Open Letter to A-G Michelle Rowland: Mercy for David McBride

Dear Attorney General Rowland,

This letter concerns the continued detention of David McBride, who has exhausted all legal remedies available to him and whose case has become a problem that the courts can no longer resolve: whether justice can be done with what remains.

Mr McBride was sentenced to five years and eight months in prison with a non-parole period of two years and three months in May 2024. The ACT Court of Appeal rejected his appeal. The Supreme Court refused to hear his case. He remains in custody and is eligible for parole before August 2026.

Mr. McBride is now 61 years old. He served our country as a military lawyer and traveled to Afghanistan twice. He came home with post-traumatic stress disorder. He has two daughters. He has been living under the weight of these trials since 2018, that is, for more than seven years. Whatever one concludes about the legal issues in his case, these are the facts of human life.

Whatever the legal nature of his conduct, it raised serious questions about the conduct of Australia’s military operations and state accountability.

He was a military lawyer with eight years of service and was acting in the reasonable belief that he was serving the public interest. Whatever the legal nature of his conduct, it raised serious questions about the conduct of Australia’s military operations and state accountability.

He never acted for personal gain or fame. He acted with his conscience, with the belief that the mistake he made was harmful and should not be kept secret.

The courts have reached their final decision and the conviction stands; But your office’s responsibility doesn’t end there. There are moments in our history when the continued application of a legal outcome must be weighed against something greater than the judgment that gave rise to it: the public interest and the question of what justice actually requires under these circumstances.

A notable precedent is the stay of prosecution against Bernard Collaery. 2022. This matter, arising from the East Timor espionage case, was terminated by the Commonwealth on public interest grounds. The decision reflected a recognition that the continuation of the trial could in some cases do more harm than good to confidence in the administration of justice.

This decision was not an abandonment of the rule of law; it was an application of the rule of law and a recognition that justice sometimes requires more discretion than law alone can provide.

The current case will come out at a later stage – after conviction, after appeal, after the Supreme Court declines to intervene. But the principle is no different: justice in the sense of natural and common law encompasses more than just the outcome of legal proceedings.

The context in which these judgments arise should be clearly stated. Mr. McBride raised concerns within his chain of command before approaching the media. These reports were ignored. He later revealed the documents to ABC; these, Afghan Files reporting.

The mechanisms available to you – amnesty, amnesty or remission of sentence – exist for exactly these types of situations; They do not replace courts but recognize that justice is not exhausted by trial alone.

A subsequent government investigation – Brereton Inquiry – found credible evidence that members of the Australian Special Forces committed war crimes in Afghanistan. This was the Commonwealth’s own finding.

In recent days, the public context of this case has changed further. On 7 April 2026, a former Australian Special Forces soldier Ben Roberts-Smith The VC was arrested and charged with multiple counts of war crime murder stemming from his conduct in Afghanistan. These charges, brought after years of investigation, relate to allegations that are strikingly similar to those revealed in Afghan Files reporting. The association is inevitable: the person who brought such events to the public agenda remains in prison, while the people who allegedly committed them are only now being held accountable.

Mr McBride was not allowed to present a public interest defense at the hearing. The government sought and obtained public interest immunity over the documents on which the legal team sought to rely. Under these circumstances, he pleaded guilty. The judge who imposed the sentence made it clear that the severity of the sentence was intended to deter others from similar behavior.

Until very recently, no member of the Australian Defense Force had ever been imprisoned in connection with the conduct examined by the Brereton Inquiry. There is Mr. McBride.

Does the continued detention of David McBride serve the public interest or the demands of natural justice?

The mechanisms available to you – amnesty, amnesty or remission of sentence – exist for exactly these types of situations; They do not replace courts but recognize that justice is not exhausted by trial alone.

The only question is whether your office will choose to meet that moment with mercy or wait.

It is also relevant that Mr McBride has been subject to these proceedings since 2018, a period of approximately seven years. He is eligible for parole in August 2026. An act of mercy now can bring forward by months the outcome already anticipated by punishment. He will not ignore the decisions of the courts. It will recognize what has already been paid.

David McBride served his country. Rightly or wrongly, he believed that once he acted, he continued to serve. He paid a heavy price and will be eligible for release within a few months no matter what. The only question is whether your office will choose to meet that moment with mercy or wait.

Your prompt consideration on this matter is appreciated and a compassionate response is awaited.

Kind regards,

Nigel James Carney, Author, researcher, historian and economist