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Speaker 1: My name is Lily Maddon and I'm a proud Arunda

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Speaker 1: Bunjelung Calcotin woman from Gadighal Country. The Daily oz acknowledges

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Speaker 1: that this podcast is recorded on the lands of the

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Speaker 1: Gadighl people and pays respect to all Aboriginal and Torres

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Speaker 1: Straight Island and nations. We pay our respects to the

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Speaker 1: first peoples of these countries, both past and present.

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Speaker 2: Good morning and welcome to the Daily os. It's Monday,

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Speaker 2: the thirteenth of November. I'm Emma Gillespie, Deputy Editor.

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Speaker 3: I'm ninacobral podcast producer.

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Speaker 2: This week, David McBride, a man who spoke out about

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Speaker 2: alleged war crimes committed by Australian soldiers, is facing trial

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Speaker 2: his crime. He's accused of unlawfully disclosing sensitive information.

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Speaker 4: My name's Major David McBride. I used to be an

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Speaker 4: army officer.

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Speaker 2: Now I'm a whistleblower in the deep dive. I'm going

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Speaker 2: to speak to Kieran Pender from the Human Rights Law Center.

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Speaker 2: Kieran advocated for McBride over the recent years.

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Speaker 4: I'm a lawyer. I act for whistleblowers. I act for

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Speaker 4: people who want to speak up, and so many of

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Speaker 4: my clients say to me they are afraid, they don't

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Speaker 4: want to speak up. And so what's staying in the darkness?

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Speaker 4: What are people staying silent about?

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Speaker 2: But first, Nina, what's making headlines.

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Speaker 3: Thousands of people gathered across the country over the weekend

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Speaker 3: at rallies related to the Israel Hamas conflict. Some rallies

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Speaker 3: were calling for a ceasefire, while others held vigils for

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Speaker 3: the hostages taken on October seven. It comes as Foreign

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Speaker 3: Minister Penny Wong told ABC Insiders yesterday that she urges

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Speaker 3: Israel to abide by international law which requires quote the

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Speaker 3: protection of hospitals, of patients, of medical staff.

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Speaker 5: We all want to take the next step towards a

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Speaker 5: cease far, but it cannot be one sided. Her mus

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Speaker 5: still holds hostages, her mass still attacking Israel.

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Speaker 2: Meta has announced a new policy that means any political

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Speaker 2: advertisements which been digitally created or altered with AI will

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Speaker 2: be labeled as such. From January twenty twenty four. It

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Speaker 2: will require advertisers to disclose any use of AI on

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Speaker 2: Instagram and Facebook ads, so users will also themselves know

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Speaker 2: if they're looking at something generated by AI.

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Speaker 3: Australia's second largest port operator was forced to shut down

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Speaker 3: on Saturday due to a cybersecurity incident. This essentially meant

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Speaker 3: that goods being shipped in and out of the country

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Speaker 3: via the port were brought to a standstill. The Federal

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Speaker 3: Minister for Cybersecurity, Clara O'Neill wrote on x this incident

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Speaker 3: is a reminder of the serious risk that cyber attacks

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Speaker 3: posed to our community and to vital infrastructure we all

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Speaker 3: rely on.

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Speaker 2: And the good news, the first I transplant in the

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Speaker 2: world has been successfully completed by surgeons at New York University.

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Speaker 2: The transplant recipient's vision has not yet been restored, but

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Speaker 2: their new I has shown functioning blood vessels and what

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Speaker 2: doctors described as a promising looking retina. Surgeon's a hopeful

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Speaker 2: some vision will be restored for the patient. However, the

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Speaker 2: goal of the operation was to complete the world's first

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Speaker 2: whole eye transplant, and the operation has been hailed as success. Kieran,

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Speaker 2: thank you so much for joining us today on the podcast.

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Speaker 2: We're talking about David McBride. But for listeners who might

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Speaker 2: not have ever heard of him before, who is he

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Speaker 2: and why are we talking about him? This week?

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Speaker 4: There's a really significant taste this week beginning in Canberra

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Speaker 4: and the Act Supreme Court involving a whistleblower who's on

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Speaker 4: trial in relation to documents that he's alleged to have

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Speaker 4: given to the ABC that were the basis for the

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Speaker 4: Afghan Files reporting. So really significant reporting about Australian wrongdoing

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Speaker 4: in Afghanistan. Reporting that's been vindicated by the Berson Inquiry,

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Speaker 4: by the Ben Robert Smith defamation judgment. But this week

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Speaker 4: in Camera, the first person on trial in relation to

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Speaker 4: war crimes in Afghanistan is on trial and it's the whistleblower,

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Speaker 4: not an alleged war criminal.

