What is fascinating is that this very old power of Kings to pardon, in accordance with personal discretion, is not actually exercised in that way in a country like Australia which actually _does_ have a King. *But,* it _is_ exercised in that way in the United States, a country that _overthrew_ a King in favour of a President. A President who these days, looks and acts more and more like an unbounded King. - Anne Twomey, 2024 Powerful words.
We have an imperial presidency here in the States. What I mean by this is the United States doesn't have sufficient checks and balances to prevent an abuse of the president's clemency authority, let alone the authority conferred on any president in their capacity as commander-in-chief of the armed forces. It's a miracle we haven't yet collapsed into dictatorship. That may still be coming.
@@constitutionalclarion1901 How have I not stumbled upon your channel before? I suppose that UA-cam does give out the occasional Christmas Prezzy!! And "Lord Nutsford?" 🤣
We have a far superior appeal system in place than the US. Only the governor general or the governor at a federal and state level can give a pardon. They can be advised by the Prime Minister or Premier but the choice is up to them. Far better division of power. No head of government should be able to independently overturn court decisions when they are exercising executive power.
@cesargodoy2920 Alright, good to know. Was not aware there was a board and that some governors do not have a mechanism in place to stop them from exercising a prerogative power.
@@cesargodoy2920 OK, you're talking about the US. In Australia a governor can't just do what they want. They are subject to constitutional rules and conventions.
I was prosecuted for unfortunate events that happened 24 years ago, just recently. At the time of my offending, I had a mental illness that was deemed untreatable Contemporaneous data shows that only 1 in 7 cases of a similar nature are investigated. My case involved a single complaintant whose credibility, by all objective measures, is questionable. I am a fully rehabilitated after receiving an accurate & treatable diagnosis. I have used my experiences to help others & achieve post graduate qualifications. The Queensland Police Service actively pursued evidence against me to bring a prosecution. Negative reform is needed. This involves fewer prosecutions. Jails & prisons are FULL. Objective risk management tools could be used to determine risk of reoffending & therefore need for prosecution.
As a Canadian (who also worked on assignment to the Commonwealth Government in Canberra in the early 2000s), I am fascinated by the history of this power in Australia (but not at all surprised that it figures more prominently there given your particular history of settlement). We here in Canada have long seen the irony of a supposedly republican president exercising Royal prerogative powers "south of the border" in a way that is not constrained by either statute or constitutional rules. As far as I know, this particular Royal prerogative has long been fully superseded (or nearly so) by statute in all Westminster systems. Only "republics" (and even then not all of them - and not even all US States) seem to endow their heads of state to exercise unfettered royal powers in relation to pardons. Rather pathetic, really.
Love these videos - super fascinating and educational. The irony of king-like powers being used by a president with reckless abandon, but extremely rarely by an actual king is bizarre. In the US, the framers wanted the president of the republic to have the same powers as a king (without being one), and while they did this, the system around the president was not built to moderate this power sufficiently.
Lovely video, once again! I imagine the topic might be somewhat broad for a series of video, but have you or would you consider exploring the influence successive constitutions within the Anglosphere, or Commonwealth, have had on each other over the course of their writings? Here (in the United States) we loosely touch on the facets of our constitution that were written to correct perceived grievances in British law at the time. I know that various other constitutions (Australia actually comes to mind) took some inspiration from ours, but it would be very interesting to see ways in which ours or others were found lacking as successive colonies drafted their own constitutions. One could certainly argue that this video highlights an interesting, if possibly unintended, example, with the replacement of monarchical authority with an elected executive Presidency meaning that the concept of "ministerial advice" and its associated level of accountability is essentially foreign here in the United States.
A really interesting topic - but more worthy of a PhD than a shortish video. People have certainly written on the subject of how existing Constitutions and their problems influence the drafting of future Constitutions. For example, many of the South Pacific Constitutions, which were written post 1975, sought to codify or remove the reserve powers of the head of state, after the dismissal crisis of 1975 in Australia. But this did not turn out so well, because these overly prescriptive Constitutions then failed when put under stress. I'll keep it in mind, and if a discrete aspect of it comes to mind which is manageable in a video, I'll do it.
There is an old quip that I once heard, although I can't remember who said it, that the USA is really an elective monarchy whereas the UK is a 'crowned republic' - guess the latter would go for other Westminster systems too.
@Shalott63 Well said. It's arguably even more true of Australia, NZ and Canada than it is of the UK, given that "The Crown" is even more of a disembodied legal fiction for us than it is in the place that the actual "head" of State rests...
In England several dozen motorists were given Royal Pardons for exceeding the 30mph speed limit. It turned out much later that there was no legal speed limit in force. The people who pleaded guilty were given pardons because they couldn't appeal, unlike the people who pleaded not guilty. How can anyone say pardons are inherently immoral ? Justice does go wrong sometimes and needs a getout.
