been substantially true in light of my findings as to sexual harassment.

COMMON LAW QUALIFIED PRIVILEGE - BOTH GENERALLY AND AS REPLY TO ATTACK

Principles 201 Ms Hanson contends that the text message she sent to Mrs Burston was published on an occasion of common law qualified privilege, both arising from Mrs Burston's status as the wife of Mr Burston and as her friend, and as a reply to attack arising from Mr Burston's allegation of her having sexually harassed him. She also contends that the relevant portion of the Today Show interview was published on the occasion of common law qualified privilege as a reply to the attack being made on her in relation to continuing to support Mr Ashby. Before turning to the arguments and evidence relied upon by Ms Hanson to invoke common law qualified privilege, including as to reply to attack, the principles need to be stated. 202 Qualified privilege may arise when defamatory matter is published in the course of providing information which the publisher has a duty or interest in communicating and the recipient has a reciprocal duty or interest in receiving, such reciprocity being essential: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 per the plurality of Gleeson CJ, Hayne and Heydon JJ at [9]-[10]. However, the privilege is "qualified … by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement": Roberts v Bass [2002] HCA 57; 212 CLR 1 at [62] per the plurality of Gaudron, McHugh and Gummow JJ, with Kirby J reaching what his Honour described at [196] as a very similar conclusion on generally like grounds. 203 As McHugh J pointed out in Bashford at [58], in the course of a dissent not as to the principles but as to their application in that particular and very different case to the present, the defence that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance, accepting for that purpose that the communication is defamatory and has caused harm, but contending for immunity in the public interest. His Honour also described the metes and bounds of the privilege in some detail, which is of considerable assistance in the practical application of the principles, both as to their breadth and as to their limitation: see Bashford at [60]-[85]. 204 Within the general rubric of common law qualified privilege, there is a particular species described as reply to attack. White J succinctly described it as follows in Gould v Jordan (No 2) [2021] FCA 1289 at [50]: The common law recognises that the response to an attack on a person's reputation, interests or integrity may be an occasion of qualified privilege, providing that the defamatory response is sufficiently connected to the occasion of the privilege. Looked at generally, such occasions exist when both the applicant and the respondent have an interest in the subject matter to which the impugned matter relates and if the publication of the defamation is made in protection of the respondent's interest: Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 at 511. At a general level, the privilege exists because of the interest of the public in hearing the response of the target to public criticisms. 205 In short, even in reply to attack, it is not open slather, and those who volunteer to provide defamatory information may not so readily get the benefit of the privilege. Mere retaliation will not suffice. It all depends on the facts and circumstances in the given case, and the nature of the need to make the defamatory statement at that time, in that way and to that audience. Moreover, as Gummow, Hayne and Bell JJ pointed out in Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [27], "where the occasion is a response, by publication to the general public of defamatory matter, to a public attack … the consideration of what is relevant to the attack requires particular care. The response must be commensurate with an occasion which is in an exceptional category." 206 In Cush v Dillon [2011] HCA 30; 243 CLR 298, French CJ, Crennan and Kiefel JJ observed (omitting footnotes): [11] Reciprocity of duty and interest, as giving rise to a privileged occasion, is not a feature of the statutory defence, but it is the hallmark of the common law defence of a qualified privilege. As Parke B explained in Toogood v Spyring, the law regards the publication of a false statement which is injurious to the reputation of a person as malicious: "unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice." [12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light. 207 A general guide, cited and quoted frequently by the High Court, including in Roberts v Bass, Bashford, Cush and Trad is that of Parke B in Toogood v Spyring (1834) 149 ER 1044 at 1050 is that: [i]f fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society. 208 As Jordan CJ cautioned in Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363, in a passage quoted with approval in Bashford by McHugh J at [55] and [58] and by Gummow J at [140], in order for the publishers to succeed on a defence of qualified privilege: it was necessary that they should show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party.

