Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

I seek leave to move the following motion:

That the House:

(1) notes that:

(a) on 19 November 2020 the Australian Defence Force's Afghanistan Inquiry Report was released, revealing shocking revelations of war crimes allegedly committed by ADF personnel;

(b) Major David McBride had been bravely warning Defence about command failings and a deliberate blindness to the conduct of the war in internal reports since 2014 and of course his career was ruined;

(c) when the ADF took no effective action after a multitude of approaches from him, Major McBride disclosed information to the ABC, which formed the basis for The Afghan Files, which raised the alarm on all of the matters now before us in the Afghanistan Inquiry Report;

(d) Mr McBride has been charged with numerous Commonwealth offences as a direct response to his heroic whistleblowing; and

(e) Mr McBride now faces the possibility of spending the rest of his life in prison; and

(2) calls on the Government to drop all charges against Mr McBride.

Leave not granted.

I move:

That so much of the standing orders be suspended as would prevent the following motion being moved immediately—That the House:

(1) notes that:

(a) on 19 November 2020 the Australian Defence Force's Afghanistan Inquiry Report was released, revealing shocking revelations of war crimes allegedly committed by ADF personnel;

(b) Major David McBride had been bravely warning Defence about command failings and a deliberate blindness to the conduct of the war in internal reports since 2014 and of course his career was ruined;

(c) when the ADF took no effective action after a multitude of approaches from him, Major McBride disclosed information to the ABC, which formed the basis for The Afghan Files, which raised the alarm on all of the matters now before us in the Afghanistan Inquiry Report;

(d) Mr McBride has been charged with numerous Commonwealth offences as a direct response to his heroic whistleblowing; and

(e) Mr McBride now faces the possibility of spending the rest of his life in prison; and

(2) calls on the Government to drop all charges against Mr McBride.

We must deal with this matter immediately because David McBride must not be allowed to suffer for one minute longer. I remind the honourable members of the facts of this matter. David McBride is a specialist in international law. In 2009 he joined the ADF and served as a legal officer in the Special Operations Command. He was deployed to Afghanistan twice, in 2011 and, crucially, in 2013. Whilst serving in Afghanistan he became aware of a serious, systemic issue in our defence forces—in particular, the unlawful killing of civilians, unarmed adults and children. In 2014 he attempted to raise these issues with his superiors, including Major General Hurley, who is now the Governor-General, and was ignored. He then went to the Australian Federal Police and made a formal complaint, and that was ignored too. He then went to the minister and parliamentarians and was again ignored. When no real or effective action was taken, Mr McBride provided information to the ABC in 2016 which formed the basis for the Afghan files. He felt that he had no other option but to go public.

David McBride has been charged with five offences for disclosing the information to the ABC, including theft of Commonwealth property, three counts of breaching the Defence Act, and the unauthorised disclosure of information. He now faces the prospect of 60 years in prison—effectively a life sentence. We need to suspend standing orders and to deal with this motion immediately because, as I've said, David McBride must not suffer one minute longer. We need to start treating whistleblowers in this country as heroes and not as villains. Not only should we urgently suspend standing orders and discuss this motion; just as urgently we should start talking about how we start celebrating, protecting and supporting our whistleblowers, because it's bigger than just David McBride.

What about Witness K and Bernard Collaery, two men also before a court for bravely bringing the public's attention, directly or indirectly, to the illegal intelligence operation conducted by the Australian Secret Intelligence Service when they bugged the East Timor parliament building in a shameless effort to give Australia an advantage in privileged joint treaty negotiations? What about Julian Assange, a man who bravely publicised hard evidence of US war crimes in Iraq? Who can forget the grainy black and white footage shot from a US attack helicopter gunning down Reuters journalists? Why does the government applaud the people who have spoken out in the Special Air Service Regiment for shining a light on alleged war crimes when at the same time it's so determined to have someone else shipped off to the US in a federal penitentiary for the rest of their life for publicising evidence of war crimes? There are others like Richard Boyle, the whistleblower from the Australian Taxation Office who has spoken out on account of misconduct within the ATO.

