Document ID: chunk:federal_register_of_legislation:F2018C00409:clause:1_10:p1
Version: federal_register_of_legislation:F2018C00409
Segment Type: clause
Provision Reference: sch 1 cl 10 (pt 1/2)
Character Range: 22695–25619

10  Sharing of advice within Government

Consultation
10.1  If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
 (a) a reasonable opportunity to consult on the proposal to seek advice
 (b) a copy of the request for advice
 (c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity's legal services provider, as required by the administering entity, and
 (d) a copy of the advice.

Exceptions to consultation requirement
10.2  The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3  Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
 (a) disclosure would constitute a breach of law
 (b) a Cabinet, law enforcement or national security matter would be inappropriately disclosed, or
 (c) the Attorney‑General has granted an applicable exemption from paragraph 10.2.
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4  Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
 (a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
 (b) the matter could create a precedent, or
 (c) the requesting entity has identified a potential weakness in the legislation.

Responsibility of administering entity
10.5  If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation