FOI24 077 Attachment D Documents.pdf

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Standard Operating Procedures:
Counsel rate applications and
enquiries

s 22(1)

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Definitions
4.  In this document, the fol owing terms are defined as fol ows:
s 22(1)

Approved Commonwealth counsel rate – An amount or level of payment for a counsel approved by
the decision maker. Approval may be as an ‘ongoing’ counsel rate or a ‘one-off’ counsel rate.
s 22(1)



Increase Rate – An increase to an already approved Commonwealth Counsel rate.
Initial Rate – The first ongoing rate approved for a counsel. It may be because counsel has not
previously had a rate, or when counsel either joins the bar or takes silk.
s 22(1)

‘One-off’ counsel rate – An OLSC-approved rate for counsel acting for the Commonwealth in a specific
matter and only applies to the matter described in the approval.
‘Ongoing’ counsel rate – The OLSC- approved rate that al ows counsel to be briefed by an Agency in
order to act for the Commonwealth.
s 22(1)

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PART A – Policy
Background
5.  The Legal Services Directions 2017 (the Directions) are issued by the Attorney-General under
section 55ZF of the Judiciary Act 1903. The Directions give effect to the Attorney-General’s
responsibilities as the First Law Officer for arrangements governing the delivery and management of
Commonwealth legal work, including engagement of counsel. The Office of Legal Services Coordination
(OLSC) administers the Directions.
6.  Appendix D provides the framework for the engagement of counsel to ensure that agencies can obtain
high quality legal services.
7.  The framework is designed to generate downward pressure on counsel rates to take advantage of the
Commonwealth’s bulk-purchasing power. This assists the Commonwealth to ensure it receives value
for money as a major purchaser of legal services.
8.  Counsel are to be engaged by or on behalf of an Agency in accordance with Appendix D of the
Directions (Paragraph 6.1 of the Directions). While the choice of counsel is a matter for individual
agencies (considering the Directions, advice from their lawyers, and subject to the availability of
counsel with an approved Commonwealth counsel rate), they are encouraged to brief a wide range of
counsel. This ensures that there is a wide pool of experienced counsel available to perform
Commonwealth legal work.
Applications
Applying to OLSC for a counsel rate
9.  Appendix D requires Commonwealth agencies to only engage counsel with a Commonwealth approved
rate. Most requests are for counsel who are at the state or territory Bar. Occasionally, OLSC may
receive requests from solicitors seeking an ongoing Commonwealth counsel rate. Further information
regarding applications from solicitors is included below.
Ongoing rates
10. To apply for an ongoing rate an applicant must complete an application form available here. All
applications are to be received and assessed by OLSC. However, applications for rates over $5,000
require a decision by the Attorney-General.
11. An applicant may apply for a new ongoing Commonwealth rate (inclusive of GST) to be set if:
•  counsel does not have an ongoing Commonwealth rate
•  counsel has taken silk since their ongoing Commonwealth rate was approved, or
•  exceptional circumstances exist to review a rate.
12. Once an ongoing rate has been set, agencies can negotiate up to the threshold amount without seeking
approval by the Attorney-General or their delegate ($2,300 for JC and $3,500 for SC (paragraph 5 of
Appendix D)).
One-off rates
13. An agency may wish to pay counsel a higher ‘one-off’ rate for their work on a particular matter. To be
eligible for a one-off rate counsel must have an ongoing rate. The one-off rate expires after the matter
for which that rate was approved is finalised. While not an exhaustive list, reasons why there might be
a need for a one-off rate include:
•  the matter is significant or particularly sensitive
•  the matter demands a high level of counsel’s expertise
•  there is an upcoming court event or key dates, creating urgency
•  unavailability of counsel with similar expertise, creating pressure
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•  there is a specific preference for a counsel and, for example, the Solicitor-General is
unavailable
14. While OLSC receives applications from agencies, law firms, chambers or directly from counsel, OLSC
general y requests that the Agency submit the application where:
•  a one-off counsel rate above a threshold amount is required for a particular brief, or
•  a Commonwealth counsel rate is sought for a solicitor who is acting as counsel
(solicitor-advocate).

15. The application process for applications for an ongoing rate and those for a one-off rate is the same.
16. OLSC can receive one application for a one-off rate for the same counsel in two different matters. OLSC
wil  then determine whether this application can be processed as one request or as two separate
requests.
17. Similarly, OLSC can process one application for one-off rates for multiple counsel in the same matter.
s 22(1)









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s 22(1)

Relevant factors
28. s 47E(d)

29. Ordinarily, the assessment begins with consideration of the fol owing factors:
•  The year of admission to the Bar – this is demonstrative of counsel’s seniority in comparison
with other counsel. In the case of more junior counsel with less experience (0, 1 or 2 years),
utilising the Counsel Rate Table (referencing the relevant starting rate against counsel’s year of
admission) may be enough to determine a suitable rate. s 22(1)

•  The commercial rate of Counsel – this usual y reflects the experience and/or expertise of the
Counsel, and is a particularly relevant consideration where an applicant is more senior.
30. In some cases, it is necessary to take into account other information. Situations where this may be
necessary include if the commercial rate of the counsel relative to seniority is high, or when the
requested Commonwealth rate is higher than usual (indicating likely specialised expertise). s 22(1)

