Australia's whistleblowing law fails McBride test

Late last week, Australia's federal Public Interest Disclosure Act (2013), which is supposed to protect public servants who blow the whistle was shown to fall far short of the protections it was originally intended to provide.

Whistleblower David McBride, who disclosed evidence of war crimes by Australian special forces in Afghanistan, appeared in the ACT Supreme Court, lodging an application under the PDA.

McBride was a key source for ABC's 2017 investigation The Afghan Files. Revelations from the ABC investigation - including the murder of detainees by Australian forces - have been largely borne out by the Brereton Report, which concluded in 2020 that there was credible evidence for Australian Defence Forces' responsibility in the murder of 39 Afghan civilians and prisoners.

In 2018, McBride was charged with a number of offences directly related to his whistleblowing. Notwithstanding the Brereton findings, that criminal prosecution has continued, with his trial expected in 2023. The application in the ACT Supreme Court could have averted that hearing by asserting McBride's status as a whistleblower, deserving of protection.

In court, the prosecution successfully quashed expert testimony from two legal experts supporting McBride's case. They wanted the testimony stopped under public interest immunity laws - which suppress information that would prejudice the public interest if they were made public.

This is not the first instance of the Australian government hiding behind national security in order to stop evidence of, and testimony related to, war crimes coming to light. The ABC reporters working on the Afghan Files were subjected to criminal investigation themselves - an investigation which saw ABC's offices being raided before it was eventually dropped.

Australia's Attorney General Mark Dreyfus is now coming under increasing pressure for the government to drop the case against McBride before it comes to trial.

To date, no one has successfully used Australia's PID to defend themselves in court. An independent review of the law published in 2016 (the Moss Review) has previously concluded that the law was not working as intended.