Tuesday 16th of July 2024

silence is golden....

In Australia, whistleblowers are feebly protected. They tend to muddy the narrative of perfect institutions, spoil the fun of having illusions, and give the game away. Despite recent amendments to the Public Interest Disclosure Act 2013 (Cth) regarding, for instance, the creation of a National Anti-Corruption Commission, public sector employees remain vulnerable to prosecution. The NACC, for one, already risks being hobbled by secrecy restrictions imposed by the Albanese government.


Australia: Land of the persecuted whistleblower    By Binoy Kampmark


At his October 23 National Club Press address in Canberra, Peter Greste was not optimistic about the chances of true, substantive reform that would protect those civil servants “sitting on something that you know is wrong” and “contemplating going to the media” about it. “You are seeing, on the one hand, the fairly technical changes that have been made so far, the rhetoric coming out of the Attorney-General’s office, which is encouraging on one level.” Yet “you see the kind of suffering that David McBride and Richard Boyle have both experienced: the cost of their careers, the financial damage, the emotional stress, the trauma that they have been through, and the fact that they are both about to be in court and quite likely, wind up in prison.”

McBride and Boyle fit the bill of the whistleblower a bit too well – at least from the institutional perspective. The institution exposed can tolerate change, will permit modest reform, will even allow some dispensation and compassion – except for those who unmask the show in a profound, comprehensive way. Hence their prosecution.

McBride’s unmasking activities were related to the reputationally infallible special military forces of Australia, performing supposedly unblighted roles in broken Afghanistan. The exposure of alleged atrocities destroyed a myth while also placing a sharp spotlight on command responsibility. These men might have behaved abominably, but such abominations had a tracing line back to Canberra.

Attempts by McBride to make use of the PID Act were foiled by interventions made in 2022 by the Commonwealth. This was largely because of arguments made that McBride’s evidence would fall within the scope of a public interest immunity claim, thereby restricting it. Such an immunity is the enemy of the whistleblower, enabling the government to block and limit adducing vital evidence in court. Its blighting rationale is that the public interest is not served by the public knowing what the government is up to, despite the official propaganda that an informed citizenry is exactly what is desirable.

This fact was already yoked by the application of the National Security Information (Criminal and Civil Proceedings) Act. This perplexed Kieran Pender of the Human Rights Law Centre. “The NSI Act was enacted to eliminate the need for public interest immunity claims to be made in such circumstances.”

Boyle’s disclosures related to exposing a particularly aggressive practice the Australian Tax Office adopted in raising extra revenue: the garnisheeing of accounts of supposedly errant taxpayers. Such harsh notices require banks to transfer taxpayer monies without notification. Despite going through the awkward hoops set by the PID Act, which privileges internal, and thereby containable disclosure over external, and more accountable review, Boyle found himself facing prosecution for 66 charges (the number has been whittled down to 24) for what he thought was a protected public disclosure to the media. The charges are based upon alleged breaches of the Taxation Administration Act 1953(Cth) and South Australian laws covering the misuse of listening devices.

When he tested the application of the PID Act in the South Australian District Court, the judicial reception from Judge Liesl Kudelka was icy. Such disclosures were, it was held in March, important but confined in their scope. Had “Parliament intended that a public official may engage in criminal conduct when preparing a public interest disclosure (perhaps on the basis that it is a lesser evil for a greater good), then a legislative provision which clearly delineated the boundaries of the conduct would be expected”. In an interpretation that culls the PID Act of effect, the judge effectively claimed that public disclosures would always exclude the preparatory stages of making them.

In the ancient, archaic traditions of authoritarian power, both men are at the strained mercy of the Attorney-General’s discretion as to whether these prosecutions continue. But Mark Dreyfus, the current occupant of Australia’s highest law office, has shown no interest in dropping them, despite having the authority to do so under Section 71 of the Judiciary Act 1903 (Cth). As former senator Rex Patrick has pointed out with his usual sting, claims by Dreyfus that he can only do so in “exceptional circumstances” is bilge watery nonsense. The discretion, as confirmed by the full bench of the Federal Court in 1984, is ‘unfettered’.

Greste’s address was hardly of the window-breaking, stone throwing variety. Having already been blooded in terms of his incarceration for his work with Al Jazeera (he did have a spell in an Egyptian prison for 400 days), he has become, essentially, an establishment voice within the Fourth Estate, an aristo keen on reform as he brandishes a champagne glass in one hand, and a sample of canapes in the other.

It perhaps explains why he has had reservations about those alternative mischief makers such as Julian Assange, who undeniably engage in journalistic practices (publishing leaks and secrets, much of it the bounty of whistleblowing), but who never quite find their mark as worthy of the same protections.

