Lawyers for a military whistleblower, whose leaks exposed alleged war crimes, will attempt to force authorities to drop criminal charges by taking what they describe as unprecedented civil action.
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Former Australian Defence Force lawyer David McBride has been charged with offences including theft of Commonwealth property, unauthorised disclosure of information and breaches of the Defence Act.
The charges were laid after Mr McBride leaked documents that formed the basis of an ABC series titled The Afghan Files.
The 2017 series revealed allegations that Australian special forces had engaged in serious misconduct, including the killings of unarmed civilians, in Afghanistan.
Mr McBride admits he released the documents, but he is pleading not guilty to the charges and intends to defend them on legal grounds.
He was expected to stand trial later this year, but the coronavirus pandemic has forced a delay in the case.
The lawyers involved were only able to discuss certain issues in person for national security reasons, and doing so has proven difficult because travel restrictions have confined some of them to Victoria.
There have also been concerns that some of those based in Victoria will not be able to make it to the ACT to attend court.
For those reasons, Justice Michael Elkaim vacated a number of future court dates and set a new timetable when the case was mentioned in the ACT Supreme Court on Tuesday morning.
The judge made several orders, revealing in the process that the matter had been split into two sets of proceedings.
Mr McBride's solicitor, Mark Davis, later told The Canberra Times that Mr McBride would argue in a civil case that his actions were justified under the Public Interest Disclosure Act, and that he should therefore be immune from criminal prosecution.
"Essentially, [Mr McBride's] defence is that he properly followed the legislation," Mr Davis said.
The Act is designed to "protect public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed".
While the legislation has been in place for some years, Mr McBride's lawyers believe this will be the first time an accused in Supreme Court criminal proceedings will effectively seek immunity under the legislation by turning plaintiff in a related civil case.
The civil hearing is expected to take place in May next year, ahead of the potential criminal trial in June.
