David McBride was not given leave to appeal the decision made yesterday about the nature of his duties. It means Justice Mossop’s decision stands, and his duty is to the military chain of command, and only that.
Following today’s proceedings in court was not easy for those of us who didn’t go to law school, or are unfamiliar with 19th century court decisions. The prosecution used a court case from 1874 to argue that a military oath does not have any allowance for any other higher – or public – duty.
The Crown is back on her feet and taking us back to a case in 1874 about taking oaths to obey directions and orders. The Crown is referring to more recent authorities that adopt the same principle.
What the Crown is doing is saying that the 1874 case is the authority that they… pic.twitter.com/uSlrN4YN7s
— Eddie Lloyd (@worldzonfire) November 15, 2023
The Appeals Court agreed with Justice Mossop, and that’s that. For now.
In effect, it means that McBride’s efforts to use the chain of command to report what he thought was criminal behaviour, being rebuffed by his superiors, matters nought. Nor does the fact that what he reported has since been shown to be true. According to the government’s argument, the only thing that matter is that he went public in contravention of military law.
The repercussions are frightening, not just for David McBride – who may now have no option but to plead guilty – but also for Australia and any other potential whistleblowers.
The judges, justices and jury members can only judge according to the letter of the law. But if that’s the law, it needs to be changed.
