Due to mounting evidence that war crimes were being perpetrated by Australian special forces in Afghanistan, the federal Coalition government established the four-year-long Brereton inquiry, which tabled its final report in November 2020.
The report recommended that the Australian Federal Police inquire into 36 matters as potential war crimes, which relate to 23 credible incidents occurring in the Central Asian nation that involved 19 Australian troops.
Somewhat beating Brereton to the post, former military lawyer David McBride commenced disclosing classified documents to the ABC mid-last decade, which led to the war crime revelations set out in the 2017 report The Afghan Files.
A year and a half after the Brereton report was released, however, the only person facing criminal charges is McBride, with the Commonwealth Director of Public Prosecutions having commenced proceedings against him in 2018, while the AFP raided the ABC over its report in June 2019.
Whistleblowers protections fail
McBride served two tours in Afghanistan as an ADF lawyer: the first in 2011 and the next in 2013. What he witnessed during his deployment made him question the foundations of Australia’s entire operation in the country and he went to his superiors with these concerns. But nothing came of it.
In raising these issues with ADF officials, McBride was following the legal whistleblowing process set out in the Public Interest Disclosure Act 2013 (Cth), which dictates that following a failed attempt to raise a corruption matter internally, a whistleblower can then go public with the information.
Yet, in its function of providing whistleblowers with protection on their having leaked classified information, the PID Act fails. And McBride is now facing multiple national security and defence charges that carry up to 50 years imprisonment.
The lawyer’s case is one of a handful of political prosecutions launched by former Liberal attorney general Christian Porter. And while newly incumbent Labor AG Mark Dreyfus has announced he’ll review the prosecution of ACT barrister Bernard Collaery, he’s yet to comment on McBride.
The new chief lawmaker has indicated that he’ll be overhauling the PID laws that he drafted and oversaw the enactment of in 2013. These reforms will reflect the 2016 Moss report recommendations, which the Coalition took four years to respond to and then failed to act upon.
Failing the laws of conflict
As recently reported in the Age, during a speech he delivered this month to the Military History Society, Brereton called out the lack of action on the alleged war crimes that he spent four years investigating.
An AFP inquiry into troop crimes in Afghanistan commencing in 2018, and an agency set up in 2021 to investigate war crimes, the Office of the Special Investigator, have both failed to get to the stage where any prosecutions have been launched.
A NSW Court of Criminal Appeal justice, Brereton told the history society that a failure to act upon the war crime allegations damages the nation’s international standing and this further leads to the Australian laws relating to war crimes becoming redundant.
The final recommendation of the Senate Inquiry into Press Freedom’s May 2021 report was that the CDPP “urgently reconsider, on strong public interest grounds, whether the prosecution of Mr David McBride should be continued”.
However, at present, McBride’s trial over his having exposed the truth commences in September.