Appeals

If you are a federal offender, you can appeal against your conviction and sentence in a higher court in the relevant state or territory jurisdiction in which you were convicted.

Talk to your solicitors or legal aid about your appeal options. In most jurisdictions there are time limits on lodging appeals.

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) (but see also Early release of federal prisoners)
4. 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
5. 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:

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.

Apply for the Royal Prerogative of Mercy

Statutory referrals

Each state and territory (apart from the Australian Capital Territory, which provides for an inquiry only provision) has enacted legislation that provides for convictions or sentences to be reconsidered.

These provisions allow the Attorney-General to refer a convicted federal offender's case to a state or territory appeal court, to be dealt with as if it was an appeal by the offender. The appropriate test is the one prevailing in relevant case law at the time of the application, but will generally centre on whether the court could reasonably conclude that a miscarriage of justice has occurred. The relevant state and territory provisions are in the following table:

Applicable state and territory legislation

The minister will be guided by general legal precedents set by case law when making their decision.

Apply for the Royal Prerogative of Mercy or a statutory referral

Your application for an exercise of the Royal Prerogative of Mercy or statutory referral does not need to take any particular form. However, you must:

• apply in writing
• provide detailed information on your case and the grounds on which you are seeking the exercise of the Royal Prerogative of Mercy or a statutory referral
• specify whether you are applying for the Royal Prerogative of Mercy, a statutory referral or both
• provide all supporting information and evidence.

You should seek your own legal advice before lodging an application. We cannot provide legal advice.

Submit your application

Email your application for an exercise of the Royal Prerogative of Mercy and statutory referrals to cpo@ag.gov.au.

Or you can post it to:

Principal Legal Officer
Commonwealth Parole Office
Attorney-General's Department
3-5 National Circuit 
BARTON ACT 2600

The application process

In considering applications, we may seek more information from you or seek comments on the claims made in your application from agencies involved in the case, such as the Commonwealth Director of Public Prosecutions and the Australian Federal Police.

We may provide your application and any supporting material to the relevant agencies as part of this process. This is done in accordance with our privacy policy and Division 9A of the Crimes Act 1914 (Cth). We will tell you if agencies raise matters adverse to your application, and give you an opportunity to respond before providing all relevant information to the Attorney-General.

Get more information

For more information, email the Commonwealth Parole Office at cpo@ag.gov.au

You can also write to:

Principal Legal Officer
Commonwealth Parole Office
Attorney-General's Department
3-5 National Circuit
BARTON ACT 2600

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