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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

David McBride is the first Australian who could face jail in relation to alleged Australian war crimes in Afghanistan.

But he didn’t commit them, he’s just the person who leaked documents containing the allegations to journalists.

Last week, after a dramatic attempt to keep his legal defence alive – he ultimately decided to plead guilty.

Today, contributor to The Saturday Paper, Chris Wallace, on what the failure of David McBride’s case means for truth and transparency in Australia.

It’s Wednesday, November 22.

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ANGE:

Chris, The criminal trial of David McBride was supposed to begin this week, but at the very last minute, it all came to an end when he pleaded guilty. So can you tell me what happened inside the courtroom?

CHRIS:

It was a pretty fraught few days for the McBride camp. The ACT Supreme Court was the setting for the hearing…

Of course, he arrived for a huge demonstration, greeting him in support. There was a piper. There were people blowing whistles, a lot of excitement.

David was brought into the court with his support dog, Jake. Very cute little black and white staffy and went in with his legal team. And for two days the court heard before Judge Mossop a directions hearing in which the Crown's brief Patricia MacDonald SC, argued that it was an open and shut case.

The role of the Directions hearing was for Judge Mossop to decide what arguments he would allow a jury to hear once a jury was impanelled. There was also a parallel thing going on on Wednesday. A lawyer for the Australian Government sought to suppress documents that David MacBride wanted to call in his defence.

And then mid-week, Judge Mossop handed down his ruling that there was no foundation in law in the argument that the McBride camp wanted to run in David McBride's defence. He found there was simply no basis in law for the idea that a soldier had multiple duties that could possibly conflict with their duty to obey orders under the relevant laws.

So at that point midweek, essentially the McBride defence collapsed. And in a moment of high drama when everybody thought the whole thing was all over. Stephen Odgers SC for McBride got up and asked Judge Mossop whether he could appeal Mossops directions directly to the Supreme Court. So on Thursday, the whole thing ended up in front of the ACT Supreme Court Chief Justice Lucy McCallum, and she decided in the afternoon that there simply wasn't enough reason to think that Judge Mossop had been wrong in his ruling to disallow that argument.

Audio excerpt – Journalist (The Guardian):

“When the court decided for one of the final times that his defence - that he was acting in the public duty, in the public interest of telling people what he believed was happening in Afghanistan - the court said ‘no, actually we don’t believe you did have a public duty’, he kind of ran out of options…”

CHRIS:

And in light of that, on the Friday David McBride decided to plead guilty to three counts of the five counts that he was charged with, and with that it was pretty much all over.

Audio excerpt – David McBride:

“I stand tall, and I believe I did my duty, and I don’t see it as a defeat, I see it as the beginning of a better Australia…”

ANGE:

And Chris, if we go back a bit, can you tell me a bit more about these charges and where this story all began?

CHRIS:

So David McBride was a long time ADF officer, but he eventually ended up in the Australian Defence Force as an Army lawyer. He was a major. He served in Afghanistan twice and he was all about military justice.

And in Afghanistan, one of his jobs was to basically explain to soldiers and make sure that essentially killings were legal, not illegal. And of course, that's a heavy responsibility for anyone to bear. He became increasingly troubled over time by potential Afghan war crimes by Australian SAS soldiers.

McBride Defenders say, in fact, his concern was the uneven application of the law by the ADF in Afghanistan. Some soldiers over-investigated, other soldiers not investigated at all.

But David McBride leaked, apparently to four journalists, a few hundred documents between them and the ones that really became prominent related to an ABC story called The Afghan Files, which alleged SAS war crimes by Australians in Afghanistan on the basis of some of the documents that he'd provided to journalists Dan Oakes and Sam Clark.

Dan Oakes and Sam Clark obviously took these documents. And whether or not that was McBride's motivation, they could see in the documents a really horrendous story. Run with it, got it to air. Now, The Afghan Files story was an absolute sensation.

