NSWCCL opinion: David McBride should be protected not prosecuted.

"My name is David McBride. I am facing 50 years in prison for blowing the whistle on the Australian Defence Force's unethical, harmful and highly politicised leadership which fostered a culture of impunity in Afghanistan."

David McBride is in court this week. 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, 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. Both McBride and the ABC were completley vindicated in November 2020 by the Brereton report which shone a damning spotlight on allegations of horrific war crimes.

NSWCCL has repeatedly called on the attorney general to use his extraordinary powers to intervene and end the prosecution. We are profoundly disappointed that the AG has determined that this prosecution is in the public interest. It is NOT. Whistleblowers who bring information to light must not be subjected to a public show of prosecution under the guise of national security, or be censored because their story may cause embarrassment or cost to those in power. This case proves yet again that whistleblowers are not adequately protected in Australia. 

The Attorney-General’s exercise of discretion to prosecute ought to have gone in McBrides favour given the public interest in exposing wrongdoing. Mark Dreyfus has ducked and weaved, saying his powers to intervene are “reserved for very unusual and exceptional circumstances”, noting that the decision to prosecute is made independently by the commonwealth director of public prosecutions, and pointing to his government’s broader actions to improve whistleblower protections. But that doesn't help David McBride.

The court has denied McBride a public interest defence. McBride argues he had a duty (as a servant of the public in his legal capacity and as a soldier servant to the public) to report the matters to the media. This was after he had exhausted all avenues of reporting to the ADF then AFP.

Yesterday, lawyers for the Attorney General agruged that the information McBride released is so senstive that the jury should not see it. So what will the jury have on front of them to deliver a verdict of guilty or not guilty?  The jury won’t know what unlawful conduct McBride saw that led McBride to report the matters to the ADF and AFP in the first place. If the jury are denied access to substantial parts of the evidence, then public confidence in the administration of justice will take a beating.

We will continue to amplify our message about whistleblower protections. They must be protected, not prosecuted.

David McBride's book in now on the shelves and you can donate to David McBride here.