Amenability of the Executive Power to Pardon to Judicial Review

Abstract

The amenability of non-statutory executive powers derived from the royal prerogative to judicial review remains controversial; not only due to their source, but also because of the nature and subject matter of the powers themselves. One such power is the power of the executive to pardon a convicted criminal, traditionally called the "prerogative of mercy". Two recent appellate decisions originating in Queensland have now considered the extent to which the pardoning power is amenable to judicial review. While United Kingdom authorities suggest such decisions are reviewable, in each of these decisions, the Queensland Court of Appeal and the Full Federal Court, respectively, found that decisions resulting in the refusal of pardons were not amenable to judicial review. Nonetheless, important questions remain. Both decisions have significant implications, and the judgments reflect different visions about whether, and to what extent, courts ought to review exercises of non-statutory executive power.

Keywords: judicial review, justiciability, executive power, prerogative of mercy, pardons