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


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.

Add your comment

[Click to expand]

We welcome your comments, or additional information which is relevant to a post. These can be added by clicking on the ‘Add your comment’ option above. Please note that the Parliamentary Library will moderate comments, and reserves the right not to publish comments that are inconsistent with the objectives of FlagPost. This includes spam, profanity and personal abuse, as well as comments that are factually incorrect or politically partisan. We will close comments after three months.




Captcha
Generate a new image
Type characters from the image:

Facebook LinkedIn Twitter Add | Email Print

FlagPost

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


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

Refugees asylum climate change immigration Australian foreign policy parliament social security welfare policy elections welfare reform school education health financing higher education Australian Defence Force emissions trading indigenous Australians women private health insurance people trafficking illicit drugs gambling health reform federal election 2010 United Nations Employment Asia disability income management Middle East Medicare Australian Bureau of Statistics statistics sport health forced labour federal budget Afghanistan Industrial Relations Carbon Pricing Mechanism politics dental health United States aid child protection environment poker machines Australia in the Asian Century Australian Sports Anti-Doping Agency steroids World Anti-Doping Agency National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system Law Enforcement Australian Federal Police Criminal Law Fair Work Act Australian Public Service governance labour force people smuggling transport debt taxation international relations constitution New Zealand food WADA Australian Crime Commission pharmaceutical benefits scheme pensions public service reform children's health Aviation foreign debt gross debt net debt defence capability parliamentary procedure Senate Senators and Members ALP ASADA Newstart Parenting Payment multiculturalism Youth Allowance sea farers social media Higher Education Loan Program HECS federal state relations accountability Papua New Guinea youth paid parental leave same sex relationships corruption coal seam gas customs planning federal election 2013 Australian Electoral Commission doping OECD crime health risks International Women's Day Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy welfare ASIO intelligence community terrorist groups Australian Security Intelligence Organisation carbon tax mining High Court military history electoral reform employer employee renewable energy regional unemployment fishing European Union Federal Court family assistance skilled migration banking United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs UK Parliament welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy science social inclusion human rights paternalism Australian Secret Intelligence Service sexual abuse terrorism World Trade Organization Australia public health China housing affordability bulk billing political parties water productivity health policy Governor-General US economy trade unions domestic violence export liquefied natural gas foreign bribery firearms question time speaker superannuation public housing election results by-election expertise public policy climate Intergovernmental Panel on Climate Change leadership voting Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats research and development new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare ADRV Census Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics violence against women language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage Population rural and regional mental health alcohol entitlements ministries Hung Parliament social citizenship maritime Iran transparency ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution Members of Parliament Scottish referendum early childhood education 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 national security 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 asylum refugees immigration political finance donations foreign aid disability employment Economics efficiency human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct integrity retirement Parliament House standing orders prime ministers election timetable sitting days First speech defence budget submarines workers financial sector Canada Somalia United Kingdom GDP Tasmania world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality 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 Rent Assistance 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 regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea fuel rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition standards conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office NATO work-life balance

Show all
Show less