David Shoebridge | Attorney-General Mark Dreyfus can stop prosecution of David McBride

This is the stark truth unless one person, the Commonwealth Attorney-General Mark Dreyfus, steps in to prevent a grave miscarriage of justice.

David McBride told the Australian public what he knew about alleged war crimes committed by Australian soldiers in Afghanistan.

For telling the truth, he has been charged with four offences relating to breaching defence secrets and one count of unlawfully handling defence property.

Three of these offences have a maximum term of life imprisonment, one a maximum of two years and one a decade in jail.

McBride is a reluctant whistleblower military lawyer who put his career and his freedom on the line to do the right thing.

McBride wants justice for the alleged war crime victims of Australian soldiers and for the tens of thousands of people serving in the Australian military who want the integrity of their organisation upheld and enforced.

McBride blew the whistle after he had been stonewalled internally. As a military lawyer in possession of damning evidence of apparent war crimes, McBride felt he had ethical and professional responsibilities to uphold.

When he first raised concerns inside the ADF command structure nothing was done. He then went to the Australian Federal Police with damning evidence suggesting some of the most serious imaginable crimes had been committed. Again nothing happened.

"I think it was swept under the carpet," McBride told reporters soon after he was charged.

"I eventually saw the police, they didn't do anything about it. Finally, I saw the press, and it was published on the ABC."

Thank goodness he did. His actions, together with those of other ADF whistleblowers, eventually lead to the Brereton Report into alleged war crimes by Australian Special Forces in Afghanistan.

That report found: "The nature and extent of the misconduct allegedly committed by ADF members on operations in Afghanistan is very confronting. The report discloses allegations of 39 unlawful killings by or involving ADF members ... The alleged victims were noncombatants or no longer combatants."

Now more than five years after McBride blew the whistle, almost two years after the Brereton report, the only person who has been prosecuted in relation to these alleged war crimes is David McBride.

And last week McBride's legal defence suffered an almost fatal blow, delivered by the new Labor government.

McBride's main defence to the charges was that he was protected by the Commonwealth Public Interest Disclosure Act (PID Act) that is meant to protect whistleblowers from any adverse action, including criminal charges, related to the whistleblowing.

To mount this defence McBride had two expert witness affidavits that, obviously, referred to and commented on the evidence he had given to the ABC.

He needed this evidence to establish that he had gone through the steps required in the PID Act to gain the protection and to show that there was a public interest in what he did.

The Commonwealth, objected to this evidence being admitted in the trial.

The Commonwealth claimed that it would disclose national security information and was therefore covered by public interest immunity.

This undercut McBride's entire PID Act defence and lead to him withdrawing it in dramatic scenes on the floor of the court.

The end result is McBride's prosecution sails on with no effective defence.

He faces a potential lifetime in prison for showing the courage to speak out against war crimes.

Right now his only possible salvation lies with the Attorney General who has the power to discontinue the prosecutions under section 71 of the Judiciary Act 1903.

The current Attorney-General used these powers to end the prosecution of Bernard Collaery.

There have been repeated public calls for this same power to be used to save David McBride.

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In response the Attorney-General has said that they reserved for "very unusual and exceptional circumstances".

On this we agree. Surely our criminal justice system must acknowledge that having stripped McBride of his ability to defend himself, and where his only alleged crime is telling a truth now widely acknowledged about the horrors of war, this test is met.

If we allow our government to treat the prosecution of a brave and principled public servant as anything other than very unusual and exceptional we are all diminished.

After years of persecution this must end and it can at the stroke of a pen. Pick up the pen Mr Dreyfus.