Canberra's judges are jailing the wrong people

Justice David Mossop could find very little in favour of the defendant. The scheme was thoroughly dishonest, "motivated by greed not need," he said. It involved a significant breach of trust. There was no evidence of remorse, even some puzzlement by the defendant about what he had done wrong.

Various witnesses, friends, colleagues and members of family had told the court about the defendant's high ethical standards, evidence that Justice Mossop seemed to take into account. A person of good character, the judge said with no hint of cynicism.

The defendant pleaded guilty late in the case, and on this score received a discount of 10 per cent on the sentence he might overwise have received.

The defendant will not serve a day in jail, apart from two days before getting bail in 2019. He was given a fancy bond called an intensive correction order, albeit of three years' duration, and 300 hours of community service. Ordinarily, the judge would have thought jail for about 45 months was warranted, but Justice Michael Elkaim had been more lenient with the other two offenders, and he had to maintain some parity with that. Otherwise, he would have thought a substantial jail sentence warranted because of the need for general deterrence of persons in position of trust involving the interference with government procurement processes for personal gain.

Justice Mossop was in an altogether different frame of mind when he dealt with a former army major and lawyer, David McBride, some days later, when McBride was being sentenced for leaking national security documents to journalists. McBride's disclosures brought to public attention for the first time that Australian soldiers in Afghanistan were being accused of serious war crimes, including the murder of civilians.

McBride had no choice but to plead guilty, since Justice Mossop, in earlier rulings about the laws he had broken, had completely ruled out any possibility of claiming that his disclosures served a public interest going beyond his duty, as an army officer, to keep secret any classified documents entrusted to him, and (absolutely) to obey all and any orders from senior officers.

Effectively the only question was whether he had disclosed the documents. McBride had never denied it, and the reasons he had done so were, apparently, legally irrelevant. So far as McBride had believed himself to be doing the right thing - to stop superior officers doing the wrong thing - he was guilty of the arrogance of preferring his own opinion to those of his superiors.

Mossop was entirely unswayed by any pleas that McBride was motivated by a desire to bring bad practices to a halt, by any lenience because of his good character. For Mossop, it seemed, more than mere deterrence was involved: an example had to be made. Maybe he thought this the more so because every day of hearings saw citizens demonstrating outside the court arguing that McBride was a hero, not a villain. The same happened when he oversaw the trial of Bernard Collaery, until the government stopped the prosecution.

Perhaps because a good many commentators, including journalists such as myself, have argued that the prosecution was entirely inappropriate, given that no real national security secrets were disclosed, even as serious iniquity by officials and betrayal of duty was being demonstrated. The documents were concealing crimes by some special forces soldiers, and culpable mismanagement by senior officers who were supposed to be protecting civilised and legal standards of war.

McBride must go to jail, though there is no public evidence whatever of any actual damage to national security. While a secret document that was not allowed in the court room alleged "harm in an operational manner", our allies have not expressed upset by what he disclosed. The public was well served by the disclosures, and, though there has yet to be military accountability for the cover-ups, we can live in hope.

"I do not accept his statements that somehow, either as a lawyer or a soldier, he had an obligation to do what he did. He clearly breached his duty as both," Mossop said.

Amazingly, Mossop added, "It is important to note that no attempt was made in the sentencing process either to establish that McBride's thefts or disclosures were somehow in the public interest or that the legitimate and lawful means by which Mr McBride could have raised his concerns were inadequate."

A curious comment since Mossop had ruled such evidence out.

Mossop has judged the breach of trust and misuse of official access more serious and blameworthy than the team who tried to steal $1.6 million from the Commonwealth. McBride's sentences extend to 2030.

One of McBride's beliefs, contained in a formal (and ultimately rejected) complaint to the defence inspector general's office was that most investigations into potential war crimes were essentially bogus and constructed for public relations. Every civilian death might lead to an inquiry, even when, in McBride's opinion, there was no prima facie evidence warranting it. Sure, they would get nowhere, but they served to make officers look good.

McBride was quite unhappy about the approach taken to materials by the ABC journalists who finally took notice and wrote a report called The Afghan Files. It did not report, as he wanted, how military investigators were taking out search warrants when they had no evidence at all, or persisting with inquiries even after it was clear no charges could be sustained. It did not report how rules of engagement had been unnecessarily complicated to the point that they were often ambiguous for soldiers required to make very quick decisions in times of danger.

Instead, the ABC found in the documents ample evidence showing that murders were occurring, and effectively covered up. This was before the Brereton inquiry into a host of allegations against specific soldiers and units, and before other news reports, some involving footage, showing actions in which Afghans were killed even when they had not appeared to be belligerents.

The response of the ADF, from the top down, was to cover up, to deny, to obfuscate and to maximise its capacity to keep journalists away from soldiers and scenes of actions, and from documentary material. The ADF is one of the most secretive military forces in the world, far less open and legally accountable than forces with whom we like to compare ourselves, such as the US and Britain.

