Victorian Bar president backs defamation reforms

Victorian Bar president Matt Collins has supported reform of Australia’s controversial defamation law.

Victorian Bar president Matt Collins in Canberra on Wednesday. Picture: AAP

Key elements of the media industry’s reform plan for defamation law have been endorsed by the Victorian Bar president, who says Australia is one of the world’s most litigious jurisdictions.

Matt Collins, a leading authority on defamation law, used his address to the National Press Club on Wednesday to unveil a plan that aims to provide a better balance between the private right to reputation and the public right to freedom of expression.

He also released research that showed defamation law was being mentioned in court far more frequently in Australia than in Britain, which has almost three times the population.

He supported the defamation reform project being run by the states and territories but des­cribed it as “timid” and called for reformers to “aim higher”.

The reform project “assumes we are stuck with our current laws and the best we can do is tinker at the edges. That might prove to be right, but I believe we should aim higher,” Dr Collins said.

“In short, our defamation laws predate the modern communi­cations era. Not only are they out of date but they are flawed in a number of other respects.

“In Australia, we inherited the English common law (of defamation) and then made it worse.”

The changes he backs include:

•Ensuring the one-year limitation period for bringing claims is not extended indefinitely ­merely by downloading a particular article online;

•Redrafting the defence of contextual truth, which he des­cribed as “a dead letter”;

•Redrafting the defence of honest opinion to eliminate a ­judicial interpretation that meant it had practically no impact; and

•Ensuring the statutory cap on damages can no longer be avoided when aggravated damage is identified, or circumvented by bringing separate proceedings.

His call for changes to the statutory cap on damages is in line with one of the key changes backed by a coalition of organisations from the mainstream media industry.

He also supported the need for a more stringent threshold test — a move backed by the media industry’s Right to Know coalition.

The Right to Know coalition is also seeking changes to the limitation period for defamation claims that are in line with Dr Collins’s suggestion.

He said if defamation laws were being drafted from scratch, he favoured abandoning the current approach in which the law simply presumes that statements about a plaintiff are false.

“In all other fields of civil law, defendants are not presumed to be liable — plaintiffs have to prove some wrongdoing on the part of the defendant and that they have suffered some damage before they are entitled to compensation,” Dr Collins said.

“In defamation, the law presumes that every defamatory publication is false and that every defamatory publication has caused damage to the plaintiff’s reputation.”