When Is A Secret Not A Secret?

The Next 60 Years Of Major David McBride’s Life Are Riding On The Answer

This is an update on the story of Major David McBride, the Australian Legal Officer who leaked documents to the press, and now faces the prospect of spending the rest of his life in prison. Sometime this spring he will appear in court again to set a trial date, which could be a number of months after that.

Until then McBride, who is representing himself, will be working on his defense against one count of theft of commonwealth property, three counts of breaching the defense act, and one count of unauthorized disclosure of information. Because of the nature of the evidence there will be portions of the trial that will be held in a closed court and only those with Top Secret clearance could be in attendance. This greatly limited his choice of counsel since very few attorneys, if any, would meet the now extremely criteria. Therefore, Major McBride will be appearing pro se, as his own counsel and is preparing to vigourously defend himself against the charges.

In Defence Of David McBride

McBride will be asserting an affirmative defense meaning that while he will be admitting to the underlying offense, there were mitigating circumstances that limit his culpability. This could be more commonly known as a justification defense, and McBride had plenty of justification for his actions. In fact it could be argued that he was legally obliged to do what he did, as I will show next.

Exceptions and Defences

Public Interest Disclosure

2.69 The types of disclosure protected by the proposed public interest disclosure
legislation would include, but not be limited to, ‘serious matters’ related to illegal
activity, corruption, maladministration, breach of public trust, scientific misconduct,
wastage of public funds, dangers to public health or safety, dangers to the environment,
official misconduct (including breaches of codes of conduct) and adverse action
against a person who makes a public interest disclosure.94 A person making a
disclosure would need to have an honest and reasonable belief, on the basis of
information available to them, that the matter concerns ‘disclosable’ conduct under the
legislation.95

Report on Secrecy Laws and Open Government in Australia (2009)
https://fas.org/irp/world/australia/secrecy.pdf

What David McBride claims to have found is evidence of such ‘serious matters’. Given that he is an experienced attorney and Legal Officer he would have excellent knowledge as to what would constitute a ‘serious matter’, and therefore he could be found to meet the standard of having an ‘honest and reasonable belief’ that the matters were in fact disclosable.

Duty To Disclose

In the course of an officer’s functions and duties
7.16 Secrecy provisions commonly allow information to be disclosed in the
performance of a person’s functions and duties as an employee or officer. For example,
the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provides that secrecy
provisions do not extend to a person handling information ‘in the performance of the
person’s functions or duties’ under the Act.17

https://fas.org/irp/world/australia/secrecy.pdf

Having had the honest and reasonable belief that the matter was disclosable, it was David McBrides duty as an officer of the court to disclose. He had also made several prior attempts to take the matter the proper authorities only to be told basically ‘you cannot charge the government’. Left with no other alternative, David McBride took the next logical and reasonable action, which was to leak the documents, as he was still bound by his duty as an officer of the court.

2.72 The Standing Committee also considered that it was necessary to protect a
person making a public interest disclosure to third parties—such as the media, a
Member of Parliament, a trade union or a legal adviser—in certain circumstances. The
Standing Committee stated that: experience has shown that internal processes can sometimes fail and people will seek alternative avenues to make their disclosure. There are cases with implications of the utmost seriousness, when disclosure through third parties has been initially necessary and consequently beneficial.
… A public interest disclosure scheme that does not provide a means for such
matters to be brought to light will lack credibility.98

2.74 The Standing Committee’s final recommendation, however, confined protected public interest disclosures to third parties to very narrow circumstances. A disclosure to a third party external to the public service would only be protected where the matter already had been disclosed internally or to an external authority, but had not been acted on in a reasonable time, and the matter threatened immediate serious harm to public health or safety.100

2.75 The recommendation relating to disclosures to third parties has been criticised as being too limited. Brown, for example, has commented that while it is reasonable to require people to proceed through internal channels or external integrity agencies before disclosing a matter publicly, the requirement that the matter must ‘threaten immediate serious harm to public health and safety’ is too restrictive in that it excludes from protection public interest disclosures to the media regarding major fraud, corruption and major abuses of power. Brown also argues that the recommended provision fails to cover the situation in which the external agency does not adequately address a public interest disclosure, so that ‘even if the Ombudsman had looked at the problem and failed to act, or got it wrong, a public servant who justifiably went public could still be sacked, sued or prosecuted’.101

