David McBride's whistleblower defence crashes
The centrepiece of David McBride’s defence collapsed in just three days, putting an end to what was widely expected to be a three-week criminal trial of a high-profile whistleblower in the ACT Supreme Court.
The legal counsel for the former Australian Army lawyer had hoped to focus on whether a duty to protect the public interest coexists with a soldier’s duty to follow lawful orders.
Strenuous efforts by McBride’s counsel, Stephen Odgers, SC, to keep this argument alive so it could be put to jurors failed midweek. It was dramatically struck down in a directions hearing, as Supreme Court Justice David Mossop ruled it had no foundation in law. On Thursday, Chief Justice Lucy McCallum heard but rejected further representations on the issue.
McBride pleaded guilty on Friday to three charges of stealing and sharing with journalists confidential information about the conduct of Australian Defence Forces in Afghanistan. He initially faced five charges relating to his decision to leak the material. He is expected to be sentenced early next year.
McBride told reporters outside the court, “I stand tall, and I believe I did my duty ... and I see this as the beginning of a better Australia.” His lawyer, Mark Davis, said they were considering an appeal.
Greens Senator David Shoebridge called on Attorney-General Mark Dreyfus to pardon McBride after his sentencing.
The unravelling of McBride’s case coincided this week with the release by Dreyfus of a consultation paper on “a second stage of reforms to further improve the public sector whistleblowing framework”, including the possible establishment of a whistleblower protection authority, or commissioner, in the next phase of reform.
The irony will not be lost on McBride, who discontinued his application for protection under federal whistleblowing law in 2022 after a last-minute national security intervention by the Department of Defence denied access to documents he intended to use in his defence.
The Human Rights Law Centre said at the time the move raised “real questions”, given McBride’s whistleblower immunity bid was already shrouded in secrecy.
The hearings that began this week had galvanised activists, who mounted a pervasive media campaign in support of McBride. Repeated full-page ads across multiple newspapers in the lead-up to the trial urged Dreyfus to get the Director of Public Prosecutions (DPP) to drop the case.
The attorney-general told parliament on Monday that intervention as a result of public or political pressure could have a range of far-reaching consequences.
“It could call into question the attorney-general’s motives,” he said. “It could politicise the prosecution process. It could undermine the independence of the Director of Public Prosecutions.
“So any suggestion ... that an attorney-general should intervene in prosecutions routinely, or has some kind of permanent, standing or ongoing supervisory jurisdiction in circumstances that are not truly exceptional, should be strongly resisted.”
Following McBride’s guilty plea on Friday, former senator Rex Patrick criticised the attorney-general’s stance. “This is a dark day for democracy in Australia,” the founder of the Whistleblower Justice Fund said. “The attorney-general could have stopped this, but refused to, and now we have a whistleblower facing years in jail.
“In just one single moment, whistleblowing in Australia has been shut down. How is that a good thing?”
Activists have questioned why the first prosecution regarding alleged Australian war crimes in Afghanistan relates to McBride – whose actions brought them to public notice – rather than any of the alleged perpetrators.
They have also pointed to the attorney-general’s decision shortly after the government’s election in 2022 to end the prosecution of Bernard Collaery. The Canberra solicitor represented the former Australian Secret Intelligence Service intelligence officer known as Witness K, who was convicted over leaking classified information.
In 2020 the AFP also dropped its investigation into ABC journalists Dan Oakes and Sam Clark over their “Afghan Files” report – which was based on documents leaked to them by McBride – saying the inquiry was not in the public interest.
Some additional context to McBride’s whistleblower status emerged this week, however, as the prosecution's strategy focused on a little-known angle of the case.
Patricia McDonald, SC, for the Crown, made brief mention on Monday and Tuesday of the prosecution’s intention to show McBride’s leaks were not driven by concern about alleged war crimes in Afghanistan, but his contention that the Australian Special Air Service (SAS) personnel there were being investigated too much.
McBride felt the “over-investigation of special forces troops was not in the public interest”, McDonald said, adding that “reference to something as nebulous as the public interest” was no basis for the actions of military personnel.
McBride’s critics have seen him rather as a leaker jeopardising national security, whose key defence argument risked undermining the fealty to lawful orders that underpins military discipline and effectiveness.
Indeed as hearings proceeded this week, the government moved to protect a small amount of material from the documents leaked by McBride from further exposure.
Andrew Berger, KC, for the Commonwealth, used a public interest immunity argument to request redaction of at least some material in eight of the 400 documents leaked by McBride that are part of the case. This began in open court and then moved, to the jeers of some in the public gallery, into a closed hearing.
Berger emphasised the potential damage to Australia’s international intelligence community relationships should the redaction of the material, supported by affidavits from key Australian security officials, not be agreed to.
Asked about progress at the end of Wednesday’s closed hearing, one lawyer said, “No one’s allowed to know anything, including the judge. It’s un-fucking- believable.”
McBride’s supporters saw him as a truth-teller whose concern was with the uneven application of justice in Afghanistan. A few dozen demonstrators had turned up on day one of his trial, with someone playing bagpipes and several blowing whistles – preferable to drums, in the view of one stoic security officer.
The attendees were a mixed bag – the room was dotted with mostly ageing activists. A barefoot, grey-haired, goateed guy in a waistcoat, wearing an Indigenous flag badge with “NO” on it, sat next to a woman in Uggs and dreads, and there was a woman with a “#FreeAssange” sticker on her wheelchair. Not far from them sat a young man in a khaki “freedavidmcbride.com.au” T-shirt with his girlfriend, and a middle-aged man in an “#ExposeThe28” T-shirt.
But the most colourful person of the week’s proceedings was McBride. His presence was less about attire – the signature cool kid white-framed spectacles, chunky headphones round his neck – than the persona on the cover of the autobiography published by Penguin on Tuesday, The Nature of Honour. The strapline under the shot of a muscle-bound and heavily tattooed McBride reads “Son, Duty-Bound Soldier, Military Lawyer, Truth-Teller, Father”.
He’s the son of Dr William McBride, of thalidomide fame and infamy, and Patricia McBride, who practised medicine and published a guide to childbirth under her maiden name, Patricia Glover.
At seven years of age, David was sent to Tudor House in the New South Wales Southern Highlands as a boarder. Then he was a boarder at Sydney’s elite The King’s School in Parramatta. In the 1980s he studied law at Sydney University, where his rugby captain was former prime minister Tony Abbott.
Next came a BA (Jurisprudence) at Oxford. His father’s friendship with Oriel College provost Zelman Cowen smoothed the path there in a way his average university grades could not.
On Abbott’s advice, McBride took up boxing and became the Oxbridge heavyweight boxing champ. He joined the notorious all-male Oxford dining group, the Bullingdon Club, when David Cameron was a member.
Then it was on to the Blues and Royals, a Household Cavalry regiment. William McBride visited his son in Germany when he was posted there, bought him two polo ponies and helped organise their transport to England ready for David’s return.
“They weren’t expensive as far as horses go,” David writes, “about the same price as a carbon-fibre racing bike today.”
Getting into the Blues and Royals “involved a lot of jumping from log to log at just the right moment”, he wrote.
That was 1990, and it’s been McBride’s lifelong modus operandi, the book suggests. Today, though, he’s a former army lawyer, discharged on medical grounds in 2017. And the safe landing – his crowdfunded bid to avoid jail time – looks out of reach.
This article was first published in the print edition of The Saturday Paper on November 18, 2023 as "McBride’s war".
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