Nick Xenophon attacks Government over Afghan Files whistleblower David McBride on Q+A.

Extract from ABC News

By Paul Johnson

Posted 2hours ago, updated 2hours ago

Former Independent Senator Nick Xenophon launched a scathing attack on security laws.(ABC)

Former independent senator Nick Xenophon has lashed the Australian Government's national security legislation as he revealed how his client and Afghan Files whistleblower David McBride is facing a battle for his life.

Key points:

• Nick Xenophon accused the Government of using terror laws against his client, Afghan Files whistleblower David McBride
• Panellists felt whistleblowers needed more protection
• Former ASIO director Dennis Richardson defended Australia's alleged past actions in Timor-Leste, especially in relation to spying allegations

In Monday night's episode of Q+A, which was dedicated to Australia's state secrets, Mr Xenophon joined former ASIO director Dennis Richardson, journalist Annika Smethurst, national security analyst Clinton Fernandes and counter-terrorism expert Jacinta Carroll on the panel.

Now working as a lawyer, Mr Xenophon revealed just what a tough battle Mr McBride was facing for revealing alleged war crimes committed by Australian troops.

He accused the Government of using terror laws against his client.

"This man was a major in the Australian Army, a lawyer," Mr Xenophon said.

"He was in Afghanistan, [and] was awarded a combat services medal.

"He had his life on the line and he became aware of serious systemic issues in our defence forces, issues he raised in terms of unlawful killing of civilians — unarmed adults and children — where he took it to his superiors.

"It went up the chain of command, including to the Major General [David] Hurley now — the Governor-General. He then went to the Australian Federal Police and made a formal complaint that was ignored.

 

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Mr Xenophon said Mr McBride then took his concerns to "very senior politicians", urging them to investigate.

"He eventually got a response by the Australian Federal Police — three-and-a-half years years later, when they raided his home and charged him for leaking information to the media," Mr Xenophon said.

"He admits that he gave information to the media because he exhausted all remedies available to him and he now faces a trial and life in prison.

Former Department of Defence lawyer David McBride faces potential life imprisonment over his role in the leaking of the Afghan Files.(ABC News: Adam Kennedy)

"How can that be? How can it be in this country, good decent people, patriotic, passionate about their country and Australian values, are now being caught up in terror laws that were designed for Al Qaeda and ISIS?

"It is an abomination."

Mr Richardson said that was not the case and challenged Mr Xenophon's accusation.

"It is simply wrong to say McBride is caught up in counter-terrorism laws," Mr Richardson said.

"He is caught up in the National Security Information Act, which was introduced against the backdrop of a failed espionage case. That is a fact, whether people like it or not."

'This is what an authoritarian state does'

Mr Xenophon continued to discuss the difficulties he and his law-firm partner, Mark Davis, were facing in defending their client, including a lack of access to legal documents.

"We finally got to see the prosecution brief," Mr Xenophon said.

"Thousands of pages of documents, 80 per cent of those documents have been deemed to be under this conclusive certificate from the Attorney-General to be secret.

"Mark finally gets two hours at the Government solicitor's offices to look at these documents, to make notes. Only two hours for thousands of pages, then he has to hand those notes back … he can't take them with him.

Mr Xenophon then compared the Government to an authoritarian state.

"We're yet to have had an opportunity for our client to sit down with us to view those documents and presumably we're going to have members of the Government sitting in the room with us.

"This is what an authoritarian state does.

"My client faces life imprisonment. He's resorted to a GoFundMe page, we are trying to do everything we can for him on a shoe string.

"It's not a fair system."

It was a sentiment veteran Australian journalist Hugh Riminton agreed with, tweeting that Mr Xenophon's claims were "astonishing".

The reporting of the Afghan Files to this day sees two ABC journalists being investigated by the Australian Federal Police, while Attorney-General Christian Porter — who was mentioned by Mr Xenophon — declined to appear on the episode, as did Home Affairs Minister Peter Dutton.

Cases of Witnesses J and K

Australia's alleged spying on Timor-Leste during 2004 during negotiations over oil and gas fields was also raised during the episode. The whistle on that was blown by former ACT attorney-general Bernard Collaery.

Mr Collaery faces charges that he breached national security laws when reporting the issue, that was mentioned to him by a person only known as Witness K.

Mr Collaery labelled the incident an "embarrassment" for both former prime minister John Howard and former foreign affairs minister Alexander Downer, for their alleged involvement.

But Mr Richardson was quick to point out that, in his view, no crime was committed.

"The Government has neither confirmed nor denied any operation in respect of East Timor," Mr Richardson said.

"Leaving that aside, if an operation was indeed carried out, it would not have been a crime."

Mr Collaery also called for it to be made illegal to smear whistleblowers and was backed up by NewsCorp journalist Annika Smethurst — who had been the subject of an AFP raid over her own possession of materials for a story.

"Something about the way Australia is, we see them [whistleblowers] as dobbers or squealers," Smethurst said.

"We don't have this crisis with people with too many whistleblowers. The way we treat whistleblowers in this country is appalling."

 

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While there is secrecy surrounding the Witness K case, Mr Collaery said it paled in comparison to the case of Witness J.

Very little is known about the case because of the high levels of suppression involving a former military intelligence officer but Mr Fernandes was asked about the secrecy and was split on whether to applaud the case or critique it.

He defended the case being kept secret as a matter of national secrecy because it could involve the identity of the spy getting out but also admitted things could have been handled better.

"I don't know the agency that Witness J worked for, but I can guess," Mr Fernandes said.

"If people were to find out, especially hostile governments, were to find out his real identity, they'd be able to put together a pattern of his life to work out who he had contacted in their country and roll up any agent network he had established.

"If he, in fact, worked for an agency that I think he might have worked for.

"That's the best defence I can give you. It's not good but it's the best I can give you."

He did however admit it was "not a good look" that the ACT attorney-general did not even know Witness J was being held in his jurisdiction.

He finished by saying: "It's not an easy wicket for me to defend."

Watch the full episode on iview or via the Q+A Facebook page.