The long-awaited trial of former Australian Defence Force lawyer David McBride was short-lived.
The end of a winding road
His concerns had included Australian soldiers being sent to Afghanistan by a government he believed was more concerned with politics than the troops. Interestingly, the court heard last week McBride was also concerned about the “over-investigation” of misconduct by special forces.
That report, released in November 2020, recommended the chief of the Defence Force refer 36 matters relating to 25 incidents and involving 19 individuals to the Australian Federal Police for investigation.
So far, the only charges to have been laid as a result of these investigations are against McBride himself. A brief of evidence was also prepared against ABC journalist Dan Oakes, though the Commonwealth Director of Public Prosecutions declined to prosecute Oakes on public interest grounds.
It took four years for McBride’s case to get to court. Delays due to the pandemic and issues around maintaining the secrecy of classified information in court prolonged this process.
Eventually, the Department of Defence claimed public interest immunity over key information. This allows the government to withhold evidence (such as classified material) from the court on public interest grounds.
It means neither party can rely on the information.
This strategic decision meant McBride faced difficulties establishing key aspects of his whistleblower case. This included whether the information revealed relevant wrongdoing, his attempts to tell the department or police about his concerns, or whether the extent of the disclosure was necessary to establish wrongdoing.
On the other hand, the information McBride disclosed was security classified defence material that journalists were not authorised to receive. It is, therefore, not particularly surprising that he pleaded guilty to disclosure offences.
His only hope had been to avoid prosecution by grasping the shield of whistleblower protections.
What next for McBride?
There is a chance the court will show leniency in sentencing, taking into account the demonstrated public interest in McBride’s disclosures.
They were not covered by whistleblower laws because the legislation does not apply to intelligence information, and also pleaded guilty to secrecy offences.
Alternatively, the judge may not be swayed by the public interest in McBride’s disclosures and McBride could face a lengthy jail term.
The length of any jail term will depend on a number of factors, such as:
the extent of information disclosed
the deliberate nature of the disclosures
a need to deter future disclosures of classified defence information.
What does this mean for whistleblowers?
The punishment of McBride would have tragic impacts on whistleblowing in Australia.
The importance of whistleblowing has been recognised in Public Interest Disclosure Acts across Australia, protecting whistleblowers from reprisals, victimisation and prosecution.
The importance of these protections is heightened in recent years by the government’s willingness to prosecute whistleblowers such as Richard Boyle (who accused the Australian Taxation Office of using aggressive tactics to retrieve money), David McBride, and Witness K for calling out government wrongdoing.
The protections are yet to be tested. McBride’s case would have been the first opportunity to see how courts interpret and apply whistleblower law.
But the government’s decision to withhold information from court stopped these laws from being tested.
It’s easy to see how the government’s reaction to McBride’s decision to blow the whistle will deter future whistleblowers, sending a bad message about transparency, accountability and the importance of calling out wrongdoing by those in positions of power.
- ^ alleged Australian war crimes (www.abc.net.au)
- ^ all but dismantling (www.theguardian.com)
- ^ guilty (www.abc.net.au)
- ^ How and why Australian whistleblowing laws need an overhaul: new report (theconversation.com)
- ^ charged in 2019 (www.theguardian.com)
- ^ politics (www.afr.com)
- ^ “over-investigation” (www.abc.net.au)
- ^ culture of cover-up (www.abc.net.au)
- ^ Afghan Files reports (www.abc.net.au)
- ^ Brereton report (www.defence.gov.au)
- ^ declined to prosecute (www.theguardian.com)
- ^ next year (www.abc.net.au)
- ^ Witness K, (www.abc.net.au)
- ^ Tax office whistleblowing saga points to reforms needed in three vital areas (theconversation.com)
- ^ most important way (parkesfoundation.org.au)
- ^ Fitzgerald inquiry (www.ccc.qld.gov.au)
- ^ Richard Boyle (www.theguardian.com)
- ^ aggressive tactics (www.abc.net.au)
- ^ its improvement (parkesfoundation.org.au)
- ^ intelligence and defence (classic.austlii.edu.au)
- ^ press freedom (law.uq.edu.au)
- ^ It's a new era for Australia's whistleblowers – in the private sector (theconversation.com)