Justice beyond law: clemency and the Royal Prerogative of Mercy

Parliament house flag post

Justice beyond law: clemency and the Royal Prerogative of Mercy

Posted 19/09/2012 by Dianne Heriot

Gilded bronze figure on top of the dome of the Central Criminal Court on Old Bailey. The figure was designed by Frederick William Pomeroy.
The campaign to secure posthumous pardons for Harry Harbord Morant, Peter Handcock and George Witton has been the subject of debate in the media, and also in the Australian Parliament, over recent years. In May, the Commonwealth Attorney-General, Nicola Roxon, stated that the Australian Government would take no further action on the petition to pardon the three.  Their chief advocate, James Unkles, has indicated his intention to pursue the matter in the UK Courts with the assistance of Dan Mori.  However, irrespective of its outcome, the Morant matter has highlighted the enduring role of the Royal Prerogative of Mercy in Australia's justice system. 

The Royal Prerogative of Mercy is the ancient power of the monarch to show mercy to an offender and to redress miscarriages of justice a power often called upon in capital cases, particularly before the development of systems of criminal appeal. It is a personal executive power, vested in the sovereign and, in Australia, exercisable by the Governor-General and by state Governors. The Governor-General's power to grant pardons extends only to offences under Commonwealth or Territory law: she does not have jurisdiction to pardon persons convicted of state offences or those convicted in overseas Courts (as was the case for Morant, Handcock and Witton). The Royal Prerogative of Mercy is exercised in response to a petition, usually from a convicted person or someone acting on their behalf, and, by constitutional convention, on advice from the relevant government minister.

Under the Royal Prerogative of Mercy, the Governor-General may grant
  • a free and absolute pardon
  • a conditional pardon
  • a remission of penalty, or
  • order a (non-judicial) inquiry into a conviction.
The Commonwealth Crimes Act 1914 provides  that where a person has been granted a free and absolute pardon because they were "wrongly convicted of the offence", they shall be taken "never to have been convicted of the offence" (section 85ZR).  In contrast, in the UK, a royal pardon does not remove the conviction itself, but only the penalty or punishment imposed. 

As the Royal Prerogative of Mercy enables the Executive to override the final decision of a Court, it is usually exercised only in matters where no other avenue of redress remains. For the same reason, ministers have traditionally applied a high threshold when deciding whether to recommend the granting of a pardon, doing so only in cases in which they are satisfied that the convicted person was both morally and technically innocent (see the discussion of pardons in a notable British case, R v Secretary of State for the Home Department ex p. Bentley, and in an Australian Senate Committee hearing). Full and free pardons are rarely granted.

While there seems to be no comprehensive record of pardons granted for Commonwealth offences, there have been some notable cases: 
  • In 1942, Stokers Albert Gordon and Edward Elias were sentenced to death by court martial for the murder of Stoker John Riley on HMAS Australia. (As the Australian Government had by an Order-in-Council unconditionally transferred Royal Australian Navy ships to the control of the Royal Navy during World War II, they were subject to the British Naval Discipline Act 1866 which provided that murder was a capital offence.)  After an unsuccessful appeal to the High Court, an appeal was made to the King who exercised the Royal Prerogative of Mercy and commuted their sentences to imprisonment.
  • In 1968, John Zarb was imprisoned for two years for failing to comply with the National Service Act 1951. An unsuccessful appeal to the High Court followed, and his case became a focal point for anti-war protesters. In 1969, after receiving advice from the then Attorney-General, Governor-General Sir Paul Hasluck remitted his remaining sentence on compassionate groundsBrian Ross, also jailed for two years for refusing to comply with a call-up notice, also had his sentence remitted by the then Governor-General following an inquiry into the matter by Mr Justice Smithers.
  • In 1979, Anastasia Artopoulou was granted a free and absolute pardon by Governor-General Sir Zelman Cowan on the basis of evidence she was thought to be able to give in a prosecution for alleged social security fraud. Attorney-General Durack also granted immunities from prosecution to a number of other witnesses in the same case.  Ultimately the Crown withdrew Ms Artopoulou's evidence.  This is an interesting example of a pardon granted, prior to any charge or prosecution, to a person who might be implicated in a crime on condition that they provide assistance to the prosecution.  
Information provided by the Attorney-General's Department indicates that since 1990 the Governor-General has granted four free and absolute pardons to people who had been convicted and fined for Commonwealth offences under corporations, electoral and taxation law.  The Governor-General has also granted a number of full and partial remissions of fines, most commonly on the basis of financial hardship.