Whether the relevant portion of the Today Show interview was a reply to attack

Whether the text message to Mrs Burston published on an occasion of common law qualified privilege, either generally, or as reply to attack 209 In the context of the statements of principle set out above, and paraphrasing the plurality in Bashford at [23] as to the first question of the existence of the privilege, Ms Hanson must demonstrate reciprocity of duty or interest between her and recipient of the publications in question, specifically: (a) in relation to the Today Show interview, establishing legal, social, or moral duties or interests that were engaged between her as publisher and the recipient audience; and (b) in relation to the text message sent by her to Mrs Burston, establishing legal, social, or moral duties or interests that were engaged between her as publisher and Mrs Burston as recipient. 210 Ms Hanson's position in establishing the existence of the qualified privilege that she depends upon is made harder by her reliance on background facts and general assertions in circumstances in which both defamatory statements for which the privilege is sought to be invoked are better characterised as voluntary, rather than any evidence given by her, including to rebut inferences otherwise able to be drawn. This applies to her both in demonstrating the existence of the privilege, and in defeating inferences as to malice relied upon by Mr Burston. 211 In relation to the Today Show interview, Ms Hanson asserts that the interview comments were not, in effect, volunteered. She therefore contends that the impugned comments as to Mr Burston engaging in "sexual abuse" and about Mr Burston physically attacking Mr Ashby without provocation were made on an occasion of qualified privilege. She relies upon Mr Burston having made public attacks on 13 and 14 August 2018 to the effect that Mr Ashby had assaulted or was about to assault Mr and Mrs Burston such that Mr Burston was acting in self-defence in using physical aggression against Mr Ashby, based on: (a) A News.com.au article published on 14 February 2019 titled "One Nation harassment row explodes after Pauline Hanson and senator trade accusations", which included the President of the Senate being reported as saying "The video footage that I have reviewed records the reported incident between Senator Burston and Mr James Ashby last night. It shows inappropriate conduct by a passholder towards a senator", Mr Burston apologising for smearing blood on Ms Hanson's office door, and Mr Burston saying that he had been defending his wife from Mr Ashby, had sworn at Mr Ashby and had "lost it" and pushed Mr Ashby against a wall. (b) A Daily Telegraph article published on 14 February 2019 at 4.26 pm titled "Senator Brian Burston and One Nation adviser clash in heated confrontation", repeating the substance of what the President of the Senate is reported to have said, and reproducing in quotes what both Mr and Mrs Burston said had taken place. 212 Ms Hanson submits that if Mr Burston wanted to circulate serious allegations about her chief of staff as widely as he did, then he had to expect that she might respond and give Mr Ashby's version of events if asked about the incident. She submits that her conduct in doing so six weeks later was "well within the wide berth of what the common law affords her" and that she was "entitled to defend herself" against allegations that she was improperly supporting Mr Ashby and that he had a physical altercation with Mr Burston, being allegations that arose as a result of Mr Burston's previous public statements. She submits that it was not her who raised the allegation in the interview, but Ms Knight, who then asked Ms Hanson to respond. She submits that it was in the public interest as an elected official, she responded to these kinds of questions. She characterised her response as "an anodyne version of events" compared to a more damning account that the facts were capable of supporting. 213 In relation to the reference to sexual abuse and harassment, she repeats the argument already rejected that she did not directly accuse Mr Burston of perpetrating sexual harassment or abuse, only referring to that occurring in his office and she did not refer to Mr Burston swearing during the altercation with Mr Ashby. She submits that there was "nothing unusual, surprising or improper" about her response to Mr Burston's attacks, and that "if this species of reply to attack is to have any operation at all, the conclusion that must follow is that it protects Ms Hanson against liability for any defamation of Mr Burston". She relies upon the following, raised in the context of statutory qualified privilege: (a) the interview with Ms Knight was unscripted, and recorded live (noting that it was broadcast later, so was not a live broadcast); (b) she could not get Mr Burston's comments at the time; (c) she was responding to a question (in fact, she resisted responding to the question, which was directed to the fact of a suspension or ban imposed upon Mr Ashby by the President of the Senate); (d) she had seen the footage and photos and believed Mr Ashby's version (a characterisation I am unable to accept in the absence of evidence from her); (e) Mr Burston's denial of sexual harassment allegations was already public and widely available (noting the distinction between sexual harassment and sexual abuse addressed above, the latter being more serious and made for the first time); and (f) Mr Ashby had raised the matter with the President of the Senate and nothing had been done about it. 214 The above arguments do not survive scrutiny. First, not forming part of Ms Hanson's