Latest news with #militarylaw
ABC News
25-06-2025
- Politics
- ABC News
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.
ABC News
28-05-2025
- General
- ABC News
Jailed whistleblower David McBride loses appeal against severity of sentence
Former military lawyer David McBride has lost his appeal against the severity of his sentence for sharing classified documents with journalists. McBride pleaded guilty to theft and distributing the documents to three journalists, and was sentenced last year to five years and eight months jail, with a non-parole period of two years and three months. The appeal had a two-pronged approach, targeting the sentence and a ruling by the judge that he could not rely on an argument that it was his duty to reveal the information in his defence. McBride wanted to argue the duty came from the oath he swore to the Queen when he joined the military. When the court refused to allow the argument, McBride said he had been stripped of his defence and his only option was to plead guilty. Around 2013, McBride began copying material, putting it on his own computer, printing and taking it home in his backpack. He ended up removing 235 documents, 207 of which held secret classifications. The documents were stored in plastic bins in his cupboard. He offered the material to three journalists, Chris Masters, Andrew Clarke and the ABC's Dan Oaks. During the court hearings the details emerged. Chris Masters and Andrew Clarke did nothing with the material. Mr Clarke told McBride in 2015 he had destroyed the documents. Only the ABC used the material, to produce the Afghan files, which detailed allegations of unlawful killings by Australian soldiers. But the story the ABC told was totally different to the one McBride wanted told. He had hoped that by giving the material to the journalists he would expose his own concerns that there was too much scrutiny of soldiers. Knowing charges were inevitable, McBride hung out in Spain for a while, before returning to Australia for an event at his daughter's school in 2018. When he tried to leave the country again, he was arrested at Sydney Airport. He faced the ACT Magistrates Court charged with theft and sharing the material in March 2019. But he had already set off a chain of events with wide-ranging consequences, as the ABC was raided by Australian Federal Police officers looking for material. And then came the pandemic. It was years before the case reached the trial stage in 2024, with McBride unable to meet his lawyers face-to-face because of travel restrictions. In the end the trial never really started, after ACT Supreme Court Justice David Mossop refused to allow what McBride said was his key defence: that he had a duty to release the information. His lawyers lodged a last ditch appeal, but lost that too, and he pleaded guilty. That decision was one of the issues raised in today's appeal. McBride's lawyers said their proposed appeal to the High Court was necessary because of the ramifications McBride's case has for other Australians. "We believe that only the High Court can properly grapple with the immense public interest and constitutional issues at the heart of this case," his lawyers said in a statement. They also called for the federal government to pardon McBride. "It is now time for the attorney-general to show leadership. To show Australians that this Labor government will no longer jail whistleblowers." Through his lawyers, McBride said Australians would be outraged by the Court of Appeal decision. "It is my own conscience and the people of Australia that I answer to. I have kept my oath to the Australian people," he said in the statement. McBride has been in Canberra's jail since October last year. His appeal was heard in March. For each and every appearance McBride has been buoyed by a loyal group of supporters who gathered again today outside the ACT courts building. McBride was in court in person for the ruling which threw out his appeal, with his supporters, including his wife, in the public gallery. He has now been returned to Canberra's jail and his lawyers say they will prepare for a High Court challenge.
