MELBOURNE – Australian army whistleblower David McBride, who leaked allegations of Australian war crimes in Afghanistan to the media, lost a court bid to have his prison sentence reduced on Wednesday.
The three Australian Capital Territory Court of Appeal judges unanimously rejected the 61-year-old former army lawyer’s appeal against the severity of a five years and eight months prison sentence imposed a year ago.
The judges also rejected McBride’s argument that as a military officer he had sworn an oath to Queen Elizabeth II and therefore had a sworn duty to act in the “public interest.”
“To the contrary, the oath obliged the appellant (McBride) to discharge his duties ‘according to the law,’” the judges said in a written summary of their ruling.
McBride said through his lawyers that Australians would be outraged by the Court of Appeal decision.
“It is my own conscience and the people of Australia that I answer to. I have kept my oath to the Australian people,” McBride said in the lawyers’ statement.
McBride pleaded guilty last year to three charges, including theft and sharing with journalists documents classified as secret. He faced a potential life sentence.
Rights advocates complain that McBride remains the only person to be imprisoned over allegations of war crimes committed by elite Australian special forces troops in Afghanistan between 2005 and 2016.
A military report released in 2020 recommended 19 current and former soldiers face criminal investigations over 39 unlawful killings in Afghanistan.
Former Special Air Service Regiment soldier Oliver Schulz was charged in March 2023 with murdering an unarmed Afghan in 2012. Schulz pleaded not guilty to the war crime and has yet to stand trial.
Former SAS Cpl. Ben Roberts-Smith, Australia’s most decorated living veteran, lost an appeal two weeks ago against a civil court ruling that he unlawfully killed four unarmed Afghans.
Roberts-Smith said he would appeal his loss in the High Court. He has not been criminally charged.
McBride’s lawyers also said they would take their appeal to the Hight Court.
“We believe that only the High Court can properly grapple with the immense public interest and constitutional issues at the heart of this case,” the lawyers’ statement said.
“It cannot be a crime to expose a crime. It cannot be illegal to tell the truth,” the statement added.
Whistleblower’s lawyers call for a government pardon
The lawyers also called on Attorney General Michelle Rowland, who was appointed after the Labor Party government was re-elected on May 3, to recommend McBride be pardoned.
“It is now time for the attorney general to show leadership. To show Australians that this Labor government will no longer jail whistleblowers,” the lawyers said.
Rowland’s office declined to comment on McBride’s case. Attorneys general usually do not consider pardons in cases where appeal options remain available.
The government was considering additional support for public sector whistleblowers, Rowland’s office said.
The documents provided by McBride became the source of a series of Australian Broadcasting Corp. reports in 2017 called the “Afghan Files.” The reports detailed allegations against Australian soldiers including the unlawful killing of men and children.
The appeal court judges noted in their summary that McBride began taking home copies of hundreds of secret documents after becoming “dissatisfied with what he perceived to be vexatious over-investigation of alleged war crimes by Australian soldiers.”
McBride declined to have further dealings with a journalist after the reporter revealed he intended to use the classified information for a story exposing war crime allegations, the judges said.
McBride can be considered for parole after he has served two years and three months, meaning he must remain behind bars until at least August next year.
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