argument is a Daily Telegraph article of 14 February 2019 at 2.32 pm in which she is reported as stridently denying Mr Burston's allegations of her having sexually harassed him, which concludes by saying "Senator Hanson refused to comment on the clash between Mr Ashby and Senator Burston last night, saying she wasn't there". This suggests that Ms Hanson was conveying an inability to comment at the time upon the altercation because she had not observed what had happened, and demonstrates an awareness of the need for caution in commenting. It is also noteworthy that this article contains an account by Mr Ashby as to what had taken place, including in particular his assertion that he had only been trying to take images of Ms Hanson as she left the function and that "Mr Burston had lashed out and attacked him", omitting any reference to his own conduct leading to that taking place. 215 Secondly, the response given to the question about the bare fact of Mr Ashby being banned by the President of the Senate did not invite comment about the details of the altercation that were not the subject of the question. Ms Hanson chose to go beyond the scope of the question, and despite interruptions directed to bringing her back to that question, voluntarily chose to go further and to delve into a selective detail as to what took place in the course of the altercation. Ms Hanson could not genuinely or credibly have believed that Mr Ashby had not engaged in highly provocative behaviour, and certainly not without evidence from her to that effect. 216 Thirdly, the Today Show interview took place six weeks after the altercation, and was neither necessary nor commiserate to what had taken place in terms of that event. It was not the situation that Ms Hanson had not been given an opportunity to respond, but rather that she had declined the opportunity that had been offered at the time. The defamatory publication of an allegation that Mr Burston had physically assaulted Mr Ashby without provocation went well beyond mere reply to attack and mounted an independent, voluntary and retaliatory attack. 217 The reference to sexual abuse is in an even worse category because it was not in any way a reply to attack, nor in any way related to the subject matter of the interview, including Ms Hanson standing by Mr Ashby. 218 I am not satisfied that Ms Hanson has discharged the onus of demonstrating that the part of the Today Show interview referring to Mr Burston was an occasion of common law qualified privilege. 219 In relation to the Text to Mrs Burston from Ms Hanson, this is said to have been published on an occasion of common law qualified privilege on two bases: (a) Ms Hanson had an interest in communicating information about her husband's conduct to Mrs Burston by reason of their friendship spanning twenty years, and Mrs Burston had a corresponding interest in receiving information about her husband's conduct. (b) The allegation that Ms Hanson had betrayed her friendship with Mrs Burston by sexually harassing her husband over many years was something that she was entitled to defend herself against as a reply to attack. 220 This defence warrants relatively brief consideration in light of the primary finding that the imputation of sexual harassment was conveyed but true, and the primary finding that the imputation of Mr Burston cheating on Mrs Burston was not conveyed. The question of common law qualified privilege is therefore only addressed in the alternative. 221 As to the first aspect, it is implausible in the absence of compelling evidence that, by 14 February 2019, there was an extant friendship between Ms Hanson and Mrs Burston. The only evidence capable of bearing on that topic at that time revealed that Mrs Burston stood by her husband. I reject the suggestion, unsupported by any direct evidence, that Ms Hanson sent the text message to Mrs Burston to help her in any way as a friend. After the initial part denying having sexually harassed Mr Burston, the balance of the text message that Ms Hanson sent was spiteful and cruel. Ms Hanson was punching down on a defenceless woman whom she must have known was already aware of the allegations of sexual harassment made against her husband. Despite those characteristics, as already found, the text message was not defamatory either in respect of the 8th imputation by reason of not being conveyed as pleaded, nor in respect of the prior 7th imputation that has been found to have been conveyed, but not found to be defamatory by reason of that imputation being true. 222 As to the second aspect, this is in terms confined to responding to the allegation that Mr Burston had made about being sexually harassed by Ms Hanson. Ms Hanson had already publicly and stridently responded to that allegation, flatly denying it in emphatic terms. Mrs Burston could not have been in any doubt that Ms Hanson denied having done so. Even so, the shelter of common law qualified privilege would have applied to the first part of the text message directly denying that was so. However, as already noted, the text message went much further than that. It went well beyond that reply, and to that extent was mostly gratuitous, going well beyond anything that was called for or amounted to the protection of any legitimate interest. 223 Had the primary findings not been made in Ms Hanson's favour, I would not have upheld either claim of common law qualified privilege in relation to the text message that she sent to Mrs Burston. 224 The question of malice is addressed in the section below dealing with statutory qualified privilege. The conclusions reached would also apply to common law qualified privilege, had that been made out.