It would explain Greste’s 2019 opinion piece, written in the aftermath of Assange’s eviction from the Ecuadorian embassy. Filled with inaccuracies and cloddish understanding, he was emphatic: “To be clear, Julian Assange is not a journalist, and WikiLeaks is not a news organisation.” Press freedom, he claimed with strained novelty, was separate from “the libertarian ideal of radical transparency”.

Such tormented reasoning – and one happily embraced by Assange’s US prosecutors – has since come back to haunt Greste. As leader of the Alliance for Journalists’ Freedom, he finds himself campaigning for press freedom alongside bodies such as the Media, Entertainment and Arts Alliance who have argued that the prosecution of Assange is “the most dangerous threat to press freedom today”.

Be that as it may, Greste advocates a standalone Media Freedom Act along with firmer protections for whistleblowers. Doing so would certainly get around the troubles journalists face when confronting search warrants of the sort used by the Australian Federal Police against the ABC in June 2019. But constipation obstinately reigns in this field of policy, and more needs to be done.

As a number of independent MPs have recommended (Helen Haines and Andrew Wilkie come to mind), an independent office specifically dedicated to protecting, advising and shielding whistleblowers would go some way in this endeavour. The Netherlands furnishes us a solid, though imperfect example of such a body in the Dutch Whistleblower Authority Act. Adding to this such provisions as the EU whistleblowing directive, and reform in Australia can take place along well-guided lines. That, however, promises to be some way off. Jealously guarded secrecy, however rational, remains the prerogative of the Commonwealth.




of duty.....


David McBride’s defence argues duty to nation supersedes military law    By Joe Lauria


Whistleblower David McBride’s lawyers argued on Day One of his trial that a soldier’s duty is not just to follow his superior’s orders, but to serve the entire nation. Joe Lauria reports.

The trial of Australian whistleblower David McBride opened on Monday, with the prosecution and the defence sketching out their cases before Justice David Mossop at the Supreme Court in Canberra.

McBride, who served two terms in Afghanistan as a lawyer with the Australian Defence Force (ADF), has been charged in a five count indictment for a trial that is expected to last three weeks.

The prosecution argued on Monday that McBride broke laws of military discipline by leaking to the Australian media. McBride’s lawyers conceded in court that he indeed broke such regulations but that he had a duty to the nation that superseded military discipline.

The trial is shaping up to be a battle between distinct ideas of the military’s role in society: is it to serve the entire community’s interests or is it a law unto itself?

In 2014 McBride made internal allegations after learning of murders of Afghan civilians by Australian soldiers. McBride then began leaking evidence to the Australian Broadcasting Corporation, the national broadcaster, between 2014 and 2016.

Australian Major General Justice Paul Brereton began an investigation in May 2016 and made public findings in November 2020 that pointed to “credible information” about Australian war crimes. The Brereton report accused Australian special forces of murdering 39 unarmed Afghans.

Nevertheless, in September 2018 McBride was charged with allegedly stealing government property in violation of the Criminal Code Act 1995. In March 2019 he was charged with three more alleged crimes in breach of the Defence Act 1903 as well as “unlawfully disclosing a government document” contrary, allegedly, to the Crimes Act 1914.

‘Who do you serve?’

McBride entered the Supreme Court Monday on morning with his therapy dog Jake, whom he was allowed to bring into court. He encountered a large crowd of supporters rallying in front of the courthouse. “Today I serve my country,” he told his backers. “The question I have for you, Anthony Albanese, is who do you serve?”

Special Counsel Trish McDonald, who lead the government’s team of prosecutors, began the day by laying out the military laws she claims McBride violated. McDonald said the concept of duty in the law says it is not in public interest to reveal classified information to the public.

McBride’s primary duty, she said, was to follow orders. The accused was a legal officer, she asserted. He was not appointed to inform the press. He contravened his official duty. In fact, there is a public interest in non-disclosure, the prosecutor argued.

All defence personnel are required to comply with a “general order” – which includes a “defence instruction” – meaning official information must be treated as confidential and not disclosed to non defence entities, McDonald told the court.

McBride had neither authority nor permission to disclose the information to the media. To do so was not in accordance with McBride’s duty, the prosecutor said. Public release of such information must be approved by the attorney general, she said.

Obedience to command is essential to an effective defense force, the Crown prosecutor said, and disobedience is “disruptive.”

Keeping confidentiality is critical to an ADF lawyer, McDonald further argued and a core duty of a member of the armed forces is obedience to orders.

