What does it say about our democracy that the first person imprisoned in relation to war crimes committed by Australian forces in Afghanistan is not a war criminal, but a whistleblower?
What message does it send to prospective whistleblowers, people who might speak up because they see wrongdoing and corruption, when the source for vital public interest reporting by our national broadcaster, the ABC’s Afghan Files, is sent to jail for almost six years?
And what does it say about the Albanese government – who refused to drop McBride’s case and instead shrouded it in secrecy, despite admitting Australia’s whistleblower protection laws were broken?
The sentencing of military whistleblower David McBride on Tuesday to a substantial term of imprisonment brings to an end a sorry saga that, together with other recent whistleblower prosecutions, has scarred Australia’s democracy. Today is a dark day, significantly undermining press freedom and whistleblower protections in this country.
McBride, a military lawyer, served two tours in Afghanistan. In an affidavit, he explained that “Afghan civilians were being murdered and Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour … At the same time, soldiers were being improperly prosecuted as a smokescreen to cover [leadership’s] inaction and failure to hold reprehensible conduct to account.”
After growing unsatisfied with efforts to raise concerns internally, McBride contacted several journalists – ultimately giving numerous documents to the ABC, which formed the basis for the Afghan Files. He was arrested in 2018 and has faced prosecution ever since. His long court battle culminated on Tuesday, with a prison term of five years and eight months (he can seek parole after 25 months).
McBride may be the first Australian whistleblower to be imprisoned in living memory, although he is not the only one to face persecution. Witness K and Bernard Collaery helped expose Australia’s immoral espionage against Timor-Leste; K was given a suspended sentence in 2021, while Collaery’s case only ended when the attorney general, Mark Dreyfus, intervened. Troy Stolz blew the whistle on anti-money laundering failures at ClubsNSW; he was sued and almost bankrupted. And research shows as many as eight in 10 whistleblowers face some form of retaliation in their workplace.
These prosecutions are the canary in the coalmine: Australia’s transparency and integrity framework is badly broken. It is not for nothing that Australia slipped to 39th in the world press freedom index earlier this month. We need urgent whistleblowing reform and the establishment of a whistleblower protection authority (as Labor promised while in opposition in 2019). We need to wind back draconian secrecy offences that make Australia one of the most secretive democracies in the world. We need to protect public interest journalism through a media freedom act, and underpin it all with a federal human rights act.
In his reasons for sentencing McBride to such a lengthy time behind bars, Justice David Mossop dwelled on the need for deterrence – to stop people like McBride speaking up in the future. On one hand that was orthodox enough: deterrence is a long-established principle of criminal law sentencing.
But deterrence in this context has a dual meaning. This case, and others like it, have had an enormous deterrent effect on whistleblowers around Australia. The decision to imprison McBride amplifies that effect. Wrongdoing will stay hidden as a result; public interest journalism will go unwritten.
It may be Mossop’s job to consider deterring future unlawful conduct; but it is very much the Albanese government’s job to address the enormous damage dealt to our democracy by the war against whistleblowers in recent years. Prospective truth-tellers feel deterred, and rightly so. We all suffer as a result.
Outside court on Tuesday morning, speaking at a rally of hardy supporters braving the Canberra cold, was Jeff Morris. A former Commonwealth Bank employee, Morris was one of a number of whistleblowers who spoke up about wrongdoing in our financial institutions to journalists last decade. Millions of Australians are better off as a result.
Morris is a salient example of the power of whistleblowing and investigative journalism. Will the next Jeff Morris speak up, knowing what has happened to McBride? What else won’t we know if whistleblowers instead choose to stay silent?
For all the complexity that has surrounded this prosecution, at its core are some simple facts. David McBride leaked documents to the national broadcaster that led to groundbreaking investigative reporting on Australia’s war crimes in Afghanistan. That was indisputably in the public interest. Given the state of Australia’s whistleblowing and press freedom laws, McBride was never given the opportunity to prove the public interest in his actions. And so instead he goes to jail.
Can anyone say that makes Australia a better place?
Kieran Pender is an acting legal director at the Human Rights Law Centre. Prof Peter Greste is the executive director of the Alliance for Journalists’ Freedom and an award-winning journalist