WERE ANY OF THE THREE MATTERS COMPLAINED OF PUBLISHED ON AN OCCASION OF STATUTORY QUALIFIED PRIVILEGE UNDER SECTION 30 OF THE DEFAMATION ACT 2005 (NSW)

Principles 225 Section 30(1) of the Defamation Act, in the form that existed prior to the 1 July 2021 amendments, provided and still provides as follows: There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that - (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. 226 The concept of "interest" in s 30(1)(a) of the Defamation Act is used in its broadest sense, tempering the common law restriction to a legal duty or interest to encompass a test of reasonableness in the circumstances as a matter of substance going beyond curiosity or mere news: see the Privy Council decision on appeal from the New South Wales Court of Appeal in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359, quoting and endorsing trial and appeal decisions in that State to that effect. 227 Section 30(3), in the form that existed prior to the 1 July 2021 amendments which have since made the defence somewhat easier to establish, provided a list of relevant considerations able to be taken into account by a Court as follows: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. 228 The defence of statutory qualified privilege is defeated if Mr Burston proves that publication was actuated by malice: s 30(4). 229 By reason of amendments to s 30 that took place with effect from 1 July 2021, one of the s 30(3) reasonableness considerations no longer listed (although not now excluded because the list is not exhaustive) is "whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person", it being common ground that this did not happen in respect of any of the three matters complained of. Ms Hanson points to cases where this has not been effectively required in non-media cases, while Mr Burston seeks to distinguish those cases. Had it been necessary to decide this, I would not have denied the application of statutory qualified privilege upon the basis that Mr Burston's position was not published and no attempt was made to obtain a response from him, for the following reasons: (a) In relation to the Facebook post, it would have been counterproductive because I have effectively found that sufficient care was taken not to identify Mr Burston, such that any such steps would either have been meaningless beyond a general denial, or would have risked identification. (b) In relation to the Today Show interview, while the program was pre-recorded, Ms Hanson was being interviewed about the Al Jazeera documentary and about the Port Arthur massacre, and the topic of Mr Burston was raised by Ms Hanson when asked by Ms Knight about continuing to stand by Mr Ashby, giving no practical opportunity to raise the allegations she was making with Mr Burston. The existence of otherwise statutory qualified privilege for the Today Show interview more acutely turns upon the proper basis for making those allegations. (c) In relation to the Text to Mrs Burston sent by Ms Hanson, the core allegation was not published to anyone other than the recipient. It is not realistic to expect that Ms Hanson would check with Mr Burston before sending that text message, remembering that the vice stood not in denying Mr Burston's allegation that Ms Hanson had sexually harassed him, but in going gratuitously beyond that.

The basis for asserting statutory qualified privilege for all three publications 230 For all three publications, Ms Hanson's claim of statutory qualified privilege is that, as an elected representative, she was provided with cogent allegations from taxpayer funded current and former staff members of Mr Burston about his discreditable treatment of them. In those circumstances, she asserts that she was entitled to respond in the way that she did. 231 Two related evidentiary problems emerge in relation to that identified basis for seeking to invoke the privilege: (a) Ms Hanson did not give any evidence as to what precisely she was told; and (b) Mr Ashby only gave a fairly general and vague account of what he told Ms Hanson. 232 In those circumstances, it is not productive to determine whether or not statutory qualified privilege was made out except in relation to publications for which the pleaded imputations have been found to be conveyed, and the justification of truth has not been made out. That is because the actual information that Ms Hanson had conveyed to her must have been some indeterminate subset of what was proven to have taken place in relation to Mr Burston's staff, subject to errors or inaccuracies. 233 It is, however, worth noting, falling short of a final determination on an alternative basis, that had truth not been made out for the allegations of harassment and sexual harassment which form part of all three publications, for reasons such as either of Ms Leach or Ms Vairy not being as good a witness as each turned out to be, this aspect of what was published in the Facebook post, this aspect of the Today Show interview, this part of the Text to Mrs Burston, and the corresponding imputations found to be conveyed by those publications, fell within the broad scope of the evidence that Mr Ashby gave as to what he was told by each of them and said he had, in general terms, conveyed to Ms Hanson. It also aligned with the evidence that Ms Leach and Ms Vairy each gave, viewed at a level of similar generality. It follows that this aspect of all three publications would most likely have attracted statutory qualified privilege had substantial truth not been proven, subject to the question of defeasance by malice. 