The Government of Australia Needs to Pull Its Support for the Prosecution of David McBride

Don’t punish McBride for doing what was required of him by law and canon of ethics.

It has been over a year since I last wrote about Australian whistleblower Maj. (Ret.) David McBride and there are some important updates to his case to report. 

June 2019

It was in June of 2019 that I posted my first article about McBride, not long after hearing about a raid conducted by the Australian Federal Police at the headquarters of the Australian Broadcasting Corporation. The AFP was searching for classified documents that had been leaked to them by McBride that pertained to a story ABC was doing about alleged war crimes in Afghanistan, war crimes it was said were committed by members of the Australian Special Air Service (SAS).  

Although the documents he had leaked to ABC pertained to these alleged war crimes, the reason that McBride leaked them in the first place was that they also revealed potential criminal activity on the part of members of the Australian government of the day, as well as by senior members of the Australian Defense Forces. Prior to leaking the documents, McBride had presented his case and the evidence to every level of law enforcement, only to be told that despite having the proof, there would be no charges forthcoming. On more than one occasion he was told “What do you want us to do mate, you can’t just charge the government.”

Having run out of whatever legal options were available to him, McBride then decided that he had no alternative but to turn over what he had found to the press. It is important to note that, under the law and according to his professional code of ethics, McBride was obliged to report what he had found, although I believe that he would have done so anyway. It was simply the right thing to do. The article was mentioned in a Tweet by well-known Australian investigative journalist Ross Coulthart shortly after I published it. 

The government brought several charges against McBride including the theft of classified material and because of this, all or part of his trial would have to be held in secret. He was potentially looking at spending the rest of his life in prison, and he initially had to defend himself because there aren’t a great many defence attorneys in Australia who have Top Secret level clearance. Any who did were not going to come cheap by any stretch of the imagination, but a successful Go-FundMe campaign would later allow him to retain the high-priced help that he was going to desperately need. 

The issue that is really at the heart of this matter, and an integral part of McBride’s defence, is simply this; when is a secret not a secret? Governments everywhere have it within their power to decide what is a secret and what isn’t a secret, but this doesn’t mean that they have carte blanche to classify anything they want as being secret. Naturally, any information that relates directly to the national security of a country could be classified as being secret and as such, it should not be divulged. However, in countries like Australia and several others, any information that might only prove to be an embarrassment for the government, or be evidence of potential criminal wrongdoing, cannot be classified as being secret. As such it should be open to public scrutiny and not subject to public (or secret) prosecution. 

November 2020

The last article I published about this case was on November 21st of 2020 when I wrote: “Brereton Findings Exonerate Aussie Whistleblower David McBride”. It was written shortly after the release of the Brereton Report, which contained the findings of the inquiry headed up by Major General Paul Brereton. Its task was to investigate allegations of war crimes and atrocities being committed by ADF personnel in Afghanistan between 2005 and 2016. The contents of the final report would be an absolute bombshell, as it revealed evidence of at least 39 murders attributable to Australian Special Forces personnel, and of an effort on the part of some ADF senior commanders to cover this up. 

Prominent among these was an Australian SAS soldier named Ben Roberts-Smith, who in 2011 won the Victoria Cross for actions and conduct that were unlawful. At the time of this writing, a lawsuit is being heard in an Australian court to determine whether Roberts-Smith was defamed by several news outlets as he is alleging. It is important to note that none of the allegations against Ben Roberts-Smith have been proven in a competent court of law, and as such, they remain allegations.  

The pieces to this mysterious puzzle had finally started to fall into place, and I now had a much better idea about what exactly had been going on. McBride could never reveal any of the details because they were classified, but those things he was able to say began to make more sense to me. The long and short of it is this; among other things, he had found evidence that Roberts-Smith had committed war crimes and that a cover-up had been taking place within the highest levels of the ADF as well as the contemporaneous Australian government, with at least one senior minister being implicated. THIS was why they wanted McBride, he had the goods on them, and he was going to spill the tea, all of it, leaving a lot of people stained. They simply could not have that. 