There is no such “free standing duty” imposed on members of the ADF to advance the public interest contrary to lawful orders, McDonald told the court. “The notion that an ADF member can contravene the law because they believed subjectively that revealing confidential information is in the pubic interest is inimical to discipline in the ADF,” she said.

The oath a soldier takes does not allow an ADF member to disobey it because he believes that to do so advances the public interest,” McDonald argued. Was the accused allowed to act in the public interest regardless of orders? she asked the court.

The ABC broadcast a report in 2017 about the murder of innocent Afghans based on evidence supplied by McBride and a second whistleblower. On June 5, 2019 the Australian Federal Police raided the ABC’s Sydney headquarters for eight hours and removed files.

The attorney general ultimately decided against prosecuting an ABC journalist, Dan Oakes, who had worked on the Afghan Files story. In March, three years after the Brereton report, the first soldier was charged with murder.

In court on Monday, McDonald pointed out the failure of the ABC’s challenge to the AFP’s search warrant of a media office.

A duty beyond the military

Citing case law, the defence methodically laid out the difference between military discipline regulations and civilian criminal law, arguing that McBride had a duty not just to the military that he served but also to the country.

Special Counsel Stephen Odgers, the lead barrister for the defence, argued that an ADF soldier takes an oath to the King, whose duty is to uphold the interests of the nation. Therefore it follows logically that a soldier’s duty is not just to the military but to the interests of society as a whole.

“Duty of service to the sovereign should be understood as a duty to serve the public even if it conflicts with an order of the Defence Tribunal,” Odgers said.

While McBride may have violated the military code he has not violated civil, criminal law, Odgers argued. The former should be determined by military tribunals, he said, and McBride should not be tried in a civil court.

“We don’t accept that following the oath necessarily means following orders,” Odgers told the court. “There isn’t always such an obligation.”

And that it is up to a jury, and not the military, to determine, he argued.

Only a jury can decide that it was acceptable for McBride to “expose criminality within the ADF to prevent future offences.”

“There is also a duty to disobey unlawful orders under Section 45 of the Defence Act,” Odgers added. “The accused had a duty to the administration of justice.”

The trial continues on Tuesday morning here when the defence will introduce a classified document that testifies to the commission of serious crimes, an example of the circumstances in which McBride’s duty as a lawyer was not to obey orders to maintain confidentiality but, to disclose those crimes.


First published in Consortium News November 13, 2023






guilty brasses.....

David McBride was not given leave to appeal the decision made yesterday about the nature of his duties. It means Justice Mossop’s decision stands, and his duty is to the military chain of command, and only that.

Following today’s proceedings in court was not easy for those of us who didn’t go to law school, or are unfamiliar with 19th century court decisions. The prosecution used a court case from 1874 to argue that a military oath does not have any allowance for any other higher – or public – duty.

The Appeals Court agreed with Justice Mossop, and that’s that. For now.

In effect, it means that McBride’s efforts to use the chain of command to report what he thought was criminal behaviour, being rebuffed by his superiors, matters nought. Nor does the fact that what he reported has since been shown to be true. According to the government’s argument, the only thing that matter is that he went public in contravention of military law.

The repercussions are frightening, not just for David McBride – who may now have no option but to plead guilty – but also for Australia and any other potential whistleblowers.

The judges, justices and jury members can only judge according to the letter of the law. But if that’s the law, it needs to be changed.







of war crimes....


Today I serve my country. And the question I have for you, Anthony Albanese is, ‘Who do you serve?’” – David McBride

On Monday November 13, I joined the throng of media and David McBride supporters, crowding the courtyard outside the ACT Supreme Court. It was the start of The Afghan Files prosecution of military whistleblower David McBride, who was charged with leaking the classified information that formed the basis of the 2017 Four Corners exposé, The Afghan Files, that revealed war crimes committed by Australian special forces in Afghanistan.

These allegations were substantiated by the Brereton Inquiry, which found “credible information” of war crimes committed in Afghanistan by Australian SAS personnel. Despite this, in an Australian replay of the USUK persecution of Julian Assange, the war criminals are running the persecution, while the whistleblower is facing five indictments for the leaks, which carry maximum sentences of ten years each.

A roll call of Australian whistleblowers and politicians were on hand to lend their support. They addressed the assembled media and the McBride supporters, decrying what some described as a War on Whistleblowers and others call the War on Truth.

Mary Kostakidis, the former SBS news anchor, was the MC for the rally It was a sad day for democracy, she said, because it was democracy that was on trial this day in the ACT Supreme Court:

“There can be no democracy without a strong press and a strong press relies on whistle blowers. Over the next three weeks, the hypocrisy of the Australian government’s claims to protect whistleblowers will be in full view in this court, where the first person to be prosecuted over war crimes in Afghanistan is David McBride who revealed wrongdoing perpetrated in our name.”

