• Former army lawyer David McBride sentenced to over five years for leaking defence documents.
• The leaked documents, which exposed alleged war crimes, were used by the Australian Broadcasting Corporation (ABC) for an investigative series called “The Afghan Files”.
In a high-profile case that has sparked widespread debate and criticism, former army lawyer David McBride has been sentenced to a maximum of five years and eight months in jail for stealing and leaking classified documents related to alleged Australian military war crimes in Afghanistan. The ACT Supreme Court justice, David Mossop, delivered the sentence on Tuesday, specifying a non-parole period of 27 months.
David McBride, who served as an army lawyer, took a total of 235 documents from Defence offices between May 2014 and December 2015. Of these, 207 were classified as secret, with some marked as cabinet documents. The documents McBride leaked were used by the Australian Broadcasting Corporation (ABC) for an investigative series titled “The Afghan Files”, which exposed alleged war crimes committed by Australian defence personnel in Afghanistan.
In November, McBride pleaded guilty to three charges. The charges included stealing Commonwealth information and passing it on to journalists. The court upheld a Commonwealth intervention to withhold key evidence, arguing that releasing it could jeopardise “the security and defence of Australia”.
Despite acknowledging McBride’s good character, Justice Mossop criticised his actions as driven by “misguided self-belief” and an obsession with the correctness of his own opinions. Mossop noted that McBride was unable to operate within the legal framework required by his duty, describing his actions as “deceptive”.
The court identified three main risks associated with McBride’s actions: the removal, transportation, and storage of secret documents; their disclosure to journalists; and the potential publication of these documents on McBride’s blog in 2016. However, Mossop pointed out that the Australian Defence Force had not investigated whether these risks had materialised, and there was no evidence to suggest any harm had occurred.
McBride’s lawyer, Mark Davis, announced plans to appeal the conviction, arguing that McBride believed it was his duty to release the information in the public interest. Stephen Odgers, McBride’s counsel, contended that McBride did not think he was committing an offence and that his decision-making was influenced by poor mental health and post-traumatic stress disorder. Odgers also argued that the risk of the documents being released to unauthorised individuals was low.
The sentencing has drawn sharp criticism from various quarters. Kieran Pender, a senior lawyer with the Human Rights Law Centre, condemned the imprisonment of McBride, warning that it would have a chilling effect on potential whistleblowers. “Our democracy suffers when people can’t speak up about potential wrongdoing,” Pender said.
The courtroom witnessed dramatic scenes as the sentence was delivered, with supporters of McBride shouting “shame.” Justice Mossop had to warn the interjectors that he would clear the court if they did not remain quiet. The sentencing has also led to public outcry and debates on the narrow definition of duty and the protection of whistleblowers. This is because the job of whistleblowers entails reporting any wrongdoing to ensure justice is served and that the wrongdoing doesn’t happen again. This sentencing highlights the fragility of Australia’s institutions with regards to taking criticism which is an essential part Australia’s self-proclaimed democracy. Outside the court, Davis reiterated the intention to appeal, highlighting the national and international importance of the case. “We say David McBride fulfilled his duty,” Davis stated.David McBride’s sentencing has ignited significant discussion about the balance between national security and the public’s right to know about potential misconduct.
As McBride prepares for his appeal, the case continues to resonate as a critical issue for Australian democracy, potentially shaping the future treatment of whistleblowers and the transparency of governmental actions.
