14 May 2024

Dark day for democracy as military whistleblower David McBride imprisoned

Civil society groups have expressed grave concern and alarm after military whistleblower David McBride was sentenced to almost six years’ imprisonment in the ACT Supreme Court on Tuesday.

McBride leaked documents to the ABC that formed the basis for the broadcaster’s landmark Afghan Files reporting, which showed credible evidence of war crimes committed by Australian forces in Afghanistan. The reporting was subsequently confirmed by the Brereton Inquiry.

McBride had argued he was immune from prosecution under federal whistleblowing law, but withdrew that defence in 2022. He then argued that the offences he was charged under contained a public interest element; after that was rejected by the trial judge, he pleaded guilty in November 2023.

On Tuesday, McBride was given a sentence of five years and eight months, with a non-parole period of two years and three months.

McBride is the first whistleblower to be imprisoned in recent memory in Australia. Witness K, who exposed Australia’s spying against Timor-Leste, was given a suspended sentence; the prosecution of his lawyer, Bernard Collaery, was dropped by the Attorney-General, Mark Dreyfus KC, after the Albanese Government took office. Tax office whistleblower Richard Boyle will face trial in September.

Whistleblowers play a vital democratic role by exposing government wrongdoing and corporate misdeeds. The civil society groups expressed concern that future whistleblowers will stay silent if they are worried about being prosecuted, and wrongdoing will stay hidden as a result.

Kieran Pender, Acting Legal Director at the Human Rights Law Centre, said: 

“This is a dark day for Australian democracy. The imprisonment of a whistleblower will have a grave chilling effect on potential truth-tellers. Our democracy suffers when people can’t speak up about potential wrongdoing. There is no public interest in prosecuting whistleblowers.”

Rawan Arraf, Executive Director at the Australian Centre for International Justice, said: 

“It is a travesty that the first person imprisoned in relation to Australia’s war crimes in Afghanistan is not a war criminal but a whistleblower – the person who leaked documents to the ABC that enabled important public interest journalism. The case has significantly undermined Australia’s commitment to implementing the findings of the Brereton Inquiry.”

Peter Greste, Executive Director at the Alliance for Journalists’ Freedom, said: 

“Press freedom relies on protections for journalists and their sources. Australia recently dropped to 39th on the global press freedom index, and it is cases like this that undermine the freedom of the press in our country. As someone who was wrongly imprisoned for my journalism in Egypt, I am outraged about David McBride’s sentence on this sad day for Australia.”

Rex Patrick, former Senator and founder of the Whistleblower Justice Fund, said:

“The Albanese government has failed in its commitment to protecting whistleblowers. This prosecution began under the Coalition government but it has continued under this one. Mark Dreyfus should hang his head in shame – a whistleblower is going to jail on his watch, when he had the power to stop this injustice.”

Clancy Moore, Executive Director at Transparency International Australia, said: 

“Whistleblowers make Australia a better place. But recent whistleblower prosecutions in Australia have underscored significant failings in our whistleblower protection framework. It is incumbent on the Albanese government to act now with comprehensive law reform and the establishment of a whistleblower protection authority to ensure no more whistleblowers face prosecution.”

Professor AJ Brown AM, Griffith University and Chair at Transparency International Australia, said: 

“This outcome confirms how broken, and badly implemented, our federal whistleblowing laws are. Despite the illusion of justice, David McBride never got his fair day in court, because his internal disclosures about political mismanagement of the Afghan campaign were never properly handled, and the federal government then made it impossible for him to properly raise this in court, in his own defence. Reform is needed to ensure this kind of disastrous travesty can never happen again.”

Jeff Morris OAM, banking whistleblower, said: 

“Our nation’s whistleblower laws are a legal quagmire and fail to protect people who are risking everything to reveal the truth about wrongdoing. Rather than encouraging brave truth-telling in response to wrongdoing, our country imprisons the truth-teller. It is a travesty.”