The prosecution of David McBride for releasing what were termed “The Afghan Files” relating to war crimes committed by Australian soldiers has long been held to be another example of government overreach and the demonstration of the clear need for better protection of whistleblowers.
While that may still be the case — indeed, Labor has already overhauled whistleblower protections once since coming to office and is planning another tranche of reforms — the circumstances of McBride’s whistleblowing are becoming better known to the consternation of those who thought his was a straightforward case of a whistleblower persecuted.
You could see this on social media at the weekend when Karen Middleton, who knows more than most about the war in Afghanistan, pointed out on Insiders that McBride’s initial motivation for revealing the material was out of concern about the frontline perpetrators of crimes in Afghanistan being prosecuted — a statement that caused visible consternation among the Twitterati. As Middleton pointed out, this is clear from material that is publicly available, including from his legal team.
McBride’s prosecutors made much of this point in their successful attempt to persuade the ACT Supreme Court (with trial judge Justice David Mossop, who also presided over the Bernard Collaery trial) to reject McBride’s argument that his conduct was in accordance with Section 73A of the Defence Act.
… the Crown will say that the evidence establishes that he gave documents to journalists, hoping they would support his position that special forces troops were being investigated when there was no proper basis to investigate them. The second step is whether that disclosure was in the public interest, and the Crown would still say that purporting to disclose over investigation of special forces troops was not in the public interest. The fact that some journalists used the documents to publish what was, to quote the accused’s comment in his record of interview, ‘The opposite of what I believed,’ does not elevate the public interest at the time of the disclosure.
Since then, this point has become clearer. McBride’s lawyer Mark Davis told ABC’s RN this week in response to a question about his intentions:
He had in effect two intentions, and it lies within the material itself. It’s correct. This is one of the complexities of McBride. His initial complaint, the thing that angered him most, was what he thought was inappropriate charging of soldiers for war crimes, that these were trivial incidents. And suddenly he’s being ridden very heavily to prosecute people. And he says, ‘Well, they haven’t done anything.’ So … absolutely it was in defence of Australian soldiers that he kicked off his actions.
Now, the “complexity” of McBride’s intentions isn’t relevant to the way the federal government blocked him from using evidence that would have enabled him to access potentially stronger defences available under the Public Interest Disclosure Act (PIDA) as Kieran Pender pointed out yesterday in Crikey. As Collaery’s persecution by the Coalition revealed, the Commonwealth is hostile to defendants availing themselves of any documents and evidence that can be deemed related to national security — validly or not, we can never know.
Nor does the specific discussion and court ruling — which led to McBride’s guilty plea — relate to the circumstances under which a whistleblower can obtain protection under PIDA, except via the importance in PIDA of disclosures being in the “public interest”.
What it does go to, however, is the motivation of whistleblowers. If McBride is to be judged on his motivations, that opens up a problematic area in whistleblowing. PIDA has already been amended once to address a problem that emerged in the years after Attorney-General Mark Dreyfus introduced it under the previous Labor government (and one identified in Philip Moss’ 2016 review of the act): that most of the “disclosures” made under the act were workplace grievances rather than serious misconduct.
As many journalists and politicians of all stripes know, a large proportion, perhaps the majority, of people coming to them as “whistleblowers” are parties in workplace disputes who feel aggrieved — rightly or wrongly — and believe their treatment is serious misconduct that requires investigation. Many have grievances of many years’ standing, having failed to obtain satisfaction anywhere else. That is, their intention is both to expose what they believe is misconduct, and to secure personal vindication.
Many whistleblowers are also deeply traumatised by the treatment they have endured in their workplaces. Their careers have been ruined or derailed, they’ve lost work and suffered financially, they’ve gone through divorces and lost families. The reprisals that are ostensibly banned under PIDA, and which are the inevitable lot of whistleblowers still, have wrecked their lives. Their mixtures are rarely purely focused on the public interest in revealing “disclosable conduct”.
The PIDA seeks to avoid this issue by focusing on the conduct revealed, not the motivations of the discloser. But as the McBride case demonstrates, once the concept of “public interest” is introduced, it potentially allows prosecutors to critically appraise the conduct and intention of the discloser and invite a court to conclude that their disclosure “does not elevate the public interest at the time of the disclosure”.
McBride wasn’t the perfect whistleblower. But there are few of them. The law should recognise this if we’re to achieve what Moss called a “pro-disclosure culture”.