McBride, she said, fulfilled his duty as a lawyer to uphold the law and to report serious crime. Only when it was apparent that nothing was going to be done about it, did he blow the whistle. The level of public condemnation for this unjust prosecution was enormous.

An important question most of the speakers grappled with was: Why is a prosecution of someone like McBride, who is seen by many as a hero of Truth, going on? Former Senator Rex Patrick condemned Anthony Albanese and Mark Dreyfus, blaming them for sending, McBride, a whistleblower, to trial, declaring:

“Mark Dreyfus has the power under the Judiciary Act to stop this. He can stop this prosecution. Currently, he’s hiding behind a coward shield by saying that he can only exercise that power in exceptional circumstances. That is not what the law says! The Parliament has granted him that power to deal with situations which are wrong with prosecutions that are not in the public interest.”

Like Rex Patrick, many of the speakers condemned the Albanese government for not stopping the trial.

Jeff Morris who blew the whistle on the misconduct of the Commonwealth Bank’s financial planning in 2008 and has been a powerful advocate for a whistleblower protection agency and a compensation scheme for whistleblowers, warned the government against the War on Whistleblowers, declaring:

“I am going to use the C-word that isn’t used by polite people in Canberra: corruption. When the Albanese government chose to go to war with whistleblowers, chose to prosecute whistleblowers – and they are not just doing it once, they are doing it twice, with Richard Boyle as well – there is a pattern.

“Whistleblowers are the antidote to corruption. In fact, from my experience with useless regulators, they are about the only antidote to corruption in this country. So when the Albanese government chooses to go to war with whistleblowers and prosecute them, it’s choosing to embrace corruption. It’s choosing corruption over integrity and truth.”

Troy Stolz blew the whistle on gambling industry lobby group, ClubsNSW, for failing to comply with anti-money laundering financing rules and was subjected to a court-ordered gag by the gambling industry lobby group. He took a marginally more nuanced view of this example of government perfidy.

“I think the numbers here today send a clear message to the government what a disgrace they are. The Albanese government, to their disadvantage, inherited this mess from the Liberal government. Using Jeff’s dirty C word –criminals – in this instance, the Albanese government could have dropped these charges earlier on and said. ‘Well, the Liberals started that; this is wrong, we’ll drop it.’ So, I’m going to add another C word to this equation – collusion.

“We now have a situation in Parliament where we’ve seen Liberals and Labor voting down motions (to drop the charges against McBride and Tax office whistleblower Richard Boyle) from Andrew Wilkie and the Independents, teaming up together, the duopoly, to keep it between the two and continue. It’s an absolute disgrace.”

Bernard Collaery, a former ACT Attorney General and ALP politician who faced prosecution and imprisonment under the Coalition government ─ not because he was a whistleblower, but because he was the lawyer of a whistleblower! ─ likened Australia under the coalition government to France after WW2 when the country had to deal with the issue of collaborators. The coalition was not a government, he asserted. It was an occupation of our country by a gang of villains.

“We had an occupation in this country, and we are still suffering the wounds of occupation. It’s not just weakness and the timidity of the Albanese government. It’s the overflow of occupation.

“And who were the main collaborations. They are over across the lake in the bureaucracy, and they include all the mates appointed to the tribunals by the corrupt government. Now what has failed to happen is that the national security clique across the lake have remained in place. As Professor James Curran says the entire skill set of the coalition, of the occupation, are still directing our policies in relation to China.

“We are here in the overflow of the occupation. There is something wrong with the Labor Party at the moment. Something seriously wrong, and we need to support the right people there …. What we need is to continue the fight all the way through David’s prosecution. It’s all the result of the occupation of that gang. I am very happy to be with you. I am very happy to not be in jail myself.”

Words it was impolite to mention, the C-words; a conga-line of corrupt, colluding, criminal, collaborators; a conspiracy of the Yes-people ruled Canberra, warring against and destroying their opposition, the Truth-people. In this War on Truth, whistleblowers suffer, but that suffering gives them a remarkably more truthful view than the Insiders of the Canberra commentariat.

The final speaker was David McBride, a big man with silvery hair and his trademark white glasses, wearing the uniform of the accused, a white shirt and a fine blue coat, accompanied by his therapy dog, Jake. The organisers had bought 200 whistles for his supporters to blow, and the cacophony of cheering, and applause, overlaid by the chorus of 200 whistles, reached a crescendo as he prepared to address his supporters.

“Just a few words. Thank you everybody. You are part of my family. Today I serve my country. And the question I have for you, Anthony Albanese is, ‘Who do you serve?’”