Yes, agreed. Although when a Head of State has the power to pardon his relatives and friends, that seems a bit more questionable. There's even speculation that Donald Trump might pardon himself when he becomes president again.
One very famous case popped up only a few days ago - involving the prerogative powers of the Indonesian President and the Australian government - dealing with the remaining incarcerated members of the ‘Bali Nine’. In this case, on both sides of the Timor Sea, the prerogative of mercy was applied without using the politically ‘problematic’ term ‘pardon’.
@noelleggett5368 is that an example of "commuting" a case? When looking at records of many people who were transported to Australia in the early colonial days, many had sentences of life or even death commuted to seven years transportation.
In Australia: Send petition to state Governor, Governor refers it to committee, committee given report, application is usually knocked back. In the USA: (a la Oprah) You get a pardon, you get a pardon, you get a pardon, you get a pardon!
Yes, I thought it was really interesting that he did not take advantage of the situation (although probably, as a matter of practicality, he know his government would be defeated on confidence, so it wasn't worth it.)
I couldn't believe it when I saw the headline that Biden pardoned his son! Such a foreign concept for Australia! It just stinks - would he do that for any random John on the street? No! Glad you did a video on this. I reckon your closing comments will stir up the US Trolls! :D haha Well done!
I agree but any reason for focusing on Biden? My understanding is Trump did this frequently. Here’s a quote and link for convenience: “Trump's use of the pardon power was marked by an unprecedented degree of favoritism.[12] He frequently granted executive clemency to his supporters or political allies” en.m.wikipedia.org/wiki/List_of_people_granted_executive_clemency_by_Donald_Trump
@justinfoster9943 it's more that Biden has specifically ruled out a pardon for his family. Everybody knows Trump was a loose cannon and would pardon himself if he needed to. Biden was trying to show that he wasn't of the same cloth, but ultimately he is. Also, I wouldn't rely on Wikipedia as a source of undeniable info. 😉
@ fair enough regarding Biden vs Trump. To clarify, I wouldn’t rely on Wikipedia as a source of undeniable info either, only as a quick primer for convenience.
Biden made it pretty clear that he was doing it because he knew that Trump had a personal vendetta against him, and he's just trying to minimise the harm that Trump can do.
They DO still give beneficial contracts directly to friends, family, and donors to their political parties without going through a scrupliously fair ternder process.
The pardon power is just another spot where people can avoid having to face the penalty for their crimes. Police can decline to investigate, prosecutors can decline to charge, juries can use Jury Nullification and judges can acquit, use some procedural technicality or impose a very lenient sentences. Or of course they can do the reverse. "For my friends, everything; for my enemies, the law." Personally I don't think the Trump immunity question was decided well in the USA. I think it would have been better if the immunity had been removed after successful impeachment only - which I believe would be a reasonable interpretation of the us constitution. The pardon power is basically limited by political considerations. I had no doubt that Biden would pardon his son after the election - what father wouldn't if they had the power? The pardon power could also be seen as a limitation on the power of the prosecutors, where the judicial process can many times be considered the punishment, often bankrupting the person due to massive legal fees, where the state has effectively an unlimited budget.
@@davidhoward4715 exoneration through an executive decree would be a usurpation of judicial power. A pardon doesn't over rule what the courts have done.
The list of those who have received different types of pardons or sentence remissions is here: dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/royal-prerogative-of-mercy-and-reviews-of-convictions-sentences/release-of-information.html.
@@Robert-xs2mv If we ignore your hyperbole for the purposes of discussion, nobody was charged or punished for not getting vaccinated. The reason people got charged was for breaking laws. Laws introduced to reduce the rate of serious illness and death among the most vulnerable members of the community. Most members of the community stepped up and recognised their responsibility to their fellow citizens. The people with the warped thinking were people such as yourself who think we all live in a bubble.
It should be noted that appeals to the English Privy Council are no longer allowed and this practice was stopped in the mid 1980's So in this day and age the privy council should never be mentioned in realation to australia because it has no legal authority any more
The Privy Council no longer has binding authority in Australia, but that's no reason not to mention its judgments. Judgments from lots of different jurisdictions are mentioned by Australian courts, to show how jurisprudence has developed or diverged in other jurisdictions. This is a common and useful practice.
very enlightening. I now wonder whether the recent "Bali 9" repatriations, where they became free on arrival in Australia, were pardoned in Indonesia or Australia as part of the deal
Officially they are still subjected to their criminal sanctions issued by the Indonesian courts, but the Indonesian government has accepted that Australian authorities may choose to waive enforcement of the sanctions on Australian soil.
