The threat last week by One Nation Senator Malcolm Roberts to report Fairfax Media journalists to police for stalking, raises some interesting questions. Last Thursday the Senator’s senior media adviser, Sean Black, threatened to complain to police about what he called “continued pestering” and “harassment”. His claims followed allegedly persistent emails from journalists seeking answers from Senator Roberts about renunciation of his UK citizenship, in the context of the broader dual nationality debate. Mr Black reportedly told Fairfax Media to “stop the harassment” and warned that further “pestering or harassment” would be referred to the Queensland Police Service for prosecution.

He just may have a case. Any intentional and detrimental act of persistently following or approaching someone, or contacting them by telephone or email or otherwise, or even just hanging around their home or workplace, without their permission, can constitute unlawful stalking under Queensland’s Criminal Code, an indictable offence that carries up to five years’ imprisonment, and in some cases more.

The legislation came into sharp focus some years back when I was acting for the then-leader of the Australian Democrats Cheryl Kernot, who was besieged by highly-animated, persistent and unwanted attention from reporters whilst attempting a quiet sojourn on the Gold Coast. Fortunately, in that case good sense prevailed, and everyone ultimately calmed down.

But overly robust reporting could potentially constitute the crime of stalking. Certainly not all such behaviour is caught by the legislation, and journalists are no doubt permitted some scope in chasing their targets for answers. Normal journalistic endeavour, including necessarily persistent investigative efforts, will be arguably exempt from criminal sanction under the stalking laws. But it’s a fine line, and journalists need to be careful. Reasonable conduct engaged in by a person as an incident of their lawful occupation is excused. But the question is what is reasonable in all the circumstances.

Not so long ago I was involved in a court case in Melbourne where my high-profile client was besieged by an almost-frenzied media scrum when leaving the courthouse. In the process reporters and cameramen physically pushed people aside, including several females, in order to get to the star of the show. One lady cried out in obvious discomfort when a hell-bent paparazzo trampled her ankle and foot, leaving her hobbling in pain. We’ve become accustomed to current affair footage of journalists pushing their way onto premises ignoring repeated requests that they leave, or chasing people down alleyways, demanding “What have you got to say for yourself?” Such antics may well cross the line of reasonable conduct.

So Senator Roberts’ situation is an interesting case in point. Having firmly evinced an intention not to discuss the matter at hand, was he entitled to be then left alone? Everyone has a right to silence and anyone, even a politician, has the right to refuse to comment on a particular subject. So once they have made their position abundantly clear, are persistent approaches by telephone, email or otherwise, designed to effectively bully a response out of them, within the realms of reasonable conduct?

In an ever-more-competitive world of news reporting, no doubt we’ll soon have an answer.

Chris Nyst, Lawyer, Novelist and Film Maker

Chris Nyst - Criminal Lawyer