December 7, 2023

Law and order

David McBride’s guilty plea and the need for whistleblower reform

By Briana Charles
Image of David McBride

Whistleblower David McBride leaves the ACT Supreme Court, Canberra, November 17, 2023. Image © Mick Tsikas / AAP Images

The former army lawyer had no choice but to plead guilty, which goes to show how desperately we need better whistleblower protections

On Friday, November 17, at 4pm, David McBride stood before the ACT Supreme Court and pleaded guilty to three of five charges. Six years of uncertainty for the former military lawyer had preceded this two-syllable word. His lawyer, Mark Davis, said he had been left with “no choice”. 

McBride walked out of court with his assistance dog, Jake. His supporters, some of whom had come from interstate, gathered outside to tell him he was a “hero”, that the law was “broken.” To them, he is a symbol of vigilante justice, speaking truth to power. McBride faced five charges related to the leaking of classified documents to journalists. Those documents formed the foundation for the ABC’s 2017 investigative series “The Afghan Files”, which offered unparalleled revelations into the actions of Australia’s specialised military units in Afghanistan, including accusations of war crimes. The Brereton Report, the result of a significant investigation by the Inspector-General of the Australian Defence Force, subsequently presented evidence that Australian forces had unlawfully killed 39 Afghans during the conflict.

During the pre-trial, Justice David Mossop dismissed McBride’s public interest defence. Prosecutors had argued that soldiers shouldn’t act based on “public interest”. McBride’s appeal for a trial delay was denied. He pleaded guilty due to sensitive evidence risking “national security” if disclosed to the jury. According to both Judge Mossop and Chief Justice Lucy McCallum of the appeal court, the concept of “public interest” was too vague, “ambitious” even, while the speculative nature of “national security” went unquestioned. Andrew Berger KC, acting for the Commonwealth, used a public interest immunity argument to request the redaction of sections of the documents leaked by McBride that are part of the case; these were later viewed in a closed court. The secrecy triggered eye rolls and hand-wringing from activists and lawyers alike. The documents were already leaked. The logic behind such secrecy was not apparent. With no evidence, and no defence, McBride faced an uphill battle. So he read the writing on the wall and pleaded guilty. 

His plea came with a cruel twist of fate. Just 24 hours before, Attorney-General Mark Dreyfus had issued a long-awaited consultation paper, the Moss review, signalling the government’s progression towards implementing reforms aimed at enhancing protections for public sector whistleblowers. “You could call it irony but I would call it tragedy,” said NSW Greens Senator David Shoebridge, who has long supported further whistleblower protections. “If you wanted concrete proof that our whistleblowing laws are broken, we had it today”. 

Senior lawyer for the Human Rights Law Centre Kieran Pender called the consultations “long overdue”, echoing Rex Patrick, the former independent senator and founder of the Whistleblower Justice Fund, who emphasised that Australians’ trust in institutions heavily relies on the crucial role played by whistleblowers. Patrick also struck out at Dreyfus, whom he said had the power to “stop this” but refused to. “Now we have a whistleblower facing years in jail,” Patrick added. The sentiment was mirrored by Craig Andrews, co-convener of Alliance Against Political Prosecutions, who warned that McBride’s case would have a chilling effect on future whistleblowers. “As we’ve seen today, if you blow the whistle, you run the risk of being prosecuted,” said Andrews. 

The Moss review recommends reforms to the laws covering public sector whistleblowers. The plight of private sector whistleblowers, such as Jeff Morris, whose revelations of misconduct at the Commonwealth Bank led to the 2017 banking royal commission, will have to wait to be addressed in a “second stage of reforms” to the Public Interest Disclosure Act that would include “consideration of recent proposals to improve the private sector whistleblowing scheme in the Corporations Act, to ensure alignment between the schemes, where appropriate”. 

Some of the suggested reforms include: a standalone whistleblower protection authority, financial reparations to those who speak out, the strengthening of disclosure protocols, well outlined external pathways, protections, oversights and regulation principles. 

Shoebridge argued for the importance of a protection authority. “Whistleblowers desperately need a well-resourced and independent agency in their corner to speak truth to power, and a standalone commissioner without those resources is a recipe for failure,” he said.

Regarding McBride, however, it remains uncertain whether the reforms detailed in the consultation paper would have shielded him from prosecution, since the review still considers “intelligence documents” as separate to other materials, and thus exempt from the business-as-usual functionality of criminal and civil law. This places McBride’s case in a different category to domestic public sector whistleblowers such as Richard Boyle, who exposed corrupt practices at the Australian Taxation Office. As Shoebridge summarises, “David McBride has faced a situation of heads you lose, tails you lose.” 

Despite some key differences, McBride’s case aligns most closely with that of Witness K and Bernard Collaery, who faced prosecution over the revelation of Australia’s espionage activities in Timor-Leste during oil treaty negotiations in 2004. Both cases were subject to sessions of closed court, where critical elements of a case remain concealed from the accused due to stringent National Security Information Act regulations surrounding secret evidence. It’s a practice that Colleary’s lawyer has argued “should be banned”. In a regular trial, there are two legal teams: defence and prosecution. However, in an NSI Act trial, three teams exist, the third being the Commonwealth’s representation to prevent the disclosure of classified information. Witness K admitted guilt for violating secrecy laws, receiving a three-month suspended prison term in June 2021. Collaery contested the charges in a prolonged and costly legal battle, and in mid 2022, Dreyfus dropped the prosecution against him. McBride, with limited financial resources, might struggle to afford further legal assistance. But the Collaery case might offer some optimism regarding his sentencing, due to begin in March, and with the court considering an intensive corrections order assessment, there lies a real prospect of avoiding lock-up. 

The classified nature of McBride’s evidence raises broader questions about Australia’s democratic foundation. With growing concerns about press freedom and, in many states, the introduction of draconian anti-protest laws, the devil will (or won’t) be in the details of McBride’s sentencing. 

Briana Charles

Briana Charles is a journalist from Melbourne, who writes about social affairs, geopolitics and corporate accountability.

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