Yes, thank you. Whilst the pardon most recently is an abuse of justice and harks back to the reason for the curtailment of the prerogative nevertheless, I still support the basic concept.
While there is a lack of clarity about how executive prerogative powers are distributed between the Commonwealth and the States, the current belief is that the Commonwealth could only give pardons in relation to federal offences (not State ones).
I was not aware most convicts on the first fleet had been sentenced to death though I did know my ancestor who arrived later was sentenced to death only to be pardoned at the last minute (rhetorically speaking)
This time, I didn't mention the names of the cases, but I put them up on the screen when they were authority for what I was saying, in case anyone wanted to know.
Prof. Twomey, this seems to be another topic (like several of your posts) touches on the powers of the Governor-General - as codified in the Australian Constitution, which by convention. The executive powers of the Governor-General, (like the powers specifically written for the ‘Governor-General-in-Council’) are not exercised without the advice of the elected government, specifically the Executive Council. The ‘reserve’ powers are a different, and highly contentious matter, of course! But here you examine an aspect the ‘prerogative’ powers of the Governor-General (and State Governors), and explain how and why the ‘prerogative of mercy’ has been applied in Australia, and how it differs from the Royal Prerogative given to the King. Nevertheless, once again, I’m reminded of the fact that our Australian Constitution does not accurately describe our actual legal framework, and that the Australian Governor-General - technically (‘on paper’) - has been granted more power over the Australian government than enjoyed by the King over the UK government or even the US President. Most of these powers were never meant to be used, and were written to describe the powers of the Head od State in a historical context. The modern doctrine of ‘responsible government’ and convention demands that these powers must always be applied on the advice of the government. Convention has been ignored in so many noteworthy (or infamous) cases, that eventually the Australian people must go through the trouble of accepting a complete ‘down to the nuts and bolts’ rewrite of the Constitution if we ever grow up and become a Republic. The current favoured model is to have an elected President. So, if we want to take the ‘conservative’ path of not really changing the way our government works now, but having an elected ‘ceremonial’ Head of State with few reserve powers (similar to the Irish model), we’ll need a completely new Constitution - one that accurately describes our framework governance. If we don’t, we could end up with much, much worse than what the Americans are dealing with now. Any President of a former British colony (or colonies), who attempts to govern without the ‘will of the people’ and their elected representatives in parliament/congress, should remember what happened to Charles I.
Hi Professor, Lord Knutsford of Middlesex was in the Order of the hospitallers of Saint John. Christianity is his prerogative of mercy in law making. 🇦🇺
Section 7(2) of the Australia Acts 1986 says that all powers and functions of the monarch in respect of a State are exercisable only by the Governor of the State. This is subject to two exceptions - the power to appoint and remove the Governor, and the exercise of power by the monarch when personally in a State. Theoretically, the monarch could pardon a person when the monarch is visiting the relevant State - but this would be on the advice of the Premier, under s 7(5). At the Commonwealth level, section 61 of the Constitution says that the executive power of the Commonwealth (which includes prerogative powers) is vested in the monarch and is 'exercisable by the Governor-General'. If the monarch is visiting Australia, the Royal Powers Act permits the monarch to exercise powers that under any statute are exercisable by the Governor-General, but in the absence of any statute addressing this, it does not cover prerogative powers.
Professor, If you were ever to address a former NSW Minister, Thomas Ley, as a subject of one of your lectures, it would be most appreciated, particularly how he was allowed to slip through the justice system in Australia, though not the UK.
It is appropriate we have rules/laws for the exercise of power. Executive Councils, not individual ministers, should be the only advisor to the governor/governor general, except in the case of appointment of ministers and the holding of elections where the premier is the sole advisor. Apparently, lots of EC meetings are just the president and vice president of the council - the governor and minister appointed vice president as it is assumed the other EC members (ministers) trust the VP to convey cabinet (EC minus governor and ministers not included in cabinet) decisions appropriately to the governor/GG. Cabinet is effectively a subcommittee of the EC that does not include the governor - it has no official status, thus its deliberations are not public. Apparently, it is normal to have separate meetings of cabinet for political discussions and other meetings for government (policy, service, infrastructure, etc). While we should have appropriate rules for all important things, we should remember that while Judges, juries and governors make decisions, it is individual ministers that direct actions like hold a person in a prison, or not hold a person in a prison. Where a minister, as part of a majority of the Executive Council (effectively cabinet including the premier), disagrees with a judge/jury and maintain the support of a majority of the lower house, the decisions of Judges can be frustrated. A governor should not take it upon her/him self to sack a minister/premier because a judicial/governor decision is being frustrated. As we know, politics works well in these circumstances.
