Whistleblower David McBride expects to be handed a custodial sentence

March 4, 2024
David McBride speaking to supporters in Ngunnawal/Canberra, November 12
David McBride speaking to supporters in Ngunnawal/Canberra, November 12. Photo: Alex Bainbridge

Whistleblower David McBride told Green Left that he is prouder than ever about disclosing material that informed the public about alleged war crimes by special forces in Afghanistan.

As his sentencing hearing approaches, he has no doubt that he will get some kind of custodial sentence, either a prison sentence or an intensive corrective order.

The Sydney Morning Herald reported on February 9 that prosecutors will push hard to have him jailed. “The message to us from the prosecution was unequivocal — that they were seeking a custodial sentence,” McBride’s lawyer Mark Davis told the SMH.

McBride pleaded guilty in November after the ACT Supreme Court made rulings that left him without a defence.

He had intended to argue that his exposure of war crimes was in the public interest, however, the court ruled that his only duty as a military lawyer was to follow military orders, preventing him from making a public interest argument. The court also ruled that he was unable to bring evidence to the court due to “national security”.

McBride exposed war crimes by Australian soldiers which were reported by the ABC as the “Afghan Files”. The Brereton Inquiry later confirmed these crimes, vindicating McBride’s actions in coming forward with the information.

Since then, none of the war criminals have been prosecuted leaving McBride — the person who exposed the crimes — as the first and so far only person to be prosecuted on the matter.

Lawyer and free speech defender Eddie Lloyd told GL that “the case of McBride is a travesty of justice”.

“It is an appalling indictment on our democracy that he is facing over a hundred years in custody for complying with his duty as a legal officer in exposing failures in the investigation of Australian soldiers.

"As a lawyer with legislated duties to the court, the public, and to ensure the efficient administration of justice, David was legally obliged to report the non-compliance with investigation processes by the ADF.

“Instead of buckling under the pressure to turn a blind eye, he made a complaint that to this day has not been properly investigated by Australian authorities.”

McBride told GL: “I’m proud of what I’ve done” and “in some ways I’ve already won.”

He was referring to the fact that he has successfully raised issues that were being ignored but are now “looked at at a deeper level”.

The attorney-general Mark Dreyfus could have stopped the prosecution at any time as he did with the prosecution of Bernard Collaery.

Instead, Dreyfus waited until after McBride’s November trial to release purported whistleblower reforms to parliament. McBride described these “reforms” as “a joke”.

“What whistleblowers really want is accountability for the allegations they raise [whereas] at the moment the government is able to shut them down.”

Lloyd told GL that “the review of whistleblower laws cannot be characterised as reforms”.

“The recommendations maintain and entrench the status quo,” she said.

She explained that the proposed changes “still allow the prosecution of whistleblowers” if the government thinks their actions “harm the effective work of government” or “undermine trust in government”.

“Whether the information harms or undermines trust in government are secret matters the public will not be privy to.

“As we learned in the case of David McBride, any evidence you might seek to rely on to defend yourself can be removed by the Attorney-General’s superpowers before you even get to your trial.”

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