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?
Attachment A—AttorneyGeneral’s Department AttorneyGeneral’s Department Referral Checklist Item If the provision... it to... (see Note 12) 1 creates, abolishes or affects the power or jurisdiction of a court Courts Section Legal System Branch 2 defines magistrate, judge or court of summary jurisdiction Courts Section Legal System Branch 3 provides or amends a scheme for alternative dispute resolution (ADR) or a mechanism for encouraging the use of ADR Courts Section Legal System Branch 4 creates, abolishes or affects the power or jurisdiction of the Administrative Appeals Tribunal Administrative Appeals Tribunal Section Legal System Branch and Administrative Law Section Integrity Branch 5 might be viewed as a privative or ouster provision (see Note 1) Courts Section Legal System Branch and Administrative Law Section Integrity Branch 6 provides for automated assistance in decisionmaking or provides for decisionmaking by computer programs Administrative Law Section Integrity Branch 7 might discriminate against an individual (because of age, disability, nationality, race, religion, belief, sex, family responsibility, marital status, pregnancy, sexual preference or any other reason) Human Rights Unit Integrity Branch 8 is specifically directed to children (i.e. persons under 18) or applies to children differently from the way it applies to others Human Rights Unit Integrity Branch 9 raises issues relating to evidence or procedure in civil matters, including evidentiary certificates Courts Section Legal System Branch 10 involves a legal cooperation or mutual recognition scheme concerning private commercial or civil transactions and procedures Private International Law and Commercial Law Section System Branch 11 gives an administrative discretion that should perhaps be reviewable Administrative Law Section Integrity Branch 12 modifies or affects the operation of the Administrative Appeals Tribunal Act 1975 Administrative Appeals Tribunal Section Legal System Branch 13 modifies or affects the operation of an administrative law (see Note 2) or the Legislation Act 2003 Administrative Law Section Integrity Branch 14 modifies or affects the operation of the Judiciary Act 1903 (section 39B) or the Law Officers Act 1964 Administrative Law Section Integrity Branch and Courts Section System Branch and Office of Legal Services Coordination 15 creates new reviewable or appealable rights, entitlements or responsibilities Courts Section Legal System Branch and