10Sharing of advice within Government

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 that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister). Resolving disagreements about interpretation of legislation 10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter. Sharing of advice generally 10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).