How about a week at the legal ramifications of no one being held responsiblemor having to pay dues for Robodebt Murry River.or Great Barrier Reef debacles
It's worrying how many things in our (and other) democracies are held together by norms. It only takes one person to break a norm with insufficient consequences to open the door for all future occupiers of whatever position. What legislation would you like to see to ensure there are more than norms guiding the use of these prerogative powers and/or do you think they should exist at all? The presidential pardon power in the US has been abused for a long time before Biden and will be abused further under Trump. Biden's pardon of his son in the face of multiple members of the incoming administration repeatedly saying they would pursue Hunter unjustly is actually one of the less egregious uses.
We already have legislation in the States which sets up proper statutory processes for reviews of criminal convictions. The prerogative is really just left as a last resort, when the statutory responses don't seem to fit. As far as I can tell, it hasn't been abused in Australia. But if it were abused, it could be displaced completely by statutory schemes.
feeling cheeky are we Professor Twomey? on another note you seem to be more comfortable with your opinion as you make more videos which is nice to see . of course as an American i feel obliged to note that there are greater contexts to certain events which may or may not be referenced but I'm surprised a relatively new consitution would keep pardon powers although of course even the law must be at times set asidble in a democracy
You missed the opportunity to comment on the other pardon that the US President regularly gives, where each year a turkey is chosen to get a pardon from being sacrificed at Thanksgiving (grin).
Thank you, Prof. Twomey. Yet again a wonderfully informative, but concise and engaging essay into another barely understood, but essential aspect of our society. Your words reflect the obvious quote from Shakespeare’s ‘Merchant of Venice: “The quality of mercy is not strain’d. …. “ (and so on). (By coincidence, perhaps?), this topic is particularly timely - in the context of the Indonesian President’s decision to hand custody of the remaining members of the ‘Bali Nine’ over to the Australian government. Here, the ‘prerogative of mercy’ has been exercised by both the Indonesian (presidential Republican) government and the Australian (monarchical parliamentary) government. In this unique situation, I believe the Albanese government has come up with a creative and responsible solution, with natural justice in mind, to the complex issues of this case. The prisoners were neither removed to an Australian prison to finish their sentences, nor were they simply released into the general public to fend for themselves (with their own families’ support, I’m sure.) to face the ravenous media in a country that has become strange to them in many ways. Instead, they have been taken to an undisclosed location in Australia (out of the media spotlight) to finish their rehabilitation. The program aims to address the prisoners’ needs in preparing for life after incarceration (mental and physical health, vocational training, social reorientation, etc.), as well as the needs and expectations of our free, democratic society.
No they haven't. Quite a number have been convicted and served time in prison. There is a list on Wikipedia here: en.wikipedia.org/wiki/List_of_Australian_politicians_convicted_of_crimes.
What is fascinating is that this very old power of Kings to pardon, in accordance with personal discretion, is not actually exercised in that way in a country like Australia which actually _does_ have a King. *But,* it _is_ exercised in that way in the United States, a country that _overthrew_ a King in favour of a President. A President who these days, looks and acts more and more like an unbounded King.
- Anne Twomey, 2024
Powerful words.
Spicy!
Yes, but it bought about one of the greatest Knock Knock jokes of our time, thank you America.
We have an imperial presidency here in the States. What I mean by this is the United States doesn't have sufficient checks and balances to prevent an abuse of the president's clemency authority, let alone the authority conferred on any president in their capacity as commander-in-chief of the armed forces. It's a miracle we haven't yet collapsed into dictatorship. That may still be coming.
This channel just keeps getting better.
I'm glad you think so.
@@constitutionalclarion1901
How have I not stumbled upon your channel before?
I suppose that UA-cam does give out the occasional Christmas Prezzy!!
And "Lord Nutsford?" 🤣
@@frenzalrhomb6919it's a small channel but I hope it keeps growing! She really takes the time to treat the issue of the week in detail.
@frenzalrhomb6919 Glad you enjoyed it. It was Lord Knutsford (with a K), but still a rather unfortunate name!
@@constitutionalclarion1901
Pardon my atrocious spelling skills, m'lord.
Instant subscribe! I have been craving constitutional UA-cam content for so long. So glad you exist x
There's quite a big back-catalogue to explore. Enjoy!
We have a far superior appeal system in place than the US.
Only the governor general or the governor at a federal and state level can give a pardon. They can be advised by the Prime Minister or Premier but the choice is up to them. Far better division of power. No head of government should be able to independently overturn court decisions when they are exercising executive power.
state governors usually have a board here that has to approve pardons but some governors can do whatever they want
@cesargodoy2920 Alright, good to know. Was not aware there was a board and that some governors do not have a mechanism in place to stop them from exercising a prerogative power.
@@aarondemiri486 i meant in the US to be clear
@@cesargodoy2920 OK, you're talking about the US. In Australia a governor can't just do what they want. They are subject to constitutional rules and conventions.
