David McBride: commonwealth prosecutors seek jail sentence for Australian defence whistleblower
The commonwealth wants to see army whistleblower David McBride in jail for more than two years for his role in leaking secret defence documents on the Afghanistan war to the media, a court has heard.
At a sentencing hearing on Monday, a decade after McBride first began secretly taking classified documents from the Australian defence force where he worked as an army lawyer, the commonwealth’s counsel, Trish McDonald, said McBride’s actions amounted to “egregious conduct” and affected how defence conducted some operations as well as Australia’s relations with allies.
McDonald told the court McBride knew his behaviour was “deceptive” and that his decision to leak classified documents to the media before a defence watchdog handed down its final report into his allegations reflected a “level of arrogance”.
McBride pleaded guilty to three charges in November after the ACT supreme court upheld a commonwealth intervention to withhold key evidence it deemed as having the potential to jeopardise “the security and defence of Australia” if released.
The mostly secret military information McBride collected over a oneand-a-half year period in 2014 and 2015 was handed to journalists at the ABC. The material was used as the basis for an investigative series exposing war crimes committed by Australian defence personnel in Afghanistan, titled The Afghan Files.
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In 2020 a report by Paul Brereton found credible evidence that Australian special forces soldiers murdered 39 Afghan civilians and prisoners, with most of the killings occurring in 2012 and 2013.
Speaking outside court on Monday, McBride, a former military lawyer, defended his actions as standing up for “Australian values in the face of a government who has lost sight of the job”.
McBride’s defence team pleaded for leniency on the bases of his “exemplary character” and “honourable” motivations.
His counsel, Stephen Odgers,
argued that McBride came to believe the ADF adopted a policy of “excessive investigation of soldiers” around 2013 to compensate for earlier war crime allegations levelled against Australian special forces soldiers that had been made public. McBride believed those within the “highest levels” of the military had concocted the “PR exercise”, the court heard.
Odgers also argued McBride didn’t think he was committing an offence, that his decision-making was impacted by poor mental health and post-traumatic stress disorder (PTSD) and that the risk of the documents being released to others beyond the journalists he gave them to was low.
But McDonald said the commonwealth believed the conduct was “very serious” and shouldn’t be downplayed, noting the theft of sensitive government documents wasn’t a “one-off”.
A total of 235 documents were taken by McBride from defence, mostly in the ACT, between May 2014 and December 2015, with 207 of them classified as secret and some marked as cabinet documents.
While McBride believed it was his legal duty to reveal the documents and he did not receive any financial reward, McDonald said it did “not undermine the seriousness of the offending”.
In its submission, the commonwealth said “anything less” than jail time would be inappropriate, dismissing the suggestion of a suspended sentence or intensive corrections order – options that would allow McBride to skip jail time and instead be placed on probation or under community monitoring.
McDonald also added the commonwealth did not believe a two-year sentence would be appropriate for such “serious offending”.
The ACT supreme court justice David Mossop will consider the evidence before offering his sentencing judgment on Tuesday 14 May.
Kieran Pender, senior lawyer at the Human Rights Law Centre, expressed his disappointment on Monday, saying prosecuting whistleblowers “undermines press freedom and the public interest.”