Royal Prerogative of Mercy
The Royal Prerogative of Mercy is a broad and discretionary executive power deriving from the grant of power to the Executive in section 61 of the Constitution.
It is exercised only in rare and exceptional circumstances. However, it may be the only option left for a wrongfully convicted person who has exhausted all other avenues for appeal.
In exercising the Royal Prerogative of Mercy, the Governor-General acts on the advice of the Attorney-General. The Governor-General may only exercise the Royal Prerogative of Mercy in relation to a federal offender convicted of a Commonwealth offence.
The Royal Prerogative of Mercy can be exercised as follows:
- the grant of a free, absolute and unconditional pardon (a full pardon)
- the grant of a conditional pardon (commutation of a sentence from one form to another)
- the remission or partial remission of a penalty (i.e. sentence or fine) (but see also Early release of federal prisoners)
- referral to a court of appeal (although this is usually handled through the application of state and territory legislation to federal offenders pursuant to section 68 of the Judiciary Act 1903 (Cth) – see Statutory referrals, and
- the ordering of an inquiry (although this would usually occur under state or territory legislation rather than the Prerogative power).
The test for an exercise of the Royal Prerogative of Mercy is that the grant of a free and absolute pardon should generally only be recommended to the Governor-General if the Attorney-General is satisfied that the convicted person is:
- morally and technically innocent of the offence in respect of which the pardon is sought, and that the offender has no remaining avenue of appeal against his or her conviction, or
- morally and technically innocent of the offence, and there are exceptional circumstances justifying the grant of a pardon despite the failure to meet the requirements of the first ground, taking into account the need to respect the separation of powers between the executive and the judiciary.
