‘Australians Had a Right To Know of the Misconduct That Was Being Committed in Our Name in Afghanistan’ — Whistleblower Protection Expert Kieran Pender on McBride Trial Features
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‘Australians Had a Right To Know of the Misconduct That Was Being Committed in Our Name in Afghanistan’ — Whistleblower Protection Expert Kieran Pender on McBride Trial

Today marks the start of a controversial whistleblowing trial against former military lawyer David McBride. A former combat veteran and military lawyer who served with both the British and Australian armies, McBride allegedly leaked documents containing evidence of possible war crimes committed by Australian Special Forces in Afghanistan. The charging documents assert that the leaks occurred between 2013 and 2018. The revelations triggered a number of investigations, notably including the 2020 Brereton inquiry, which found credible information to support “rumors” involving 39 unlawful killings by or at the direction of Australian Special Forces in Afghanistan, as well as additional incidents of cruel or inhuman treatment of non-combatants in possible violation of international humanitarian law. These damning results aside, and despite efforts by his legal team to seek whistleblower protection, McBride now faces. a slew of charges linked to the unauthorized disclosure of protected documents. The case has sparked widespread debate over the role of whistleblowers in revealing wrongdoing, and how to balance the interests of national security versus public transparency. Opinions on his actions vary broadly, with supporters viewing him as a courageous advocate for accountability, and detractors viewing the alleged leaks as disloyal and morally objectionable.

On the eve of McBride’s trial, JURIST Managing Editor for Interviews James Joesph spoke with Kieran Pender, a senior lawyer with Australia’s Human Rights Law Center, who specializes in whistleblower protections and defense of free speech.

JURIST: What is whistleblowing, and what sorts of protections are available to whistleblowers in Australia?

Kieran Pender: Whistleblowing is the act of disclosing information about illegal activities, wrongdoings, or misconduct within an organization. It is often carried out by an insider with firsthand knowledge of such activities. Whistleblowers expose various types of misconduct, such as fraud, corruption, environmental violations, and financial irregularities, in the interest of justice, public welfare, and ethical standards. Motivations for whistleblowing can vary, and can be rooted in one’s moral compass, or in a broader sense of responsibility or public safety concerns.

Whistleblowing laws in Australia, primarily governed by the Public Interest Disclosure Act 2013, provide protections for individuals who expose misconduct or wrongdoing. Current protections include immunity from civil, criminal, and administrative liability, confidentiality, and victimization protection. However, there are calls for reforms to enhance the effectiveness of whistleblower protections. Key changes include expanding their scope, increasing awareness, and establishing an independent regulatory body. Encouraging internal reporting, protecting against reprisals, preserving anonymity, and introducing a whistleblowing rewards system have also been suggested. These recommendations should involve consultations with stakeholders, legal experts, and whistleblower support organizations to ensure comprehensive and effective reforms that balance the interests of all parties involved.

We’ll never know whether David McBride would have been protected by whistleblowing law because he has never had the opportunity to prove it [ed: that the alleged leaks constituted an act of whistleblowing].

But there was another case where a man named Richard Boyle was prosecuted for going to the media about wrongdoing, and he presented a whistleblowing defense, and the judge found this didn’t apply to him. In that case, the judge adopted a very narrow construction of the Defence in whistleblowing law and said it only applied to the act itself of blowing the whistle, not such preparatory acts as collecting the documents needed to blow the whistle. The government is committed to fixing that law. It’s part of an initial minor phase of reform this year, and it’s promised another phase of reform next year. That reform can’t come soon enough. It’s important and we welcome the government’s commitment to that reform. But in the interim, the government needs to stop prosecuting whistleblowers for speaking out.

JURIST: Tell us more about McBride’s whistleblowing efforts, and the impact of his leaks. 

Pender: Initially, McBride spoke up internally [about possible war crimes committed by Australian forces in Afghanistan] to oversight bodies. As a last resort, he is alleged to have leaked documents to the Australian Broadcasting Corporation (ABC), our public broadcaster, which led to significant reporting in 2017 known as the Afghan Files. This reporting provided credible evidence of war crimes committed by Australian forces.

The sad irony of his case is that this reporting has been vindicated. We’ve had the Brereton Inquiry, which found that there was evidence to support findings that Australian forces have committed unlawful killings in Afghanistan. So McBride helped bring to light [evidence] that Australian forces committed war crimes in Afghanistan, yet, well before anyone goes on trial over the war crimes themselves, the whistleblower is going to face prosecution, and that really cannot be right. …

Australia, to its credit, conducted extensive high-level investigations into these allegations. The Brereton inquiry and other ongoing investigations point to credible evidence of dozens of unlawful killings by Australian causes in Afghanistan. McBride’s alleged leaks to ABC made these findings public years before the inquiry results were publicly released.

Australians had a right to know of the misconduct that was being committed in our name in Afghanistan. The accountability of the Brereton inquiry has been significant; it’s led to criminal processes, calls for compensation, reparation, and so on. But that good work … has been undermined by the fact that this prosecution continues.

JURIST: How has the McBride case shaped public opinion on whistleblowing and its impact on national security? 

Pender: There is no doubt that McBride and other prosecutions have generated significant public interest in Australia. Polling that the Human Rights Law Centre conducted together with the Australia Institute shows that a majority of Australians side with traditional whistleblowers. The real problem with these prosecutions is the chilling effect they have. I’m a lawyer; I act for many whistleblowers, and many people don’t want to blow the whistle because they are too scared and they don’t want to go to jail. … But whistleblowers make Australia a better place. They make all democracies a better place, as they are essential agents of accountability in any democracy. Prosecutions like these have such a chilling effect on whistleblower protection in Australia.

McBride’s case will be a hugely problematic moment for Australian democracy and transparency. What sort of nation locks up people who tell the truth about bad things the government does? If McBride is [convicted and] sentenced to a term of imprisonment, that will have a negative effect on democracy in Australia and on whistleblowing, on transparency, and also on Australia’s international reputation for being a robust democracy with protections. People will speak up. At the end of the day, this is a guy who helped expose horrific misconduct by Australian forces in Afghanistan. And yet he’s on trial.

There’s no place for prosecuting whistleblowers in Australia. And yet, unfortunately, the government continues to oversee these cases. We’ve called for an end [to whistleblower prosecution] and will continue to call for an end. The impact cases like these have on whistleblowing in Australia is negative. They must stop now.