David McBride, the Defence whistleblower whose claims are at the heart of Wednesday’s police raid on the ABC, is facing a secret trial after the Attorney-General invoked national security powers.
Mr McBride faces years in jail if convicted of crimes involving leaking documents used in the ABC’s 2017 Afghan Files series.
Mr McBride, a 55-year old former army lawyer, says he was informed on April 29 that the National Security Information Act would be invoked by the Commonwealth Director of Public Prosecutions. He has pleaded not guilty but admits handing over the documents and will defend his actions on public interest grounds.
“The Attorney-General has come in and invoked special national security legislation passed after [the September 11 terror attacks],” Mr McBride told The New Daily.
“The trial is going to be secret, and anyone who speaks about it outside the courthouse can be arrested.”
The laws allow for closed hearings and require high-level security clearances for legal representatives – one of the reasons Mr McBride has chosen to represent himself.
To invoke the laws, the Attorney‑General Christian Porter gives notice in writing to all parties involved in the proceeding, and their legal representatives.
The Law Council of Australia has previously raised concerns about the broad application of the laws. It argues that greater protection is required for whistleblowers – and that courts should decide what matters are heard, to ensure a fair trial.
“It’s extremely dangerous. It’s certainly a misuse of national security laws. I am obviously not talking about any secret capabilities we have, which is what the legislation is about,” Mr McBride said.
“I am saying the government is corrupt basically and they are using that national security legislation to cover up. It’s a bit like China, you know when they call journalists spies and they put them in prison.
“They are classifying us in the same way you might a spy which, of course, is very dangerous. The language they use is ‘national security’ information and they are allowed to decide that unilaterally.
“It’s very scary. You could be talking about corruption and bribery in some industry and they could say ‘that’s national security’.”
Mr McBride said it was important he spoke out now because he will not be able to comment once the trial is underway.
“That’s why I am keen to talk today. I am not sure if they are going to come knocking on the door and say we are going to arrest you now or if you talk to anyone else you’re going to go to jail,” he said.
“The government leaks like a sieve when they want information out there that they think helps them.”
Mr McBride said he wanted to know why the Defence Department had not demanded an investigation into the leak of the Crompvoets report into special forces.
Canberra sociologist Dr Samantha Crompvoets’ explosive confidential report – commissioned by Defence and leaked to the media in 2018 – contains allegations that Australia’s elite special forces might have used “unsanctioned and illegal application of violence on operations”.
Stuart McCarthy, a 30-year army veteran and friend of Mr McBride worked closely with him at the Headquarters of Combined Team Uruzgan, in Tarin Kowt in 2011.
“Dave’s expertise in operations law, including targeting, rules of engagement and other complex legal issues was absolutely crucial to what we were trying to achieve with the Afghan government, the Taliban and local security forces,” he told The New Daily.
“The environment we were working in was complex, demanding and dangerous, during a crucial period when the International Security Assistance Force was beginning to transition security responsibilities to the Afghan government and military forces,” he said.
“I have no doubt that the concerns Dave later raised through the chain of command, then via the media, were serious, deserving independent and transparent investigation. Defence has obviously handled this matter poorly, once again highlighting the need for better whistleblower protections.”
The New Daily has contacted Mr Porter for comment.