COVID-19 restrictions cause lengthy delay in case of military whistleblower David McBride

A pre-trial hearing, designed to test whether the former Australian Defence Force lawyer has a public interest immunity defence to five charges, was listed for next month.

But it was pushed back more than a year on Friday morning after Mr McBride's solicitor, Mark Davis, told the ACT Supreme Court it was "impossible for us to proceed at this time".

Justice Michael Elkaim re-listed the hearing for October 2022, saying he did not think he had any choice but to allow the adjournment even though it was "unquestionably time for the matter to be heard".

The judge said while Mr McBride was "not able to get his case ready" in time for it to go ahead as planned in September, it was not the whistleblower's fault and he had no doubt Mr McBride would want to proceed as soon as possible.

"The stress and financial weight on [him] must be significant," Justice Elkaim said.

In his reasons for allowing the lengthy adjournment, Justice Elkaim said the nature of some of the relevant material required Mr McBride's lawyers to visit "security cleared premises" and communicate with each other in person rather than via electronic means.

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But these lawyers were spread across Canberra, Sydney and Adelaide, creating insurmountable challenges in the current climate.

"They cannot come together because of the various travel restrictions imposed by [state and territory governments]," Justice Elkaim said.

Mr McBride has been charged with five offences including theft of Commonwealth property, unauthorised disclosure of information, and breaches of the Defence Act.

The charges were laid after he 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.

A subsequent investigation led by Major General Paul Brereton, an army reservist and NSW judge, last year found "credible information" implicating 25 current or former Australian Defence Force personnel in 39 allegedly unlawful killings.

Mr McBride admits he released the material that is the subject of the charges, but he is pleading not guilty.

He intends to defend the charges on the basis that he should be immune from prosecution because his actions were justified under the Public Interest Disclosure Act.

That legislation is designed to "protect public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed".

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