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.
The way this procedure was conducted was so far from normal practice that it should not be called a trial. McBride was found guilty behind closed doors for reasons known only to those who coerced his guilty plea. Nobody else knows what evidence they have, if any. There was no trial, McBride was not permitted a defence. This is not the rule of law. This, and other such outrageous examples, show a growing cancer eating away at the administration of justice in Australia.
Same with Prisoner J (about whom we knew SFA until long after his secret trial & imprisonment) and Witness K – in both cases the Crown, supposed to be the “ideal litigant”, withheld evidence which may or may not have been exculpatory – we just do not know.
However, in the case of the Customs officer who was convicted over the lax security reports at Sydney airport in 2007, the Crown admitted in 2009 that exculpatory evidence had been withheld but decided that didn’t matter as the case was over.
A/G Dreyfus stopped, far too late, Bernard Collaery’s persecution because he persisted in contesting the Crown withholding evidence and the various judges seemed to agree that such perfidy was unacceptable.
Nonetheless said A/G is STILL fighting to withdraw and seal documents already presented in open court as well as those withheld.
Gotta love open government – wonder where we could us get some o’that thar stuff?
A/G Dreyfus stopped, far too late, Bernard Collaery’s persecution…
Dreyfus was sworn in as A-G on 1 June 2022 and announced the cessation of proceedings on 6 July 2022.
Over a month too late for anyone with moral or ethical standards.
Given his general performance on a number of issues, this necessarily precludes him.
McBride is on trial for leaking Army secrets. The defense can’t call upon the morality of the said ‘secrets’ to defend their client – despite their content being the very reason he leaked them – because the court rules that their exposure would conflict with national security. Only Joseph Heller could come up with a more ridiculous paradox.
It is something of a mystery to this casual observer how the presumption of innocence does not prevail, if the prosecution cannot prove its case in court.
The prosecution apparently convinced the judge that its case against McBride was so good it would be unconscionable to allow any defence to be attempted, so the court moved straight on after hearing the charges to the verdict and sentencing. Neat and tidy.
This sort of thing used to happen in medieval courts, with the bonus in some cases that the judge would permit the defendant to be tortured into confessing. Then John Lilburne, a true hero, who frequently annoyed the various English governments in the middle of the 17th C, persuaded the courts to make a binding ruling that defendants could under no circumstances be forced to incriminate themselves, putting all the burden on the prosecution to prove its case unaided. (The USA later put this into their Bill of Rights as the 5th amendment.) That still left the possibility of convicting somebody without a trial or a defence by passing a Bill of Attainder, in effect an Act of Parliament that says some named person is a traitor. This was used, for example, in a fit of spite by parliament, to get King Charles I’s favourite minister the Earl of Strafford beheaded in 1641. But in the 19th C the UK parliament passed legislation to remove any possibility of more Acts of Attainder. Now it seems the tide has turned, and here is our government opening up ways and means to nail those it does not like without any of that messy trial nonsense.
The prosecution apparently convinced the judge that its case against McBride was so good it would be unconscionable to allow any defence to be attempted, so the court moved straight on after hearing the charges to the verdict and sentencing. Neat and tidy.
This sort of thing used to happen in medieval courts, with the bonus in some cases that the judge would permit the defendant to be tortured into confessing. Then John Lilburne, a true hero, who frequently annoyed the various English governments in the middle of the 17th C, persuaded the courts to make a binding ruling that defendants could under no circumstances be forced to incriminate themselves, putting all the burden on the prosecution to prove its case unaided. (The USA later put this into their Bill of Rights as the 5th amendment.) That still left the possibility of convicting somebody without a trial or a defence by passing a Bill of Attainder, in effect an Act of Parliament that says some named person is a [tray-tor]. This was used, for example, in a fit of spite by parliament, to get King Charles I’s favourite minister the Earl of Strafford beheaded in 1641. But in the 19th C the UK parliament passed legislation to remove any possibility of more Acts of Attainder. Now it seems the tide has turned, and here is our government opening up ways and means to nail those it does not like without any of that messy trial nonsense.
[tray-tor] is a substitute for a word that sets off the ModBot
Transparency seems to be one of those things promised from opposition, and forgotten in government.
We just have to see the LibLab collusion in watering down the NACC to see how committed to transparency Labor really isn’t. Precisely why voters continue to put in the same failed parties election after election, astounds me.
The way elections work is set up to heavily favour the two main parties at every turn. This is of course no accident; it ensures the interests of those who hire or pay for those parties are always protected. The behaviour of voters in going along with this stitch-up is only astounding if no account is taken is taken of all the ways voters are distracted, manipulated and kept in the dark. As the anarchists have said for many decades, if elections were likely to change anything they would be illegal. Thomas Jefferson several times noted that a functioning democracy depends on a well-informed electorate. That view is also held by those with power in this country and that is why so much effort is put it into ensuring the electorate is anything but well-informed.
The preferential system in use now takes your vote and gives it to someone else for whom you did not vote. If we had proportional representation that would not happen (as I understand it) and every vote (almost) would count. Minority governments would be the order of the day with far more compromise and rationality. Our duopoly’s worst nightmare: control in the hands of many.
PR would be some improvement, but it provides no guarantee of ‘compromise and rationality’. For example, in Israel it has put the far right in the driving seat with disastrous consequences. To get a truly representative parliament with ‘control in the hands of many’ it would be far better not to have elections. Elections are not good for democracy. Instead, all members of parliament should be chosen at random from all Australian adults, like a jury.
1) You’d be battling to find enough people who wanted to actually turn up and live in Canberra. 2) Gangs of the illiterate would roam the floor beating up people they didn’t like the look of. 3) Lobbyists would have a field day. 4) The press would have to make stories up, there being nothing else worth saying.
So not much different to today.
A show trial. No right to now lecture other countries about upholding the rule of law.
Was it a show trial? With a show trial, at least you get a show. Here, even that much was denied.
Any Labor voters reading? Past time you quit that.