@cesargodoy2920 ah, understood
I was prosecuted for unfortunate events that happened 24 years ago, just recently. At the time of my offending, I had a mental illness that was deemed untreatable
Contemporaneous data shows that only 1 in 7 cases of a similar nature are investigated.
My case involved a single complaintant whose credibility, by all objective measures, is questionable.
I am a fully rehabilitated after receiving an accurate & treatable diagnosis. I have used my experiences to help others & achieve post graduate qualifications.
The Queensland Police Service actively pursued evidence against me to bring a prosecution.
Negative reform is needed. This involves fewer prosecutions. Jails & prisons are FULL. Objective risk management tools could be used to determine risk of reoffending & therefore need for prosecution.
Brilliant and timely educational video. 🎉
Thanks. Much obliged.
I suspect Charles Beard might have a few things to say on the matter.
As a Canadian (who also worked on assignment to the Commonwealth Government in Canberra in the early 2000s), I am fascinated by the history of this power in Australia (but not at all surprised that it figures more prominently there given your particular history of settlement).
We here in Canada have long seen the irony of a supposedly republican president exercising Royal prerogative powers "south of the border" in a way that is not constrained by either statute or constitutional rules.
As far as I know, this particular Royal prerogative has long been fully superseded (or nearly so) by statute in all Westminster systems.
Only "republics" (and even then not all of them - and not even all US States) seem to endow their heads of state to exercise unfettered royal powers in relation to pardons.
Rather pathetic, really.
Agree - it’s something I despise about presidential-style politics.
Love these videos - super fascinating and educational. The irony of king-like powers being used by a president with reckless abandon, but extremely rarely by an actual king is bizarre. In the US, the framers wanted the president of the republic to have the same powers as a king (without being one), and while they did this, the system around the president was not built to moderate this power sufficiently.
or put more succinctly, they simply wanted to elect their king.
Lovely video, once again! I imagine the topic might be somewhat broad for a series of video, but have you or would you consider exploring the influence successive constitutions within the Anglosphere, or Commonwealth, have had on each other over the course of their writings? Here (in the United States) we loosely touch on the facets of our constitution that were written to correct perceived grievances in British law at the time. I know that various other constitutions (Australia actually comes to mind) took some inspiration from ours, but it would be very interesting to see ways in which ours or others were found lacking as successive colonies drafted their own constitutions. One could certainly argue that this video highlights an interesting, if possibly unintended, example, with the replacement of monarchical authority with an elected executive Presidency meaning that the concept of "ministerial advice" and its associated level of accountability is essentially foreign here in the United States.
A really interesting topic - but more worthy of a PhD than a shortish video. People have certainly written on the subject of how existing Constitutions and their problems influence the drafting of future Constitutions. For example, many of the South Pacific Constitutions, which were written post 1975, sought to codify or remove the reserve powers of the head of state, after the dismissal crisis of 1975 in Australia. But this did not turn out so well, because these overly prescriptive Constitutions then failed when put under stress.
I'll keep it in mind, and if a discrete aspect of it comes to mind which is manageable in a video, I'll do it.
There is an old quip that I once heard, although I can't remember who said it, that the USA is really an elective monarchy whereas the UK is a 'crowned republic' - guess the latter would go for other Westminster systems too.
Wow. Great quip. I love the Westminster system and am glad I grew up under it.
@Shalott63 Well said. It's arguably even more true of Australia, NZ and Canada than it is of the UK, given that "The Crown" is even more of a disembodied legal fiction for us than it is in the place that the actual "head" of State rests...
In England several dozen motorists were given Royal Pardons for exceeding the 30mph speed limit. It turned out much later that there was no legal speed limit in force. The people who pleaded guilty were given pardons because they couldn't appeal, unlike the people who pleaded not guilty.
How can anyone say pardons are inherently immoral ? Justice does go wrong sometimes and needs a getout.
Yes, agreed. Although when a Head of State has the power to pardon his relatives and friends, that seems a bit more questionable. There's even speculation that Donald Trump might pardon himself when he becomes president again.
I had no idea that pardon powers were a thing in contemporary Australia.
It only pops up in the news quite rarely - and as it's not exercised for personal reasons, it is less contentious.
Same here I thought there was not such powers any more but watching this I have some vague recollection of requests for pardons in NSW.
One very famous case popped up only a few days ago - involving the prerogative powers of the Indonesian President and the Australian government - dealing with the remaining incarcerated members of the ‘Bali Nine’. In this case, on both sides of the Timor Sea, the prerogative of mercy was applied without using the politically ‘problematic’ term ‘pardon’.
@@noelleggett5368 The prerogative of mercy wasn't used in the Bali 9 case - and certainly not by Australia. It's good news though.
