be interested to know that the draft contains certain provisions but will not want to comment on the provisions. Need to follow up referral In general, therefore, you do not have to follow up the areas to which you have referred the draft. The only exceptions are: matters that affect the legal effectiveness of the draft (e.g. whether the draft gives appropriate effect to an international agreement, where that agreement provides the constitutional basis for the draft); and matters that must be resolved before the draft can be completed (e.g. penalties for new offences) or that you think ought to be resolved before the draft is completed (e.g. whether a new administrative power ought to be reviewable or whether the draft is consistent with Australia’s international obligations). Office of International Law—further matters Consulting OIL early Several items in Attachment A require certain provisions to be referred to the Office of International Law (OIL) for comment. OIL has advised that you or your instructors should contact OIL (or one of the other tied providers of international law work, i.e. the Australian Government Solicitor (AGS) or the Department of Foreign Affairs and Trade (DFAT), under the Legal Services Directions) for advice at an early stage (ideally before drafting starts) in relation to provisions that are ultimately required to be referred to OIL for comment. Identifying relevant international agreements Sometimes, it is not apparent on the face of a that an international agreement might exist whose content is relevant to the draft. The following measures are aimed at ensuring that any relevant international agreement is taken into account in drafting. Cabinet submissions seeking approval for Bills are accompanied by coordination comments and OIL contributes to these comments in situations where it is aware international law is relevant. So, if you are drafting on the basis of Cabinet authority, you could use the coordination comments in the accompanying submission as one way of working out the impact of international law. To supplement these measures, you should prompt instructors with questions along the lines of the following: does the draft implement a treaty or amend legislation that already implements a treaty? is constitutional support dependent on a treaty? the draft be considered to infringe civil, political or other human rights?
be interested to know that the draft contains certain provisions but will not want to comment on the provisions. Need to follow up referral In general, therefore, you do not have to follow up the areas to which you have referred the draft. The only exceptions are: matters that affect the legal effectiveness of the draft (e.g. whether the draft gives appropriate effect to an international agreement, where that agreement provides the constitutional basis for the draft); and matters that must be resolved before the draft can be completed (e.g. penalties for new offences) or that you think ought to be resolved before the draft is completed (e.g. whether a new administrative power ought to be reviewable or whether the draft is consistent with Australia’s international obligations). Office of International Law—further matters Consulting OIL early Several items in Attachment A require certain provisions to be referred to the Office of International Law (OIL) for comment. OIL has advised that you or your instructors should contact OIL (or one of the other tied providers of international law work, i.e. the Australian Government Solicitor (AGS) or the Department of Foreign Affairs and Trade (DFAT), under the Legal Services Directions) for advice at an early stage (ideally before drafting starts) in relation to provisions that are ultimately required to be referred to OIL for comment. Identifying relevant international agreements Sometimes, it is not apparent on the face of a that an international agreement might exist whose content is relevant to the draft. The following measures are aimed at ensuring that any relevant international agreement is taken into account in drafting. Cabinet submissions seeking approval for Bills are accompanied by coordination comments and OIL contributes to these comments in situations where it is aware international law is relevant. So, if you are drafting on the basis of Cabinet authority, you could use the coordination comments in the accompanying submission as one way of working out the impact of international law. To supplement these measures, you should prompt instructors with questions along the lines of the following: does the draft implement a treaty or amend legislation that already implements a treaty? is constitutional support dependent on a treaty? the draft be considered to infringe civil, political or other human rights?
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