I ask honourable members to understand this: whistleblowers don't do it for themselves. They don't do it for reward. It's hard, but they do it because it's the right thing to do. All of these whistleblowers I've referred to—that's all they've tried to do. All David McBride has tried to do is to do the right thing. There's no fame, there's no money, there's no certificate on the wall. It's just the knowledge that they've done the right thing and they can sleep at night. In this country whistleblowers lose their job, they lose their friends, they lose their money and they often lose their lives. There's nothing in this for David McBride. So why is the government going after him when all he did, year after year, internally, with the AFP, with politicians, was to try to point out to anyone who would listen that there was wrongdoing going on in Afghanistan?

So, Deputy Speaker, we must suspend standing orders. We do need to debate this motion. We do need to call the government to account on this and to encourage the government, in the strongest possible terms, to drop the charges against one of Australia's great whistleblowers. David McBride tried to do the right thing; he exhausted all other options. The government can't say that he had avenues under the Public Interest Disclosure Act because the Public Interest Disclosure Act explicitly carves out national security issues. He had no whistleblower protection. He tried to do the right thing. He went to a number of people internally, he went to the AFP, he went to the minister, he alerted parliamentarians, and we all failed him. By suspending standing orders, by bringing this matter on and by having a debate to agree among ourselves that the charges should be dropped, finally we would bring some justice to this matter and finally we would do the right thing by a brave Australian whistleblower. I will leave it at that, because I want to leave time within this half hour for other members to speak.

The government is misreading the community badly on this. I hope at least the opposition and my crossbench colleagues will join me on this, because I think we speak for the community. We speak for a community that is outraged at the allegations, which were revealed in recent weeks, about the misconduct of special forces in Afghanistan. Yes, those soldiers should have their day in court for the charges to be brought against them and for them to defend themselves, but they're the only people that should be in court—not the whistleblower that shone a light on it in the first place. The soldiers who have been accused of misconduct should be in court.

While I'm on it, let's not strip units of honours and awards that were earned overwhelmingly by good people fighting hard and heroically for this country. It is completely inappropriate to be talking of stripping a Meritorious Unit Citation on account of the misconduct of hopefully a very small group of people. Let's stop this sanctimonious hand-wringing about the misconduct that we've seen from a number of people in this place who then turn around and want to give a life sentence to the whistleblower who started the whole process of shining a light on the alleged atrocities in Afghanistan. I'll leave it there.

I call on the government to support this motion. If you won't support this motion, you better have a damn good explanation for it, because the community would be absolutely outraged if you didn't support this motion. I'll be on the barricades with the community, shining a light on the government's position on this, because it's rank hypocrisy. There's all this hand-wringing about these alleged atrocities by troopers, junior NCOs and senior NCOs in Afghanistan when at the same time you want to jail for life the man who did the right thing—David McBride. In my opinion, he's a hero. The charges should be dropped. He should be treated as a hero, not treated as a villain. That's what's required.

David Gillespie (Lyne, National Party) Share this | Link to this | Hansard source

Is there a seconder for the motion?

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I second the motion to urgently suspend the standing orders. We must urgently debate this motion. This is critical. Former Senator Nick Xenophon, my former boss, gave me one piece of advice. He said, 'You must treat whistleblowers with great care,' and that's because in this nation we just don't. We have a culture in this nation in which we believe that whistleblowers should be persecuted, and that is fundamentally wrong. We do not have a legislative framework that protects whistleblowers.

David McBride had been warning defence about command failings and a deliberate blindness to the conduct of war in internal reports since 2014. He was a major in the Australian Army, a lawyer, in Afghanistan and awarded a combat services medal. When he became aware of systemic issues and when he became aware of incidents of unlawful killings of civilians, he took those concerns to his superiors, all the way up to Major General Hurley, and he was ignored. He did the right thing. McBride also reported them to the Australian Federal Police. He was ignored by their senior officers. McBride ultimately gave the material to the ABC, and that became the basis of the Four Corners story 'The Afghan Files'.

