The Afghan Files

I saw something illegally being done by the government and I did something about it.

David William McBride, having been frustrated in his attempts to initiate an internal and then police investigation into what he believed was illegal activity by Australian soldiers in Afghanistan, leaked hundreds of pages of internal documents to various media outlets. These documents would go on to form the basis of The Afghan Files, a seven part series put out by the ABC detailing investigations into possible war crimes.

Australian Federal Police arrested McBride at Sydney Airport last September as he attempted to leave Australia. Now the military lawyer and former member of the Queen’s household cavalry is charged with theft and three counts of breaching the Defence Act, for being a member of the defence force and communicating “a plan, document or information to any other person”.

Is he going to prison?

This matter is being dealt with in the regular criminal justice system, rather than by a service tribunal under the Defence Force Discipline Act, which also has secrecy provisions. There is a huge variance in what could happen to McBride, depending on how the charges are dealt with. If they are dealt with summarily he could face six months in prison or a fine. However, if the charges are prosecuted on indictment, the maximum penalties are an unlimited fine or imprisonment for any term. 

“Summary offences are less serious offences that can be tried by a judge sitting alone, the penalties are lower and the process is quicker. Typical examples are drink driving, drug possession and minor assault,” Associate Professor Rain Liivoja at the University of Queensland told Crikey.

“Indictable offences are more serious offences that are tried by a judge sitting with a jury, making the process more complex and longer, and the penalties are higher. Typical examples include murder and manslaughter.” 

“In some instances, the law allows for an offence to be tried either summarily or upon indictment. This is the case under s73A of the Defence Act 1903. Here the prosecutor can choose how to proceed with the matter. In addition, section 4J(1) of the Crimes Act 1914 allows almost any indictable offences, where the maximum punishment does not exceed 10 years imprisonment, to be tried summarily if both the prosecution and defence consent.”

It is worth noting that under the Defence Force Discipline Act, for an offence to have been committed, the unauthorised disclosure of information must be “likely to be prejudicial to the security or defence of Australia”. The Defence Act has a much lower threshold. It does not require the information to be likely to harm national security; the act of disclosure itself is the offence.

How did it get like this?

Recent years have seen an acceleration of punitive laws aimed at those who reveal alleged government misconduct. McBride joins Witness K and Bernard Collaery — who have been prosecuted for uncovering the government’s illegal bugging of East Timor — and public servant Richard Boyle who is facing up to 161 years in prison after blowing the whistle on the culture at the Australian Taxation Office.

Australia’s official secrecy laws were modelled on the notoriously draconian British Official Secrets Act and introduced shortly after the outbreak of WWI in 1914, when then attorney-general (and future prime minister) Billy Hughes amended the federal Crimes Act to introduce a penalty of two years’ imprisonment for public servants who disclosed any government information without authorisation. Along with the charges under the Defence Act, Williams is being charged under these old secrecy provisions in the Crimes Act — although they have since been repealed and replaced.

In 2010, the Australian Law Reform Commission recommended modest changes to secrecy laws which the current government has proceeded to completely ignore. Instead they have ramped up the old draconian laws. A secrecy law reform package introduced under George Brandis in 2017 criminalised simply receiving or handling information, and proposed up to 15 years’ jail for whistleblowers.

That particular measure failed, but a new package put forward by his predecessor Christian Porter maintained several of Brandis’ anti-transparency provisions, including a lack of protection for whistleblowers, the ability to prosecute people for receiving or using leaked government information unless they can prove they believed the information would not “cause harm to Australia’s interests”. 

Peter Fray

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Peter Fray
Editor-in-chief of Crikey