234 Confining determinative consideration to the imputations from the Today Show interview found to have been conveyed and not found to be substantially true, namely the 4th imputation that Mr Burston sexually abused a female staffer in his parliamentary office, and the 6th imputation that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation, I do not uphold the claim of statutory qualified privilege. That is because there is no evidence that satisfies me that Ms Hanson had any proper basis for believing that either imputation was true and did not take any reasonable precautions before making such serious allegations of a highly defamatory nature. 235 In particular, nothing in the evidence of what Mr Ashby said he told Ms Hanson, nor anything else that was in evidence, rose to the level of proving that anything amounting to sexual abuse had taken place. Also, Mr Ashby did not give any clear or satisfactory evidence about what he told Ms Hanson about the altercation. I am not willing to infer that Mr Ashby told Ms Hanson any more than he deposed to, not least because he was an unsatisfactory witness in relation to the altercation and his contemporaneous diary note, for which there was no evidence that he showed it to Ms Hanson, was objectively false in parts (even if not deliberately so) or at least inaccurate and unreliable. The information that Ms Hanson volunteered in the Today Show interview, going comfortably beyond the question being asked about her stance towards Mr Ashby, was a deflection and was in any event clearly enough actuated by malice as outlined above and addressed in more detail below. 236 The question of whether any of the remaining imputations would have attracted statutory qualified privilege had this point been reached can be briefly addressed as follows. 237 As to the 1st imputation that Mr Burston sexually harassed staff in his office, found to have been conveyed, but not about him, but found to be true had it been so conveyed, I would in any event have found that statutory qualified privilege was made out by reason of there being a reasonable basis in all the circumstances for publishing the allegations because of substantial complaints to that effect. I am satisfied that Ms Hanson was told about those allegations by Mr Ashby in sufficient detail to be satisfied it was reasonably likely they would have substance to them and that there was a legitimate public interest in that being raised in public, especially in the climate at the time of concerns about sexual misconduct by some politicians. I am not satisfied, on the balance of probabilities, that the making of those allegations was actuated by malice. Neither would I have been satisfied that they were not so actuated had the onus fallen upon Ms Hanson to exclude that, because Ms Hanson did not give evidence as to her motivations and the true position was left unclear, and thus would have fallen to be determined by the onus, for which Mr Burston would have failed. 238 I would have reached the same conclusion about the 5th imputation that Mr Burston harassed a female staffer in his parliamentary office; and about the 7th imputation that Mr Burston sexually harassed numerous female staff, had either imputation not been shown to be true. 239 As to the 2nd imputation, that Mr Burston, an Australian Senator, behaved disgracefully by improperly dismissing numerous staff from their employment, which was found to have been conveyed, but not about him, and found not to be true had it been so conveyed because of the precise way in which the allegations were framed in the Facebook post, which did not accurately record what had happened, I would in any event have found that statutory qualified privilege was made out by reason of there being a reasonable basis in all the circumstances for publishing the allegations because of substantial complaints to that effect. That is so even though there was a live contest as to what had in fact taken place as to at least some of those events. I am again satisfied that Ms Hanson was told about those allegations by Mr Ashby in sufficient detail to be satisfied there was substance to them and that there was a legitimate public interest in that being raised in public, especially given a legitimate concern that politicians comply with the law in relation to employment and the termination of such employment. Again, I would not have been satisfied that privilege had been displaced by those allegations having been actuated by malice, but again only because the onus lay on Mr Burston to establish this in defeasance of statutory qualified privilege. 240 The 3rd imputation that Mr Burston, an Australian Senator, brought the Senate into disrepute by his shocking behaviour towards his staff was not shown to be conveyed either about Mr Burston or at all. In the circumstances it is too theoretical to attempt to consider what the situation would have been as to statutory qualified privilege had a different conclusion been reached, but I tend to the view that the outcome would likely have been the same as for the 1st imputation and the 2nd imputation because this imputation was essentially derivative of either or both of those two imputations, namely that statutory qualified privilege would have been made out and not defeated by malice. 241 Finally, as to the 8th imputation that Mr Burston behaved disgracefully by cheating on his wife with one of his female staffers, which was found not to have been conveyed, on the evidence, had it been conveyed, Ms Hanson would not have been able to prove that this was substantially true. However, the question of statutory qualified privilege would have been difficult to determine, but if it had, would not have succeeded because of the obvious actuating malice in sending the text message to Mrs Burston. Ms Hanson did not give evidence as to why she did this. In the absence of such evidence it would not have been difficult to infer malice from the way in which the text message was written.

