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As David McBride readies himself for trial, his fellow whistleblowers have a message for the government

Henri Scott

November 6, 2023

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Whistleblower and former military lawyer David McBride will soon face trial. (AAP: Mike Tsikas)

Original Source: ABC, Adele Ferguson

A group of high-profile whistleblowers who helped spark royal commissions and change laws have written an open letter to the federal government accusing it of overseeing a broken system that has left whistleblowers exposed to costly legal fees — and worse.

It comes a week before former Afghan war crimes whistleblower David McBride begins his criminal trial in Canberra, which, if found guilty, could result in him serving a life sentence.

Mr McBride was a lawyer in the army who leaked classified information to the ABC that revealed allegations of war crimes by special forces in Afghanistan.

“Far from remedying this injustice, your actions and omissions have only served to exacerbate the predicament of whistleblowers,” the open letter from the group of whistleblowers reads.

Speaking days before the trial, Mr McBride said he felt the cards were stacked against him.

“I’m a soldier,” he said. “But I worry about my family. It will be tough and it will be confronting for them.”

Mr McBride is facing five charges, including disclosing information in breach of the Crimes Act and unlawfully giving classified information under the Defence Act.

“The maximum is 100 years if convicted and the judge is obliged to work his way back from that,” he said. “It’s serious.”

Before going public, Mr McBride lodged an official internal whistleblower complaint, but his concerns were ignored and he turned to the media.

The allegations were backed up by the Brereton Inquiry, which found evidence of war crimes committed by Australian SAS personnel during their service.

“My conscience is clear,” he said. “I believe I did the right thing, but they are very serious charges.”

Whistleblowers exposed

The open letter — composed by individuals including Commonwealth Bank whistleblower Jeff Morris, who helped trigger a royal commission into the powerful financial services sector, and Peter Fox, who helped trigger a royal commission into institutional child sexual abuse — said the Albanese government’s record on protecting whistleblowers was dismal and since it came to power it had done “little except make further promises and offer empty platitudes”.

It said by failing to drop the charges against Mr McBride, the government had given people reason to be wary about speaking up.

“We say to any prospective whistleblowers, do not be a whistleblower under the Albanese government until it starts protecting whistleblowers, instead of prosecuting them.”

The letter said since coming to power in May 2022, the government had not progressed any meaningful protection, and instead, exposed whistleblowers to legal fees in the millions of dollars.

“Three of the undersigned have run up or are running up seven-figure legal bills defending the truth and the victimisation of them because they were a whistleblower; two have lost their homes as a result with a third likely to in the future,” it read.

ATO whistleblower Richard Boyle.(ABC News: Lincoln Rothall)

It described the prosecutions of Mr McBride and ATO whistleblower Richard Boyle as “disgraceful”.

“Both McBride and Boyle tried to act internally before going public. Both exposed serious failures within government that would not have been addressed but for their action. Both have been vindicated.”

Section 71B of the Judiciary Act allows the attorney-general to stop prosecutions that are not in the public interest.

This power was used to stop the prosecution of Bernard Collaery, who was facing charges relating to allegedly revealing details of an alleged Australian spying operation in Timor-Leste during sensitive oil and gas treaty negotiations.

Kieran Pender, a senior lawyer at the Human Rights Law Centre who has been organising rallies, panels and conferences to help beef up protections of whistleblowers as well as lobbying the government to drop the charges against Mr McBride and Mr Boyle, said whistleblowers should be protected not punished.

“An Australian whistleblower is now only a week away from facing trial for blowing the whistle on horrendous wrongdoing. It is profoundly unjust that the first person on trial for war crimes in Afghanistan is the whistleblower, not an alleged war criminal,” he said.

“It is not too late for the government to stop this travesty before it begins — the government must act now.”

Calls for greater protections

In the past few months, there has been a groundswell of public support for better protections for whistleblowers, with campaigns, panels, open letters, online petitions and speeches in parliament by crossbenchers and Greens senator David Shoebridge.

Polling by the Australia Institute in conjunction with the Human Rights Law Centre shows that three-quarters of respondents believe whistleblowers make Australia a better place and even more support stronger legal protections (84 per cent), including the establishment of a whistleblower protection authority (79 per cent).

The whistleblower community has also come out in force. Commonwealth Bank whistleblower Jeff Morris said whistleblowers needed to be protected.

Commonwealth Bank whistleblower Jeff Morris.(AAP: Joel Carrett)

“We are behind David McBride and Richard Boyle. They are honest people who did the right thing and are being prosecuted for it,” he said.

“I speak to David and I think he is putting on a brave front but he has two daughters and it must be taking a toll.”

Mr McBride and his family will head to Canberra on Friday ahead of the opening of the trial on Monday.

On Sunday, a convoy of whistleblowers, former politicians and the public will also head to Canberra to hold a rally in support of Mr McBride as he walks into the courtroom.

“I’m driving down on Sunday in my old Range Rover with Troy [Stoltz, who blew the whistle on ClubsNSW, leaking a report that up to 95 per cent of clubs were failing to comply with anti-money laundering and counter-terrorism financing rules],” Mr Morris said.

“There’s a Woodstock rally that’s been planned at Glebe Park with live music and speeches.”

On Monday, full-page ads will appear in major newspapers, including a full-page wrap in The Age, and a rally will be held outside the courts, with former senator Rex Patrick, Greens senator David Shoebridge, Kieran Pender, and a group of whistleblowers.

But only the government or the Commonwealth Director of Public Prosecutions can stop the trial.

Rex Patrick, who recently launched a public advocacy fund to help inform the public about the prosecutions of Mr McBride and Mr Boyle, said it was crunch time for the government.

Former senator Rex Patrick.(ABC News: Lincoln Rothall)

“There’s some chance that David McBride will go to jail if the attorney-general does not exercise the powers the parliament gave him to use in exactly this sort of situation,” he said.

“The result of … not acting will be one brave whistleblower behind bars and thousands of prospective whistleblowers lost from the community. Where’s the public interest in that?”

Mr McBride is philosophical: “If I have to go to jail, I’ll go to jail with my head held high.”

It’s widely expected that the verdict will create huge media attention and have a chilling effect on future whistleblowers coming forward. 

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Written By Henri Scott

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