@noelleggett5368 is that an example of "commuting" a case? When looking at records of many people who were transported to Australia in the early colonial days, many had sentences of life or even death commuted to seven years transportation.
The whole concept of a presidential pardoning seems to be admitting the system is broken.
Free David mcbride.
In Australia: Send petition to state Governor, Governor refers it to committee, committee given report, application is usually knocked back.
In the USA: (a la Oprah) You get a pardon, you get a pardon, you get a pardon, you get a pardon!
Kudos to Sam Griffith for such integrity. Great pick for CJHC.
Yes, I thought it was really interesting that he did not take advantage of the situation (although probably, as a matter of practicality, he know his government would be defeated on confidence, so it wasn't worth it.)
We do not have such an appalling politicised judiciary
Thanks for your valuable work
❤️🇦🇺🧬🏹🪃🥷🙏✅️
You're most welcome.
Looking forward to checking out your video on my great, great, great, great grandfather, Henry Kable.
@@murraysaunder9210 Wow. He led a fascinating life. I went to visit his grave in Windsor (NSW). Such an incredible story.
His spirit lives on each day, outside most shopping centres "give me back my parcel."
🤔
I reckon this story would make a good of movie or better yet, an absolute ripper of a whole series.
I couldn't believe it when I saw the headline that Biden pardoned his son! Such a foreign concept for Australia! It just stinks - would he do that for any random John on the street? No!
Glad you did a video on this.
I reckon your closing comments will stir up the US Trolls! :D haha Well done!
I agree but any reason for focusing on Biden? My understanding is Trump did this frequently.
Here’s a quote and link for convenience:
“Trump's use of the pardon power was marked by an unprecedented degree of favoritism.[12] He frequently granted executive clemency to his supporters or political allies”
en.m.wikipedia.org/wiki/List_of_people_granted_executive_clemency_by_Donald_Trump
@justinfoster9943 it's more that Biden has specifically ruled out a pardon for his family. Everybody knows Trump was a loose cannon and would pardon himself if he needed to. Biden was trying to show that he wasn't of the same cloth, but ultimately he is.
Also, I wouldn't rely on Wikipedia as a source of undeniable info. 😉
@ fair enough regarding Biden vs Trump.
To clarify, I wouldn’t rely on Wikipedia as a source of undeniable info either, only as a quick primer for convenience.
Have you seen the other types of "people" Biden pardoned
Biden made it pretty clear that he was doing it because he knew that Trump had a personal vendetta against him, and he's just trying to minimise the harm that Trump can do.
Fascinating, thankyou.
Glad you found it interesting.
They DO still give beneficial contracts directly to friends, family, and donors to their political parties without going through a scrupliously fair ternder process.
I think all jurisdictions now have anti-corruption bodies, so any engagement in corrupt tendering processes these days is very risky indeed.
The pardon power is just another spot where people can avoid having to face the penalty for their crimes. Police can decline to investigate, prosecutors can decline to charge, juries can use Jury Nullification and judges can acquit, use some procedural technicality or impose a very lenient sentences. Or of course they can do the reverse.
"For my friends, everything; for my enemies, the law."
Personally I don't think the Trump immunity question was decided well in the USA. I think it would have been better if the immunity had been removed after successful impeachment only - which I believe would be a reasonable interpretation of the us constitution. The pardon power is basically limited by political considerations.
I had no doubt that Biden would pardon his son after the election - what father wouldn't if they had the power?
The pardon power could also be seen as a limitation on the power of the prosecutors, where the judicial process can many times be considered the punishment, often bankrupting the person due to massive legal fees, where the state has effectively an unlimited budget.
Yep, the process is the punishment
Have there been recent pardons in NSW due to doubts about evidence, even though appeals have been unsuccessful eg Katherins Falberg ?
That should be an exoneration, not a pardon.
@@davidhoward4715 exoneration through an executive decree would be a usurpation of judicial power. A pardon doesn't over rule what the courts have done.
The list of those who have received different types of pardons or sentence remissions is here: dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/royal-prerogative-of-mercy-and-reviews-of-convictions-sentences/release-of-information.html.
How about pardons for all those victimised and charged during the draconian lockdown period?
Nope. Those people put their own selfishness above the welfare of their fellow citizens.
Wouldn’t that be like pardoning drink drivers?
@ would an apple be a orange?
I don’t follow your thoughts.
@@radman8321 so refusing to inject oneself with poison is selfish? Some warped way of thinking.
@@Robert-xs2mv If we ignore your hyperbole for the purposes of discussion, nobody was charged or punished for not getting vaccinated. The reason people got charged was for breaking laws. Laws introduced to reduce the rate of serious illness and death among the most vulnerable members of the community. Most members of the community stepped up and recognised their responsibility to their fellow citizens. The people with the warped thinking were people such as yourself who think we all live in a bubble.
