Pirate Party Australia condemns the harsh punishment of whistleblower Major David McBride – 68 months prison – for leaking to the press. The ABC in 2017 used his leaks to report on war crimes in Afghanistan by some of Australia’s SAS soldiers.

When McBride, a military lawyer, shared evidence of serious leadership misconduct to an investigative journalist of the ABC, he defied the military’s orders of secrecy. “As a lawyer, he believed that he had a paramount duty to the public interest. Internal investigations he had instigated were going no-where, the AFP had off-handedly dismissed his concerns, so in the end he went to the media to blow the whistle”, said party President Miles Whiticker. “Whistleblower protection laws failed to protect him. This sentence sends a chilling message to all potential whistleblowers in the country.”

The McBride case was set to go to trial in November 2023, but at pre-trial in the first few days, classified documents Major McBride was going to use as evidence in his defence was removed from court by the prosecution and put in a safe. Even the Justice would not be permitted to see his submissions, for reasons relating to a foreign partner nation commonly assumed to be the USA. “We have a situation where the accused in the dock is prevented by a foreign power and by our government, from mounting a proper defence, from giving the judge and jury a chance to understand the full context of his actions”, Mr Whiticker continued. “Meanwhile, McBride’s initial complaints have never been properly investigated and are still hidden away from public view as well as from the courts’ scrutiny.”

In order for the courts to perform their proper function of reviewing other arms of Government, they need to have full access to relevant information. “This determination undermines the separation of powers, a foundation of democracy. As has been envisaged, we have seen a resultant great over-reach”, said party treasurer John August.

On the same November day, the court also ruled on the definition of ‘duty’, defining it narrowly. “The way the court has defined ‘duty’ means a soldier must follow his superior’s orders without exception. The court thereby is contradicting the Nuremberg principle which states that it is not an acceptable excuse for a soldier to say ‘I was just following orders’.”

Mr August stated: “Australia fought in WWII to protect western democracy, and shared in the prosecution of war criminals, where a fundamental tenet was that an obligation to obey orders did not trump all other concerns. The primacy of war crimes above other concerns is also noted in the Australian War Crimes Act 1945. At all times, the fact that a whistleblower is pointing out crimes should trump all other legal obligations; that’s particularly so here. Sad to say, we have seen numerous cases of whistleblowers being chewed up by the legal system, with this merely the latest instalment.”

As Major McBride could no longer rely on a public interest defence, he pleaded guilty in November after an unsuccessful attempt to appeal this narrow ruling.

The case culminated when Major McBride’s 68 month sentence, with a non-parole period of 27 months, was handed down on 14 May 2024 at the Supreme Court in Canberra and the whistleblower was taken into custody. His lawyers have indicated they will be seeking to appeal the duty ruling.