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A tragedy of justice. Why the Australian government should not be forcing Defence whistleblower David McBride to stand trial

Former military lawyer David McBride is finally scheduled to face trial in Australia on November 6 2023 after a protracted legal battle lasting four years and eight months. Chief Justice Lucy McCallum of the ACT Supreme Court ordered that a trial date be set this year, putting an end to the prolonged wait.

David McBride, whistleblower, trial, classified information, Australian defence, media, leaks, misconduct, Afghanistan, prosecution, legal battle, accountability

McBride’s journey began with his arrest at Sydney airport in September 2018 upon returning from Spain. McBride stands accused of leaking classified defence information to senior journalists at the ABC and Fairfax Media, which formed the basis of the 2017 exposé “The Afghan Files.” The disclosures brought allegations of misconduct by Australian special forces in Afghanistan to light, including potential unlawful killings.

McBride, who has pleaded not guilty to five charges, including unauthorised disclosure of information and theft of commonwealth property, will be standing trial after a series of legal complexities, including applications for suppressions and a mooted bid for whistleblower protection that was later abandoned. The trial is expected to last three weeks, presided over by Justice David Mossop, who has experience with sensitive national security matters.

Commonwealth prosecutors expressed concerns about the trial date, as it may pose difficulties in terms of the availability of counsel and witnesses. They anticipate calling 22 witnesses during the proceedings. However, both the trial date and its suitability were agreed upon by McBride and the commonwealth’s legal representatives.

Meanwhile, the ACT Veterans Minister, Emma Davidson, has called on the commonwealth to intervene and halt the prosecution of David McBride, emphasising that it is not in the public interest. Davidson, alongside McBride and lawyer Bernard Collaery, stated that the trial’s continuation is detrimental to Australia’s reputation and the welfare of veterans.

McBride has already incurred a significant financial cost for the commonwealth, with expenses totalling $1.8 million as of February this year, prior to the trial. The lengthy legal battle has taken a toll on McBride and his family, affecting his well-being and personal relationships.

The Attorney General, Mark Dreyfus, has not indicated any intention to intervene in the case. While he previously intervened to halt the prosecution of Bernard Collaery, who exposed Australia’s bugging of Timor-Leste during negotiations, Dreyfus has emphasised that such interventions should be reserved for exceptional cases only. McBride expressed concerns about the potential injustice if he were sent to jail while perpetrators of war crimes remained free, questioning the state of justice in Australia.

Bernard Collaery highlighted the broader implications of a prolonged trial, stating that it would raise questions about Australia’s relationship with its allies and the impact on the morale of the Australian Defense force.

The Australian Human Rights Law Centre, a staunch advocate for McBride, called on the Australian Prime Minister Anthony Albanese to take action and end the unjust case. They emphasised the need to stop the trial and reform whistleblowing laws to prevent similar situations in the future.

In another development, McBride also recently has participated in a rally in support of Julian Assange, drawing clear parallels between his own case and that of the persecuted WikiLeaks publisher. The ongoing prosecution of McBride exposes the federal Labor government’s refusal to drop charges and safeguard the whistleblower’s freedom, undermining their professed concern for Assange’s plight.

In response to the trial, Dr Iain Overton, Executive Director of Action on Armed Violence, said: “We must not forget that whistleblowers play a vital role in exposing wrongdoing and holding governments accountable. The prolonged trial of David McBride is – like that of Julian Assange – a stark reminder of the need for robust whistleblower protections and a commitment to transparency. It is essential that we support those who have the courage to speak out against injustice.”

Certainly, McBride’s case highlights the complexities and challenges faced by whistleblowers in their pursuit of truth and accountability. The calls to end the prosecution and reform whistleblowing laws emphasise the need for a more supportive environment for those who expose wrongdoing in the military – either in Australian or its allies.

McBride’s case serves as a hard reminder of the importance of protecting whistleblowers and fostering a culture of transparency and accountability in society.