David McBride should be protected, not prosecuted

David McBride
Whistleblower David McBride

Many people are concerned that whistleblowers David McBride and Richard Boyle are facing criminal charges for behaving ethically.

Close to 75,000 people have signed a Change.org petition to stop McBride being sent to jail.

McBride, a lawyer in the Australian army deployed in Afghanistan, was concerned about alleged atrocities of ADF personnel. Boyle, who worked at the Australian Taxation Office (ATO) was worried about alleged unethical debt recovery practices being pursued against small business owners.

Both used the Public Interest Disclosure Act 2013 (PID Act) to blow the whistleinternally initially — and then reported their concerns to oversight agencies.

Only as a last resort did they go public — to the ABC.

The Human Rights Law Centre (HRLC) believes McBride and Boyle are being punished for doing the right thing.

Under the PID Act, speaking up publicly “is protected in certain circumstances”, the HRLC said. This is because the law “recognises the important democratic role of the media and its importance as a safety-valve when things go wrong and whistleblowing is not heeded internally”.

McBride’s application for immunity from prosecution under the PID Act in the ACT Supreme Court on October 27 was knocked back. He will face a criminal court sometime in 2023.

McBride blew the whistle on alleged ADF war crimes in Afghanistan in 2016.

His disclosure of classified information led to ABC publishing The Afghan Files in 2017, a series of reports on the ADF in Afghanistan. McBride admits to being the source for the reports. He also accused his accusers of enabling war crimes and seeking to cover them up.

The ABC was raided by the Australian Federal Police in June 2019. Information previously leaked by whistleblowers led to the Inspector-General of the Australian Defence Force authorising the four-year-long Brereton inquiry, which looked into the conduct of Australia’s special forces soldiers, including the alleged murder of 39 Afghans.

A highly redacted version of the inquiry's report was released in November 2020 and then-Coalition government defence minister Peter Dutton set about minimising the transparency changes being suggested by the ADF.

McBride is the only person being charged in relation to the inquiry. He faces five charges, which relate to his disclosure of information to journalists in 2016. These include the unauthorised disclosure of information, theft of Commonwealth property and three counts of breaching of the Defence Act.

“McBride’s case has been shrouded in secrecy due to the Attorney-General’s invocation of the National Security Information (Criminal and Civil Proceedings) Act,” said the HRLC. “It is not presently clear how much of the whistleblowing case, and how much of any ultimate trial, will be heard in closed court or with other restrictions on open justice.”

The ADF argues that McBride is not protected under the PID Act because one of the files he leaked to the ABC contained maps of Afghanistan that “could damage national security”.

Many organisations, human rights lawyers and activists are calling on the Attorney-General to drop the charges against McBride.

The HRLC argues that the Commonwealth Director of Public Prosecutions (CDPP) can end the prosecution of whistleblowers at any time “if they decide that pursuing these cases is not in the public interest”.

Further it said: “If the CDPP refuses to drop the prosecutions, the Attorney-General, Mark Dreyfus KC, retains the power to intervene in exceptional circumstances and discontinue a case. That legal authority was recently used to end the prosecution of Bernard Collaery.”

Dreyfus told an anti-corruption conference on November 16 that the Labor government is “that Australia has effective protections for whistleblowers” and that before year’s end he would introduce a new bill to amend the PID Act.

The amendments “will ensure immediate improvements to the public sector whistleblower scheme are in place before the NACC [National Anti-Corruption Commission] commences in mid-2023.

The HRLC says PID Act does not work now “because it provides no practical support for whistleblowers”. It wants the government to establish a whistleblower protection authority, as recommended by two separate parliamentary inquiries in recent decades, to protect and empower whistleblowers.

Meanwhile, the ABC released a new video in September in which Australian special operation soldiers can be heard talking about killing at least 10 Afghans in one particular night.

They can be heard laughing and saying: “We’ve got a quota of ten. The quota is ten. Will we meet the quota?” Another says: I believe we're going to get the quota.” To which he is met with “Woo!” and “The quota! The quota must be met!”

The video is from late 2012, when the Taliban was Australia’s enemy and Afghan farmers were routinely accused of being with the Taliban.

Afghan-Australian Amir Haidari said in October: “These are serious allegations and tell a lot about the culture of the ADF … It is through such revelations and disclosures that we can hold people in power, especially in the ADF, accountable. Without people like McBride, the Australian public will never know what is being done under their name.”