Sexual harasser should not receive one cent in defamation case: Pauline Hanson
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One Nation leader Pauline Hanson should not have been ordered to pay “a cent” to former senator Brian Burston after a Federal Court judge found she had proven he sexually harassed two female staff members but had not proven this amounted to sexual abuse, an appeal court has heard.
Hanson is seeking to overturn a $250,000 damages order made against her after Burston, a former One Nation senator, successfully sued her for defamation. A judge found she accused Burston on Nine’s Today show in 2019 of “sexual abuse” of a female staff member and assaulting her chief of staff “without provocation”.
Pauline Hanson and and former One Nation senator Brian Burston.Credit: Alex Ellinghausen
In the Full Federal Court in Sydney on Tuesday, Hanson’s barrister, Sue Chrysanthou, SC, said Justice Robert Bromwich found Hanson had proven Burston sexually harassed two staff members.
“It shouldn’t be allowed that a senator of the Australian parliament who’s found to have conducted himself in this way … should be given a cent by this court,” she said.
Bromwich found last year that Burston sexually harassed one staff member, Terrie-lea Vairy, over a prolonged period in 2018, including unwanted physical touching, kissing on the lips and leering, and had on one occasion either tried or succeeded in putting $100 down Vairy’s top or between her cleavage.
He said the evidence surrounding the incident with the $100 note was not sufficient to make a finding of sexual abuse, which he regarded as more serious, but “it was clear that this was part of a serious episode of sexual harassment”.
“It shouldn’t be allowed that a senator of the Australian parliament who’s found to have conducted himself in this way … should be given a cent by this court.”
Bromwich also found Burston had pushed Hanson’s chief of staff James Ashby at the Great Hall in Parliament House during an altercation in February 2019, but he said Ashby had provoked him by filming him and asking questions.
Justice Michael Wigney, one of the three judges hearing the appeal on Tuesday, said: “Putting aside the totality [of the evidence] … and speaking entirely for myself, I have great difficulty in seeing how a 70-something man who employs a 30-something woman, in a position of power that he occupied, cannot be said to sexually abuse someone if he sticks his hand down and puts money between her breasts”.
“How does that not amount to sexual abuse?” Wigney said.
Burston’s barrister, Nicholas Olson, replied that there was “absolutely no question” it was serious sexual harassment, but the phrase “sexual abuse” was “loaded with resonances in contemporary society”.
He said earlier the phrase would call to mind “the abuse of children in religious institutions”, the MeToo movement and the Harvey Weinstein and Jeffrey Epstein cases.
Hanson’s barrister Sue Chrysanthou said the court’s findings against Burston were “damning”. Credit: AAP
“Emphasising that this doesn’t excuse what Mr Burston was found to have done, he didn’t grope her breasts. It wasn’t prolonged contact. He was alleged to have put the money down there and that was the end of the physical interaction,” Olson said.
“I accept that it was plainly sexual. It is likely, although I haven’t turned my mind to the elements of the statutory offence, it would meet the definition of indecent assault.
“What he was found to have done by the judge was clearly sleazy, inappropriate, offensive, intolerable to women, but it inappropriately reduces the impact and the level of the concept of sexual abuse to categorise this conduct as falling within it.”
The court heard Hanson told Today that Ashby “never laid a hand” on Burston during the altercation and “Ashby has been trying to bring it to the [Senate] president’s attention about the sexual abuse and harassment that was going on with a female staffer in [Burston’s] … office”.
Chrysanthou argued on Tuesday that the phrase “sexual abuse” in the context of Hanson’s Today interview did not mean “molestation or institutional abuse” but was a “composite notion that embodies a wide range of conduct”.
“On every occasion, my client proved true that Brian Burston sexually harassed staff in his office,” Chrysanthou said.
“The theme of our case … is that Mr Burston was proved at trial, by cogent evidence and by reason of witnesses that were wholly accepted by his honour, to have engaged in inappropriate conduct that was so disreputable that he should have been given no damages at all.”
Chrysanthou said the “damning findings” made against Burston were “so serious … that a transient statement by my client in the course of a 10-minute interview largely about another topic … could not have done any harm to his reputation”.
Bromwich said he was not in “any doubt” that Burston sexually propositioned another former staffer, Wendy Leach, by saying: “Oh Wendy, you probably just need a good f—.” He then grabbed Leach’s face, the judge found, and said: “I’m not joking. I can come around to your place. No one would need to know. It will be the best f— you’ve ever had.”
But Bromwich said sexual abuse “connotes a higher level of physical contact that is sexual in nature where a power imbalance exists; where the behaviour is persistent and not merely transient; something in the nature of molestation of an ongoing kind”.
The “serious imputations” of sexual abuse and physical assault “without provocation” were “in a different category to sexual harassment” and had not been proven, Bromwich said.
Burston split from One Nation in 2018 and was later leader of Clive Palmer’s United Australia Party in the Senate.
Burston’s barrister conceded Bromwich had made serious findings about his client’s conduct, and that the conduct was “unequivocally wrong and unacceptable”.
But he said it was “not a proper use of the English language to describe [the conduct Bromwich found had occurred] … as sexual abuse”.
Chrysanthou noted Bromwich had found Burston pushed Ashby and that his physical response was “disproportionate to the provocation” of being filmed and asked questions. She said there was “no physical attack by Mr Ashby”.
“Aggression doesn’t have to be physical; there is such a thing as verbal aggression,” Olson said.
The Full Court reserved its decision.
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