31. Experience which may be relevant to the determination of a rate includes but is not limited to:
•  If the applicant may be highly specialised in a particular area, or come with significant other
legal experience.
•  Previous experience from practice as a solicitor, including if the counsel has worked in the
State Solicitor’s office, a prosecutorial body, a public defender, or something similar.
•  Whether before joining the bar, the barrister conducted work as a solicitor-advocate.
•  Experience from practice international y
o  This wil  be most relevant where a rate is sought to work in Australia:
-  Overseas-qualified lawyers need to apply to the state and territory admissions
boards to determine what steps are needed to requalify (each situation is
judged on a case-by-case basis), and
-  If the person is from New Zealand the occupation is recognised in Australia
under the Trans-Tasman Mutual Recognition Act 1997
o  On very rare occasions, the Commonwealth may seek to engage foreign counsel in an
overseas jurisdiction. In these cases, we would need to discuss the circumstances with
the agency.
•  Whether the matter to be briefed may have some special sensitivity which requires the
services of a particular counsel.
•  Whether a nominating agency has reason to brief that particular person. In this instance, the
agency should include the reason for that preference in the application.
s 22(1), s 47E(d)

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s 22(1), s 47E(d)





s 22(1)





s 22(1)

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s 22(1)






Increase to ongoing rates
46. Generally, OLSC policy is to not review applications for increases to approved Commonwealth rates
which are less than or equal to a threshold amount. Once a counsel has an approved Commonwealth
rate, an agency and counsel may choose to negotiate a competitive and comparable rate for a brief up
to and including the relevant threshold amount without the need to consult with OLSC. These
negotiations should have regard to obligations outlined in Appendix D of the Directions and the
agency’s experience with counsel over the previous year.
s 47E(d)





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Counsel Rate Table
59. The Counsel Rate Table is an internal document that sets out the relevant starting rate for counsel
according to the year they were admitted. It is referred to as part of the assessment process for
determining a Commonwealth counsel rate.
60. The document is updated annual y at the start of each calendar year, with $75 being added to each
cohort’s starting rate reflecting additional experience.
61. In most instances the Counsel Rate Table will general y be used as a guide, rather than relied upon to
make a decision. However, it is OLSC policy to rely on it for counsel with 0, 1 or 2 years’ experience
where there is no reason to utilise any other methods of assessment. s 47E(d)

s 22(1)

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Template P: No automatic increase in Fees
Return to Guide
Dear Mr/Ms [NAME]
Thank you for your enquiry of [date]. There is no automatic increase to rates for barristers under the Legal
Services Directions 2017, however, there is flexibility for agencies to negotiate. Once OLSC has set an
ongoing rate for counsel, an agency and counsel may choose to negotiate a rate up to and including the
relevant threshold without any further need to consult with OLSC. The ability for an agency to negotiate is
subject to the normal value for money principles that apply in al  Commonwealth expenditure.
The maximum threshold rates an agency can negotiate up to are:
•  senior counsel - $3,500 inclusive of GST
•  junior counsel - $2,300 inclusive of GST

If a junior counsel takes silk, they may apply to OLSC for an increase to their ongoing Commonwealth rate.
In some circumstances, it may be appropriate to request a rate above the thresholds for a one-off brief.
Applications for a one-off rate should be made to OLSC by the agency intending to brief counsel and
include additional information as set out in the application form on the OLSC website.
If you have any further questions, please email xxxx@xx.xxx.xx or cal  (02) 6141 3642.
Kind regards
Action Officer

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PART D - Annexures
Annex A: Example analysis –ongoing rate relying on Counsel Rate Table

Dear Approver
Please find an ongoing counsel rate application for your approval.

Application Information
Deadline
N/A
Counsel Name
s 47F(1)

Rate type
Ongoing
Agency requesting
N/A
Requested rate
N/A
Counsel’s commercial rate
$2,200
Counsel’s current ongoing rate
N/A
and date of approval
Background
Counsel is seeking an initial rate.

Recommendation
I recommend you approve an ongoing rate of $1,100.
This is on the basis that:
•  The rate is 50% of counsel’s commercial rates 47E(d)

•  The rate is for a first year counsel in accordance with the Counsel Rate table
•  The application does not provide information that would require further analysis.
Please see below a proposed response email:
Kind regards
[Action officer]

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OLSC Counsel Rate Table – From 1 January 2024
Rates are inclusive of GST
Junior Counsel $75 increase (1yr +)

Senior Counsel $75 increase (1yr +)
Years exp
Current rate
Hourly rate

Years exp
Current rate Hourly rate
(24) 1 year
$1,100
$183

(24) 1 year
$2,825
$471
(23) 2 year
$1,175
$196

(23) 2 year
$2,900
$483
(22) 3 years
$1,250
$208

(22) 3 years
$2,975
$496
(21) 4 years
$1,325
$221

(21) 4 years
$3,050
$508
(20) 5 years
$1,400
$233

(20) 5 years
$3,125
$521
(19) 6 years
$1,475
$246

(19) 6 years
$3,200
$533
(18) 7 years
$1,550
$258

(18) 7 years
$3,275
$546
(17) 8 years
$1,625
$271

(17) 8 years
$3,350
$558
(16) 9 years
$1,700
$283

(16) 9 years
$3,425
$571
(15) 10 years
$1,775
$296

(15) 10 years
$3,500
$583
(14) 11 years
$1,850
$308

(14) 11 years

(13) 12 years
$1,925
$321

(13) 12 years

(12) 13 years
$2,000
$333

(12) 13 years

(11) 14 years
$2,075
$346

(10) 15 years
$2,150
$358

(9) 16 years
$2,225
$371

(8) 17 years
$2,300
$383

(7) 18 years

(6) 19 years

(5) 20 years

(4) 21 years

TRIM: 23#900DOC

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