I'm sure that David McBride lost countless hours of sleep. I'm sure he still does, although he shouldn't any longer. He was arrested in 2017, with charges of numerous Commonwealth offences. He now faces the possibility of spending up to 60 years in prison all because he told the truth. We tell our children, 'Tell the truth.' Now the Australian Defence Force is taking action, but the damage has been done for McBride. Not only has he lost his career and not only has he endured so much stress and heartache; he now faces potentially spending the rest of his life in jail. The government could stop that, and they could stop that today. That's why we urgently need to debate this motion.

He's not alone. There is Witness K and his lawyer Bernard Collaery. It's hard to believe that the lawyer and witness with respect to Timor and Australia's wrongdoings—what we admit we did wrong in Timor—are both facing long sentences in jail. And there is ATO whistleblower Richard Boyle. Some of the charges against him were dropped, but he still faces a long, long list of charges. This is all because they were telling the truth.

Those whistleblowers and their courage redeem the reputation of our nation when they refuse to be intimidated into silence. By suspending the standing orders today we are recognising that time is of the essence, we are recognising that David McBride should not be facing a lifetime in jail. He should actually be thanked for his bravery. He should receive a medal; he shouldn't receive a jail cell. I again call on the government, I beseech the government: please drop the charges against this man. He has only told the truth. He has done nothing more. There's a saying, a very well-known saying that many of us would have read, 'The truth will set us free.' Well, not in Australia.

Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government is not supporting this motion. I understand that the shadow defence minister wishes to speak as well, so I'll be brief. The issue is essentially procedural. I know that members have firm views on this and I respect their views, but this is an opportunity for the government to explain the procedural situation at law that it faces.

Mr McBride has been charged with one count of unlawfully disclosing information contrary to section 70 of the Crimes Act 1914, three counts of unlawfully giving or obtaining information contrary to section 73A of the Defence Act 1903 and one count of theft contrary to section 13.1 of the Criminal Code. They are evidently serious charges. The prosecution was brought because the Commonwealth Director of Public Prosecutions made an entirely independent decision that the prosecution was in accordance with the prosecution policy of that body.

In this instance, my consent as the Attorney-General was not required nor sought to institute proceedings of the offences that Mr McBride is alleged to have breached. The Attorney-General's consent to prosecute is required statutorily only in a very small subset of particularly sensitive offences across the statute books and is designed to ensure that the proposed prosecution in that very small group of offences is scrutinised at an additional level and a judgement is made about the appropriateness of the prosecution before they proceed. So, in response to calls for the government to intervene and discontinue this current proceeding, I can advise the House that the Attorney-General's power to discontinue prosecutions is reserved for very, very unusual and exceptional circumstances. A decision to intervene in this particular matter would most relevantly be made, if it were ever to be made, under section 8 of the Director of Public Prosecutions Act 1983. During the passage of the DPP Act back in 1983, it was emphasised that the Attorney-General would normally play absolutely no part in the day-to-day decision making of the DPP. Any other course would defer a major purpose of the act, that being to distance central decisions around the prosecution process from the political arena.

Since the Attorney-General was given that power to issue directions to the Commonwealth Director of Public Prosecutions in 1983, it has never been used to direct the CDPP in relation to a particular case. I'm also advised historically that section 71(1) of the Judiciary Act 1903, which provides a broader ability to intervene, has also never been used since the Commonwealth Director of Public Prosecutions' office has been established. I think, in large part, that is because such an intervention would be utterly extraordinary and would necessarily, by its very nature, represent political intervention in a process which has conventionally been independent. Indeed, if such intervention did occur, I have no doubt that this House would be rightly calling for explanations as to why the government was politically interfering in an independent prosecution process that has already run its course and been the subject of a decision by the CDPP. That process requires the CDPP to make decisions about the commencement of prosecutions independently of the government in line with its prosecution policy of the Commonwealth. Before a prosecution is commenced, the prosecution policy requires the CDPP to be absolutely satisfied that the prosecution would be in the public interest. For those reasons, the government does not consider it appropriate to intervene in this matter.

