Last week, former military lawyer David McBride was sentenced to nearly six years in prison. His crime? Passing to journalists classified military documents that exposed war crimes by Australian soldiers.

In the lead up to the trial, there was a much focus on the personal character and motives of McBride. While understanding a whistleblower’s motives can add depth to the narrative, it should not overshadow the essential purpose of whistleblowing: to bring critical information to light so that it can be addressed.  In navigating the complex whistleblowing regimes in Australia, the focus is the validity of the disclosed information – not the whistleblower’s motive for bringing it to light.

Is the whistleblower’s motive relevant when it comes to legal protections?

The documents that McBride shared formed the basis of the explosive “Afghan Files” investigation. They also sparked the subsequent Brereton Inquiry which confirmed that the information was credible – the inquiry found evidence of civilians being unlawfully killed by Australian Special Forces.

The inquiry recommended prosecutions of the soldiers who were involved. This has not happened. The first person to be prosecuted and sent to jail is McBride himself, the person responsible for exposing the unlawful conduct in the first place.

McBride’s sentencing has sparked concerns about the chilling effect this could have on future whistleblowers. It is well known that the fear of severe repercussions deters people from speaking up, even when they possess information of significant public interest.

When it comes to whistleblowing, the focus should not be on the whistleblower’s motive but on the content and implications of the information revealed. 

The debate surrounding McBride often centres on his character and reasons for passing information to the media, which stemmed from concerns about excessive pressure on soldiers and perceived injustices in military prosecutions. He believed that the information he compiled would show that the chain of command was so concerned about the perception of unlawful killings that they were undermining special forces’ confidence to do their work.

McBride initially raised his concerns internally, but when nothing happened, he decided to share information with an ABC journalist. It was the journalist who found that the information provided contained evidence that Australian forces had likely committed war crimes and lied to conceal them.

While understanding his motivations provides context, it should not overshadow the gravity of the allegations brought to light. McBride’s motive, whether seen as altruistic, driven by personal grievances, or a mix of both, does not alter the fundamental truth that the Afghan Files revealed critical information about possible breaches of international law by Australian forces.

Ultimately, McBride was unable to secure protection under the public sector Public Interest Disclosure Act due to a combination of legal rulings that restricted the use of key evidence, and the court’s interpretation of Act. The Court decided  that McBride’s defense, which argued that he had a duty to leak the documents because it was in the public interest, had no legal basis and could not be put to a jury.  This effectively dismantled his claim for whistleblower protections under the PID Act.

Australia’s whistleblower protection regime is complex

There are currently 17 different whistleblower regimes in Australia (10 federal and 7 state or territory based), with different laws for the public and private sectors and with variations in the quality of provisions when it comes to whistleblower protection. The Attorney-General Mark Dreyfus has committed to reforming Australia’s whistleblower protection regime into a single system, as well as examining the creation of a Whistleblower Protection Authority to help enforce and implement whistleblower protection laws more effectively.

Motive is not a relevant consideration under corporate sector whistleblowing laws

For the private sector, whistleblower protections are contained in Part 9.4AAA of the Corporations Act. These laws were substantially reformed in 2019, with the intention of encouraging more disclosures and reducing the burden on whistleblowers to prove their motives.

A key change was the to remove the requirement that the disclosure is made in “good faith”, and instead shift the focus to whether the whistleblower has “reasonable grounds” for their disclosure. The “good faith” test was subjective, focussing on the whistleblower’s state of mind and motivations at the time of the disclosure, and requiring the whistleblower to prove that they had honest intentions to receive the protections.  The current test removes this subjective test and instead focusses on the substance of the wrongdoing that is being reported and the reasonableness of the disclosure.

In summary, the Corporations Act provisions for the private sector make it clear that the primary focus is the validity of the disclosed information – not the whistleblower’s motive for bringing it to light.

Your Call provides external web-based and telephone reporting hotlines to enable people to speak up safely and report corporate misconduct. Our Advisory Team undertakes whistleblowing program reviews and provides training for Boards and Executive Teams to understand their legal obligations and best practice. Contact us to find out more.

Further reading:

Australia’s multiple whistleblowing regimes prove hard to navigate

Protecting Australia’s whistleblowers – the Federal Roadmap

The Whistleblower Project