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

Dear Attorney-General Rowland,

This letter concerns the continued imprisonment of David McBride — a man who has exhausted every legal avenue available to him, and whose case now turns on a question the courts could not resolve: whether justice is served by what remains.

Mr McBride was sentenced to five years and eight months imprisonment in May 2024, with a non-parole period of two years and three months. The ACT Court of Appeal dismissed his appeal. The High Court declined to hear his case. He remains in custody, eligible for parole no earlier than August 2026.

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

Whatever the legal characterisation of his conduct, it brought serious questions into the open about the conduct of Australia’s military operations and the accountability of the state.

He was a military lawyer who served for eight years and acted in the reasonable belief that he was serving the public interest. Whatever the legal characterisation of his conduct, it brought serious questions into the open about the conduct of Australia’s military operations and the accountability of the state.

He never acted for personal gain or notoriety. He acted on conscience, and in the belief that the wrongdoing was harmful and should not remain hidden.

The courts have reached their final position and the conviction stands — but the responsibility of your office does not end there. There are moments in our history where the continued enforcement of a lawful outcome must be weighed against something larger than the proceedings that produced it: the public interest, and the question of what justice actually requires in the circumstances.

A notable precedent is the discontinuance of the prosecution of Bernard Collaery in 2022. That matter, arising from the Timor-Leste espionage case, was brought to an end by the Commonwealth on public interest grounds. The decision reflected a recognition that the continuation of proceedings may, in some circumstances, do more harm to confidence in the administration of justice than good.

That decision was not an abandonment of the rule of law — it was an exercise of judgment within it, and a recognition that justice sometimes requires more prudence than the law alone can provide.

The present case arises at a later stage — after conviction, after appeal, after the High Court has declined to intervene. But the principle is no different: justice – in its natural and common law sense – encompasses more than the outcome of statutory proceedings alone.

The context in which those proceedings arose should be stated plainly. Mr McBride raised his concerns within the chain of command before approaching the media. Those reports were not acted upon. He then disclosed documents to the ABC, which became the basis for the Afghan Files reporting.

The mechanisms available to you – clemency, pardon, or remission of sentence – exist for precisely this kind of case; they do not displace the courts, but recognise that justice is not exhausted by adjudication alone.

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

In recent days, the public context of this case has shifted further. On 7 April 2026, a former Australian Special Forces soldier, Ben Roberts-Smith VC, was arrested and charged with multiple counts of war crime murder arising from conduct in Afghanistan. These charges, brought after years of investigation, concern allegations strikingly similar in nature to those exposed through the Afghan Files reporting. The juxtaposition is unavoidable: the individual who brought such matters into public view remains imprisoned, while those alleged to have committed them are only now being called to account.

Mr McBride was not permitted to advance a public interest defence at trial. The government sought, and obtained, public interest immunity over documents his legal team sought to rely upon. He pleaded guilty in those circumstances. The sentencing judge stated expressly that the severity of the sentence was intended to deter others from similar conduct.

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

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

The mechanisms available to you – clemency, pardon, or remission of sentence – exist for precisely this kind of case; they do not displace the courts, but recognise that justice is not exhausted by adjudication alone.

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

It is also relevant that Mr McBride has been subject to these proceedings since 2018 — a period of nearly seven years. He becomes eligible for parole in August 2026. An act of mercy now would bring forward, by months, an outcome the sentence itself already anticipates. It would not set aside what the courts have determined. It would recognise what has already been paid.

David McBride served his country. He believed, rightly or wrongly, that he was continuing to serve it when he acted. He has paid a heavy price — and he will be eligible for release in a matter of months regardless. The only question is whether your office chooses to meet that moment with mercy or to wait.

Your urgent consideration of this matter is appreciated, and a compassionate response is anticipated.

Yours faithfully,

Nigel James Carney, Writer, researcher, historian and economist