Regime change

Since that time McBride has continued to languish in limbo with a legal Sword of Damocles hanging over his head, which has taken its toll on the single father of two daughters. That he has managed to get to this point without completely cracking under the pressure is a testament to his inner strength and the support that he has received from across Australia and overseas. 

There have also been some developments in that time which may bode well for McBride. A general election was held in Australia which saw Scott “ScoMo” Morrison’s Liberal government fall to the Australian Labor Party led by new PM Anthony Albanese. It was under Morrison’s watch that charges were brought against McBride. Then, last week, an article published by the BBCs Tiffanie Turnbull reported that Attorney General Mark Dreyfus was withdrawing government support for the prosecution of lawyer Bernard Collaery. This might seem to leave the door open for the possibility that this could also happen in the matter of David McBride. 

Bernard Collaery: The spy case that ignited an Australian secrecy row

Bernard Collaery

Ms. Turnbull does a fantastic job of breaking down and analyzing what is a very complex and extremely important issue, making it understandable and meaningful for laypeople both in Australia and abroad. For the sake of expediency, I will provide the broad strokes of the story, the Cliff Notes version if you will.

It starts in 2004, when Australia was in negotiations with its neighbour, the tiny and impoverished nation of East Timor, over lucrative oil and gas reserves. In order to gain the upper hand in the negotiations, the Australian government of the day bugged the offices of the government of East Timor. The Australians would go on to get themselves a very good deal as a result.

Then, in 2012, the government of East Timor found out what the Australians had done. It then went to the Permanent Court of Arbitration at The Hague, in an effort to put pressure on the Australians to reopen negotiations. The East Timorese would have a pretty solid argument that the Australians were definitely not negotiating in good faith at the time and as such stood a good chance of winning. The Australian government of the day accused Collaery and his client, a spy known only as “Witness K”, of leaking the information to East Timor and, in 2013 the Australian Federal Police raided Collaery’s law practice and seized a legal brief that he was preparing on behalf of the East Timorese government, whom he was representing at The Hague. This despite the fact that the brief was the subject of legal privilege.

In 2017 a new attorney general, Christian Porter, would sign a new agreement with East Timor, one that had been fairly negotiated. A short while later, Porter would give the go-ahead for charges to be laid against Collaery and his other client Witness K. Collaery was charged with conspiracy to reveal classified information and share it with journalists, charges that he would decide to fight. Witness K was charged with a single offence that he would plead guilty to in 2021, thus avoiding any jail time.

Collaery would spend the next four years in legal limbo, until last week that is when the newest Attorney General, Mark Dreyfus, announced that the government would no longer support the prosecution of Collaery and would say that he had given “regard to our national security, our national interest and the administration of justice”.

McBride reaction

After I had finished reading the article, I sent a link to David McBride and asked him if he would care to comment on it. A short time later he sent me this reply:

The facts of my case are well known. If the AG goes ahead anyway, it suggests he is really trying to make an example against doing the right thing. If instead the judge finds my actions were in fact correct, then the AG should immediatey resign and I should be paid compensation. It’s not as if he was unaware of the either the facts or the law. There should be consequences for him if he gets it wrong. He is after all playing with my life and that of my family.

David McBride

Send the Attorney General a message

I have sent a media request to the Office of the Attorney General, to ask the AG if he is also considering withdrawing support for the prosecution of David McBride. I will be publishing any response I receive from them as soon as I get one.

If anyone should want to send AG Dreyfus a message asking him to also withdraw his support for the prosecution of David McBride, you can do so by clicking the link below.

I am asking anyone in Australia or around the world who supports McBride and other whistleblowers to send a message to the Albanese government. If they are really and truly serious about doing what is right, then they must continue to act with the same courage of conviction they demonstrated when they dropped their support of the Collaery prosecution.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s