Original Source: The Sydney Morning Herald, Lisa Visentin
Former defence lawyer David McBride is ready to go to jail with his “head held high” for exposing alleged war crimes in Afghanistan, but has called for the establishment of an independent federal authority to help others avoid the same fate.
The creation of a centralised agency to oversee and enforce Australia’s whistleblower protections is the key demand of human rights and integrity advocates as Attorney-General Mark Dreyfus prepares to overhaul the country’s protection framework.
McBride, who is facing a jury trial next year over the leaking of a cache of documents to the ABC that formed the basis of its “Afghan Files” investigation, said the reform was “absolutely needed” to support others wanting to lawfully report wrongdoing within their organisation.
“The problem with complaining to your organisation, whether it’s defence or not, is you can’t have your own organisation deciding whether your complaint is valid or not. You need some third party to look at it, and they can then go to the police, or they can advocate on your behalf for some sort of action,” he said.
“If there had been a third party that I could have seen, it could have easily stopped me having to go to the media.”
Federal police raided the ABC’s Sydney headquarters on June 5, 2019, over the leaked documents, which revealed incidents of Australian troops killing unarmed men and children and which were being investigated as potentially unlawful killings.
The subsequent Brereton report found credible evidence of war crimes by Australian special forces while serving in Afghanistan, including 39 murders, executions and allegations of torture.
“I am very possibly facing the rest of my life in prison,” McBride said.
“If I have to go to jail, I’ll go to jail with my head held high.”
He is facing five charges relating to the unauthorised disclosure of information, theft of Commonwealth property and breaching the Defence Act.
Dreyfus last month committed to consulting widely on the need for a whistleblower commission as he introduced the first tranche of reforms to the Public Interest Disclosure Act – the key framework aimed at protecting Commonwealth public servants-turned-whistleblowers from reprisal. The changes are designed to complement the new National Anti-Corruption Commission.
The creation of an independent statutory authority has strong support from the crossbench, including the Greens, ACT senator David Pocock, and independent MP Helen Haines, whose widely respected integrity commission bill in the last parliament included the creation of a whistleblower protection commission.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said a whistleblower protection authority was emerging as international best practice. Similar institutions are operating in the United States and the Netherlands.
“It would provide practical support and guidance to whistleblowers, assist agencies, regulators and companies in managing whistleblower disclosures, investigate alleged retaliation against whistleblowers, and take enforcement action and strategic litigation as appropriate,” Pender said.
He said the ongoing prosecutions of McBride and tax office whistleblower Richard Boyle underscored the failings in the current system.
“Both men tried to do the right thing – they spoke up internally, they spoke up to oversight bodies and only went public as a last resort. If there had been a body to provide them with support, to help them speak up safely and lawfully, they might not now be on trial for telling the truth.”
Victorian barrister James D. Catlin, who specialises in whistleblower cases, said whistleblowers were forced to navigate Byzantine laws on their own, with the process extracting an enormous psychological and financial cost, unless they had a sympathetic lawyer to help them.
“If you’re a whistleblower, you want someone independent, sympathetic and knowledgeable about the unique situations you have been placed in and especially the convoluted untried laws that are meant to be there to protect you. If we have a central agency it’s going to be a repository of such knowledge and experience,” Catlin said.