A public interest defence must protect whistleblowers like David McBride

May 15, 2024
Sydney, Australia. 24th May 2023. Relatives of Julian Assange attended the Free Julian Assange! rally at Archibald Fountain in Hyde Park before a march through the centre of Sydney. The rally coincides with what was to be Joe Biden's first trip to Australia since his election to attend the Quad summit in Sydney on Wednesday. However, President Biden cancelled his arrangements before Prime Minister Albanese announced the cancellation of the entire event. Pictured: Major David McBride military whistleblower speaks at the rally. Image Alamy /Richard Milnes/Alamy Live News

The jailing of military whistleblower David McBride, who exposed alleged war crimes by Australian troops in Afghanistan, for 5 years and 8 months by the ACT Supreme Court shines a light on a number of issues and one of them requires urgent consideration. The need for a public interest defence to protect individuals like McBride.

Of course Mr McBride, like Australian journalist and author Julian Assange who is back in a London court next Monday and who exposed war crimes by the US with the release of documents and videos in 2010, finds himself embroiled in a system where the law is used to shoot messengers and truth tellers, often called whistleblowers.

McBride’s ‘crime’ was to disobey orders, including those relating to classified material, and ensure documents made their way into the public arena where they formed the basis of the 2017 4 Corners program, the Afghan Files. It is important to note, albeit a side story, that McBride and the journalist Dan Oakes who wrote the ‘Afghan Files’ series, had a serious falling out. McBride, the ABC reported, “handed over his original complaint about the “over-zealous” investigations of special forces soldiers along with thousands of pages of supporting documents.” But Oakes took a different view of the material.

Again, in a bitter irony, the Australian Federal Police considered prosecuting Oakes, his producer and a News Limited journalist Annika Smethurst for publication of classified material but in 2020 decided not to because of “public interest” considerations. But no such luck for McBride. The Attorney-General Mark Dreyfus could have exercised the power he has in section 71 of the 1903 Judiciary Act to intervene and “decline to proceed further in the prosecution” ,but decided not to arguing in October last year that such a power is “reserved for very unusual and exceptional circumstances”. One might have thought this case fitted the bill given, particularly, that the information which McBride gave to Oakes and which the latter published was bolstered by the Brereton report, released in 2020, which found that there was “credible evidence to support allegations that 39 Afghan civilians were killed by Australian special forces.’

Further why did the Commonwealth DPP not make use of the ‘public interest; test to refuse to proceed with the prosecution?

This test is one criteria used by the Commonwealth DPP and it includes a large range of factors none of which were strong enough, on their own, or in combination for the DPP to decide not prosecute even though there were reasonable prospects of conviction.

The question which arises from McBride is whether the duty to act in the public interest argument which his legal team ran as a possible defence, but without success, should be explored further and incorporated into the law, or at least be explicitly set out in the criteria which the Commonwealth DPP applies to deciding whether to prosecute? McBride’s argument was that “as a member of the military, he had a duty to act in the public interest, even where that conflicted with a lawful order.” This was rejected by the trial judge Justice David Mossop and the ACT Court of Appeal refused to entertain substantive argument on it.

But McBride surely has a point in this regard. And it does not simply apply to the military but also to police, security agencies and other organisations where individuals are required to pledge to obey lawful orders.

In rejecting this argument as being inconsistent with the state of the law in Australia, as Justice Mossop and the ACT Court of Appeal did, a conflict between adherence at all costs to some concept of ‘loyalty’ clashes with broader societal interests in ensuring that, to coin the phrase Shakespeare used in the Merchant of Venice, “the truth will out.”

Legal philosopher Eric Boot of the University of Amsterdam has examined and described the framework for a public interest defence, one which could have applied to McBride’s case. He argues that it is not necessary to require that the individual disclosing the information have motivations that are exclusively public-spirited. What we should require, however, is that the whistleblower “must have actually held the belief that her disclosure” would better serve the public interest than continued secrecy. Boot says that to run the public interest defence in a case like McBride’s there should be three tests. First that the individual meets the objective and subjective tests which means he or she or they were acting in the public interest; that his her or their actions are a last resort and finally, they have sought to minimise harm in releasing materials. This sounds a very sensible and balanced approach to the public interest test being available to those who refuse to obey lawful orders or pledges because they believe in a duty to ensure that actions which are contrary to our democracy and its values must be known.

And what is the public interest? It might be, to use a poor analogy, what former US Supreme Court Justice Potter Stewart said in 1964 about the definition of obscenity, “I know it when I see it.” But it is also clear, and this has certainly been the case in McBride, that the public interest is served when alleged wrongdoing of a serious nature is exposed to the community, where individuals disclose information that, if it is not made public, will corrode our democracy and undermine human rights and liberal values. In relation to this think Mark Felt, the senior FBI official, who clearly broke the law in becoming the ‘deep throat’ informer that created Watergate.

David McBride is the victim of bad law which is perpetuated by executive government and the legislature, and enforced by the courts. That is, a prioritising of rigid rules over the individual’s moral compass and their commitment to the public interest. Time for some serious law reform. Injustice must not be allowed to deter the ever present need to shine a light on wrongdoing by institutions.

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