2.76 In a submission to this Inquiry, Brown stated that the proposed approach fails to contemplate what would occur in circumstances where an official had reason to believe not only that their own agency would not respond appropriately to the disclosure, but that the ability of the relevant external integrity agency to respond appropriately had also been corrupted or compromised.102

2.77 Brown suggested that a better approach would be one that protects publicinterest disclosures to persons outside government: 1) where the matter has been disclosed internally to the agency concerned and to an external integrity agency of government, or to an external integrity agency alone, and has not been acted on in a reasonable time having regard to the nature of the matter; or 2) where a matter is exceptionally serious, and special circumstances exist such as to make the prior disclosure of the matter, internally or to an external integrity agency, either impossible or unreasonable (for example, in some circumstances involving a serious and immediate threat to public health or safety).

Report on Secrecy Laws and Open Government
https://fas.org/irp/world/australia/secrecy.pdf

Even if the ‘immediate threat to public health or safety’ provision remains now, McBride could still make this argument in front of a judge.

National Security

611.            For subparagraph 91.1(1)(b)(ii), the prosecution will need to prove that the information or article dealt with by the defendant concerned Australia’s national security.  Consistent with the definition of national security in section 90.4, this could include information or articles relating to:

·          the defence of Australia (paragraphs 90.4(1)(a) and (e) and 90.4(2)(e))

·          Australia’s border protection (paragraph 90.4(1)(c))

·          activities of Australia’s intelligence agencies, including ASIO (subsection 90.4(2)), and

·          Australia’s relationships with other countries (paragraph 90.4(1)(e)).

We do not know the exact number of documents that are in question, that information has not been released. As to the nature of the documents, McBride says that none of them contained information that would be detrimental to Australia’s national security. If anything the documents contained evidence that would prove the government was complicit in wrongdoing or would otherwise be embarrassing to it. If so they would not be subject to classification and as such the documents should be made public.

Government Approval of Wrongdoing

10.5   Lawful authority

A person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

          (1)  If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate (the government) that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

             (2)  The means by which such an authorisation or permission may be established include:

                     (a)  proving that the body corporate’s board of directors (in this case the cabinet) intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

                     (b)  proving that a high managerial agent of the body corporate (minister) intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

                     (c)  proving that a corporate culture existed within the body corporate (bureaucracy) that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

                     (d)  proving that the body corporate (bureaucracy) failed to create and maintain a corporate culture that required compliance with the relevant provision.

             (3)  Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.

What this section basically says is that if the government committed a crime and either explicitly or implicitly condoned such action, any documents relating to such action are exempt from being classified material.

David McBride Acted In Good Faith

He is well versed in International Law, in fact he’s one of Australia’s leading attorneys on the subject. Having analyzed the evidence he came to the conclusion that crimes had been committed, and it was his duty as an officer of the court to report it to the proper authorities. Major McBride did so, taking his case to about half a dozen different agencies over a two year span, including the ANP. In every instance the same thing would happen, the agency would review the evidence and concur with McBride’s findings. All refused to pursue the matter telling him “What do you want us to do? You can’t charge the government.”

As is allowed for in law, McBride then leaked the documents to the press. Only after having exhausted all other available options did he take the “Nuclear Option”. David McBride has no agenda and no personal axes to grind. He did not make those decisions lightly and took the action he did out of a sense of patriotism, not malice.

The extent to which government secrecy in Australia has risen is alarming to say the least. Democracy is being hijacked by the Australian government and the ransom is simply too high a price to pay for Australians. They need to be held to account and made aware that the people are watching what they are doing.

Canada is on a similar path at the moment, watching as our government attempts to subvert our legal rights and uses the law as a weapon against its own citizens rather than as a shield to protect them.

Leaders from democratic nations will be keeping a close eye on what happens in Australia. It will give them an idea as to what they will and won’t be able to get away with. I’ll be watching along with people from around the world as well, and we will all be standing firmly behind David McBride.

http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html

National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018

https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6022_ems_e4d3fac9-e684-40c4-b573-c000e7a32b03%22