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Speaker 2: What was McBride's involvement in the ADF At what point

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Speaker 2: did he begin to allege war crimes?

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Speaker 4: So, Dave McBride was a lawyer in the Army, served

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Speaker 4: two tours in Afghanistan. He's alleged to have spoken up internally,

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Speaker 4: spoken up to oversized bodies and then as a last resorts,

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Speaker 4: he is alleged to have taken these documents to the ABC.

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Speaker 4: He tried to argue a whistleblowing defense. He tried to

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Speaker 4: argue that under whistleblowing law he was entitled to give

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Speaker 4: these documents to the ABC last year, he was forced

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Speaker 4: to withdraw that defense after the government made and national

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Speaker 4: security claim over key evidence in that case. And so

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Speaker 4: we're in this situation where he's now going on trial

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Speaker 4: without the benefit of whistleblowing law, which would have offered

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Speaker 4: protection for what he did in trying to expose war

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Speaker 4: crimes Afghanistan, and he faces trial without the benefit of

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Speaker 4: that defense and could potentially, if convicted, go to jail

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Speaker 4: for the crime of seeking to expose Australia's wrongdoing in Afghanistan.

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Speaker 2: To understand what sort of may have motivated mecbride or

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Speaker 2: compelled him to take those allegations to the ABC, What

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Speaker 2: was at the heart of the Brereton Report, What did

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Speaker 2: we learn from those whistleblower findings?

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Speaker 4: The Breton Report found that Australian forces there it was

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Speaker 4: credible evidence to support that Australian forces had committed war

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Speaker 4: crimes in Afghanistan, unlawful killings of civilians, of noncombatants, of

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Speaker 4: combatants who had been neutralized and no longer posed a threat.

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Speaker 4: Of course, some of those allegations emerged in really significant

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Speaker 4: detail in the Ben Roberts Smith's defamation case. Involving Victoria

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Speaker 4: Cross winner Ben Roberts Smith suing the nine newspapers for

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Speaker 4: deformation in relation to report aarding. A judge found that

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Speaker 4: the allegations made against him had occurred some really horrisic

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Speaker 4: incidents of wrongdoing Australian forces murdering Afghan civilians in cold

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Speaker 4: blood conduct that occurred in our name in Afghanistan when

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Speaker 4: Australian forces were serving there. That was what was so

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Speaker 4: important about the Breton Inquiry and about all of the

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Speaker 4: reporting that has underscored these revelations. I think that's what's

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Speaker 4: significant about this case is of course the whistleblowing element.

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Speaker 4: The moment, given that the trial is beginning's taking the focus.

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Speaker 4: But we're talking about horrific misconduct by Australian forces that

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Speaker 4: has only been called out because brave people in a

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Speaker 4: whole range of areas spoke up and we now know

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Speaker 4: about that and we can now demand accountability. I think

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Speaker 4: it speaks generally to the importance of whistleblowers. Whistleblowers matter

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Speaker 4: because they expose wrongdoing and therefore make Australia a better place.

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Speaker 4: But if we prosecuting whistleblowers, if we're punishing them, if

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Speaker 4: they're losing their job. Then people won't speak up.

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Speaker 2: So what laws are in place in Australia to protect

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Speaker 2: whistleblowers and what is it that McBride has done to

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Speaker 2: be in this position.

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Speaker 4: So there are laws that protect most people in Australia,

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Speaker 4: So most people listening to this podcast will be protected

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Speaker 4: by whistleblowing law. If you work in government, you're protected.

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Speaker 4: If you work in the private sector you're protected. Unfortunately,

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Speaker 4: those laws aren't really working. They're full of loopholes in consistencies,

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Speaker 4: they're too complex, they're not accessible, and people don't have

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Speaker 4: the support they need. But I think that speaks more

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Speaker 4: broadly to a failing system where people in Australia can't

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Speaker 4: speak up, they can't get the support they need to

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Speaker 4: speak up safely and lawfully. That should worry all of

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Speaker 4: us because any of us could become a whistleblower. I

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Speaker 4: mean tomorrow, you could go into work and see something

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Speaker 4: wrong and maybe you speak up to your boss, maybe

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Speaker 4: nothing gets done about it. What if there's lives at risk,

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Speaker 4: what if the environment's at risk? What is money's being stolen?