Audio excerpt – News Host (ABC):

“The stories by ABC investigative journalists Dan Oakes and Sam Clark revealed allegations of unlawful killings and misconduct by Australian Special Forces in Afghanistan. They were based on hundreds of pages of secret defence documents leaked to the ABC.”

CHRIS:

And led to an Australian Federal Police raid on the ABC's offices in 2019.

Audio excerpt – News Anchor (ABC):

“And there's a raid happening right here at the ABC right now, just 100m or so that way. And that a report is named in the warrant, Dan Oakes and Sam Clark. They're part of the national reporting team here at the ABC…”

Audio excerpt – John Lyons (ABC):

“The AFP arrived here at about 11:30, three AFP officers at the front of the ABC in Sydney, with a warrant…”

CHRIS:

So that was the big dividend from McBride's legs in terms of serious matters coming to public interest. And there's no doubt The Afghan Files had a huge impact as a story. And of course, it raises the interesting theoretical question of whether a whistleblowers motivation is relevant or not to the way they're eventually used. Maybe it's the the actual impact of the information rather than the whistleblowers intention that's relevant. Or maybe the motivation is relevant. These are all things as yet untested, all things that have arisen from the McBride case that I just kind of still out there unresolved because the case didn't go ahead, but rather ended with a guilty plea.

ANGE:

So McBride's whole defence was struck down when it was ruled. He couldn't argue he had a duty to the public. Now that he's plead guilty, is that it for the case? It now goes for sentencing?

CHRIS:

Yes, that's what's going to happen. There's also going to be an appeal. His solicitor signalled there'd be an appeal over the suppression of some documents that he would have used in his defence. The Commonwealth argued during that documents hearing that of the 400 something documents concerned, they were only bothered with eight of them and wanted to either pull the document or take that significant part of eight documents out of 400. And in fact that it was a very tiny amount of material they were concerned to keep confidential.

And the Commonwealth brief argued that that was absolutely essential in order to preserve Australia's good reputation as an international intelligence agency partner that other countries could trust information with.

Again, we'll never know because we can't see the documents. McBride's lawyer did dramatically say after one part of that hearing, no one's allowed to know if anything are they? So, you know, there were a lot of very heightened feelings when that particular documents hearing went into closed court mode. In fact, there were some jeers from the public gallery, from people saying you can't have justice in in private, in secret. So it was a it was a big week.

But while David McBride is now facing actual jail time, the Albanese government has moved into phase two of its whistleblower reform project, releasing a discussion paper the very week McBride was in court on what are the next steps in strengthening whistleblower provisions in the Australian law.

ANGE:

After the break, why the government hasn’t intervened on the case of David McBride.

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ANGE:

Chris. We're talking about the prosecution of ADF whistleblower David McBride. Now the Attorney-General Mark Dreyfus has been asked to intervene in his case a number of times. What is he and the Government have to say?

CHRIS:

Yes, there's been a massive public relations campaign by the Human Rights Law Centre and others. Lawyer Kieran Pender from the Human Rights Law Centre has been heavily involved in that.

Audio excerpt – Kiean Pender:

“The Brereton inquiry itself said that whistleblowers in the defence force needed to prosper rather than be punished, and yet the first person to face trial in relation to Australia’s war crimes in Afghanistan will be the whistleblower David McBride in November, and not any of the alleged war criminals. That is manifestly unjust…”

CHRIS:

The Human Rights Law Centre, of course, is concerned that legal action against people like McBride has a chilling effect on other whistleblowers coming forward.

To me personally, it was a mystery why Attorney-General Mark Dreyfus would not intervene in this case in the way that he did shortly after the Albanese office won office in 2022, when the Attorney-General moved to get the case dismissed against Bernard Collaery, who was famously the solicitor representing Witness K in another trial about misuse of Commonwealth documents.

Dreyfus maintained a stony silence on the issue until last week in Parliament; he actually got up and explained why he had done nothing.