Owing to its origins as a personal power of the sovereign, the Royal Prerogative of Mercy is a highly discretionary power, existing at common law and not codified by statute. In the often cited aphorism, "mercy is not the subject of legal rights. It begins where legal rights end." Australian courts have, to date, found that the Crown's discretion regarding the exercise of the prerogative of mercy is not amenable to judicial review. (Eastman v Attorney-General (ACT) (2007) contains a comprehensive summary of authority on this issue.)

Australian states and territories have also established statutory schemes which operate along side the Royal Prerogative of Mercy and which enable the relevant minister to remit a matter back to a court of criminal appeal. Commonwealth law does not contain a parallel mechanism.  However, state and territory procedural laws are applied to persons charged with federal offences by virtue of section 68 of the Judiciary Act 1903.  So, the Attorney-General is able to consider applications from federal offenders for the referral of their cases to the relevant state or territory court of appeal.  A decision not to refer a case to a court of appeal is amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977.  Thus, for example, in Martens v Commonwealth of Australia (2009), the Federal Court set aside a decision of the then Minister for Home Affairs refusing to refer the applicant's case to the Queensland Court of Appeal, finding he had improperly exercised his power by failing to take into account a relevant consideration. Mr Martens' conviction was subsequently quashed.

The Crimes Act 1914 independently empowers the Attorney-General to grant a licence for a person serving a federal sentence to be released from prison before the end of their non-parole period, should she be satisfied that exceptional circumstances exist (section 19AP). The Act does not define "exceptional circumstances", but these would generally include factors such as assistance to law enforcement or illness that cannot be treated within the prison system. It was under this provision that Attorney-General Roxon released from prison 15 Indonesian minors who had been convicted of people smuggling offences.

Image: Gilded bronze figure on top of the dome of the Central Criminal Court on Old Bailey. The figure was designed by Frederick William Pomeroy.  © Copyright Colin Smith and licensed for reuse under this Creative Commons Licence

Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Indigenous Australians Australian Bureau of Statistics Employment Sport illicit drugs people trafficking taxation Medicare welfare reform Australian Defence Force higher education welfare policy United Nations Asia income management Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget health financing gambling school education forced labour aid statistics Australian Electoral Commission WADA emissions trading Australia in the Asian Century steroids detention Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police Industrial Relations people smuggling dental health National Disability Insurance Scheme Australian Crime Commission slavery Senate election results Papua New Guinea Australian Public Service International Women's Day corruption Afghanistan Fair Work Act child protection debt federal election 2013 parliamentary procedure poker machines ALP New Zealand Newstart Parenting Payment 43rd Parliament political parties Census constitution High Court skilled migration voting Federal Court terrorist groups Higher Education Loan Program HECS youth paid parental leave Aviation environment foreign debt gross debt net debt defence capability customs doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers Special Rapporteur leadership United Kingdom UK Parliament Electoral reform politics banking firearms public policy violence against women domestic violence mental health China ADRV terrorism social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation governance public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing by-election European Union same sex relationships international relations coal seam gas family assistance planning United Nations Security Council Australian economy food vocational education and training Drugs Indonesia children codes of conduct terrorist financing money laundering Productivity asylum seekers early childhood education Canada Population Financial sector national security fuel disability employment Tasmania integrity science research and development Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia accountability housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation expertise Senators and Members climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets health reform Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education baby bonus Leaders of the Opposition Parliamentary remuneration health system Australia Greens servitude Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries social citizenship human rights citizenship Defence High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories workers Bills anti-corruption fraud bribery transparency corporate ownership whistleblower G20 economic reform innovation standards NATO Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly public health smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers election timetable sitting days First speech defence budget submarines Somalia GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking federal election 2010 workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing Hung Parliament political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions Norway hospitals

Show all
Show less
Back to top