Commonwealth prosecutors say soldiers such as whistleblower David McBride should not be guided by something “as nebulous as the public interest”, an argument the defence has said “ignores higher duties”.
McBride, a former military lawyer, is facing five charges in the ACT supreme court relating to his alleged leaking of documents to the ABC. The public broadcaster used the material as the basis for a 2017 series on Australian war crimes in Afghanistan called The Afghan Files.
A jury is expected to be empanelled on Thursday and McBride has pleaded not guilty.
Pre-trial argument continued on Tuesday about whether McBride was owed a duty not to disclose confidential material to journalists.
His counsel Stephen Odgers SC has argued McBride had a separate duty to act in the public interest – which overrode any duty he owed to obey military orders.
But the crown, represented by Patricia McDonald SC, said on Tuesday that McBride swore an oath to render service to the ADF according to law. The oath and its notion of service, the crown argued, said nothing about acting in the public interest.
“We don’t want those in the military to be able to act by reference as something as nebulous as the public interest,” McDonald said.
“Nowhere in the oath does it refer to the public interest or say that members of the ADF have to serve in the public interest,” she said. “Had that been what was intended, it could have said that.”
But Odgers responded that members of the military had “higher duties” and should not be expected to blindly abide by lawful orders.
“In the 21st century, for the crown to make the contention that the duty of the member of armed forces is to obey unquestioningly a lawful order from a superior officer … ignores the acceptance in our society that members of the military have higher duties,” he said.
“Those duties … they do not necessarily require blind obedience to lawful orders. Circumstance will and must arise where the duty to service will only be met by disobedience to a lawful order.”
Odgers argued on Tuesday that McBride, as a legal practitioner, had a duty to act to preserve the administration of justice and disclose information about criminality.
On Monday, Odgers argued any breach of a duty owed by McBride could only be dealt with by the military disciplinary system and through military tribunals, not criminal courts.
“If the jury is satisfied that what was done was in the public interest, even though it was in breach of orders, then, in my respectful submission, you’re not in breach of your duty for the purposes of a criminal offence,” Odgers said.
McDonald rejected that argument on Tuesday, saying there was nothing preventing a criminal court from considering the concept of a soldier’s duty.
The case continues before Justice David Mossop.
