It is not particularly well known that under the Australian constitution, the government has the power to grant what amounts to a royal pardon. Its official title is the royal prerogative of mercy, and it can be granted by the governor-general or state governor as the representative of the British monarch - Australia's head of state - on the recommendation of the attorney-general.
What is the royal prerogative of mercy?
The royal prerogative of mercy lies in the ancient power of the monarch to bestow mercy on a convicted offender and to redress a miscarriage of justice.
Monarchs having the right to show mercy goes back for millenia, but the first official record of this process was in the early 1600s, when a convicted person, usually facing the death penalty, could appeal to the monarch for mercy and instead serve a life sentence or be transported.
It does not overturn a conviction, nor interfere in the court processes. Basically, mercy is not the subject of legal rights. It begins where legal rights end.
A royal pardon is rarely granted. In 2013 the Crown granted a posthumous royal pardon to UK wartime codebreaker Alan Turing, who was convicted over a homosexual relationship.
The commonwealth parliamentary library reports that between 1990 and 2012, only four pardons were issued. A number of full and partial remissions of fines were granted, most commonly on the basis of financial hardship.
Process for applying for a royal pardon
An application for mercy must be in writing and must provide detailed information on the case. Government advice states applicants should seek their own legal advice before lodging an application.
Under the prerogative in Australia, the governor-general may act on the advice of the government to grant a free and absolute pardon, a conditional pardon or a remission of penalty, or to order a non-judicial inquiry into a conviction.
States and territories have enacted similar legislation, allowing the attorney-general to refer a convicted federal offender's case to a state or territory appeal court.
Morally and technically innocent of the offence
A grant of mercy generally only applies if the convicted person is "morally and technically innocent of the offence" and there is no remaining avenue of appeal. There is a broad provision for exceptional circumstances.
In 2012 the Australian government rejected appeals for a pardon for "Breaker" Morant and others who were executed in 1902 for killing civilians during the Boer War.
The then attorney general Nicola Roxon said a pardon is only granted where the offender is both morally and technically innocent of the offence. She said Morant and others did kill civilians, regardless of whether they were following orders.
NSW to release information about pardons granted
Pardons are usually not publicised, as attorneys-general don't want to be swamped by petitions and appeals.
However, NSW attorney-general Mark Speakman plans to bring in legislation allowing him to release selected information relating to the royal prerogative of mercy reviews of conviction or sentence, once changes have been made to the NSWCrimes (Appeal and Review) Act 2001 and privacy laws.
Mr Speakman revealed that during 2020 eight petitions in NSW were declined, while one was granted. Those rejected included traffic, drug, indecency and assault offences. A woman was granted a remission for driving while disqualified, as she lived in a remote town.
In 2019 five petitions were rejected, including a person who claimed they had been forced to confess to murder. A petition for a carnal knowledge conviction was accepted due to the age of the offender at the time of the offence.
Michael McHugh
Criminal law
Stacks Law Firm
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