In 2016, military sociologist Dr Samantha Crompvoets retold a story she heard of two fourteen-year-old boys who were walking along a road in Afghanistan when they were stopped by Australian Special Forces ‘who decided they might be Taliban sympathisers’. According to Crompvoets’ informants within the special forces, after being searched the boys had their throats slit, and their bodies were ‘bagged and thrown in a nearby river’.

Her report, which contained several more instances of torture and illegal killings allegedly perpetrated by Australian military, was a precursor to the more thoroughly investigated but also more heavily redacted Brereton Report. This found ‘credible information’ relating to a number of war crimes committed by some members of the special forces. Included in the list are ‘throwdowns’, where a weapon is placed on a person killed in combat in order to portray the victim as armed, and ‘blooding’, the practice of patrol commanders ordering junior soldiers to kill unarmed prisoners in order to achieve a soldiers’ first kill.

There has been no indication as to whether anyone will face charges by the Australian Federal Police, as recommended by the report, for the murder thirty-nine hostages and civilians detailed in the report implicating twenty-five current or former Australian Defence Force personnel. Someone who has been charged, however, is David McBride. His crime? Trying to draw attention to the possibility of Australian Defence Forces committing war crimes in Afghanistan nearly a decade ago.

While working as a lawyer for the Australian Army, McBride reports making internal allegations of war crimes committed by Australian forces in Afghanistan as early as 2013. When he was unsatisfied with the response, he leaked classified documents to the ABC between 2014 and 2016. These became the basis for The Afghan Files, published in 2017, which in turn led to the infamous AFP raid of the ABC headquarters in June 2019. In October 2020, the AFP concluded their investigation into Dan Oaks and Sam Clark, the journalists involved in the Afghan Files. In a statement, the AFP said that despite ‘reasonable prospects in relation to two of the charges’ they would not press charges as the CDPP determined that ‘the public interest does not require a prosecution in the particular circumstances of this case.’

McBride, however, may face up to fifty years in prison. He was charged of theft of Commonwealth property contrary to s 131(1) of the Criminal Code Act 1995, three counts of breaching s 73A(1) of the Defence Act 1903, and another of ‘unlawfully disclosing a Commonwealth document contrary to s 70(1) of the Crimes Act 1914‘. He pleaded not guilty in a preliminary trial in 2019 and is currently awaiting trial.

McBride’s case is not isolated. There has been a number of high-profile instances of the Australian government pressuring journalists and harshly punishing whistleblowers in recent years. In June 2019 Annika Smethurst’s home was also raided by the AFP after she wrote an article that revealed top secret emails between Department of Home Affairs Secretary Mike Pezzullo and Department of Defence Secretary Greg Moriarty, discussing a plan for surveillance of Australian citizens. Investigations into her and her whistleblower source were dropped after the High Court of Australia ruled that the search warrant used in the raid was invalid.

Witness K was convicted, and Bernard Collaery has been charged and is awaiting trial for breaching secrecy laws for their leaking of documents to the ABC, which alleged that the Australian government had planted listening devices in the office of Timor-Leste’s cabinet during oil and gas negotiations in the early 2000s. 

Richard Boyle is also awaiting trial and could face the rest of his life in prison for his role as a whistleblower in the joint ABC Four Corners, Fairfax Media (now Nine) investigation that uncovered the ATOs heavy-handed tactics to recover debts from small business owners.

The whistleblowers in each of these cases raised concerns internally and only went to the media after being ignored, in compliance with the Public Interest Disclosure Act 2013. The PID is a law designed to protect whistleblowers but has been criticised by the Human Rights Law Centre as being ‘in urgent need of overhaul’. The Moss Review recommended a number of changes to the law in 2016, yet five years later draft amendments have not been made public.

The government is also pushing to hold most of these trials in secret, under the National Security Information Act. In the case of whistleblower trials, this allows the government to admit wrongdoing but not publicly. Human Rights Law Centre senior Lawyer Kieran Pender said that ‘the NSI Act should be reformed to better safeguard the principles of openness and transparency that are at the heart of our judicial system.’

When a journalist doesn’t reveal an anonymous source to a judge they can be imprisoned for contempt of court. According to journalism scholar Mark Pearson, the contempt of court debate is ‘where the fulcrum should be set on balancing journalists’ need to protect their confidential sources and all other interests that militate against such protection.’ However, such a debate seems superfluous when precedents are being set for federal police to raid journalists’ offices to find out their sources by force.

The work of journalists in Australia is beset with legal constraints. Reporting in the public interest is a mine-field of defamation cases, contempt charges and expensive, heavily redacted Freedom of Information inquiries. It seems that, when that doesn’t stop the fourth estate, then the whistleblowers are targeted. This is censorship.

David McBride pleaded not guilty on the grounds that his disclosures were in the public interest. They directly lead to Dr Crompvoets’ 2016 report and eventually to the Brereton report – each citing ‘media and rumours’ as the grounds for conducting the respective inquiries. The CDPP also acknowledged the Afghan files as in the public interest when they chose not to prosecute Dan Oaks and Sam Clark.

Australia is a country with no constitutionally enshrined freedom of speech, necessitating case-by-case precedents to set the limits of public disclosure. This year is shaping up to be a defining moment in whether Australia sees itself as a country that rewards people speaking out against wrongdoing, or one that censors free speech to save government embarrassment and in which, in the words of David McBride, ‘only truth-tellers get punished’.