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Speaker 4: And what if you speak up and nothing happens. What

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Speaker 4: if you lose your job for speaking up? What if

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Speaker 4: you try and go to a regulator. What if as

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Speaker 4: a last resort you go to the media. Any of

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Speaker 4: us could become a whistleblower tomorrow, but we won't speak

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Speaker 4: up if we're afraid of the consequences. So the law

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Speaker 4: says on paper, if you speak up about wrongdoing, you'll

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Speaker 4: be protected, not punished. It's not working in practice, and

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Speaker 4: these cases are the chip of the iceberg.

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Speaker 2: So what is happening this week? What do we know

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Speaker 2: about the legal proceedings against McBride? What can we expect

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Speaker 2: from the coming days?

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Speaker 4: This week we'll have some initial preliminary legal argument and

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Speaker 4: then we'll have a jury sworn in. Then the case

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Speaker 4: is scheduled to run for three weeks and then at

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Speaker 4: the end of it, you know, whatever the outcome, this

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Speaker 4: case is not good democracy and transparency in Australia. If

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Speaker 4: you believe that Australia is a country where people can

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Speaker 4: call out wrongdoing, call out wrongdoing by our government, and

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Speaker 4: that that's an important part of our democracy, then I

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Speaker 4: think you should be really concerned about what's happening right now.

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Speaker 2: How serious are the charges that McBride is facing found guilty,

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Speaker 2: are we talking about lengthy prison sentences.

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Speaker 4: Potentially Dad McBride's facing five jardges or the carry potentially

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Speaker 4: significant in terms of imprisonment. So if he's found guilty,

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Speaker 4: it's very feasible he could go to jail for a

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Speaker 4: long period of time. I understand he's recently moved from

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Speaker 4: Sydney to Camber in preparation for the trial and in

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Speaker 4: preparation for that eventuality. And again I think we come

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Speaker 4: back to this key point. It's about the alleged crime.

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Speaker 4: Here is giving documents to the NBC that provided allegations

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Speaker 4: and evidence for serious allegations of wrongdoing by strained forces

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Speaker 4: in Afghanistan. Is it in the public interest to prosecute

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Speaker 4: in that case?

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Speaker 2: If there is a not guilty verdict, will that indicate

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Speaker 2: or perhaps start a process whereby legislation has changed. Does

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Speaker 2: that kind of force the government's hand?

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Speaker 4: The government has said it will fix the law. That

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Speaker 4: will come too late, of course, in this case, there's

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Speaker 4: also another whistle borrower currently being prosecuted, Richard Boyle, who

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Speaker 4: blew the whistle and wrongdoing the tax office in Adelaide.

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Speaker 4: Any law of form will come too late for these

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Speaker 4: individuals who've put their lives on hold had to spend

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Speaker 4: hundreds of thousand dollars in legal fees, had a huge

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Speaker 4: impact on their mental health and well being. The government's

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Speaker 4: commitment to fixing the law is welcome. It's really important.

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Speaker 4: We need stronger laws, we need stronger systems of support.

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Speaker 4: We've been calling for an independent body, a whistle blow

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Speaker 4: of protection authority to oversee and enforce these laws, and

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Speaker 4: in some respects the Daman has already been done. I'm

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Speaker 4: a lawyer. I act for whistle blowers. I act for

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Speaker 4: people who want to speak up, and so many of

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Speaker 4: my clients say to me they are afraid, they don't

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Speaker 4: want to speak up. There is serious wrongdoing happening in

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Speaker 4: Australia today that would be front page news, that would

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Speaker 4: lead to Royal commissions. That isn't being called out, isn't

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Speaker 4: being addressed. There's no accountability for because people are afraid,

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Speaker 4: and why wouldn't you be if this is what you

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Speaker 4: has examples of aling, You see these situations, you see

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Speaker 4: the risk that people face when they blow the whistle.

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Speaker 4: It's very understandable that you'd be concerned about speaking up.

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Speaker 4: And so what's staying in the darkness? What are people

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Speaker 4: staying silent about because the risk is too high. That's

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Speaker 4: not an abstract possibility. It's happening, and that affects all

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Speaker 4: of us. This one case in my listeners seem far away,

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Speaker 4: but all of us suffer when we have silence and

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Speaker 4: darkness rather than transparency and openness, because those principles at

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Speaker 4: the heart of our democracy. Accountability depends on it. The

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Speaker 4: robo debt was such a tragic example of that. Some

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Speaker 4: people did try and speak up, they weren't heard. Other

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Speaker 4: people didn't speak up because they were afraid. Imagine if

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Speaker 4: Robodet had been nipped in the bard. Imagine if this horrible,

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Speaker 4: unlawful scheme that led to people taking their lives, billions

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Speaker 4: of dollars of government money wasted in payouts after the fact,

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Speaker 4: the whole Royal Commission, none of which needed to happen,

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Speaker 4: if whistleblowers had been heard and more people are exeled

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Speaker 4: empowered to speak up. So these cases matter because they

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Speaker 4: go to the heart of our democracy.

