Statement: Prosecution of David McBride

The Human Rights Law Centre wishes to correct a statement issued on 27 October 2022, ‘McBride prosecution proceeding to trial after Attorney-General intervention undermines whistleblowing defence’.

The statement was made following attendance at the relevant ACT Supreme Court hearing by a member of Human Rights Law Centre staff, taking into account  information in the public domain. At the time, there was significant uncertainty about what had transpired and led to David McBride’s defence under the Public Interest Disclosure Act being withdrawn.

The Human Rights Law Centre now understands that the Attorney-General, Mark Dreyfus KC, was not involved in making a public interest immunity claim in relation to evidence in the proceedings. The claim was instead made by another representative of the Commonwealth of Australia.

The Attorney-General is an interested party in the proceedings as a result of the operation of the National Security Information (Criminal and Civil Proceedings) Act.

Kieran Pender, Senior Lawyer at the Human Rights Law Centre, said:

“While this new information helps provide clarity regarding who was behind the decision to undermine David McBride’s defence, it does not change the travesty of what has happened. Last-minute legal interventions by the prosecutors and the federal government forced David McBride to abandon his whistleblowing defence. He will now face a jury trial for speaking up about war crimes alleged committed by Australian forces in Afghanistan. 

“The use of a public interest immunity claim to prevent evidence being put before the court, in proceedings where the NSI Act had already been invoked to protect national security, raises real questions. The NSI Act was enacted to eliminate the need for public interest immunity claims to be made such circumstances.

“We repeat our call for the Commonwealth Director of Public Prosecutions and the Attorney-General to discontinue this prosecution. Whistleblowers should be protected, not punished.”

The Human Rights Law Centre has developed an explainer webpage detailing the prosecutions of David McBride and Richard Boyle.