WERE THE CIRCUMSTANCES OF PUBLICATION OF EITHER OF THE FIRST OR SECOND MATTERS COMPLAINED OF SUCH THAT MR BURSTON WAS UNLIKELY TO SUSTAIN ANY HARM?

Principles 242 The defence of unlikelihood of harm, otherwise known as the defence of triviality, under s 33 of the Defamation Act as it appeared prior to the 1 July 2021 amendments, provided as follows: It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. 243 The test is not whether Mr Burston did in fact suffer reputational harm, but rather it is the prospective likelihood of the publication causing harm in the circumstances of the publication itself at the time it occurred: see Sarina v O'Shannassy [2021] FCA 1649 at [81]; Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 799E. In Barrow v Bolt [2015] VSCA 107 at [35] the Victorian Court of Appeal described the "circumstances" at the time of publishing to include but not limited to: (a) the content of publication; (b) the extent of publication; and (c) the nature of the recipients and their relationship with the applicant. 244 This issue does not arise in relation to the Facebook post given the conclusions already reached and is not raised in relation to the text message. In relation to the Today Show interview, I do not need to spend much time on this issue as confined to the false 4th imputation that Mr Burston sexually abused a female staffer in his parliamentary office, and the false 6th imputation that Mr Burston, an Australian Senator, physically assaulted James Ashby in the Great Hall of Parliament House without provocation. I am not satisfied that Ms Hanson has demonstrated that these considerably more serious and manifestly false and unjustified imputations were, in all the circumstances, such that they were unlikely to result in any harm to Mr Burston. I am positively satisfied that they were likely to be harmful and should result in a reasonably substantial award of damages.

IN DEFEASANCE OF QUALIFIED PRIVILEGE, WAS THE PUBLICATION OF ANY OF THE THREE MATTERS COMPLAINED OF ACTUATED BY MALICE

Principles 245 As already noted above, a publisher must prove that a duty of the kind that is required existed so as to rebut the presumption of malice that otherwise arises from making a false and defamatory statement, leaving malice for the person defamed to establish: Cush at [13]-[14]. Thus, the privilege gives no licence to defame, and even if the occasion is privileged there remains a question as to whether the publisher has fairly and properly exercised it or instead it has been shown to be actuated by malice. Once the publisher has established the existence of the privilege as a matter of law, the person defamed must show that the act was not in fact done to advance the protected purpose: Bashford at [22]. 246 In Cush, a malice case, a member of a board of a statutory authority heard a rumour from employees that another member of the board and the general manager were having an affair, and told the chairman of the board it was common knowledge that this was taking place. The two individuals concerned sued for defamation. The board member successfully invoked qualified privilege. The pleaded imputation was the fact of an affair, not merely a rumour of it taking place, with it being common ground that an occasion of qualified privilege arose from communicating the existence of the rumour of the affair. Four justices of the High Court found there was no relevant distinction between an allegation of common knowledge and a rumour, while the other three found that the statement conveyed the fact of an affair. Six justices found that the necessary reciprocity of duty and interest existed to make it an occasion of qualified privilege, and that any error or inaccuracy in what was conveyed did not render what was said irrelevant to the privileged occasion. 247 Malice is cast by Mr Burston as being the predominant motive by Ms Hanson to hurt, embarrass and humiliate him in respect of all three publications because of what she perceived to be political damage he had caused to her, and additionally in the case of the second matter complained of (the Today Show interview), to otherwise divert or deflect public attention and criticism from her own and Mr Ashby's behaviour. Ms Hanson disagrees with Mr Burston's submission that she was acting by reason of revenge and argues that she lacked the requisite improper motive for publication. She relies on the apparent lack of evidence of any significant issues between the two after they had agreed to avoid each other in about late 2018. I will discuss this further below. 248 Malice, while directed to the whole of each matter complained of, strictly speaking only needs to be addressed in respect of the imputations and thus publications which have crossed the threshold of otherwise being defamatory by reason of the imputations being conveyed, not being proved to be substantially true, and, but for malice applying, being protected by qualified privilege of some kind. That is not a situation that has been arrived at for any of the publications. However, for completeness, the question of malice should be addressed in relation to each publication. 