We Need to Talk: Press Freedom and the Law – vol 2

with Dr Matt Collins AM QC

Welcome to We Need to Talk – an interview series about media law brought to you by the Film, Art, Media and Entertainment (FAME) Law Students’ Association and the Communications Portfolio of the LSS. Vol 2 of the series features Dr Matt Collins AM QC.

Dr Collins is a Melbourne barrister and a Senior Fellow at the Melbourne Law School. He is the author of three editions of The Law of Defamation and the Internet (OUP, 2001, 2005, 2010), the leading international text on the application of principles of defamation law to online publications, and Collins on Defamation (OUP, 2014), a standard text on the law of defamation of England and Wales. 

He was the President of the Victorian Bar from 2017–19 and is currently a Vice-President of the Australian Bar Association. He is a Fellow of the Australian Academy of Law, a member of the Council of the Australian Institute of Judicial Administration, and a former national Chair of the Media and Communications Committee of the Law Council of Australia. In 2019, Dr Collins was made a member of the Order of Australia for significant service to the law, to legal standards, and to education.

Dr Collins sat down with Peter Turner for Purely Dicta, to talk about his career as an advocate (including recently acting in ABC v AFP to challenge the search warrant authorising the raid of the ABC’s Sydney headquarters), essential media law reforms, and his advice for students looking to make a splash in the industry.

Dr Matt Collins AM QC

What was Matt Collins like when he first started studying law? Did he imagine he would be where he is now?

Not even remotely. Although I had always been interested in justice, public affairs and the media, and found the study of law stimulating, I had not mapped out any career ambitions. Looking back, I think my career path has been substantially the product of a succession of lucky caprices. If someone had told the law student version of me what I have since done and where I would be today, I would likely have looked over my shoulder, assuming they were talking to someone else.  

What prompted your interest in media law? Where did the fascination begin?

In 1993, I was an articled clerk at Mallesons Stephen Jaques (now King & Wood Mallesons). A partner dumped a file on my desk and asked me to attend to it. It was a request from the firm’s Sydney office for advice about an aspect of Victorian defamation law. That sentence probably makes no sense to a modern law student. When I was starting out, most law firms were not yet nationally, let alone internationally, integrated; and Australia had eight distinct laws of defamation, one for each State and Territory. I hadn’t studied media law in my undergraduate degree, but upon immersing myself was immediately hooked by the clash of the great human rights at stake—reputation and freedom of speech.

What was your first job upon graduating from law school? What brought on your transition to the Bar?

I was the Associate to Justice Ryan in the Federal Court, a great industrial law specialist who could turn his hand effortlessly to any area of the law both as an advocate and a judge. At university I had been a decent mooter, and I suppose that becoming a barrister must have always been in my mind, but I made the decision essentially on a whim. I signed up to do the Bar readers’ course the day after watching a barrister I had briefed make a hash of an appearance—I thought I knew the case better and could have done a better job. Also, the thought of partnership in a major firm didn’t appeal to me much. Barristers always seemed to me to be happier and to have greater career satisfaction. I still feel that way.

“But I am prouder of some of the pro bono cases I have taken on, where my involvement has made the difference between personal and financial disaster for my clients.

In your experience as an advocate, what have been some career highlights and cases that you are truly proud of?

I have been privileged to act in some of the great media law cases of the past generation, including Eatock v Bolt (the section 18C case), Joe Hockey v Fairfax Media (the Treasurer for Sale litigation), Rebel Wilson v Bauer Media (Just who is the real Rebel?), DPP v Herald & Weekly Times (contempt charges against 36 journalists, editors and media organisations arising out of their reporting following the first Pell verdict) and ABC v AFP (challenging the search warrant authorising the raid of the ABC’s Sydney headquarters). All are memorable for different reasons. But I am prouder of some of the pro bono cases I have taken on, where my involvement has made the difference between personal and financial disaster for my clients. One matter in particular stands out, where I acted pro bono for more than five years in one of the longest running defamation disputes in NSW history.

In your opinion, what is an area of media law that is in need of law reform and why?

A year ago, I was arguing that defamation law needs an urgent recalibration, both to bring it into the internet age and to strike a better balance between the competing interests of the rights to reputation and freedom of expression. I remain of that view. But then along came the raids of Annika Smethurst’s apartment, and then the ABC’s Sydney headquarters, on successive days in June 2019.

I find it staggering that the Australian Federal Police could think it acceptable to raid media organisations and journalists’ homes, and to consider charging journalists with criminal offences, for publishing reports that were of the highest public importance; and disturbing that Australian law provides no effective protection for whistleblowers or public interest journalism.

Given the recent outcomes in Smethurst v Commissioner of Police [2020] HCA 14 and an avoidance of discussing the implied freedom of political communication, what do you feel needs to happen in order to ensure our media is free to report in the public interest?

To deal with the immediate concerns, it ought not to be lawful to charge journalists for publishing stories of public importance, except where the public’s interest in having information on the subject in question is outweighed by a countervailing public policy consideration that is clear, compelling and real, not just asserted or theoretical. More fundamentally, though, Australia needs a charter of fundamental rights and freedoms, like every other Western democracy, to enable a nuanced balance to be struck between competing rights in both the formulation of legislation and in the resolution of disputes in individual cases.  

“As a result of acting for defendants, I worry that our laws inhibit the publication of stories that, as a citizen, I am in no doubt the public has a right to know about.”

Has your experience as a practitioner changed your views about media freedoms and the right to political communication? If so, how? Were you surprised by the changes?

Yes, at both ends of the spectrum. As a result of acting for plaintiffs, I have become increasingly concerned by the absence of cost effective and speedy remedies for those whose lives are ruined in a heartbeat, whether at the hands of the mainstream media or on social media. As a result of acting for defendants, I worry that our laws inhibit the publication of stories that, as a citizen, I am in no doubt the public has a right to know about. For practitioners, these are not abstract concerns to be couched in the language of rights, obligations or judgments—they are the lived experience of our clients. 

Outside of your work as a barrister and academic, what opportunities and experiences do you feel most grateful for?

I love the freedom that being a barrister affords, to pursue other interests both within and outside the law. If I want to teach, or write, or take time off to do something (or nothing) else, no-one is looking over my shoulder (other than my husband, telling me to get back to work). I love being able to make a difference, be it in a courtroom, a classroom, a public debate, or via philanthropy. We must never forget our luck, of living in Australia, with the benefit of a world class education, and all the opportunities that come with that. I believe that everyone in Australia, but particularly anyone of talent, has a non-derogable obligation to make a difference. 

What advice do you have for students who wish to make a splash in media law, given the current circumstances?

The Australian media law community—in academia, law firms and the Bar—is small, but vibrant and collegiate. There is always room for new talent. Be persistent in seeking opportunities for clerkships and work experience. Take on voluntary work at community legal services. Pursue subjects in the Melbourne Law Masters program. And, while a junior lawyer, don’t begrudge any file dumped on your desk.

How are you staying occupied in your down time? What books are you reading? Do you have a favourite TV show that is keeping you going at the moment?

Adjusting to isolation during the covid-19 crisis has been, um, interesting, as I’m sure everyone has found. I’ve just finished two terrific autobiographical novels by Philippe Besson, Lie with Me and A Certain Paul Darrigrand, as well as Andrew Sean Greer’s Pulitzer Prize winning novel, Less. All highly recommended. On TV I loved The Capture and Stateless, both on ABC iView, and Succession (Foxtel). My guilty pleasure is RuPaul’s Drag Race (Stan).