Former military lawyer David McBride is trying to delay his jury trial.Credit:Alex Ellinghausen
The government is claiming public interest immunity over documentation McBride’s legal team wants to use in his defence.
Commonwealth barrister Andrew Berger,KC,said the country would suffer “potentially significant” international consequences if McBride’s team was given access to confidential information,which would make allies think twice before sharing intelligence with Australia.
“There would be other agencies that would notice this and say,hang on,how confident can we be that they honour information that we provide to them confidentially?” Berger said.
He added it wasn’t just the relationships between Australia and those who shared information with its intelligence officials that could be jeopardised,“but Australia’s broader reputation as someone that can hold and honour confidential information.”
McBride’s barrister Stephen Odgers,SC,foreshadowed that if those documents were to be withheld,he would be applying to have the trial halted.
On Wednesday,the trial was pushed back from its expected start on Thursday to Monday,to hear an eleventh-hour Court of Appeal application to seek leave to overturn ACT Supreme Court judge David Mossop’s ruling that McBride,who did two tours of Afghanistan,had no duty that allowed him to disobey military orders in pursuit of the Australian public interest.
Odgers argued over the previous two days that his client disobeyed orders when he disclosed secret documents but he did so under the belief special forces troops were being improperly investigated for their actions in Afghanistan.