In what was meant to be the first of a four-day hearing scheduled to commence yesterday (Thursday, 27 October), barristers for Mr McBride disclosed to the ACT Supreme Court that a last-minute public interest immunity claim made by a representative of the Commonwealth prevents Mr McBride’s defence. 

Mr McBride’s whistleblowing defence is under the Public Interest Disclosure Act (PID), first enacted in Federal Parliament in 2013, which aims to protect whistleblowers and incentivise them to speak up. 

The military lawyer served two tours in Afghanistan before his arrest in 2018, where he was charged with five counts, all relating to his alleged blowing the whistle to the ABC on Australian war crime allegations in Afghanistan. 

These charges — to which he has pleaded not guilty — include the unauthorised disclosure of information and theft of Commonwealth property.

Senior lawyer at the Human Rights Law Centre (HRLC), Kieran Pender, said that the government’s national security intervention is a “devastating blow for Australian democracy”, particularly as independent inquiries have allegedly verified the wrongdoings Mr McBride spoke of.

"Last-minute legal interventions by the prosecutors and the federal government forced David McBride to abandon his whistleblowing defence. He will now face a jury trial for speaking up about war crimes alleged committed by Australian forces in Afghanistan," said Mr Pender.

“The use of a public interest immunity claim to prevent evidence being put before the court, in proceedings where the NSI Act had already been invoked to protect national security, raises real questions. The NSI Act was enacted to eliminate the need for public interest immunity claims to be made such circumstances."

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“We repeat our call for the Commonwealth Director of Public Prosecutions and the Attorney-General to discontinue this prosecution. Whistleblowers should be protected, not punished.”

The Commonwealth Director of Public Prosecutions (CDPP) can end Mr McBride’s prosecution at any time, as previously seen with the recent dropping of Bernard Collaery’s investigation. In the event that the CDPP doesn’t exercise this right, the Attorney-General can discontinue a case under exceptional circumstances. It is here that the HRLC is calling on Attorney-General Mark Dreyfus. 

The Attorney-General has previously conceded that current whistleblowing laws are no longer fit for purpose but has not made an attempt to interfere in the ongoing prosecution of both Mr McBride and ATO whistleblower Richard Boyle. 

If convicted, both Mr Boyle and McBride could face significant prison time. 

“Rather than prosecuting whistleblowers, the Australian government should get on with fixing whistleblowing law and reckoning with Australia’s alleged war crimes in Afghanistan,” Mr Pender concluded.

The PID Act has been awaiting reform since an independent review from 2016 revealed that the experience of whistleblowers protected under the act is widely considered to be “not happy”. No changes have yet been made.

Editor's note: A previous version of this story noted that it was the Attorney-General who had made the public interest immunity claim in relation to evidence in the proceedings. The claim was instead made by another representative of the Commonwealth of Australia. The Attorney-General is an interested party in the proceedings as a result of the operation of the PID Act. Reflecting on the correction of earlier assertions, Mr Pender said: “While this new information helps provide clarity regarding who was behind the decision to undermine David McBride’s defence, it does not change the travesty of what has happened."