By Paul Gregoire: Sydney Criminal Lawyers Blog

Australians are raised on ideas of freedom, justice and equality: principles that the nation is said to embody, and its defence forces uphold. 

And it’s implicitly understood that serving military officers take no pleasure in committing acts that are usually criminal, as it’s a sacrifice made for the greater good.

The career path taken by former Australian ADF lawyer David McBride reveals this outlook. He studied at Oxford University and attended the UK’s Royal Military Academy Sandhurst. McBride served as a major in the British Army and did two tours of Afghanistan as an ADF lawyer.

As McBride put it to Sydney Criminal Lawyers in 2021, he was a “true believer”. And like others raised on the notion of the Australian Defence Force being a noble institution, he didn’t consider troops would be left to run amuck, with some officers, his clients, then scapegoated to compensate.

So, the lawyer blew the whistle. McBride raised his concern around the “Instagram war” playing out in Afghanistan, a keeping up of appearances “to get likes from the public” and his officers were then personally paying the price for this failure of ADF management.

As an Australian Defence Force legal officer, McBride taught soldiers the rules of engagement: the Law of Armed Conflict. Yet, on the ground, he found these weren’t being applied.

And for his sacrifice in speaking out about this injustice, he was sentenced to 5 years and 8 months prison time on Tuesday.

An inconvenient truth-teller

“There is something deeply broken with our legal system,” Greens Senator David Shoebridge told the press following McBride’s sentencing.

“There is something deeply broken with our whistleblower laws that has seen David McBride the first person gaoled for war crimes in Australia,” he continued, “and his crimes was telling us about it.”

McBride is now serving a minimum of 2 years and 3 months. Yet, following his whistleblowing, an official inquiry into the ADF in Afghanistan identified 36 matters relating to 23 incidents and 19 individuals occurring over 2012 and 2013, that warrant investigation as potential war crimes.

Known as the Brereton report, the findings of the Inspector General of the ADF inquiry were published in November 2020. And the Office of Special Investigator (OSI) was then established to probe into these matters, with one officer only ever having been charged.

McBride served in the Central Asian nation in 2011 and 2013. Following his having raised concerns internally, he then leaked documents to ABC journalists over 2014 to 2016. And these formed 2017’s The Afghan Files report, which led to the federal police raiding the national broadcaster in mid-2019.

However, the Chief of the ADF Angus Campbell first raised the need to investigate “persistent rumours” of war crimes in March 2016, which was long before the ABC report was published, but occurred after McBride had been raising these issues internally.

So, when McBride went to his ADF seniors to raise concerns, the military was already aware of unsubstantiated claims, and rather than take his matter seriously, the lawyer was sent on his way, and later on, NSW Court of Criminal Appeal Justice Paul Brereton was charged with an inquiry.

Whistleblower hit list

After the ADF dismissed McBride’s concerns about Australian special forces operating in a manner whereby a fresh set of unsanctioned rules of engagement ruled supreme, the lawyer went to the media and considered he’d be protected as it was in the public interest to expose these aberrations.

Following the ABC’s 2017 public airing of what had officially been deemed a likely issue on the ground in Afghanistan and hence the inquiry, McBride was arrested and charged with five serious national security crimes, relating to leaked classified documents to the press, in September 2018.

But this didn’t happen in a vacuum. McBride’s name appears to have been on a whistleblower hit list that then Liberal attorney general Christian Porter was charged with executing. And it included prosecuting Witness K, his lawyer Bernard Collaery and ATO whistleblower Richard Boyle.

K and Collaery were being chased down for exposing the Howard government having illegally bugged the Timor-Leste government in 2004, while Boyle, like McBride, had blown the whistle on tax office illegalities in the understanding that he’d be protected under the law for raising the issue.

False protections

McBride and Boyle expected to be immune from prosecution under the terms of the Public Interest Disclosure Act 2013 (Cth) (PID Act), which was drafted by current Labor attorney general Mark Dreyfus, during an earlier stint in the role, when his party was last in office.

Following Porter’s execution of the hit list, the now AG admitted, whilst in opposition, and as public outcry over the apparent crackdown on whistleblowers progressed, that his laws were problematic and he promised to give them an overhaul if elected back into office, in order to provide protection.

But in finding himself in office again, Dreyfus dropped the case against Collaery in June 2022, after Witness K has already thrown in the towel, and McBride and Boyle were then left to argue their defence that October, with the AG only announcing his overhaul of the PID Act the following month.

And not only was McBride left with bad law, but a public interest immunity claim was placed over his public interest defence evidence, meaning the government could remove any of it, which was on top of a preexisting closed door hearing requirement, and this made his case impossible to argue.

Then, when McBride finally came to stand trial in November last year, he was denied the ability to argue that he’d was doing his duty as an officer in exposing the truth, and a week later, another court order was issued, which meant, again, a great swag of his evidence was denied him.

So, the lawyer was left with no real choice but to plead guilty to three of the five criminal offences he was facing.

Stay calm and keep mum

For his efforts in having exposed the way in which the ADF was operating in Afghanistan, which lead to public awareness of an issue that involved military officers committing war crimes in a foreign country on its behalf, McBride is now being heavily punished.

However, for great numbers of Australians, human rights and civil liberties advocates, progressive politicians and basically, community members who consider that Australian troops shouldn’t be committing atrocities, and nor should management be absolved of this situation, he is a true hero.

McBride took the responsibility upon himself to expose these matters, whilst unaware that the rumours were flying, and he is now in prison.

The Brereton report too exposed war crimes but it was also pains to clear management of any awareness of this, and so far, no one has been convicted.

“The real crime here are the laws that let this happen, and the attorney general and the Albanese government continuing to let this prosecution run to its almost inevitable conclusion of gaoling a whistleblower,” Shoebridge underscored on Tuesday.

The Greens senator further outlined that the stiff punishment dished out to McBride was not solely aimed at depriving him of his liberty, but his sentence is to act as a clear warning to all potential whistleblowers to not expose government lies or prison time awaits.

When you listen to the sentencing remarks, the Greens member continued, “the core reason David McBride is going to gaol for such a long time is intended to be a deterrent effect, to stop spilling the beans about government abuses or, in this case, war crimes”.

Indeed, ACT Supreme Court Justice David Mossop highlighted general deterrence, which is the effect that a judicial officer considers a sentence they’re imposing will have upon the public or would be potential offenders, as a key factor leading to the years McBride is now facing in gaol.

“I can tell you now, a chill has spread across the public service, across the defence force, across anybody thinking about speaking up when they see wrongdoing, if they see a war crime, if they see abuse of public resources,” Shoebridge made certain on 14 May.

“Because this judgement was meant to send a message to whistleblowers – that you dare not put your head up.”

Main photo: David McBride speaks at a rally for Julian Assange held outside Anthony Albanese’s Marrickville office in December 2022. Photo credit: Paul Gregoire.