The very belated Brereton report showed that many of the suspicions about the activities of a smallish group of special forces appeared to be well founded. The Australian Federal Police, fresh from their triumph against McBride, are painstakingly and interminably going through all the evidence, with inquiries only into non-commissioned soldiers. No officers face investigation.

A small number of officers expressed concerns internally about a dangerous and irresponsible culture developing in the SAS.

But the Brereton inquiry showed that most officers, from the top as much as the bottom, saw their primary functions as being to keep snoops, busybodies and people concerned with human rights away from active duty soldiers. It was "my men right or wrong, and they get the benefit of every doubt". It was, however, soon clear that many complaints were about behaviour well out of the heat of battle.

Credible reports of murder or atrocities would be dismissed by officers as being based on (inherently doubtful) claims by Afghan villagers. Senior officers would express exasperation when outsiders - Australian diplomats, international aid workers, or foreign nationals - made complaints or reported them. Retailing complaints was seen as disloyal. Few officers went on patrols, and some thought it good practice to accept patrol reports as gospel truth.

No one has suggested that any officers personally committed any war crimes. But what has been criticised is the complete failure by officers at all levels to properly manage their soldiers, including gathering accurate information about what they were really doing. This reflects very poorly on their competence, their training, and the systems of governance in operations, particularly in a military environment under military law. It was a culture that came from the top. They were not loyal to the many soldiers who obeyed the rules but are slurred by effective condonation of those who didn't.

Even more alarmingly, there was evidence that senior commanders, in assessing middle-ranking officers, would consult many of the more gung-ho "warriors" at the bottom of the command heap. Often an adverse informal opinion given to a colonel by a warrior corporal - say that a lieutenant or captain was too focused on paperwork - was more fatal to promotion than professional formal judgments by fellow officers. The informal assessments did not support officers inclined to ask questions.

McBride is so far - more than 10 years after things began to go bad - the only person to be behind bars. And he will always be the only officer. The police investigation after the Brereton inquiry has taken so long that it will be argued that it is now too late to prosecute. This would completely suit both the Defence department, and sections of the Attorney-General's department.

These departments have demonstrated more zeal to search out and punish anyone who has leaked than anyone who has committed murders in the nation's name. The ADF has not, after the Brereton report, done much to adopt and reform its processes so that future war crimes will not be - cannot be - concealed and covered up.

The argument is that leaks are very serious.

Since September 11, 2001, Australia has massively increased the size and the reach of the national security state, primarily in the name of the war against terrorism, even if governments have allowed slippage so that many cryptographic, intrusive and surveillance techniques are now used in ordinary law enforcement. Many materials, especially operational materials, now have extra layers of protection because of digital technology.

But beyond the new powers come new means and shortcuts with prosecution. These include the power of the Commonwealth to close courts, and to present evidence in the absence of the defendant. National security offences have been tightened to deny any element of a public interest defence. Some agencies can secretly detain, and compulsorily interrogate. The checks and balances are slight, not least because politicians, in enacting such laws at the behest of national security officials, have been stampeded by the fear of seeming to be "weak" or "less than tough".

Attorney-General Mark Dreyfus is now seeming to attempt to widen public service legislation to make any public service comment a criminal offence. He seems to have entirely lost interest in any concept of open government, let alone transparent and accountable government. The Albanese government, led from the top, has become more secretive than any of its predecessors. Those who can afford to litigate will often find that contrived and political resistance to FOI disclosure will be overturned by tribunals, but, usually, only after years of argument and effort.

It is not the fault of Justice Mossop that he has strictly and sympathetically interpreted draconian national security legislation so that free speech, and public interest considerations, have been swept away. Justice is not even a consideration. That's what the Attorney-General's department - the self-appointed guardian and thought leader of national security - and ASIO and other national security agencies and departments want. It's what tame politicians on both sides, particularly the people regarded as "safe" and "sound" who sit on parliamentary committees, have endorsed.

But what we need from the cases is evidence that all the national security armour serves much in the way of a useful purpose, one that serves the nation's interests. One can well accept that Australia owns or shares some critical secrets with our allies, and that this needs protection. But they should be protected on their own merits, not because some bureaucrat has put a self-serving classification on a piece of paper. Claims of damage or exceptional damage usually speak for themselves.

Australia has had hundreds of national security breaches over the years, if many fewer than allies such as Britain, the US, Germany, France and Canada. Even disclosures of tapping the telephones of the leaders of our neighbours, our serving as point-men for the CIA in a South American military coup, or the disclosure of perfidies by India, France, Britain or the US have done little lasting damage.

But what ought to trouble Australians is that almost every single known Australian disclosure has shown that the big secret is that Australian politicians, Australian bureaucrats and, now, sadly, it seems, Australian soldiers are liars, using the apparatus of national security to conceal misconduct, crime and the national policy of hypocrisy: saying or doing something privately that is the exact opposite of what is being said publicly. This is what our laws are about.

Judges may have to enforce the laws, perhaps with fingers to their nose. It's a bit much, however, when those who have made the laws clothe their actions with the pretence of virtue and reluctant necessity. David McBride, for all his flaws, is a better, a more decent and honourable person than any of those he has discomforted or outraged.