This note looks at examples of legislation made under Letters Patent and examines whether such legislation comes within generally accepted procedures of rule making in a democratic society.

Letters Patent are an official document granting a legal right and derive from the Latin literae patentes meaning letters lying open (to public inspection).

When one thinks of legislation, the type of material which comes to mind includes Acts of Parliament and so called delegated legislation, which encompasses regulations, by-laws, ordinances, determinations etc.

Acts and delegated legislation fall within fairly standard procedures for making, notification, interpretation, parliamentary scrutiny and review by the courts in cases of dispute. In 1994, 1996, 1998 and again in 2003 the government introduced the Legislative Instruments Bill to standardise further procedures for delegated legislation.

Outside of these well known methods of law making stands legislation made under Letters Patent, also known as prerogative instruments, and includes legislation setting out procedures for granting honours and awards which are made without parliamentary scrutiny and have practically no review procedures.

Background to Letters Patent

Letters Patent are an ancient form of law making inherited from England and are instruments made by the monarch without reference to Parliament under the royal prerogative which is that power of the Crown still existing and not superseded by parliamentary legislation.⁽¹⁾ By convention, the government of the day under section 61 of the Constitution makes Letters Patent and presents them to the Queen for her signature.⁽²⁾ Once signed they are usually notified and published in the Commonwealth of Australia Gazette. Not all Letters Patent will have related legislation. For example, the formal sources of power for State Governors and the Governor-General are to be found in Letters Patent.

Examples of legislation made under Letters Patent

Examples of legislation made under Letters Patent include the following:

Order of Australia Constitution and Ordinances

Legislation establishing the Order of Australia was made by the Queen under Letters Patent in 1975 and published in the Australian Government Gazette dated 17 February 1975 (no. S. 28). The Constitution of the Order may be found in the schedule to the Letters while section 30 provides for ordinances to be made. These include the Insignia Ordinance 1977 and the Designations and Insignia Ordinance 1986.

On the same day, the following regulations were gazetted by Letters Patent: the Australian Bravery Decorations Regulations and the National Medal Regulations. The Order of Australia and its regulations are administered jointly by the Department of the Prime Minister and Cabinet and the Australian Honours Secretariat of Government House.

Anniversary of National Service 19511972 Medal Regulations 2001

These regulations were made by the Queen under Letters Patent and published in the Commonwealth of Australia Gazette on 7 December 2001 (no. S. 483). In the following year the Queen issued a Declaration and Determination under the Regulations which appeared in Gazette No. S. 409 on 30 October 2002 in order to clarify the guidelines for the medal. The regulations are administered by the Department of Defence.

Honours and awards

The Sovereign is said to be 'the fountain of all honour and dignity' and traditionally enjoys the sole right of conferring all titles of honour, dignities and precedence. Although this right is one of the prerogatives of the Sovereign it is usual, however, where titles are conferred as a reward for parliamentary or other public services, for the Sovereign to be guided largely by the advice of the Prime Minister.

When implementing the Order of Australia in 1975, the Prime Minister Gough Whitlam continued the ancient practice of instituting the Order by Royal Letters Patent rather than by parliamentary legislation. One advantage of this was to provide a degree of tradition and continuity with the old scheme of imperial honours giving the appearance of the monarch rather than the government making the change. Another advantage was that the Letters avoided parliamentary scrutiny.

Parliamentary scrutiny

None of the above Regulations was tabled nor notified to Parliament when it was made. Section 46 of the Acts Interpretation Act 1901, which requires most regulations to be tabled in Parliament and subject to disallowance, does not apply to legislation made under these Letters Patent unless stated. When drafting Letters Patent the government does not include a provision that legislation made there under should be disallowable instruments.⁽³⁾

Publication

Current copies of the legislation are difficult to locate. The Order of Australia constitution and its ordinances are currently published in a booklet by the Australian Honours Secretariat.⁽⁴⁾ The National Medal Regulations are published on the general honours website It's an Honour maintained by the Department of the Prime Minister and Cabinet.⁽⁵⁾ This type of legislation is notified and published consistently only in the Gazette. No attempt appears to have been made to make it readily accessible to the public, either through government Internet sites such as Scaleplus, (the main legislation website),⁽⁶⁾ or by reprinting the legislation and making it available through the Commonwealth Government bookshop.

Judicial review

Legislation made under Letters Patent is not justiciable (subject to court review) unless it runs contrary to the Constitution or has been made or exercised beyond the purpose for which it was granted.⁽⁷⁾

Individual decisions made by Departmental officers who have been delegated decision making powers under the legislation may possibly be reviewed by the High Court. Under section 75 (v) of the Constitution the Court has jurisdiction to rule on the decision of an 'officer of the Commonwealth' in certain circumstances.⁽⁸⁾

Decisions made by Departmental officers may also be reviewable by the Ombudsman. Defence awards are specifically excluded from review by the Ombudsman under subsection 19C(5) of the Ombudsman Act 1976.

In summary, it appears that such legislation, apart from being notified and published in the Gazette is not readily available to the public, is not scrutinised by Parliament and has few appeal or review mechanisms.

Issues

Should the government continue passing legislation under the guise of prerogative instruments? Given that most legislation is passed with parliamentary approval and scrutiny there may be a case for bringing prerogative instruments within the legislative framework. With the passing of imperial honours, perhaps consideration should be given to providing a more standardised legislative regime for the granting of honours by Act of Parliament and statutory rules.

If prerogative instruments are to continue, how can accountability and accessibility be increased? Options include: (a) amend the Acts Interpretation Act 1901 to make them disallowable instruments, (b) bring them within the provisions of the Administrative Decisions (Judicial Review) Act 1977, (c) ensure that the Legislative Instruments Bill 2003 covers Letters Patent to ensure uniformity of notification, disallowance and publishing with other miscellaneous legislation.⁽⁹⁾ Another option would be to bring aspects of the royal prerogative, such as the making of awards, within parliamentary control by Act of Parliament.⁽¹⁰⁾ In some cases this may involve an amendment to the Constitution.