It is a gross injustice to Mr Moselmane.  Beyond gross.

The attacks on Mr Moselmane began months before the raids, with journalists and shock jocks being backgrounded to demonise him.   Sky News’ Peta Credlin broadcast “If we really have foreign agent laws, why isn’t Moselmane being looked at?”  She knew very well that he was being lined up.  Another leak by his opponents.  Another crime which will go uninvestigated.  Not much moral courage to be seen.

Stuart Rees’ article about the woefully shabby treatment of Mr Shaoquett Moselmane deserves to be widely read.  Rees wrote about the need for moral courage both in personal relations and more broadly.  Moral courage is a surprisingly rare but extremely precious commodity in our polity and our society.  The media hails sports stars and military people as heroes. The true heroes are those who demonstrate moral courage.

Rees’ article shows the woeful lack of moral courage demonstrated by NSW Opposition Leader, Jodi McKay in relation to Mr Moselmane.  She rushed to distance herself and the Labor Party from Mr Moselmane at the first suggestion that ASIO and the AFP were raiding him in relation to the iniquitous and sinister sounding foreign interference laws.  Regrettably such a knee jerk reaction has become pretty standard for Labor leaders.  They are reduced to quivering jelly by the very mention of ASIO or security.  But even having had all this time since the raids to reflect, and having heard from the AFP that Mr Moselmane was never a suspect nor a person of interest, the best McKay could say was that she welcomes him back to the NSW Parliament and to the ALP, but: “If new information arises in the future, I will be prepared to take appropriate steps.”  With leaders and colleagues like McKay, Mr Moselmane should look elsewhere if he craves loyalty and moral courage.

A frequent deplorable modern phenomenon that was seen in the raids on Mr Moselmane is the media scrum accompanying the raid – obviously tipped off by the AFP or ASIO or both or their political or bureaucratic masters.  Not just tipped off, but also given background briefings with all sorts of material which would never be admissible in a court and which will inevitably be very adverse to the person raided – both to their general reputation and to their prospects for getting a fair trial.  For example, the Sydney Morning Herald’s report of the raids said:  “One intelligence community insider who spoke on the condition of anonymity as they are not authorised to speak to the media said multiple warrants had been acted on in NSW in an attempt to gather evidence about the alleged plot [by the CCP to influence Mr Moselmane and others in Mr Moselmane’s office]. A second source with knowledge of the inquiry said it had begun as a narrow ASIO probe but dramatically widened.”

Michaelia Cash’s media adviser paid with his job for tipping off the media to raids on the Australian Workers Union by the AFP.  Those raids were designed to embarrass then Federal Opposition Leader, Bill Shorten.  In that case, the Federal Court determined that the investigation of the AWU was invalid because there were “no reasonable grounds” for the investigation.  In the aftermath of those raids, Cash infamously hid behind whiteboards, was a no-show at her own media conferences, and failed to attend to make statements to the AFP about the tip offs.  The tip offs were so well organised that the media turned up for the raids even before the AFP did.

The tandem media scrum/raid phenomenon is deplorable because it is such an effective media stunt which falsely says that the target of the raid – whether it is the AWU or Mr Moselmane or whoever – is guilty of whatever crime the media has been tipped off – and backgrounded – about.  For example, hundreds of thousands of people would have concluded – quite wrongly – from the media reports of the raids that Mr Moselmane was guilty of the terribly sinister crime of undermining Australia’s security by foreign interference.  Having ASIO involved in the raids makes them so much more newsworthy and sinister sounding than just a police raid.

The tandem media scrum/raid phenomenon is also deplorable because it goes entirely against the fundamental foundations of our criminal justice system.  The police (and in recent times, also ASIO) have powers to compulsorily collect information and evidence where they reasonably suspect that a crime has been committed.  That information, if on examination it appears to be legally admissible and sufficiently persuasive, might form the basis of a brief to the Director of Public Prosecutions, with a request that the DPP examine the brief.  The DPP might, if she concludes that the brief demonstrates that a crime has probably been committed and which can probably be proved beyond reasonable doubt in a court of law, might take it to a committal hearing.  The committal will decide if there is a strong enough case for the matter to go to trial before a jury.  After all those processes, if the case is strong enough to survive, a jury will decide on the guilt or innocence of the accused person.

It follows that the media circus which has been orchestrated by the AFP or ASIO or Michaelia Cash’s office or whoever is a quite improper attempt to con the public into believing that all those processes after the raid are just window dressing.  The tandem media scrum/raid phenomenon is a deplorable contempt of the criminal justice process and should be stamped out as being a contempt of court.

It’s only now – five months after the highly publicised raids on Mr Moselmane – that a few people who read obscure articles in the non-mainstream media learn that the AFP has said that Mr Moselmane was never a suspect nor a person of interest.  It is a gross injustice to Mr Moselmane.  Beyond gross.

Very likely offences are being committed by the people who are tipping off the media about these matters (“One intelligence community insider who spoke on the condition of anonymity as they are not authorised to speak to the media”). We all know that the chances of anything being done about those offences are nil – unless the Federal Opposition or a major union has reason to take up the cudgels, as in the Cash/AWU/Shorten case.  Jodi McKay won’t say boo to this goose.  Not even if it were a day old bantam.

Rees’s article suggests that the attacks on Mr Moselmane began months before the raids, with journalists and shock jocks being backgrounded to demonise him.   Sky News’ Peta Credlin broadcast “If we really have foreign agent laws, why isn’t Moselmane being looked at?”  She knew very well that he was being lined up.  Another leak by his opponents.  Another crime which will go uninvestigated.  Not much moral courage to be seen.

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Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

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