Engagement of Counsel

Australian Government agencies must use legal counsel who have an approved Commonwealth ongoing rate (paragraph 4E of the Legal Services Directions 2017 (the Directions)).

An application to the OLSC is required where:

• counsel does not have an approved initial Commonwealth rate
• counsel has an approved Commonwealth rate as junior counsel but has taken silk, or
• counsel is seeking an ongoing or one-off rate above the threshold daily rate in paragraph 5 of Appendix D of the Directions ($2300 (inclusive of GST) for junior counsel and $3500 (inclusive of GST) for senior counsel).

Once a counsel has an approved initial Commonwealth rate, an agency and counsel may choose to negotiate a competitive and comparable rate for the brief up to the threshold rate.

From 1 July 2018, the Legal Services Directions 2017 will specifically encourage Commonwealth agencies to use all reasonable endeavours to select female barristers with relevant seniority, expertise and experience in the relevant practice area, with a view to:

• senior female barristers accounting for at least 25% of all briefs or 25% of the value of all brief fees paid to senior barristers
• junior female barristers accounting for at least 30% of all briefs or 30% of the value of all brief fees paid to junior barristers.

These targets support the objectives of the Law Council of Australia's Equitable Briefing Policy.

When to apply to OLSC for a rate

The Directions require that an agency should seek the approval of OLSC to engage counsel in certain circumstances. Agencies or counsel may apply directly to OLSC for a Commonwealth rate to be set if:

• counsel does not have an ongoing Commonwealth rate
• counsel has taken silk since their rate was approved, or
• a new, ongoing Commonwealth rate above the threshold is required (this could be appropriate, for example, where counsel is regularly being engaged with one-off rates above the threshold).

Agencies only (that is, not counsel) may apply if they:

• require a one-off rate for a particular brief above the threshold.

Agencies that wish to engage a private lawyer who is not at the Bar to do work as counsel, may apply to OLSC for a counsel rate. Applications from such private lawyers may not be considered, particularly in the absence of support from an agency.

The threshold daily rate for junior counsel is $2300 (inclusive of GST) and $3500 (inclusive of GST) for senior counsel (paragraph 5). Provided a counsel has an ongoing Commonwealth rate already set, decisions to engage counsel for a particular matter at rates up to and including the threshold (even if it is over their ongoing Commonwealth rate) can be made by the agency in consultation with counsel, without the need to consult with OLSC.

How to apply to OLSC

To apply for an initial rate or a new ongoing rate (where silk has been taken or the new rate is over the threshold), the applicant will need to fill in Parts A, B, C and D of the application form below. If requesting a rate above the threshold, the applicant should provide additional information to demonstrate why they should be considered above their cohort.

For a one-off rate above the threshold, the applicant will need to fill in Parts A, B, C and E. The application must come from the agency and should allow OLSC to consider a range of factors, including the circumstances, the importance of the particular proceedings to the Commonwealth, and the importance of the counsel to those proceedings.

The Attorney-General is the decision maker for approving a request to engage counsel at a rate above $5000 per day (inclusive of GST). Counsel should be aware that the Attorney-General will only approve rates in excess of $5000 per day in exceptional circumstances. Agencies must factor in appropriate timeframes for seeking the Attorney-General's approval.

All applications should be emailed to OLSC@ag.gov.au. If the matter is urgent, please explain the circumstances for the urgency in the email and include all relevant dates. It is recommended, when submitting applications with shortened timeframes, that the applicant also call OLSC to discuss and ensure receipt of the application.

• Counsel rate application form

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