The rise of the Albanese government spared hopes of a new deal for people blowing the lid on government malfeasance. It isn’t working out that way for one prominent whistleblower, writes Callum Foote who interviewed David McBride. Says McBride, the government is wrongly using national security to stop the reporting of crime.
It wasn’t the first time David McBride, a soldier and military lawyer, had experienced another defeat at the hands of the government. But last week he was dealt a bitter blow.
McBride is a whistleblower who is being prosecuted after leaking details of alleged war crimes committed by Australian soldiers in Afghanistan to the ABC. These documents came to be known as “The Afghan Files” and the release of this information led to a police raid of the ABC headquarters in June of 2019 and The “Brereton Report,” which alleged that Australian Defence Force personnel had killed 39 Afghan civilians.
Last Thursday, in a hearing in the ACT Supreme Court, McBride’s lawyers withdrew his application for protection under the Public Interest Disclosure Act. This came after Commonwealth lawyers made a public interest immunity claim, which has prevented McBride from using evidence from two key witnesses who were essential to his defence, McBride’s lawyers say.
According to Kieran Pender, a senior lawyer in the Democratic Freedoms team at the Human Rights Law Centre: “Last-minute legal interventions forced McBride to abandon his whistleblowing defence”. Pender labelled the decision a “travesty”.
Mr Attorney-General, discontinue this prosecution!
“The use of a public-interest immunity claim to prevent evidence being put before the court, in proceedings where the NSI Act had already been invoked to protect national security, raises real questions,” he said. Pender called on the Attorney-General to discontinue the prosecution.
It is within the power of the Commonwealth Director of Public Prosecutions to halt the prosecutions if it is decided that they are not in the public interest. Barring that, the Attorney-General can also step in, as was recently used to end the prosecution of Bernard Collaery.
McBride told MWM that there are obvious problems with the impartiality of the office of the Attorney-General.
“It’s frustrating that positions such as the Attorney-General are meant to be impartial, but they never take the whistleblower’s side, they always take the government department’s side without looking into the facts first,” he said.
The Attorney-General’s office never looks at the merits of the case, they just get told that this guy is an enemy of the department, go for it. The Attorney-General only changes tack under public pressure such as in the case of Bernard Collaery.
The outcome is frustrating, to say the least, for McBride, who told MWM: “The government has responded to me saying that the government is carrying out illegal acts by committing further illegal acts and there is nobody there to help me.
Using national security as a label to stop the reporting of crimes is obviously in itself a crime. But nobody will listen to me because I’m a whistleblower.
The government has promised further protections. Rights experts have called on the government to establish a whistleblower protection authority, as has been recommended by two separate parliamentary inquiries, to protect and empower whistleblowers.
Attorney-General Mark Dreyfus has thus far refused to articulate a timeline for establishing such a body which, for McBride, makes it hard to take the government in good faith.
A suspicious omission
“Considering [the government] has ongoing whistleblower cases, despite having promised further protections in the National Anti-Corruption Commission bill they’ve suspiciously left out a whistleblower protection agency,” McBride said.
Why wouldn’t they do that? What downside for the government in not legislating one? It’s hard not to think that they have bad intentions by not doing it given they haven’t even explained why.
McBride’s trial will be held next year, in the meantime, it remains to be seen if public pressure will build enough for the Attorney-General to step in as he did for Bernard Collaery.
Alternatively, the joint select committee on National Anti-Corruption Commission Legislation which will advise the government on how best to implement the NACC may well advocate for a whistleblower protection authority.
Independent MP Helen Haines, chairing the committee, and Greens senator David Shoebridge who is on the committee, have previously heavily advocated for such a body to be established at the federal level.