Amenability of the Executive Power to Pardon to Judicial Review

(2020) 27(4) Australian Journal of Administrative Law 193-197

6 Pages Posted: 9 Mar 2021 Last revised: 20 May 2021

See all articles by Samuel Walpole

Samuel Walpole

TC Beirne School of Law

Aaron Moss

University of Tasmania - Faculty of Law; Gonville & Caius College, University of Cambridge

William Isdale

The University of Queensland, T.C. Beirne School of Law

Date Written: December 16, 2020

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

Suggested Citation

Walpole, Samuel and Moss, Aaron and Isdale, William, Amenability of the Executive Power to Pardon to Judicial Review (December 16, 2020). (2020) 27(4) Australian Journal of Administrative Law 193-197, Available at SSRN: https://ssrn.com/abstract=3754079 or http://dx.doi.org/10.2139/ssrn.3754079

Samuel Walpole (Contact Author)

TC Beirne School of Law ( email )

Australia

Aaron Moss

University of Tasmania - Faculty of Law ( email )

Private Bag 89
Hobart, Tasmania 7001
Australia
+61 3 6226 2066 (Phone)
+61 3 6226 7623 (Fax)

HOME PAGE: http://https://www.utas.edu.au/profiles/staff/law/aaron-moss

Gonville & Caius College, University of Cambridge ( email )

Cambridge
United Kingdom

William Isdale

The University of Queensland, T.C. Beirne School of Law ( email )

Australia

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