249 Ms Hanson's argument as to an absence of malice is: (a) Mr Burston bears the onus of proving that the improper motive of malice was her dominant motive; (b) Mr Burston's submission that she was acting by reason of revenge for what happened in mid-2018 must be rejected because of the absence of any significant issue between them after they agreed to avoid one another in about October or November 2018, relying upon Mr Burston's evidence in that regard; (c) in relation to the Facebook post, had she been malicious, she would have named him in Parliament in her speech to the Senate on 12 February 2019, immediately preceding all three publications, indicating that she was more interested in raising the issue than obtaining some advantage, reinforced by her refusal to name him when pressed in a Channel 7 interview on the night of 13 February 2019; (d) in relation to the Today Show interview: (i) there is no evidence that Ms Hanson was acting maliciously in saying what she did, with nothing of significance to this issue having occurred between Ms Hanson and Mr Burston since 14 February 2019, repeating the submission that she did not raise the altercation but rather Ms Knight did so; and (ii) it was "plain" from the interview itself that Ms Hanson's intention in giving her version of events was to defend Mr Ashby and diffuse the allegations being put to her by Ms Knight, rather than hurting or injuring Mr Burston; (e) in relation to the text message, there was a complete absence of evidence from which it can be inferred to the high standard required that Ms Hanson was actuated by a malicious purpose, and the most probable explanation for Ms Hanson's conduct as evidenced from the opening of the text message is that Ms Hanson was seeking to vindicate herself in the eyes of the woman with whom she had been friends for twenty years against baseless allegations of long-term sexual harassment of her husband. 250 I accept malice has not been established for the Facebook post, mostly because it did not name Mr Burston, but also because I accept that raising the issues of sexual harassment and improper dealing with staff was a matter of legitimate concern, making an inference of malice difficult to draw and falling short of any reasonable inference. 251 I find that had it been needed, an inference of malice would likely have been drawn in relation to the allegations of sexual abuse, but not in relation to the allegation of physical assault without provocation. Ms Hanson chose not to give evidence, making the inference of malice available easier and safer to draw in relation to the allegation of sexual abuse. While a significant part of what Ms Hanson was doing was deflecting from the guns rights issue that was the primary purpose of the interview, there was no apparent reason for Ms Hanson to allege something as serious as sexual abuse. She made no attempt beyond untenable semantics for saying such a thing, which I readily infer she most likely knew she had no basis for saying, and also most likely knew was not true. 252 The false representation that Mr Ashby had reported an allegation of sexual abuse to the President of the Senate, which he had not gone so far as to do, was a momentous step to take in relation to an Australian Senator. It should be noted that not only was this the most serious of the imputations conveyed, but also that it was conveyed on a long-standing program of considerable repute, broadcast on national free-to-air television. It was also pre-recorded, giving her an opportunity to seek to have that portion excised before it was broadcast, there being no suggestion that she took that step. It was clearly intended by Ms Hanson to inflict harm and humiliation on Mr Burston, and to damage his reputation in a most serious way. I have no reason to doubt that intention was realised and it was, in all the circumstances, a malicious thing to say, but ordinarily presumed, and also inferred if needed in defeasance of qualified privilege (both common law and statutory). 253 The same cannot be said about the allegation of physical assault without provocation. While, objectively that was simply not true, and while I have my doubts about Ms Hanson believing it was true, I cannot exclude the reasonable possibility that, however untenable, she considered that Mr Ashby's conduct did not amount to provocation. In those circumstances, had qualified privilege been found to exist in relation to that allegation, it would not have been defeated by malice. 254 Consideration of the text message produces a divided result. That message was not actuated by malice insofar as it met and denied the allegation that Ms Hanson had sexually harassed Mr Burston. Nor was it actuated by malice insofar as it made allegations of sexual harassment against staff, being the 7th imputation, in any event found to be substantially true. However, consideration of the 8th imputation (cheating), had it been found to be conveyed, would likely have been found to be actuated by malice. The text message went well beyond vindication in the eyes of Mrs Burston to meet the allegation that she had sexually harassed Mr Burston that, as well as being a nasty and gratuitous addition, clearly enough intended to hurt Mr Burston via his wife.

