A Duty to Obey: David McBride, Whistleblowing and Following Orders

David McBride (Image from the BBC / Photo by Amanda Smith)

The unpardonable, outrageous trial of Australian whistleblower David McBride was a brief affair. On November 13, it did not take long for the brutal power of the Commonwealth to become evident. McBride, having disclosed material that formed the Australian public about alleged war crimes by special forces in Afghanistan, was going to be made an example of.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013. During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences. He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer. Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking. “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise. “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.” It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification. Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich. There are cases when a soldier is under a positive duty to disobey certain orders. But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes. The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.

There being no direct Australian decision on the subject (in itself, a startling fact) McBride’s legal team took the matter of duty to the Court of Appeal of the Australian Capital Territory on November 16, hoping to delay the trial and argue the point. Chief Justice Lucy McCallum heard the following submission: “His only real argument is that what he did was the right thing. There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”

If such an approach was adopted, Odgers went on to state, it “may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.” Were the jury to understand that a public interest test applied in certain cases, they would then work on the “basis that there is a powerful public interest that members of the defence force do obey orders, but circumstances might arise in which that is not in the public interest.”

What Justice Mossop was essentially saying was “not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey.” This was irrespective of “how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not.”

Odgers suggested an example elementary but salient. Picture a junior officer, being given a supposedly lawful order to commit what would be seen as a war crime. “Is that junior officer necessarily in breach of his duty? And there’s no way that a jury can say no he didn’t have a duty to obey that order? That’s the implications we say of his honour’s decision.”

Unfortunately for McBride, McCallum would not be swayed. Mossop’s ruling was “not obviously wrong.” She did not feel “that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial.”

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial. As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.” In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty. Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that “the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers.” Hardly. While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer. Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth.”

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle. His reasoning proved strikingly inconsistent: only in “very unusual and exceptional circumstances” could Dreyfus use such discretion. We are on slippery terrain when revealing alleged war crimes is a matter usual and unexceptional.

In McBride’s understandably distressed reading of the result, he warned that, in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones. A judge has made that clear.” And, sadly, more besides.

 

Image from the Human Rights Law Centre

 

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About Dr Binoy Kampmark 1443 Articles
Dr. Binoy Kampmark is a senior lecturer in the School of Global, Urban and Social Studies, RMIT University. He was a Commonwealth Scholar at Selwyn College, University of Cambridge. He is a contributing editor to CounterPunch and can be followed at @bkampmark.

10 Comments

  1. Without any qualifications in law, especially, I ask openly why the law is to be believed and obeyed at all, except in the public interest. As at least one charge of murder has been proven, is not the public interest here paramount? In any case, law should not be obeyed without considering this; all the veto holding powers of the UNO Council, are five “winners” of W W 2, righteous, pompous and assured in law. But, they are all “illegitimate” and must not be followed blindly. They are all descended from murderous, thieving rebellion, uprising, revolution. Charles I, Louis XVI, Nicholas II, the lawful British rulers of Nth, American colonies, the lawful nationalist govt. of Chiang Kai-shek.., these are the victims of lawlessness, but, it was done, so the terrorists/militants said, in the public interest. So, such a famous murderer and thief as Cromwell did it, as if for us. We want to know the truth, by any means. And, has not the soverign declared he serves the public interest, his duty entirely?

  2. I’m not sure of all the logical and legal intricacies here, but it’s looking to me as though ‘I was just following orders’ excuses any kind of military brutality. This is a threat to the safety of all of us, not only to those overseas who are caught up in the next crazy adventure involving Australian troops.

  3. Once again we see politicians back-sliding to protect the military senior officers who by commission or omission were responsible for the 39 reported alleged murders of Afghan civilians. Worse, the judge has once again clearly demonstrated that his knowledge of community standards is lacking.
    .
    Firstly, as an ”officer of the Court” every lawyer swears the Oath to the Supreme Court to support the law ”even unto death, if necessary”. This also applies to judges (whether they like it or not) because being raised to the Bench in Australia requires at least five years of adequate legal practice ….. after swearing the Oath to the respecrtive state Supreme Court.
    .
    Odgers is correct; there is no such thing as a mandatory order for any military person. The Nuremberg trials post WWII enforced this principle against selected German military and party officials for genocidal policies and actions during the war.

    In this and other recent whistle-blower decisions LABOR AG Mark Dreyfus has proven to be an ass in support of the alleged Dutton proposal to outlaw any and all political comment except for political propaganda from recognised political parties and possibly a few innocuous tit-bits from Independent MPs.

  4. John

    Generally the Nuremberg Principle IV, applies : “defence of superior orders” is not a defence for war crimes, although it might be a mitigating factor that could influence a sentencing authority to lessen the penalty.

    In the McBride case I would be surprised if the judge didn’t impose a very light penalty : perhaps a good behaviour order or some such. It was probably preferable that this case go to trial to test the law and set a precedent that perhaps will lead to some legislative action in favour of whistle blowers.

  5. The end result is that it seems to be more of a risk to disclose information about war crimes than it is to actually commit a war crime and risk being found out. Kafka lives !

  6. First the referendum that endorsed the view that colonisation was good for the indigenous people, and now this “… in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang …” Which way to the civil war?

  7. NEC, sounds like the Crown hasn’t thought it through very well yet. They might reconsider their dismissal of the Nuremberg code if say tomorrow a soldier on the parade ground is given an order to walk into the canteen and shoot a few of the top brass in the head, and the soldier obeys the order, well, where to from there? What a legal team. Top notch.

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