Whistleblower David McBride has pleaded guilty to three charges after an ACT supreme court upheld a commonwealth intervention to withhold key evidence it deemed as having the potential to jeopardise “the security and defence of Australia” if released.
Originally facing five charges, the former military lawyer pleaded guilty in the ACT supreme court on Friday afternoon to three offences, including stealing commonwealth information and passing that on to journalists at the Australian Broadcasting Corporation.
The ABC subsequently used the material as the basis for an investigative series exposing war crimes in Afghanistan, titled The Afghan Files.
On Friday afternoon, Justice David Mossop upheld the commonwealth’s claim that certain documents, if released, had the potential to jeopardise “the security and defence of Australia” and should not be used by the parties.
Outside court, McBride said: “I’ll say one thing, and that is, I stand tall, and I believe I did my duty ... and I see this as the beginning of a better Australia.”
McBride’s lawyer, Mark Davis, said the ruling on Friday had been “a fatal blow” for their case but said they were investigating the possibility of an appeal.
The former military lawyer’s wife, Sarah, stood alongside him, saying it had been a tough battle for the family, especially their two daughters.
“I’m not giving up hope. He’s done the right thing – I’ve said that from the beginning,” she said. “Truth and justice will prevail and I’m incredibly proud of him, as are his two girls. Please don’t give up on him now.”
Andrew Berger KC, acting for the commonwealth, on Wednesday said some material in the case should be kept entirely secret on national security grounds.
“The public interest at play here is a very important one, the national security and defence of this country,” he said. “Indeed, we say it is harder to think of a stronger public interest than the security and defence of Australia?”
Berger presented evidence from intelligence agencies, including the Office of National Intelligence, suggesting that its disclosure could compromise intelligence information provided by Australia’s allies.
Releasing those documents, Berger added, would jeopardise Australia’s information-sharing agreements with foreign intelligence agencies and damage Australia’s reputation more broadly.
McBride’s counsel, Stephen Odgers SC, had previously indicated he may apply to have the trial halted if the commonwealth’s bid to keep documents secret was accepted.
The former military lawyer’s team suffered a blow on Thursday after they lost a legal bid to overturn a ruling by Mossop preventing McBride from arguing he was fulfilling his duty to the public interest in releasing the classified documents.
The trial was scheduled to begin on Monday. A sentencing date is expected to be scheduled in the new year.
Greens senator David Shoebridge again reiterated calls from crossbenchers urging the federal attorney general, Mark Dreyfus, to intervene and pardon McBride after sentencing.
“The Albanese government has now gotten its pound of flesh from David McBride,” he said. “What possible benefit is there from taking steps and trying to put him in jail? I again call on the attorney general to intervene and end this prosecution.”
Human Rights Law Centre senior lawyer, Kieran Pender, said there was no public interest in prosecuting whistleblowers and sending them to jail, adding the federal protections needed an urgent overhaul.
“This development must be a warning sign to the government that reform to federal whistleblowing law and the establishment of a whistleblower protection authority is urgent and long overdue,” he said.
“We cannot wait any longer.”
