The prosecution of David McBride for exposing Australian war crime allegations is an outrageous injustice

Henri Scott

July 9, 2023

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Original Source: The Guardian, Kieran Pender and Kobra Moradi

The attorney general must discontinue the case against the former military lawyer and fix federal whistleblowing law

After more than a decade of secrecy and silence surrounding the conduct of Australian forces in Afghanistan, in November 2020 the Brereton report shone a damning spotlight on allegations of horrific war crimes. Credible evidence pointed to Australian forces unlawfully killing 39 Afghan non-combatants, including innocent civilians. In exhaustive and sometimes redacted detail, the inquiry chronicled incident after incident of unthinkable wrongdoing – including one described as “possibly the most disgraceful episode in Australia’s military history”.

It took more than a decade for these alleged war crimes to come to light due to a pervasive culture of silence and cover-ups, including falsified reports and the planting of weapons on dead bodies. Operational reporting was “routinely embellished, and sometimes outright fabricated”, Brereton found.

In this context of secrecy and lies, whistleblowers played a critical role in uncovering the truth about what transpired in Afghanistan. Brereton thanked them in his report. Too often, he warned, “the careers of whistleblowers have been adversely effected”. Instead, the task of cultural change within the defence force required that “their careers be seen to prosper”.

Yet today, David McBride goes on trial in Canberra. No one involved in these serious allegations of war crimes identified by Brereton is yet to face prosecution. Instead, the person who is on trial – McBride – is among those who blew the whistle, highlighting deep cultural problems in the defence force years before the Brereton report.

McBride served two tours in Afghanistan as a military lawyer, in 2011 and 2013. When he became aware of serious, systemic issues within the Australian Defence Force (ADF), he spoke up internally, and then to the police, and then to the minister. Finally, he went to the media, becoming the source for the ABC’s Afghan Files reporting.

In 2018, he was charged on five counts; for the unauthorised disclosure of information, theft of government property, and breaching the Defence Act. His leak precipitated the federal police’s alarming raid on ABC offices. Ultimately the commonwealth director of public prosecutions (CDPP) decided not to prosecute ABC journalist Dan Oakes, but proceeded with the case against McBride.

McBride is defending his case by relying on the Public Interest Disclosure Act, a 2013 law that seeks to protect and empower government whistleblowers. It provides that whistleblowers can lawfully go public in certain circumstances, including when they have exhausted internal complaint mechanisms. If McBride has ticked all the boxes, he will be immune from criminal liability and the case will fall over. But even that would be a pyrrhic victory, given the toll the slow-moving prosecution has taken on McBride after he was first arrested in 2018.

If he fails with his whistleblowing defence this week, McBride will face a jury next year. He could go to jail – for telling the truth.

Whistleblowers should be protected, not punished. The McBride case – together with the prosecution of Richard Boyle, a public servant who blew the whistle on wrongdoing in the tax office – send a chilling message to other Australians who wish to speak up. They undermine our democracy and limit the ability of all Australians to call out wrongdoing.

Punishing McBride for telling the truth sends a warning to serving and future members of the ADF that they must not speak out about internal failures, thereby perpetuating the culture of secrecy and silence. His arrest and trial significantly inhibit the critical task of cultural transformation and reform in the ADF after the Brereton report. It sends the wrong message at a time when Australia should be focusing on accountability for the alleged perpetrators of war crimes and ensuring access to truth, justice and redress for affected communities in Afghanistan.

How can we fully reckon with the misconduct of our armed forces, while we seek to prosecute one of the truth-tellers?

It’s not too late for this madness to end. The CDPP can drop a prosecution at any time. Their task is guided by the public interest – the case against McBride is antithetical to the public interest. If the CDPP won’t act, the attorney general, Mark Dreyfus KC, must do so instead. Dreyfus has the power to intervene and discontinue the case, as he did to end the prosecution of Bernard Collaery in July.

The attorney general must also urgently fix federal whistleblowing law. The shield in the PID Act on which McBride and Boyle are relying is fundamentally flawed. Dreyfus, who introduced the law in 2013, has admitted as much. But his commitment to fixing it has so far been slow and tentative. Law reform must be accompanied by long-overdue institutional progress – the government should establish a whistleblower protection authority to oversee and enforce these laws.

We are rapidly approaching the second anniversary of the Brereton report. The road to accountability and justice for Australia’s alleged war crimes in Afghanistan is a long one, and there remains much work to be done. There is still no plan for redress for victims, nor has a single alleged perpetrator been charged in connection with war crimes (aside from one arrest for intimidation). The prosecution of whistleblower McBride is a backwards step – it should be dropped so Australia can get on with the work of confronting our legacy in Afghanistan.

  • Kieran Pender is a senior lawyer at the Human Rights Law Centre. Kobra Moradi is a lawyer at the Australian Centre for International Justice, which has published information about Australia’s alleged war crimes in Afghanistan in PashtoDari and English

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Written By Henri Scott

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