It should be noted that appeals to the English Privy Council are no longer allowed and this practice was stopped in the mid 1980's
So in this day and age the privy council should never be mentioned in realation to australia because it has no legal authority any more
The Privy Council no longer has binding authority in Australia, but that's no reason not to mention its judgments. Judgments from lots of different jurisdictions are mentioned by Australian courts, to show how jurisprudence has developed or diverged in other jurisdictions. This is a common and useful practice.
"Monarch's" power.
Professor Twomeys video on wonderful story of Henry Kable is at this link: ua-cam.com/video/JDJ942Nd0V4/v-deo.html
very enlightening.
I now wonder whether the recent "Bali 9" repatriations, where they became free on arrival in Australia, were pardoned in Indonesia or Australia as part of the deal
Officially they are still subjected to their criminal sanctions issued by the Indonesian courts, but the Indonesian government has accepted that Australian authorities may choose to waive enforcement of the sanctions on Australian soil.
Yes, thank you. Whilst the pardon most recently is an abuse of justice and harks back to the reason for the curtailment of the prerogative nevertheless, I still support the basic concept.
Could it be possible for the commonwealth parliament to legislate the federal prerogative of mercy to be issued for state crimes?
While there is a lack of clarity about how executive prerogative powers are distributed between the Commonwealth and the States, the current belief is that the Commonwealth could only give pardons in relation to federal offences (not State ones).
I was not aware most convicts on the first fleet had been sentenced to death though I did know my ancestor who arrived later was sentenced to death only to be pardoned at the last minute (rhetorically speaking)
It may be my device, but citations seem to have appeared / disappeared unrelated to the spoken commentary.
This time, I didn't mention the names of the cases, but I put them up on the screen when they were authority for what I was saying, in case anyone wanted to know.
I agree that in the USA pardons are given so easily.
And yet it apparently wasn't a problem when Trump pardoned convicted criminals in 2021. I wonder what's changed.
Prof. Twomey, this seems to be another topic (like several of your posts) touches on the powers of the Governor-General - as codified in the Australian Constitution, which by convention.
The executive powers of the Governor-General, (like the powers specifically written for the ‘Governor-General-in-Council’) are not exercised without the advice of the elected government, specifically the Executive Council. The ‘reserve’ powers are a different, and highly contentious matter, of course! But here you examine an aspect the ‘prerogative’ powers of the Governor-General (and State Governors), and explain how and why the ‘prerogative of mercy’ has been applied in Australia, and how it differs from the Royal Prerogative given to the King.
Nevertheless, once again, I’m reminded of the fact that our Australian Constitution does not accurately describe our actual legal framework, and that the Australian Governor-General - technically (‘on paper’) - has been granted more power over the Australian government than enjoyed by the King over the UK government or even the US President. Most of these powers were never meant to be used, and were written to describe the powers of the Head od State in a historical context. The modern doctrine of ‘responsible government’ and convention demands that these powers must always be applied on the advice of the government.
Convention has been ignored in so many noteworthy (or infamous) cases, that eventually the Australian people must go through the trouble of accepting a complete ‘down to the nuts and bolts’ rewrite of the Constitution if we ever grow up and become a Republic. The current favoured model is to have an elected President. So, if we want to take the ‘conservative’ path of not really changing the way our government works now, but having an elected ‘ceremonial’ Head of State with few reserve powers (similar to the Irish model), we’ll need a completely new Constitution - one that accurately describes our framework governance.
If we don’t, we could end up with much, much worse than what the Americans are dealing with now. Any President of a former British colony (or colonies), who attempts to govern without the ‘will of the people’ and their elected representatives in parliament/congress, should remember what happened to Charles I.
Hi Professor,
Lord Knutsford of Middlesex was in the Order of the hospitallers of Saint John. Christianity is his prerogative of mercy in law making.
🇦🇺
Does the King have the power to pardon someone in Australia directly or would he have to work through our legal framework via the attorneys general?
Section 7(2) of the Australia Acts 1986 says that all powers and functions of the monarch in respect of a State are exercisable only by the Governor of the State. This is subject to two exceptions - the power to appoint and remove the Governor, and the exercise of power by the monarch when personally in a State. Theoretically, the monarch could pardon a person when the monarch is visiting the relevant State - but this would be on the advice of the Premier, under s 7(5).
At the Commonwealth level, section 61 of the Constitution says that the executive power of the Commonwealth (which includes prerogative powers) is vested in the monarch and is 'exercisable by the Governor-General'. If the monarch is visiting Australia, the Royal Powers Act permits the monarch to exercise powers that under any statute are exercisable by the Governor-General, but in the absence of any statute addressing this, it does not cover prerogative powers.
