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 Royal Prerogative of Mercy and statutory referrals

This information is for persons convicted of Commonwealth offences only.

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.

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:

    1. the grant of a free, absolute and unconditional pardon (a full pardon)
    2. the grant of a conditional pardon (commutation of a sentence from one form to another)
    3. the remission or partial remission of a penalty (i.e. sentence or fine)
    4. the ordering of an inquiry.

The test for an exercise of the Royal Prerogative of Mercy has been used in Australia and by the British Home Secretary for over 100 years. This test 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:

    1. 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
    2. 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.

The high threshold provided reflects the separation of powers and non intervention in regard to judicial discretion.

Statutory referrals

Each state and territory (apart from the Australian Capital Territory, which provides for an inquiry only provision) has enacted legislation providing for the reconsideration of convictions or sentences. These provisions allow the Attorney-General to refer a convicted federal offender's case to a state or territory appeal court, where it is dealt with as if it was an appeal by the offender. The appropriate test is the one prevailing in the state or territory at the time of the application. The relevant state and territory provisions are in the following table:

Applicable state and territory legislation

State/territory Relevant provisions
Australian Capital Territory Section 423 - Crimes Act 1900
New South Wales

Section 77(1)(b) – Crimes (Appeal and Review) Act 2001

Section 78 - Crimes (Appeal and Review) Act 2001
applications can be made direct to the NSW Supreme
Court for a referral of case
Northern Territory Section 431 - Criminal Code
Queensland Section 672A - Criminal Code
South Australia Section 369 - Criminal Law Consolidation Act 1935
Tasmania Section 419 - Criminal Code
Victoria Section 327 - Criminal Procedure Act 2009
Western Australia Section 140 - Sentencing Act 1995

General legal precedents set by case law will guide the Minister in making their decision.

How to apply

There is no particular form which an application for an exercise of the Royal Prerogative of Mercy or statutory referral must take. However, it should be in writing and contain detailed information on the case and the grounds on which the person is seeking the exercise of the Royal Prerogative of Mercy or a statutory referral.

The applicant should also specify whether they are applying for the Royal Prerogative of Mercy, a statutory referral or both. All supporting information and evidence should be provided by the applicant.

The Attorney-General's Department considers applications from applicants for the exercise of both the Royal Prerogative of Mercy and statutory referrals. The department cannot provide legal advice and applicants should seek their own legal advice before lodging an application.

In considering applications, the department may seek further information from the applicant or seek comments on the claims made in the application from agencies involved in the case such as the Commonwealth Director of Public Prosecutions and the Australian Federal Police. The application and any supporting material provided may be supplied to the relevant agencies as part of this process. This is done in accordance with the department's privacy policy. If matters adverse to the application are raised by agencies, the applicant will be advised and provided with an opportunity to respond to these matters.

Applications for an exercise of the Royal Prerogative of Mercy and statutory referrals may be emailed to cpo@ag.gov.au or posted to:

Principal Legal Officer
Commonwealth Parole Office
Attorney-General's Department
3-5 National Circuit