A duty to obey: David McBride, whistleblowing and following orders

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General's office remove classified documents in McBride's possession that could be presented to the jury at trial. As one of the defence team, Mark Davis, told reporters, "We received the decision just this afternoon, which was in essence to remove evidence from the defence." In doing so, "The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it."

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty. Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. "The result of today's outcome," wrote transparency advocate and former Senator Rex Patrick, "is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community."

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that "the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers." Hardly. While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer. Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country's chief lawmaker power to drop prosecutions against individuals charged with "an indictable offence against the laws of the Commonwealth".

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle. His reasoning proved strikingly inconsistent: only in "very unusual and exceptional circumstances" could Dreyfus use such discretion. We are on slippery terrain when revealing alleged war crimes are a matter usual and unexceptional.

In McBride's understandably distressed reading of the result, he warned that, in joining the Australian military, you were not "joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones. A judge has made that clear." And, sadly, more besides.