Schorel-Hlavka v The Governor General

The applicants, Mr. and Mrs. Schorel-Hlavka, sought judicial review of a decision by the Governor-General to refuse their application for a pardon. The applicants had been convicted of criminal offences and had exhausted their avenues of appeal. They argued that the Governor-General's refusal was unlawful, constituting an abuse of power and a breach of their constitutional rights. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Governor-General's exercise of the prerogative power to grant or refuse a pardon was subject to judicial review. Specifically, the Court had to determine if the applicants could establish that the Governor-General's decision was so unreasonable that it could be characterised as an abuse of power, thereby rendering it legally invalid. This involved considering the nature of the prerogative power and the extent to which it could be constrained by the common law and constitutional principles.

Gummow and Hayne JJ held that the Governor-General's decision to refuse a pardon was not amenable to judicial review. Their Honours reasoned that the exercise of the prerogative power of mercy, being a matter of executive discretion vested in the Crown, was not subject to the supervisory jurisdiction of the courts. They distinguished this power from other executive functions that might be reviewable, emphasizing that the prerogative of mercy was a personal power of the Crown, exercised on the advice of ministers, and its refusal did not give rise to a cause of action or a right to judicial intervention. The Court concluded that the applicants had not demonstrated any legal error in the exercise of this discretion that would warrant judicial interference.