David McBride lodges High Court application to challenge conviction
Former military lawyer David McBride has lodged a special leave application in the High Court in a bid to challenge his conviction for sharing classified material with journalists.
The ACT Supreme Court jailed McBride for five years and eight months for theft and leaking the material to three journalists.
He was to face a jury but pleaded guilty when it became evident the court would not allow his basic defence that it was his duty to share the documents in the public interest.
His point was that soldiers in Afghanistan were being "over-investigated" for alleged war crimes and he wanted the public to know.
McBride appealed against his sentence and conviction, but that was thrown out earlier this year.
His High Court appeal canvasses the same issues, drawing a distinction between disciplinary duties and duties of office, and relying on the Oath of Allegiance to the Sovereign.
The oath, which McBride made to Queen Elizabeth II, includes a promise to serve the sovereign according to law, and "… faithfully discharge my duty according to law".
The appeal centres on the scope of that duty.
His lawyers say in their submissions to the High Court, that the ACT Court of Appeal "… erroneously assumed that a duty of service requires unqualified obedience to orders".
The appeal court remarked that if it accepted McBride's argument it would "… also extend to conduct of members in all spheres of a member's military service, including on the battlefield".
McBride's lawyers say in their High Court application they are not encouraging general defiance of orders, but rather suggesting it should be recognised "duty cannot be reduced to blind obedience".
"… the applicant sought to communicate to the public evidence of serious misconduct at the highest levels of military command." the submissions to the High Court say.
"An insistence that duty is wholly defined by orders strips away the necessary safeguard against executive overreach and ignores the principle that duty is judged by law, not merely military command."
The application even cites the Nuremberg War Crimes Tribunal after the Second World War "which recognised following orders is no defence to actions that violate fundamental principles of law, such as crimes against humanity".
"There must be circumstances where a soldier can and indeed must, disobey orders — even if those orders are authorised pursuant to military law."
Only the ABC used the material David McBride provided, in a series called the Afghan Files, which revealed allegations Australian soldiers were involved in illegal killings in Afghanistan.
This was not, of course, what David McBride had hoped to achieve by handing over the documents.
He had begun copying the material, printing it and taking it home in 2013.
A search showed he had removed 235 documents, 207 of which had a secret classification.
McBride knew for a long time he would face charges.
During the investigation the ABC was raided by Australian Federal Police looking for evidence in the case.
It was not until 2019 that he finally appeared in the ACT Magistrates Court, with even longer to wait for trial, after interruptions from the pandemic.
He is now in Canberra's jail.
It is not known when the High Court will consider the application.
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