“Mark Dreyfus has promoted his place as a proponent of whistleblower protection law. But his actions this week are in stark contradiction. Those debating his proposed legislation should be alive to the reality that the rhetoric and the substance will not match,” writes legal columnist HUGH SELBY.

EXACTLY three years ago, Mark Dreyfus, then shadow Attorney-General, issued a statement about the findings on the inquiry into possible atrocities committed by our soldiers in Afghanistan.

He said: “Today will be distressing for many who have shown extraordinary bravery in speaking up about what they saw and knew was inappropriate conduct. Giving voice to their concerns would not have been easy….”

Among those standing proud then and proud this week, as he pleaded guilty to releasing information revealing these crimes, was David McBride.

I salute David McBride, as I do Witness K, Bernard Collaery, and the South Australian ATO whistleblower who is yet to face court. Each of them had the bravery, the courage to do what they knew was right. Each of them, unlike our mealy Attorney-General, inherently subscribes to seeking that which is right.

In legal philosophy, natural law is a set of universal truths, principles and rules that properly govern moral human conduct. 

In contrast to the laws made by judges and our parliaments, natural law is pre-existing and discovered through human reason and rational analysis. 

The application of natural law to the circumstances around McBride’s actions and the proper response of a grateful society (and its prosecuting authorities) are quite clear, save to those who have lost a moral compass.

Early this week I wrote an opinion piece (here) that reviewed other carefully prepared public comments by Mr Dreyfus noting that he talked up “bravery” in his attorney-general role but querying does he walk it?

When that article was published there was still time for Dreyfus to step up, to uphold the best traditions of his office, to take over the prosecution from the Commonwealth DPP Office. He sat on his hands. He closed his eyes and drowned out the clamour.

There is much irony that after the previous director of public prosecutions (during whose term the prosecution of David McBride was begun) left for a judicial appointment in September 2022, Dreyfus failed to appoint a replacement for more than a year. 

That delay is inexcusable, especially as there is no lack of available talent. He finally did so this week:

“Federal Attorney-General, the Hon Mark Dreyfus KC MP, today announced the appointment of Ms Raelene Sharp KC as the next Commonwealth Director of Public Prosecutions…

“Ms Sharp has also been working as counsel assisting the special investigator appointed to investigate possible breaches of the Laws of Armed Conflict allegedly committed by members of the Australian Defence Force in Afghanistan from 2005 to 2016.” 

Whoa! He has appointed someone with a recent track record that flows directly from the actions of David McBride. If he wasn’t prepared to do the right thing, then there is no one with better background knowledge to weigh up the factors to prosecute or not to prosecute than the new director, who starts next month. But that was not to be.

Instead, we had a farce. On the one hand. Dreyfus has recently claimed that he shouldn’t interfere in the prosecution process (the Collaery case being the not-to-be-repeated exception). Given the clear terms of the Commonwealth DPP Act this claim is untenable. 

On the other, he chose not to replace the director, leaving that prosecutions office in a state of uncertainty: it would have been a foolhardy acting director who pulled the plug on a political prosecution such as that of David McBride.

Bluntly, Dreyfus wanted it both ways: he wanted to be seen (at least in his own eyes) to respect the “independent” prosecution process by doing nothing about the McBride case. At the same time, he neutered the Commonwealth DPP office so that they could do nothing, too.

Dreyfus has promoted his place as a proponent of whistleblower protection law. But his actions this week are in stark contradiction. Those debating his proposed legislation should be alive to the reality that the rhetoric and the substance will not match.

David McBride is the immediate victim. Our justice system is the collateral damage.

It is little comfort that the credibility of this government’s approach to significant legal matters was already damaged because of the Attorney’s mid-year claims that the binding Legal Services Directions were followed in the scandalous payout to Ms Higgins, following negotiations just before last Christmas.

The directions were ignored. I guess Dreyfus and his mates are worried that one day a whistleblower will expose what really went on before that payment was negotiated. 

‘Tis best to put such a person on notice: the previous government got Witness K. We got McBride and we’ll get you.

War crime whistleblower pleads guilty

Dreyfus talks bravery talk, but does he walk it ?