4D In selecting counsel, all reasonable endeavours are to be made to:
(a) identify all counsel in the relevant practice area; and
(b) genuinely consider engaging such counsel; and
(c) regularly monitor and review the engagement of counsel; and
(d) select female counsel with relevant seniority, expertise and experience in the relevant practice area, with a view to:
(i) senior female barristers accounting for at least 25% of all briefs or 25% of the value of all brief fees paid to senior barristers; and
(ii) junior female barristers accounting for at least 30% of all briefs or 30% of the value of all brief fees paid to junior barristers.
Note: Commonwealth agencies are encouraged to publish annually, in a manner that does not disclose the rates paid to individual counsel, information that allows assessment of whether the targets in subparagraphs (d)(i) and (ii) are being met in relation to counsel engaged on their behalf (whether directly or through external lawyers).
4E A Commonwealth agency that proposes to brief a counsel who does not have an approved rate for performing Commonwealth legal work, is to ask OLSC to approve an initial rate, even if the agency proposes to brief the counsel at a rate below the applicable threshold specified in paragraph 5. If OLSC is asked to approve an initial rate, OLSC is to make a decision about the request within a reasonable time and tell the agency about its decision as soon as practicable after the decision is made.
5 Senior counsel are not to be paid a daily rate above $3,500 (inclusive of GST) without the approval of the Attorney‑General. Junior counsel are not to be paid a daily rate above $2,300 (inclusive of GST) without such approval. Any out of chamber fee is to be treated as part of the daily rate for the purpose of considering the appropriateness of that rate. Where an out of chamber fee is agreed or approved, it is to be marked separately on the brief.
6 Hourly rates greater than one‑sixth of the daily rate are not to be agreed with counsel unless approved by the Attorney‑General.
7 A cancellation fee is to be agreed with counsel only in exceptional circumstances (eg to cover the possibility of a matter being resolved shortly before a lengthy trial). Any such fee is to be agreed at the time counsel is engaged for a trial. A cancellation fee greater than two days of counsel’s normal Commonwealth rate is to be approved by the Attorney‑General before it is agreed with counsel.
8 Payment of retainers (concerning counsel’s availability for future matters), both new and renewed, is not ordinarily to be agreed with counsel and, if considered to be justified, the terms of the agreement are first to be approved by the Attorney‑General.
Approval Approval
Approval
9 Unless agreed otherwise by the Attorney‑General, requests for approval to pay counsel amounts higher than the rates referred to in paragraphs 5 and 6, and approvals required by paragraphs 7 and 8 for cancellation fees and retainers, are to be made to OLSC. Proposals to pay senior counsel in excess of $5,000 per day (inclusive of GST) will be referred by OLSC to the Attorney‑General for decision.
10 Approval is to be sought as far as possible in advance of the scheduled date for the delivery of a brief to counsel. In considering a request to pay counsel above the specified rate, the following factors will be taken into account:
(a) the special expertise or skill of the counsel who is proposed to be briefed
(b) the availability of counsel generally to appear in the matter
(c) the probable total cost of counsel’s fees in the matter
(d) the specific request of a Commonwealth agency that a particular person be briefed and the reasons for that preference
(e) the importance of the matter, including any special sensitivity, and
(f) the normal market daily fee at which the relevant counsel is briefed.
11 If approval for a daily fee in excess of $3,500 or $2,300 (as applicable) has been given, subsequent approval for using the same barrister at the approved rate is not required unless, at the time the approval is given, the fee is designated as a ‘one‑off’ rate.
Other matters Other matters
Other matters
12 The fees referred to in paragraph 5 are not to be regarded as the standard or starting point for fee negotiations. In many cases, particularly in relation to junior counsel, the normal market rates of counsel may be less, or even considerably less, than the threshold fees.
13 Counsel are not to be paid more than reasonable costs of accommodation and travel, taking into account levels applicable to Senior Executive Service officers in the Australian Public Service. Accommodation and class of travel is not to be approved so as to increase the approved Commonwealth daily rate.
Administration of the policy Administration of the policy
Administration of the policy
14 OLSC will normally consult AGS, in light of its experience with the conduct of Commonwealth litigation and with the engagement of counsel generally, in considering whether a fee in excess of the limits in paragraph 5 of this Appendix should be approved and in making recommendations to the Attorney‑General in respect of a request to approve a fee in excess of $5,000.
15 Subject to the availability of counsel at the approved rates, the choice of counsel is a matter for individual Commonwealth agencies, taking into account any advice from the solicitors instructed by the agency. However, Commonwealth agencies and their instructing solicitors are encouraged to inform OLSC, either in general terms or in relation to a specific matter, if they have any concerns about the operation of the policy.
16 To facilitate administration, Commonwealth agencies are to provide OLSC, upon request, with information or access to information about the engagement of all or certain counsel.
Appendix E—Assistance to Commonwealth employees for legal proceedings
Application Application
Application
1 Appendix E concerns the handling of requests for assistance in relation to legal proceedings (including potential legal proceedings) as well as inquests, inquiries and subpoenas.
Section 4D - Legal Services Directions 2017 - In selecting counsel, all reasonable endeavours are to be made to: | Zoe