Last week, David McBride, the Military Officer who disclosed tranches of confidential documents with respect to the behaviour of Australian Defence Forces during the nation’s involvement in the wars in Afghanistan, was sentenced to six years imprisonment. McBride believed that in making these disclosures he had acted appropriately and correctly in the public interest.
A single Judge of the ACT Supreme Court, Justice Mossop, disagreed and sentenced him accordingly pursuant to s.73(A) of the Defence Act 1903 (Cth). This section provides that a person commits an offence if the person communicates any document or information that relates to defence of the Commonwealth to another person and the communication is not in the course of the person’s official duty. The decision comes as a significant blow to freedom of political speech and freedom of the media in Australia.
McBride was a senior military official and a lawyer. He joined the Department of Defence in 2005 with the rank of Captain. Shortly after he was promoted to the rank of Major. He served two tours of duty in Afghanistan where he served as a senior legal advisor. He had been tasked with providing high-level legal advice as to the rules of military engagement. In 2017 he was discharged for medical reasons, including for post-traumatic stress disorder, He had been very highly regarded in military circles.
From 2014, however, he had begun accessing confidential military documents. The documents were administrative in nature. They did not bear upon military activities in the field of battle. They reflected McBride’s interest in and concern with allegedly improper conduct by Senior Defence Officers and in the Defence Force Investigation Service. Broadly speaking, it appeared that McBride was of the view that some senior Defence officials had been engaging in conduct that bordered on corruption.
McBride had downloaded more than 200 confidential documents, copied them onto his computer and stored them at his home. In the later period of his employment, he had also provided the confidential documents to three respected journalists.
S.73A is cast in very broad terms. Unlike any other comparable provision in the Defence Act, s.73A does not prescribe any maximum sentence applicable to transgressions of its prohibition upon disclosure. The absence of a maximum sentence is the key to understanding how it is that McBride’s sentence in this case can have been so severe.
Justice Mossop’s reading of the provision was that the absence of a maximum term was indicative of a legislative intention that the offence of unauthorised disclosure pursuant to s.73A should be met with severe punishment. So, whereas in prior comparable cases where a maximum sentence of between one and two years had been set in legislation, in this case a Court could exercise a discretion to impose a sentence at large.
And so, the sentence of six years in David McBride’s case was chosen to act as a deterrent to possible similar public disclosures of sensitive documentation in the future. The Court’s decision came as a shock. The sentence was three times more than any sentence for any comparable case in the past.
There were very substantial considerations that militated against the Supreme Court’s preference for such a lengthy period of imprisonment.
It was accepted by all parties to the proceedings that McBride was a person of exemplary character. He had not been motivated by financial gain, personal advantage or a desire to assist Australia’s adversaries. He had served bravely, honestly and effectively in his two tours of duty in Afghanistan. He had been consistently identified as an officer who was a candidate for further promotion in the Department of Defence.
McBride had acted in good conscience. His motivation in engaging in the offending conduct was to remedy what he perceived to be managerial malfeasance and injustice occurring within the ADF. He was aware that he had breached disciplinary regulations and orders but believed strongly that he was acting in the wider public interest. Having done so, he thought that his actions would be vindicated in court, a mistaken belief as it turned out.
McBride’s removal of the documents from Departmental premises raised the possibility that some other, unauthorised person could have obtained access to them. In the event, no such unauthorised disclosure had occurred.
The documents had been disclosed to three highly regarded, professional journalists pursuant to a tacit agreement that they would be no more widely distributed. The ADF was so unconcerned about these disclosures that it had taken no steps to determine whether or not the documents were accessed by any other person except the journalists involved. There was no evidence that any other related disclosures had occurred.
Prior to and during the period in which McBride had been taking the documents to his home, he had been suffering from a number of mental disorders. These had contributed to his offending. They lessened his culpability.
In an affidavit provided to the Court, McBride justified his actions by explaining that Afghan civilians had been murdered but military leaders had turned the other way at least tacitly approving reprehensible conduct. At the same time, soldiers were being unjustifiably prosecuted as a smokescreen to cover the leadership’s inaction.
As Jack Waterford wrote recently, ‘so far as McBride believed himself to be doing the right thing – to stop senior officers doing the wrong thing – in the Judge’s opinion he was guilty of the arrogance of preferring his own opinion to those of his superiors.’ This was a tenuous conclusion.
In summary, although he had acted in a way that might possibly have been prejudicial to Australia’s defence, national, security or international relations, his actions had not, in fact, resulted in any harmful consequences at all. No real national secrets were exposed, even as serious iniquity and betrayal of duty by other Defence officials was in the course of investigation by the Brereton inquiry.
Nevertheless, it was McBride who was prosecuted. He remains the only senior Australian officer who has been tried and sentenced arising from actions in the theatre of the Afghanistan war.
As a footnote to this discussion, it is of some interest to observe that it was Justice Mossop who presided in every one of the dozen cases brought against the former Attorney-General of the ACT, Bernard Collaery. These related to the alleged unlawful disclosure by Collaery of documents relating to the Australian government’s reprehensible actions in the disputation between Australia and East Timor over their respective entitlements to the proceeds of the exploration of oil and gas reserves in the Timor Sea.
Justice Mossop ruled against Bernard Collaery in every case. Collaery would also have gone to jail had Mark Dreyfus not intervened to prevent the imminent and unjust outcome that seemed likely. In that context it was unfortunate that Justice Mossop was chosen to preside in the McBride litigation. And Dreyfus should act similarly to free McBride.
Spencer Zifcak is Professor of Constitutional and Human Rights Law at the Australian Catholic University.
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