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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
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
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
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
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.
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