I'd also note, for the members who've made contributions today, that in addition to the criminal proceedings Mr McBride has also made an application under the Public Interest Disclosure Act, and that will be heard by the ACT Supreme Court. Both the criminal proceedings and the Public Interest Disclosure Act proceedings are before the court and they would not be the subject of appropriate comment, further, by me in my role as Attorney-General or by the government generally. But I do appreciate the contributions members have made and hope that sets out, in as clear as possible terms, what the procedural and legal issues are for the government in its determination not to support this motion.

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

With obvious reluctance I rise to indicate that the opposition will be opposing the suspension. The Brereton report has been shocking in its content and shocking for the nation. It has required much soul searching on the part of the Defence Force but also on behalf of our country. It needs to be dealt with with enormous sensitivity.

I want to make two points at large. Firstly, without reference to anyone who was mentioned in this motion, the moral courage of those who stood up and called out wrongs that were committed amongst those they served with were acts of extreme bravery and we as a nation owe those people an enormous debt of gratitude. Secondly, when the Director of Public Prosecutions initiates a prosecution there is an obligation to satisfy the public interest test in terms of proceeding with that prosecution. There is an obligation to give an explanation for that, and it's very important that the explanation for why prosecutions occur is given to the Australian public.

I want to make two points about this specific motion. Firstly, it has been Labor's position on the Brereton report and all that is contained within it that we as a nation ought to be making sure this is above the political fray. We ought to be making sure that people who are involved in this parliament are doing everything they can to support each other and the process of working through all that flows from the report's recommendations and, ultimately, the civil proceedings that flow from it. We want to hold true to that.

The second, more specific point is that the action on this resolution calls for charges to be dropped. The Attorney-General has set out eloquently the essential proposition here. This flies in the face of the well-understood principle of the separation of powers between, on the one hand, the legislature and the executive and, on the other hand, judicial legal proceedings. Officers of the Director of Public Prosecutions have been established at a state and federal level precisely to give an arm's length ability or separation, in terms of the procedure in respect of criminal prosecutions, from the determinations that occur in the executive and the legislature branches of government.

In short, politicians should have absolutely nothing to do with who gets prosecuted criminally in this country. That is a really important principle, and what is being proposed here flies in the face of it. Were we to get to a point where we were supporting this we would have crossed a huge threshold, which would be incredibly dangerous in what it allowed governments now and in the future to do. Governments should have nothing to do with the criminal prosecution of people in this country. That is for the Director of Public Prosecutions.

It's on that basis that, notwithstanding the normal practice of supporting suspensions, we in the opposition and in Labor feel that there is no way we can be a part of a resolution that would seek to fly so flagrantly in the face of that separation of powers.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Just briefly, as I understand time will be running out on the debate, we will be supporting this motion. We should at least have the debate in this place. People were rightly shocked by the revelations of war crimes, and I think the Australian population is generally supportive of a process to hold people who've committed wrongdoing to account. But I think people would also be shocked if they knew that the whistleblower who is the very reason that the whole process is happening is now being prosecuted himself and could find himself in jail. That would come as a shock to people. I take the points that have been made about interference in the prosecution process, but we've also got to confront the reality that we don't have proper protection for whistleblowers in this country. There needs to be stronger protection for whistleblowers, especially in this instance, where the government has admitted that something went wrong in Afghanistan and has now put in place a process that could lead to prosecutions. Having admitted that something was wrong, why then oversee the prosecution of the whistleblower? Yes, we can have the debate about whether or not there are any instances in which it is appropriate for there to be an intervention and we should at least be allowed to have that debate. The power is there, and there's a good case to be made that this is the kind of exceptional circumstance that the power was inserted there for in the first place. We should at least be allowed to have the debate and ask the question: if the power is there for these rare interventions, then what is the threshold for that power ever being exercised if not now? Someone could be going to jail for blowing the whistle on what happened in Afghanistan when the government itself has admitted that things went wrong there. So it is incumbent on us to have a full debate here. That's why the standing orders should be suspended. It is incumbent on us today to have a full debate about that and for the government to clearly justify its position as to why it considers it is appropriate to oversee someone potentially going to jail for doing no more than blowing the whistle.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the motion to suspend standing orders be disagreed to.