Page:R v McBride (No 4).pdf/39

 Harm from actions

188․ Counsel for Mr McBride submitted that an inference should be drawn from the agreed facts that the level of harm or the risk of harm caused by his conduct was low.

189․ In relation to count 1, while accepting that the documents were and remain highly sensitive and could have presented serious risks to Australia's interests, counsel submitted there is no evidence of actual harm and it could not be inferred that significant harm was in fact caused. He also submitted that the risk of actual disclosure was low, given that the documents were kept in tubs at Mr McBride's home. While the possibility of disclosure cannot be excluded, he emphasised that there has been no investigation to try to find out whether there has been any unauthorised access to the documents other than the access the subject of the other charges.

190․ In relation to counts 2 and 3, counsel submitted that the disclosures were to reputable journalists. As a consequence, the risk that the documents would find their way to some adversary country or entity was low.

191․ In my view, it is not appropriate to go beyond the detailed and nuanced description of the level of harm and risk of harm which is articulated in the Agreed Statement of Facts. There are multiple types of harm and risks of harm which are there described and it would not be consistent with those agreed facts to subject them to a uniform gloss by characterising the harm or risk as being "low". Rather, the harm and risk of harm is accurately described in the Agreed Statement of Facts.

192․ In the written submissions made on behalf of Mr McBride, it was submitted that the disclosure of some of the information has advanced the public interest. First, this was said to be because it was "used by Major General Brereton to identify issues for inquiry in the course of the [IGADF] Afghanistan Inquiry". I do not accept this submission. The agreed facts referred to the use by Major General Brereton of some information from the IGADF Submission, a lawful disclosure which Mr McBride was allowed time at work to prepare. Major General Brereton did not use any information from the unlawful disclosures the subject of the charges. Second, the advancement of the public interest was said to have arisen through raising awareness of the conduct of Australian Special Forces through the publication of The Afghan Files. I do not accept the thrust of this submission. There is no doubt that the subject matter of The Afghan Files was a matter of significant public interest. However, the agreed facts indicate that the IGADF Inquiry into the conduct of Special Forces in Afghanistan was initiated by the ADF more than 12 months prior to the ADF becoming aware of Mr McBride's disclosures. Further, the articles published by Mr Oakes were the exact opposite of what Mr McBride had intended when making the disclosures. In those circumstances, it is not appropriate to treat any