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Speaker 2: At the same time as all of this is happening,

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Speaker 2: there's been a lot of momentum in the past several months,

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Speaker 2: even last week in the US, where there's bipartisan support

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Speaker 2: to release Julian Assange from US officials, bipartisan support from

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Speaker 2: Australian politicians. Given that it seems like every day Julian

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Speaker 2: Nossan is getting closer and closer to freedom, does that

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Speaker 2: indicate a kind of a tide that's turning in how

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Speaker 2: whistleblowers are treated or perceived.

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Speaker 4: I'd say two things. The first is one of the

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Speaker 4: reasons these prosecutions are really problematic is because they undermine

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Speaker 4: Australia's good standing in the world on press freedom and transparency.

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Speaker 4: It was blowing. And so when Anthony Albanezi says enough's enough,

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Speaker 4: it's time for Julian no signs to come home, when

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Speaker 4: he's in Washington, d C. Advocating with President Biden for

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Speaker 4: an end to the case against Juliassarge. The credibility of

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Speaker 4: that position is undermined by the fact that in Australia

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Speaker 4: we have, we suppose, been prosecuted. So how can we

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Speaker 4: say to the world we believe in press freedom and

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Speaker 4: accountability and transparency while these cases continue. I think we

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Speaker 4: have seen a lot of momentum in the last few

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Speaker 4: months around these cases in Australia, and of course that

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Speaker 4: the wider context Julian Assange case, among others. Clearly Australian's

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Speaker 4: care about transparency. It's been fantastic to see their level

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Speaker 4: of support we've had. We've been putting on events and

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Speaker 4: seminars and roundtables about these issues. We've had some advertising

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Speaker 4: around these issues. We've had thirty one members of the

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Speaker 4: cross Bench plus prijector the Liberal backbencher have all signed

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Speaker 4: on to a letter criticizing the Government for its failure

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Speaker 4: to act in these issues. There's a lot of support

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Speaker 4: for we subbots in Australia, but what we need now

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Speaker 4: is action from the government.

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Speaker 2: Kieren, thank you so much. That was a fascinating chat.

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Speaker 2: Thank you so much for coming on the pod.

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Speaker 4: A pleasure.

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Speaker 6: Thanks so much, Emma, it was such an interesting chat.

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Speaker 6: I really enjoyed listening to you speak to Kieran about

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Speaker 6: all of these issues. I know that in the course

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Speaker 6: of working on this story, we have reached out to

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Speaker 6: the Attorney General's office to ask how they plan on

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Speaker 6: responding to this case. The Attorney General does have the

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Speaker 6: powers to intervene in cases like this and has in

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Speaker 6: the past. Do we know what they're going to do

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Speaker 6: this week?

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Speaker 2: Yeah, so, a spokesperson for Acting Attorney General, Michelle Roland

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Speaker 2: told The Daily OS that this power to intervene that

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Speaker 2: you've described NINA is a power that's reserved for quote,

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Speaker 2: very unusual and exceptional circumstances, and they said as mister

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Speaker 2: McBride's proceedings remain ongoing, it is inappropriate to comment further

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Speaker 2: on the particulars of their matters. So, of course, yes,

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Speaker 2: this case will be going to trial this week. It's

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Speaker 2: an active legal matter and it's not uncommon for us

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Speaker 2: to hear those sorts of comments that will be particularly

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Speaker 2: delicate around an ongoing legal matter. But the spokesperson said

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Speaker 2: the government planned to make whistleblower laws more effective and accessible,

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Speaker 2: which we spoke to Kieran about again, and that any

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Speaker 2: changes made in the future would not apply retrospectively to

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Speaker 2: cases like David McBride's. Thank you so much for listening

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Speaker 2: to today's episode of The Daily OS. If you learn something,

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Speaker 2: why not send it along to a friend who might

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Speaker 2: think would be keen to hear the chat about what's

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Speaker 2: happening in this case. We will continue to follow the

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Speaker 2: case on the Daily ODS, so keep your eyes out

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Speaker 2: for any updates. We'll be back tomorrow but until then

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Speaker 2: have a great start to the week.