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, writes Dr John Jiggens.

WHISTLEBLOWER David McBride chalked up an unwelcome century on Thursday 22 August, which marked his 100th day imprisoned for releasing evidence of Australian war crimes in Afghanistan.

McBride was sentenced to five years and eight months for revealing the murder of scores of Afghan civilians by Australian Special Forces in May this year. One hundred days done, 2,000 more to go for disclosing the shameful truth our military and political leadership tried to hide.

Greens Senator David Shoebridge used the occasion to call on Attorney-General Mark Dreyfus in Parliament to pardon McBride.

David McBride's sentence a brutal punishment

Whistleblower David McBride has been sentenced to almost six years in prison for exposing Australian war crimes and upholding the public interest.

Senator Shoebridge said:

Acting Deputy President, today marks 100 days since David McBride was gaoled for telling the truth. Visits to him... the last time I wasn't even able to take him a book. He's been repeatedly moved inside the prison because of safety issues. The Attorney-General must end this persecution and pardon David now. The crime here was not David telling the truth. The crime is a government that promised transparency in opposition, then taking office and then gaoling whistleblowers. And that's a crime that touches us all.

Australia’s whistleblower protection laws were broken, Shoebridge said, when I interviewed him after his speech. And, he added, after putting one whistleblower, David McBride, behind bars, the Albanese Government was doubling down by prosecuting another whistleblower, Richard Boyle, who blew the whistle on the Adelaide tax office.

Shoebridge said Australia’s whistleblower protection laws were a legal minefield where to get protection, the whistleblower had to navigate an almost impossible path.

Said Shoebridge:

“Every time a whistleblower tries to go down that path, they make some small technical mistake and just the slightest little slip along the way means they lose all of their legal protections. And the case that's really highlighted this, apart from David McBride, is the case of Richard Boyle.”

Richard Boyle made a public interest disclosure about maladministration at the Adelaide debt collection centre of the Australian Tax Office in 2017. Although his concerns were vindicated by an Australian Parliamentary Inquiry and by the inspector-general of taxation, instead of being rewarded for his whistleblowing, he was prosecuted.

A monumental betrayal: Four Corners and David McBride

David McBride's work to expose war crimes is being wrongly minimised.

Boyle’s case was the first major test case of protections available under the Public Interest Disclosure Act 2013 and he lost. After six years of persecution, he is awaiting trial, facing 23 charges which could result in substantial prison time.

Senator Shoebridge said:

The Commonwealth has now created a new attack against Richard, where they say, look, even if Richard can prove that when he finally went to the media that he was covered by the whistleblower protection laws, what they say is when he was photocopying the evidence and downloading emails in the course of preparing what he sent to the media, every time he photocopied a document or downloaded an email, he breached the law. None of that is covered by the Whistleblower Act.

So, they want to put him into gaol for preparing the case and preparing the material to give to a journalist. And they argued that case successfully and if that's true, then we have no Commonwealth whistleblower protection laws. I mean it's obscene what the Labor Government is trying to do here.

In his parliamentary statement, Senator Shoebridge had talked about not being able to give McBride books in prison. Senator Shoebridge said he visited David McBride twice in prison and the first time they talked about books that McBride wanted to read. When Senator Shoebridge tried to take those books in the second time he visited, the authorities refused them.

Prison was not a safe place, he said. It was not safe for David McBride and it was not safe for anybody. McBride had faced a number of security risks. As a result, he had been moved multiple times.

Australia's treatment of David McBride a national disgrace

The persecution of whistleblower David McBride is another nail in the coffin of free speech, but also provides good reason for Australia to become a republic.

Shoebridge summed up McBride’s situation:

“He's doing the best he can, but you know, I think anyone would have trouble adjusting to going to prison, particularly when your government sent you to prison because you thought you were doing the right thing.”

Shoebridge was critical of several of the rulings of Justice David Mossop, McBride’s trial judge. McBride’s team planned to run a public interest defence, but Justice Mossop wouldn't allow McBride to argue before a jury that what he did was in the Australian public interest.

Mossop ruled that David McBride's oath of allegiance was to the King of England, not the Australian public.

To become a senator, David Shoebridge also had to swear an oath of allegiance to the British crown. But he also chose to swear an oath to the Australian people.

What do Australians expect, Shoebridge asked:

“Who do they expect my loyalty to be to? If there's a conflict between some well-resourced family on the other side of the planet, or the Australian people, I can tell you where my loyalty lies — unambiguously to the Australian people. And David McBride sought to say that as well.”

Justice Mossop made several rulings that Shoebridge found deeply problematic. Mossop ruled that McBride shouldn’t have told anyone about a series of war crimes committed by Australian soldiers in Afghanistan.

Shoebridge said that what the world learned from the Nuremberg Trials after World War Two and the investigation of war crimes by both Nazi Germany and Imperial Japan was that simply obeying orders is not a sufficient defence if you are covering up murder or engaged in appalling crimes. What Mossop said was your statutory obligation is to follow orders, and follow orders means follow orders, even if involves covering up the crime of murder.

Senator Shoebridge said:

“I find that a very disturbing conclusion by Justice Mossop, and I know this and a number of other matters are going to be challenged on appeal by David McBride.”