McBride and Duggan expose the human cost of Australia’s security state

David McBride’s release and Dan Duggan’s extradition battle expose the human cost of Australia’s national security priorities and alliance loyalties, writes David Higginbottom.

This article is part two in a two-part story. Read part one here.

PART ONE of this story argued that Australia’s foreign policy is often shaped by an implicit hierarchy.

In that framework, explored in an earlier article, the United States occupies Tier 1 – the ally whose security claims are normally accepted as protective – while China has moved from Tier 3, a difficult but necessary partner, to Tier 4, a designated adversary.

The result is not simply a change in diplomatic language. It changes the interpretation of old facts, the kinds of conduct treated as threatening, and the people who may be caught in the machinery of national security.

Whistleblower David McBride walked out of Canberra’s Alexander Maconochie Centre on 13 August after serving his 27-month non-parole period. He pleaded guilty to offences involving classified defence documents and remains under supervision for the balance of his sentence.

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Australia’s approach to China reveals a strategic double standard that judges allies and adversaries by very different rules.

However, the moment returns an uncomfortable question to public view: when the State invokes national security, whose interests are being protected and who bears the burden? This ABC analysis places the case in the wider debate over whistleblower protections.

McBride believed he was exposing a flawed approach to the investigation of Australian special forces in Afghanistan. The material he supplied formed the basis of The Afghan Files, which brought wider scrutiny to allegations of unlawful killings.

The later Inquiry found credible evidence that Australian forces had unlawfully killed 39 Afghans. The criminal law dealt with McBride as the person who removed and disclosed classified material. The public debate, however, concerned what that secrecy had concealed.

The Dan Duggan matter is different. McBride is an Australian military lawyer convicted of disclosing classified documents. Duggan is a naturalised Australian citizen and former U.S. Marine pilot facing extradition on allegations that he unlawfully trained Chinese military pilots. His legal challenge has focused on whether the alleged conduct met the dual-criminality requirements for extradition and whether it was an offence in Australia at the relevant time.

The Federal Court rejected that challenge, but the argument remains central to the public controversy. Reuters reported the legal arguments advanced in the appeal; ABC News reported its dismissal; and Paul Gregoire’s Sydney Criminal Lawyers analysis sets out the case made by Duggan’s supporters.

McBride’s release provides a lens through which to examine the common ground. Both cases concern national security. Both involve individuals who became entangled in larger official narratives. And both raise the question of whether Australian institutions can distinguish a genuine security threat from the reflex to protect an alliance, an official story, or a newly elevated geopolitical priority.

The chronology that needs explaining

The United States alleges that Duggan’s relevant conduct occurred between 2009 and 2012, including training activities in South Africa and China. In the four-tier framework, this was the period in which China was still predominantly a Tier 3 State: authoritarian, certainly, but a country with which Australia and its allies pursued broad commercial and practical engagement. Australia was intensifying trade and official links, not treating contact with China as evidence of strategic disloyalty.

The movement towards Tier 4 began in 2016 and accelerated through to 2022. China was increasingly recast as the central challenge to the U.S. and its allies. The Australian political environment changed with it: Huawei became a national security issue, and the language of interference, infiltration and coercion displaced the earlier language of engagement.

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The U.S. indictment, filed under seal in 2017, alleges breaches of laws and controls that the United States says applied at the time. The public U.S. court docket records that the indictment was filed under seal in 2017 and unsealed after Duggan's arrest.

Why did alleged conduct from 2009–2012 become the subject of a sealed indictment in 2017, an Australian arrest in 2022 and a prolonged extradition process only after China was elevated to the central adversary of the United States and its allies?

Duggan’s representatives have argued that the relevant Australian law, the foreign government military training offence in Section 83.3 of the Criminal Code, was enacted in 2018. They contend that the amendment was then relied upon to satisfy dual criminality.

Whilst the Federal Court rejected this appeal, the underlying issue remains: should an Australian citizen be extradited for historic conduct where the domestic Australian law was enacted later? The opposing positions are set out in the ABC’s report of the judgment and the Sydney Criminal Lawyers analysis.

The indictment was filed after Washington had begun its decisive shift towards defining China as a strategic competitor. It was unsealed after Duggan’s October 2022 arrest in New South Wales, at the low point of Australia-China relations. He now faces extradition to the United States. The ABC report and Law Society Journal record the appeal outcome and the remaining uncertainty.

The alleged conduct did not change — attitudes changed. Conduct associated with an era of engagement, when Australian governments sought Chinese trade, investment and cooperation, was placed inside a far harsher narrative of military competition, technology control and national-security threat.

A question of Australian sovereignty

An Australian citizen faces being surrendered to the U.S. for alleged breaches of American law related to conduct in a third country. His lawyers have argued there was no evidence that the people he trained were military pilots and that the conduct was not an Australian criminal offence at the relevant time. The Government has answered that the U.S. is the forum to determine guilt or innocence, as described in the ABC’s report of the judgment.

However:

What discretion should Australia exercise when a citizen faces decades in a foreign legal system for historic conduct in a third country?
What independent assessment is made of the political setting in which the request is pursued?
Why is this treated as a routine matter of alliance law rather than an exceptional case emerging from the United States’ contest with China?

This is where the four-tier framework matters. A Tier 1 ally’s demands are routinely presented as part of a shared security interest. A Tier 4 State’s actions are presumed to require vigilance, restriction and punishment. The structure makes it difficult to ask whether Australia’s loyalty to Washington has exceeded its duty to protect the rights, welfare and legal interests of its own citizens.

Punished for the truth: David McBride's first hundred days in prison

David McBride has reached the 100-day milestone of imprisonment for telling the truth about Afghan war crimes.

McBride’s release puts a similar issue in a different setting. His case exposed the limits of the public interest defence where national security institutions are challenged. The legal system concentrated on his breach of secrecy; the wider public conversation focused on accountability for conduct in Afghanistan. Duggan’s case presents another side — not disclosure but enforcement: how readily are the state’s formidable powers mobilised when old conduct becomes strategically useful in a new geopolitical contest?

Enforcement choices do not occur outside history. The power to investigate, indict, extradite and imprison is always exercised in a political setting. When that setting shifts from engagement with China to strategic confrontation, old conduct can acquire new urgency, new meaning and a far heavier penalty.

McBride’s release should prompt a wider reckoning. Australia needs institutions willing to ask whether “national security” is applied consistently, proportionately and in Australia’s own interest. That means accountability for war crimes, meaningful protection for those who reveal serious wrongdoing, careful scrutiny of extradition requests and a foreign policy that does not confuse the strategic priorities of a great power with the interests of Australians.

Dan Duggan should not be presumed innocent or guilty in a newspaper column. But nor should he be treated as expendable when a country is reclassified from partner to enemy.

David McBride’s release is a reminder that when the security state’s story changes, it is often individuals, not ministers, agencies or allied governments, who carry the heaviest burden.

This is part two in a two-part story. Read part one here.

David Higginbottom is a member of the coordinating committee of the Independent and Peaceful Australia Network (IPAN) and coordinator of the Make Peace A Priority campaign (mpap.au).