DAMAGES AND MITIGATION 255 The questions of damages and mitigation only arise to the extent of Mr Burston's success on the 4th imputation of sexual abuse and the 6th imputation of physical assault without provocation, both conveyed in the Today Show interview. It is neither necessary or appropriate to consider either of these issues upon the alternative basis of a different outcome on liability, although taken on their own it is difficult to see how any substantial harm to reputation beyond what was justified could have been occasioned by the Facebook post and it is difficult to see how any harm to reputation could have been occasioned by the text message sent only to Mrs Burston. Thus, the question is what, if any, general or aggravated damages is Mr Burston entitled to, taking into account the question of whether any of the matters pleaded in support of the defences mitigate any such damages, in relation to the 4th imputation and 6th imputation. 256 The first thing to note is that there is nothing in the evidence that mitigates the damage to reputation by such serious imputations as sexual abuse and physical assault without provocation. Both are in a different category to sexual harassment or treating staff improperly in respect of the termination of their employment. While Ms Hanson seeks mitigation by reason of assertions that Mr Burston lied on oath, I consider that any objective falsity in his evidence was largely confined to his denials of having engaged in sexual harassment. I was unable to safely conclude that he, any more than Mr Ashby, deliberately lied on oath, although I consider that each in their different ways was not always doing their best to tell the truth, the whole truth and nothing but the truth, Mr Burston in relation to sexual harassment and Mr Ashby in relation to the altercation between them. 257 Ms Hanson suggests that the Today Show interview caused no demonstrable harm to reputation because both the sexual harassment allegation and the allegation of assaulting Mr Ashby without provocation had already been aired more than a month earlier. That submission does not even attempt to address the true sting of these two imputations, which went well beyond either sexual harassment or assault without provocation. 258 Ms Hanson also submits that any damages for hurt feelings must be minimal in light of the words giving rise to the imputations being "merely a less serious repetition of what had been said so many times before", not attempting to identify any prior occasion upon which Mr Burston had been accused of anything as serious as sexual abuse or physical assault without provocation. 259 Ms Hanson repeats the suggestion that Ms Knight was highly sceptical of what Ms Hanson said and expressed that to the audience. That is only true in relation to the claims made about Mr Ashby and Mr Dickson not soliciting donations from whom they thought was a representative of the NRA in return for softening Australia' gun laws, given the clear enough indication that this is precisely what they were doing. There was no such scepticism about the allegations of sexual abuse or physical assault without provocation, with Ms Knight trying repeatedly to bring Ms Hanson back to the question that was being posed about continuing to support Mr Ashby despite him having been banned from Parliament. 260 On the question of loss of business damages arising out of the publications, I am not satisfied that this has been separately established. While I accept that Mr Burston has not been able to regain paid work, I am unable either to attribute this to the 4th imputation or the 6th imputation, nor to isolate it from the sexual harassment allegations that I have found were true. 261 I am similarly not able to find any sufficient basis for aggravation of damages so as to take the award above the maximum otherwise available. While I think it likely that Ms Hanson knew that the allegation of sexual abuse was not true, I have fallen short of a positive finding that she had that state of mind. I have overtly declined to find that she knew that the allegation of physical assault without provocation was untrue, partly because I am unable to find that she had the sympathy, empathy or understanding as to how provocative it was to Mr Burston to film Mrs Burston close up and without permission while asking offensive questions. 262 I take into account in fixing the damages that I have arrived at, that Mr Burston was, in many respects in relation to sexual harassment, an unsatisfactory witness whose key testimony on that topic has been largely rejected. However, that offers little mitigation for much more serious conduct that was falsely alleged against him. 263 I find that both the 4th imputation and the 6th imputation were seriously damaging to Mr Burston's reputation, being broadcast on a nationally broadcast television program watched by over 290,000 people at that time. They were both false. Both imputations were in the same program. I consider that a substantial award of damages is necessary to telegraph to the public that both of those imputations were false and without justification. I therefore award Mr Burston damages in the sum of $250,000.

COSTS 264 The starting point should be that Ms Hanson pay Mr Burston's costs. However, I will refrain from making any costs order without first hearing from the parties. I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.