Audio excerpt – Mark Dreyfus:

“If the Commonwealth Attorney-General intervened in a prosecution as a result of public or political pressure. That could have a range of far reaching consequences. It could call into question the Attorney-General's motives. It could politicise the prosecution process. It could undermine the independence of the Director of Public Prosecutions…”

CHRIS:

And I gather, of course, this particular concern that if there was a change of government, that that could be even misused in a political sense.

Audio excerpt – Mark Dreyfus:

“Any suggestion that an Attorney-General should intervene in prosecutions routinely or has some kind of permanent standing supervisory, ongoing jurisdiction in circumstances that are not truly exceptional should be strongly resisted?”

CHRIS:

However, when for the Crown, Patricia MacDonald SC got up and mentioned once on Monday and once on Tuesday, the Crown's contention that far from whistleblowing on Afghan war crimes, McBride was in fact concerned that soldiers were being investigated too much, not too little. That put another complexion on and may in fact partly explain Mark Dreyfus reluctance as Attorney-General to get involved at all.

ANGE:

And separately to David McBride's case. Chris, how is the Government responding to this increased call for improvement of whistleblower protections in Australia?

CHRIS:

Well, that's the ironic thing, is that last week was also the week that Mark Dreyfus as Attorney-General, released a discussion paper on phase two of the Albanese Government's whistleblower reforms. And the irony would not have been lost on David McBride, who of course last year tried to get protection under existing whistleblower laws that had already been strengthened once by the Labor government and had not been able to take advantage of all those laws because the documents he claims he needed to use in his defence were prohibited from being used through legal action taken by the Commonwealth.

So there's a real catch-22 there and it does point to a genuine issue when you've got cases involving national security or documents that are part of our national security regime about which of course there can be highly legitimate concerns that may not be made public in a courtroom. Does that mean that whistleblowers in this space can never get the documents they need to actually use in the defence? You know, is it always going to be a losing proposition for whistleblowers working in this area?

ANGE:

And Chris, if David McBride is sent to prison, what do you think the broader implications are for future whistleblowers? What message does it send?

CHRIS:

Well, the campaign is for making sure McBride did not get convicted, did not go to jail, were very concerned that he not be a prominent example of if you blow the whistle, you end up in the slammer. To the extent that it shows people that if you leak, even if it's in the public interest, you can end up getting convicted and be put in jail. Well, people are less likely to do it.

On the other hand, people concerned about the confidentiality of secure documents, would say, well, you know, we don't live in a world where everybody gets to determine themselves what's in the public interest and what isn't. Especially soldiers, because the consequences of that could be extremely problematic. Anarchic, potentially. That's certainly the kind of picture that for the Crown Patricia MacDonald SC was building up in her anticipation of her argument that would have been used by the Crown against McBride had the trial actually gone ahead.

In the meantime, the Attorney-General is saying that the Albanese Government remains committed to strong whistleblower protection. That's why it's running round two of the reform process. That's why it's put out this discussion paper on what needs to change to make that stronger. So how that plays out of course will have a big impact on whether that chilling effect that activists claim will result from the McBride case actually happens or whether the government can ensure that a really strong, robust whistleblower protection umbrella is created. That does indeed let people come forward with a feeling of safety and assurance that they can share information that they believe needs to be in the public interest in the public realm.

ANGE:

Chris, thanks so much for your time today.

CHRIS:

Pleasure.

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ANGE:

Also in the news today…

An overhaul of Australia’s federal secrecy laws have been announced by Attorney-General Mark Dreyfus.

The reforms will enshrine in legislation the rule that journalists cannot be prosecuted over leaks, without the approval of the attorney-general – and will remove criminal responsibility from a number of secrecy provisions.

And…

Yesterday, New South Wales police officer Daniel Keneally was convicted of fabricating evidence that put a man in prison for three weeks.

The court found that Keneally, the son of former NSW Labor premier and federal senator Kristina Keneally, had falsely alleged that the man had threatened to kill a police officer, knowing that evidence could lead to a prosecution.

I’m Ange McCormack. This is 7am. We will be back tomorrow.

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