Professor,
If you were ever to address a former NSW Minister, Thomas Ley, as a subject of one of your lectures, it would be most appreciated, particularly how he was allowed to slip through the justice system in Australia, though not the UK.
It is appropriate we have rules/laws for the exercise of power.
Executive Councils, not individual ministers, should be the only advisor to the governor/governor general, except in the case of appointment of ministers and the holding of elections where the premier is the sole advisor. Apparently, lots of EC meetings are just the president and vice president of the council - the governor and minister appointed vice president as it is assumed the other EC members (ministers) trust the VP to convey cabinet (EC minus governor and ministers not included in cabinet) decisions appropriately to the governor/GG.
Cabinet is effectively a subcommittee of the EC that does not include the governor - it has no official status, thus its deliberations are not public. Apparently, it is normal to have separate meetings of cabinet for political discussions and other meetings for government (policy, service, infrastructure, etc).
While we should have appropriate rules for all important things, we should remember that while Judges, juries and governors make decisions, it is individual ministers that direct actions like hold a person in a prison, or not hold a person in a prison. Where a minister, as part of a majority of the Executive Council (effectively cabinet including the premier), disagrees with a judge/jury and maintain the support of a majority of the lower house, the decisions of Judges can be frustrated. A governor should not take it upon her/him self to sack a minister/premier because a judicial/governor decision is being frustrated. As we know, politics works well in these circumstances.
How about a week at the legal ramifications of no one being held responsiblemor having to pay dues for Robodebt Murry River.or Great Barrier Reef debacles
Watching this while doing an insolvency law assessment, when my professor sees me talking about pardons (mistakenly)they’ll be so confused😂
You seeking a pardon for insolvency?
Now that would make for a great essay.
It's worrying how many things in our (and other) democracies are held together by norms. It only takes one person to break a norm with insufficient consequences to open the door for all future occupiers of whatever position. What legislation would you like to see to ensure there are more than norms guiding the use of these prerogative powers and/or do you think they should exist at all?
The presidential pardon power in the US has been abused for a long time before Biden and will be abused further under Trump. Biden's pardon of his son in the face of multiple members of the incoming administration repeatedly saying they would pursue Hunter unjustly is actually one of the less egregious uses.
We already have legislation in the States which sets up proper statutory processes for reviews of criminal convictions. The prerogative is really just left as a last resort, when the statutory responses don't seem to fit. As far as I can tell, it hasn't been abused in Australia. But if it were abused, it could be displaced completely by statutory schemes.
I beg your pardon
Part of common language
feeling cheeky are we Professor Twomey?
on another note you seem to be more comfortable with your opinion as you make more videos which is nice to see .
of course as an American i feel obliged to note that there are greater contexts to certain events which may or may not be referenced
but I'm surprised a relatively new consitution would keep pardon powers although of course even the law must be at times set asidble in a democracy
8:49 Lord Nutsford!!
Lord Knutsford!
You missed the opportunity to comment on the other pardon that the US President regularly gives, where each year a turkey is chosen to get a pardon from being sacrificed at Thanksgiving (grin).
The American electorate is the turkey - killed, roasted, and eaten. The USA can barely claim to be a real democracy at all.
erroneous comparison number 5985
Thank you, Prof. Twomey. Yet again a wonderfully informative, but concise and engaging essay into another barely understood, but essential aspect of our society. Your words reflect the obvious quote from Shakespeare’s ‘Merchant of Venice: “The quality of mercy is not strain’d. …. “ (and so on).
(By coincidence, perhaps?), this topic is particularly timely - in the context of the Indonesian President’s decision to hand custody of the remaining members of the ‘Bali Nine’ over to the Australian government. Here, the ‘prerogative of mercy’ has been exercised by both the Indonesian (presidential Republican) government and the Australian (monarchical parliamentary) government. In this unique situation, I believe the Albanese government has come up with a creative and responsible solution, with natural justice in mind, to the complex issues of this case.
The prisoners were neither removed to an Australian prison to finish their sentences, nor were they simply released into the general public to fend for themselves (with their own families’ support, I’m sure.) to face the ravenous media in a country that has become strange to them in many ways. Instead, they have been taken to an undisclosed location in Australia (out of the media spotlight) to finish their rehabilitation. The program aims to address the prisoners’ needs in preparing for life after incarceration (mental and physical health, vocational training, social reorientation, etc.), as well as the needs and expectations of our free, democratic society.
They don't have to. Politicians have legislated laws to protect themselves from being prosecuted for crimes they commit, pre menditated or not.
No they haven't. Quite a number have been convicted and served time in prison. There is a list on Wikipedia here: en.wikipedia.org/wiki/List_of_Australian_politicians_convicted_of_crimes.