In the ACT Supreme Court today, a judge will open the first trial in relation to war crimes committed by Australian special forces in Afghanistan. But the man in the dock is not any of the soldiers accused of executing civilians in cold blood. It is David McBride, the military lawyer who blew the whistle and helped publicly expose the allegations.
McBride was working with the military when he saw evidence of war crimes and took his concerns up the chain of command. He was worried that the “operators” — the soldiers working in the field — would take the blame for what he ultimately regarded as lousy leadership. But when nobody responded, he went to the Australian Federal Police (AFP), and when still nothing happened, he finally went to the ABC with a dossier that it eventually published as the “Afghan Files”.
The files were explosive. They exposed details of how SAS soldiers allegedly executed unarmed men and boys. Some marked AUSTEO — “Australian Eyes Only” — spoke of “problems” within special forces, an “organisational culture” including a “warrior culture” and a willingness by officers to turn a blind eye to poor behaviour.
Years later, the Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry, known as the Brereton Report, vindicated all that McBride complained of, and referred numerous cases to the AFP for criminal investigation.
So why is the lawyer-turned-whistleblower facing charges that could send him to prison for the rest of his life?
McBride is facing five charges, including one of theft of Commonwealth property (the reams of paper documents that he handed to the ABC), two of unauthorised disclosure of information under the Crimes Act, and two of breaches of the Defence Act. McBride has pleaded not guilty. But he has openly acknowledged that he was the ABC’s source, and the documents likely included information that breached those other two laws.
McBride is therefore expected to argue that he was acting in line with his highest responsibility as a public servant, literally serving the interests of the public by exposing patently bad behaviour, rather than the Defence Department which was interested in maintaining secrecy.
In October last year, McBride was forced to withdraw a formal “public interest” whistleblowing defence when it became clear that if he pressed ahead, the government would seek to prevent him from using relevant evidence under national security laws. This is absurd, given that the whole point of the Public Interest Disclosure Act is to, well, protect disclosures that are in the public interest.
Attorney-General Mark Dreyfus insists he believes in transparency in government, yet has refused to exercise his power to drop the charges and send a clear signal that he is genuine about reforming the culture of secrecy that has infected the Australian government.
Dreyfus has acknowledged that the system is not working as it should and ordered two separate reviews — one of the Public Interest Disclosure Act and the wider ecosystem of support for whistleblowers, and another of national security-related secrecy laws to see how they can be amended to protect press freedom. Both are laudable, but meaningless as long as McBride remains on trial.
To be clear, McBride’s case is a serious foundational challenge to our democracy. As a coalition of civil society groups recently told a parliamentary inquiry: “Presently, in Australia, the balance between secrecy and transparency is unjustifiably and undemocratically tilted in favour of secrecy.”
To deal with the problem, the government needs to make at least three substantial changes. First, it needs to follow through with its commitment to reforming whistleblower laws, dramatically strengthening the public interest test, and establishing an independent whistleblower authority to support people such as McBride.
Second, it needs to introduce a media freedom act that effectively enshrines the media as the whistle-of-last resort, with a hard-wired presumption in favour of publishing. My organisation, the Alliance for Journalists’ Freedom, is working on a draft that we believe would dramatically shift that culture of secrecy.
We are not arguing the media should have the right to publish whatever it wants regardless of the consequences, but investigators would be obliged to show a compelling overriding public interest in investigating a journalist’s sources and suppressing publishing.
If those changes were in place before the ABC published its “Afghan Files”, it is hard to see how the government could prosecute genuine whistleblowers acting in the public interest.
Which brings me to the third change Dreyfus needs to make: don’t let a whistleblower go to jail.
