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Attorney-General Called Upon to Drop Prosecution of Whistleblower David McBride

Updated: Dec 5, 2023

David McBride is a whistle-blower, soldier and military lawyer currently being prosecuted after leaking details of alleged war crimes committed by Australian soldiers in Afghanistan to the ABC. These documents came to be known as"The Afghan Files" and the release of this information led to a police raid of the ABC headquarters in June of 2019 and The "Brereton Report ," which revealed that Australian Defence Force personnel had allegedly killed 39 Afghan civilians. As of time of writing, Mr. McBride remains the only individual charged in relation to Australia’s alleged war crimes in Afghanistan.

David McBride, wearing a suit, with the text "David McBride" foregrounding the image.

In 2018 Mr. McBride had plead not guilty to five charges which included include theft of Commonwealth property, disclosing information without due authorisation and breaching the Defence Act. He is facing up to 50 years in prison as a potential result of these charges.

Mr. McBride served two tours in Afghanistan as a military lawyer, the first in 2011 and again in 2013. Mr. McBride initially raised his concerns internally with the Australian Defence Force (ADF), before speaking to police and then to a government minister before speaking to media.

Mr. McBride initially sought to defend his case on the grounds of the Public Interest Disclosure Act. This legislation attests that whistleblowers can legally reveal information publicly in particular circumstances, such as when they have exhausted all internal complaint mechanisms. The ADF argued that Mr. McBride is not protected under the Act as one of the files leaked to media contained "maps of Afghan" which could potentially cause "serious damage to our national security."

Mr. McBride's case began in the ACT Supreme Court on October 27th 2022. The hearing, which was intended to take four days, was over after only 15 minutes. Mr. McBride's lawyers withdrew his application for protection under the Act after lawyers representing the Commonwealth made a public interest immunity claim, preventing Mr. McBride from utilising evidence from two witnesses who were essential to his defence. In November, it was revealed in a Senate estimates that the Department of Defence was behind the immunity claim. The case will now be tried before a jury and is scheduled for some time after July 2023

Mr. McBride, speaking to NCA NewsWire, expressed his preference for the trial to be conducted before the Australian public:

"But I did always want to do a trial. I think the issues will only be properly ventilated in a jury trial...I was never really comfortable with having the case decided under the Act. I would prefer a jury of Australian people to consider my conduct and make a ruling on that.”

The Attorney-General, Mark Dreyfus, has been publicly called upon to drop the prosecution of Mr. McBride. Furthermore he has been called upon by media to make changes to the Public Interest Disclosure Act, legislation which Mr. Dreyfus has admitted to being “fundamentally flawed” after he first introduced it in 2013

Following the case against fellow whistleblower, Richard Boyle, being dropped by the Mr. Dreyfus, a coalition of whistleblower protection experts wrote to the Attorney-General stating:

"The cases of whistleblowers Mr Boyle and Mr McBride are equally exceptional and important… Despite raising matters of serious public concern – since vindicated by independent investigations – these prosecutions have continued. Urgent intervention is needed to address the injustice caused by these criminal prosecutions, to minimise the chilling effect of these cases and to fix Australia’s whistleblowing law to ensure such cases can never happen again.

A petition calling on the Attorney-General to drop the charges against Mr. McBride has garnered over 74,000 signatures. Mr. McBride also established a legal fund which, at the time of writing, has been supported by nearly 2000 individuals and has raised almost $80,000.

According to the legal fund, the majority of Mr. McBride’s evidence cannot be copied, exchanged or even discussed by any electronic communications. Because of this, Mr. McBride is required to have his lawyers, who are based in multiple cities across Australia, to meet in person. These meetings are also hindered by their locations and conditions being government approved.

"I was charged with a number of serious offences four years ago. I’m yet to have the issues adjudicated, although there has been plenty of publicity. I challenge anyone for the ALP or LNP to debate me, as to why public hearings for NACC are worse than what I’m going through."

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