On Friday David McBride was left with little choice but to plead guilty. The former army lawyer was facing charges relating to him leaking documents that formed the basis of the ABC’s landmark “Afghan Files” reporting. McBride has never denied that he was the source of the documents.
He initially mounted a defence under federal law which allows whistleblowing to the media in certain circumstances. At a court hearing last October, McBride was forced to withdraw the defence after the government made a last-minute national security claim over relevant evidence.
Last week, at the start of his criminal trial, his barristers argued that the “duty” he was said to have breached could contain a public interest element. If this had been accepted, it would have been a potential route to a jury finding McBride not guilty, on the basis that he thought he was acting in the public interest. But the argument was rejected by the trial judge, and leave to appeal was denied.
McBride had been due to face a jury, and his fate, this week. Late last week his legal team made a final roll of the dice. After the government again sought to remove evidence on national security grounds, his lawyers argued his case should be permanently suspended on the basis that he could not receive a fair trial without the secret evidence. When the judge rejected this argument, pleading guilty was the only move left.
Before considering the wider implications of the case, it is worth pausing for a moment on the government’s use of national security — a public interest immunity claim — to keep documents from the jury. The government has now done this twice to hamper McBride’s case. It is remarkable because under federal law the government can ask that part or all of a hearing be held entirely in closed court. This was done all too often in the since-discontinued prosecution of whistleblower Bernard Collaery, who helped expose Australia’s immoral espionage against Timor-Leste.
Why remove evidence entirely when it can be kept secret through closed court processes? The relevant law, the National Security Information Act, was enacted specifically for cases such as these. Indeed, the law had already been engaged in McBride’s case. Had the trial gone ahead, jurors would have been instructed that they would face prosecution if they ever released confidential information.
Rather than make use of this regime, specifically designed to balance the interests of justice in cases involving national security information, the government instead blocked the use of the evidence entirely. It was an inexplicable move by a “model litigant”.
For some time, successive federal governments have had an obsession with secrecy. The prosecution of an intelligence officer, Witness J, conducted entirely in secret, was one particularly egregious example, the Collaery case another. While it is welcome that Attorney-General Mark Dreyfus has committed to reforming these laws and practices, the government’s actions in the McBride case speak louder than those words.
And now “The Afghan Files” whistleblower faces the prospect of jail time. He awaits his sentencing, likely to be early next year. The chilling effect of the prosecution is significant. Already I have clients who tell me they are afraid of speaking up about serious wrongdoing for fear of jail time. If McBride is to go to prison, that fear among potential whistleblowers will only intensify. They will stay silent.
McBride is not the only whistleblower facing imprisonment. Richard Boyle exposed wrongdoing at the tax office, speaking up internally, then to the tax ombudsman, and then to the media as a last resort. In March a judge ruled that he was not protected under whistleblowing law, on the basis that the protections apply only to the act of blowing the whistle, not to closely related prior conduct — gathering documents, recording conversations and so on. Boyle has appealed; a judgment is pending.
Next month, a new Commonwealth director of public prosecutions will begin their term. It comes too late for McBride, but discontinuing the Boyle prosecution, which is entirely contrary to the public interest, should be the first item on the new chief prosecutor’s to-do list.
Then we need substantial law reform and institutional change to ensure Australia’s whistleblowers are protected, not punished, let alone prosecuted. On Thursday, Dreyfus released a discussion paper about the next phase of federal whistleblowing reform. It canvasses whether the government should establish a whistleblower protection authority to oversee and enforce whistleblowing laws and support whistleblowers.
It should. Dreyfus pledged to establish such a body ahead of the 2019 election. If anything, the case for a whistleblower protection authority has only become more evident and urgent. A whistleblowing body is the missing part of the integrity puzzle after the National Anti-Corruption Commission was established — “NACC 2.0”, as the crossbench has taken to calling it.
On Tuesday, Dreyfus published a review of secrecy offences and committed to reform measures. His commitments are a positive step forward, but disappointingly his department backed away from more significant suggested reform — including a general public interest defence which might have helped someone like McBride.
It is a travesty that McBride was forced to plead guilty, and could yet be imprisoned. It is a travesty that Boyle remains on trial for exposing wrongdoing at the tax office. But if there is any silver lining to be found in these injustices, it is the growing public support for whistleblowers. Recent polling by Redbridge Group for the Whistleblower Justice Fund found that more than three-quarters of Australians support stronger legal protections for whistleblowers.
We can’t change the past. But Dreyfus can ensure a better future for Australia’s whistleblowers by overhauling the law and establishing the whistleblower authority he once promised. He should do that without delay.
Are you one of the three-quarters of Australians who support stronger legal protections for whistleblowers? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
