The trial of the war crimes whistleblower shows how very far the dial of democracy has shifted in Australia.
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To claim you were merely “following orders” is no defence, goes the lapidary axiom of Nuremberg. Less known is the Mossop corollary: except if those orders were lawful orders — and even if such orders implicitly required you to conceal, ignore or turn a blind eye to alleged war crimes.
That is the heroic, albeit implicit, conclusion of a recent ACT Supreme Court ruling in the prosecution of David McBride. There, Justice David Mossop declared that neither a soldier’s oath of service nor the scope of their duty necessarily contemplates an overarching obligation to serve the public interest — still less one that might, on rare occasions, invite something less than unswerving obedience to lawful orders or the law, such as the disclosure of classified material.
So clear, so manifestly “obvious” was this proposition, Mossop went on to explain, that the courts have never had occasion to give expression to it — which may or may not be one way of papering over the sneering lack of authority there is to lend support for such a view.
Perhaps the most that can be said for such flawed reasoning is that it allows us to dispense, once and for all, with the attorney-general’s polite fiction that the prosecution of McBride has only ever constituted an ordinary and uncontroversial application of due process. To do away with the conservative anxiety inspired by the idea that...
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