What is a royal prerogative of mercy?
The royal prerogative of mercy is a broad set of discretionary legal power enabling the granting of pardons to persons in unique and extraordinary circumstances. Though the pardon removes the effects of a conviction, it does not eliminate it from a person’s legal record.
Who can wield and grant these pardons?
In New South Wales, it is exercised by the Governor. On the federal level, it is exercised by the Governor-General on the advice of the Attorney-General.
Considerations That Benefit a Petition
There are several circumstances or actions a petitioner can present that will benefit their application, which includes:
Unexpected outcomes: Being able to demonstrate outcomes which occurred after sentencing and thus were not considered by the court.
Compassionate grounds (decisions driven by sympathy towards someone’s suffering), such as:
- Medical issues
- Mental illness
- Severe personal hardship
- Developmental disability
Post-sentence assistance: If the petitioner has provided assistance to law enforcement authorities and risked putting themselves in danger, it will be seen as beneficial to their application.
Disproportionality: A petition must demonstrate that the original sentence was highly disproportionate to the seriousness of the offense.
Considerations That Hinder a Petition
For anyone seeking to lodge a petition for a prerogative of mercy, there are several factors that will weight against their application.
- Any petition lodged disputes conclusions reached by judicial officers, which imposes a high threshold or burden of accuracy upon any dispute raised.
- The prerogative must be an act of last resort – all other legal avenues must have been attempted and exhausted.
- If there is no evidence of improved behaviour and/or signs of reform, this will negatively affect an application, as all petitions are weighed against the safety of the public and the victims of the offense.
Examples of Extraordinary Circumstances
Though obtaining a pardon is not easy, the government has identified examples of instances where pardons were granted, including:
- Improved forensic evidence methodologies which raised important questions regarding culpability
- Third-party confessions
Federal Appeals
For a federal offense, a petition can be issued in each state or territory’s appropriate higher court. At the federal level, the royal prerogative of mercy can be exercised as follows:
- Providing a full pardon
- Commuting or partially remitting a penalty
- Referring a matter to a court of appeal
- Ordering an inquiry
As mentioned above, at the federal level, the Governor-General acts on the advice of the Attorney-General. For a pardon to be issued, it is necessary that the Attorney-General be convinced that:
- The petitioner is “morally and technically innocent” of the offense committed and has no other method of appeals available
- Exceptional circumstances justify the pardon despite not meeting initial legal requirements
Statutory Referrals
Every state and territory in Australia has legislation that allows sentences and convictions to be re-examined (also known as statutory referrals) – with the exception of the Australian Capital Territory (ACT), which only has an inquiry provision.
Reconsidering Convictions
All matters that are re-examined are tested and analysed against context-relevant case laws and focus primarily on determining whether the court could decide that a “miscarriage of justice” has taken place.
Key Takeaways
The royal prerogative of mercy is able to dispense a broad amount of clemency in unique and exceptional circumstances, and strong and compelling reasons must always be presented to justify exercising these powers. While the actions of a prerogative do not negate or erase an existing conviction from a person’s record, they do remove the effects of a conviction.
