Military whistleblower David McBride will face trial this week, accused of unlawfully disclosing sensitive information — evidence that Australian soldiers had allegedly committed war crimes in Afghanistan.
If convicted, McBride could face life in prison.
The case has raised questions over legal protections for ‘whistleblowers’, people who share information in the public interest.
Here’s what you need to know.
Who is military whistleblower David McBride?
McBride joined the Australian Defence Force (ADF) in 2009 as a Special Operations legal officer. He was deployed to Afghanistan in 2011 and 2013.
When he became aware of possible war crimes in 2014, McBride tried to raise the alarm internally with the ADF. Next, he went to the Australian Federal Police. After that, he went to the Defence Minister.
When those attempts failed, McBride went to the ABC, which published the allegations in 2017.
An official inquiry chaired by Major General Paul Brereton, which began in 2016 (before the ABC’s reports), found “credible” evidence that dozens of war crimes had been committed in Afghanistan.
The alleged crimes included 39 unlawful murders of civilians or prisoners. The AFP is now investigating the allegations. So far, authorities have charged one person.
A ‘whistleblower’ is an insider who speaks out about suspected wrongdoing.
Whistleblowing often involves revealing confidential information. In official contexts like the army, sharing that kind of information would typically be illegal.
However a law passed in 2013 can protect public sector whistleblowers who speak out on matters in the public interest. So, why is McBride facing prison time?
While the government introduced legal protections for whistleblowers in 2013, politicians have criticised them for being too narrow.
A whistleblower’s disclosure is protected if it is in the “public interest” and if the whistleblower tried to raise the matter internally first.
However, the law has highly complex and narrow rules a whistleblower must follow in order to be eligible for protection. An official review of the laws in 2016 found they were not functioning as intended and that the complexity was “undermining” potential disclosures.
Some politicians highlighted these flaws when the law was debated in Parliament in 2013.
Then-Greens leader Christine Milne said the narrow protections would mean “one wrong step [and] the whistleblower is out on their own, exposed to lengthy and stressful retribution”.
Attorney-General Mark Dreyfus, who drafted the 2013 laws, has accepted these flaws and promised to reform the legislation, but has not yet done so.
McBride took steps to ensure his disclosure would be eligible for legal protection, including raising the matter internally first.
However, the Department of Defence last year intervened to effectively prevent him from seeking legal protection as a whistleblower by excluding key evidence on national security grounds.
Kieran Pender, a senior lawyer at the Human Rights Law Centre who has advocated for McBride, told TDA faulty laws meant whistleblowers “having to defend themselves with faulty shields”.
Pender said cases like McBride’s would have a “chilling effect” on others considering speaking up, and called on Attorney-General Mark Dreyfus or the Commonwealth Director of Public Prosecutions to intervene.
“One of them needs to act so we don’t have a whistleblower on trial facing the very real possibility of jail time for telling the truth. That’s what this is about at its core.”
Last year, Attorney-General Dreyfus ended the prosecution of a different whistleblower in a case where his approval was required. His approval is not required in the McBride case, but he could choose to intervene.
A spokesperson for the Attorney-General told TDA it reserved this power to intervene “for very unusual and exceptional circumstances. As Mr McBride’s proceedings remain ongoing, it is inappropriate to comment further on the particulars of their matters.”
The spokesperson said the Govt planned to make whistleblower laws more “effective and accessible”. Any changes would not apply retrospectively to cases like McBride’s.