12Meaning of tied work

12  Meaning of tied work

 (1) The following are tied work:

 (a) Cabinet work;

 (b) constitutional law work;

 (c) national security legal work;

 (d) public international law work;

 (e) tied drafting work.

 (2) In this Part:

Cabinet work means legal advice that is:

 (a) either:

 (i) to be considered by Cabinet or relied on in preparing a Cabinet submission or memorandum; or

 (ii) on a legislative proposal (other than a proposal for subordinate legislation) to be considered for adoption by government, or on draft legislation (other than subordinate legislation) for introduction into Parliament; and

 (b) for paragraph (a)(i)—is intended, at the time the advice is obtained, to be considered by Cabinet or relied on in preparing a Cabinet submission or memorandum.

constitutional law work:

 (a) means the interpretation and application of the Constitution and constitutional principles, including:

 (i) the interpretation and application of those principles that define or limit the functions, privileges, powers and structures of the 3 branches of the Commonwealth government; and

 (ii) the interpretation and application of the constitutions of the States; and

 (b) includes:

 (i) interpreting statutes or instruments by reference to the Constitution; and

 (ii) determining whether the Commonwealth is bound by a State or Territory law.

national security legal work means any Commonwealth legal work of which national security interests form a material aspect, including where national security interests:

 (a) substantively inform the work’s legal analysis; or

 (b) materially impact legal or factual issues relating to the work.

public international law work means any of the following:

 (a) international litigation and arbitration;

 (b) advice involving Australia’s or another country’s obligations under international law;

 (c) advice on treaty negotiation;

 (d) advice on implementing a treaty (including bilateral agreements);

 (e) domestic litigation involving a significant public international law issue.

Note 1:  A reference to a treaty in this definition is intended to include international instruments of less than treaty status (such as memoranda of understanding between Australia and other countries and non‑binding declarations and recommendations adopted by international organisations).

Note 2: For example, paragraph (a) of the definition of public international law work applies to legal work involving proceedings before: