OFFICIAL
29 October 2025
John B
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Applicant: John B
FOI Request: FA 25/02/00730- R1
File Number: FA25/02/00730
Dear John B
Decision on internal review – Freedom of Information Act 1982
I refer to your correspondence dated 28 April 2025 in which you requested an internal review
of an access refusal decision made by the Department of Home Affairs (the Department)
under the
Freedom of Information Act 1982 (the FOI Act).
The decision under review is the original decision of the Department dated 8 April 2025, in
which the Department responded to your request for access to documents you made on
12 February 2025.
1 Scope of original request received 12 February 2025
The scope of the original request for access to documents under the FOI Act was as follows:
I am writing to request access to documents under the Freedom of Information Act
1982. My request pertains to the policies and decision-making processes within the
Department regarding the remuneration of counsel (barristers) engaged by the
Department (either directly, or through solicitors).
Specifically, I am seeking documents detailing the following:
1. The current policy of setting initial fees for counsel.
2. The current policy for increasing fees for counsel.
3. Any analyses, reports, policy papers or correspondence dated from January
2020 to today discussing or considering whether the policies at [1] and/or [2]
should be amended or updated.
OFFICIAL
6 Chan St, Belconnen
PO Box 25, Belconnen ACT 2601 • Telephone: 131 881 • www.homeaffairs.gov.au
OFFICIAL
4. Any submissions made by or on behalf of the Department to the Attorney-
General's Department's current review of Appendix D of the Legal Services
Directions.
Should the Department consider the application of any conditional exemptions, the
following public interest matters should be considered: It is in the public interest to
understand the rationale behind the setting of barrister fees at a relatively low amount
by the Department. The fees paid to legal counsel engaged by government
departments directly impact the allocation of taxpayer funds and the quality of legal
representation in matters of public importance.
It is well known that the Commonwealth struggles to brief barristers because of the low
rates, and this problem is only increasing over time because the rates are not keeping
up with inflation. Transparency regarding the decision-making process behind fee
structures not only ensures accountability in the expenditure of public funds but also
allows for an informed discourse on the adequacy of compensation for legal
professionals. Additionally, insight into the factors influencing fee caps and adjustments
is essential for assessing the fairness and competitiveness of government contracts
within the legal services market, ultimately safeguarding the integrity of legal processes
and the public's trust in the
justice system.
2
Original decision on access dated 8 April 2025
Documents within scope
The Department identified one document (Appendix D to the Legal Services Directions 2017)
as falling within the scope of the following parts of your request:
The current policy of setting initial fees for counsel.
The current policy for increasing fees for counsel.
The Department identified two documents as falling within the scope of the following part of
your request:
Any submissions made by or on behalf of the Department to the Attorney-General's
Department's current review of Appendix D of the Legal Services Directions.
The two documents identified were as follows:
•
External email – Department’s response to Legal Services Direction Review 2017
•
Attachment to above email - Revisions of Legal Services Direction 2017
These documents were in the possession of the Department on 12 February 2025 when the
Department received your FOI request.
The Department did not identify any further documents as falling within the scope of the
remaining parts of the request.
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Decision on access
The Department released the document within the scope of points 1 and 2 of the request
providing a link to a website where the document is published.
The Department refused access to the two documents identified as falling within the scope of
part 4 of the request on the grounds that they were exempt from disclosure.
In finding the documents to be exempt, the Department relied upon section 47C of the FOI
Act.
3
Request for internal review
On 29 April 2025, you requested the Department review its decision dated 24 January 2025.
The terms of the review request were as follows:
I am writing to request an internal review of Department of Home Affairs' handling of
my FOI request 'Counsel fees'.
I am only seeking review of the decision as it relates to categories 1 and 2 of my
original request (i.e. documents detailing the Department's current policy of setting
initial fees for counsel, and the current policy for increasing fees for counsel). I assume
that at least one of the two documents that were found to be exempt falls within the
narrowed scope of the review. If that is incorrect, please let me know and I will consider
whether to withdraw this internal review request.
As the policy documents sought are the current policy (and not a policy under
development), it cannot be the case that the entirety of the documents comprise
deliberative matter. The Department has decided that this 'is' the policy, and any
deliberation has finalised.
I also dispute that the public interest test weighs against disclosure. None of the public
interest matters I referred to in my original request were considered. Further and
contrary to the decision, it would plainly promote effective oversight of public
expenditure to know how the Department decides what to pay counsel. That the
Department's legal expenditure is publicly reported at the end of the financial year does
not lessen the public interest in disclosure of policies about 'how' the Department
makes decision on how much to pay counsel. The information reported (which is
limited to total expenditure, number of briefs, and total value of briefs) does not allow
members of the public to assess whether the government is not best represented in
litigation because of an ill-formed (and potentially outdated) policy position.
It is also in the public interest to know what factors into the decisions, who makes them
etc. (e.g. is it a senior executive decision or is a low-level administrative officer deciding
how much to pay counsel?). None of that is answered by referring to the LSDs and
other publicly available information.
On 6 October 2025, you advised:
I do not wish for the Department to review the decision to refuse access to the
documents falling within point 4 of my initial request.
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On 6 October 2025, you further advised:
It seems to me that there may be an issue with adequacy of searches for documents in
items 1-2 and I would like to continue with the review on that basis.
4
Scope of internal review
Based on the terms of your internal review request in paragraph 3 above, I consider the
scope of the review to be the adequacy of the Department’s searches for documents that fall
within points 1 and 2 of the request, as follows:
The current policy of setting initial fees for counsel.
The current policy for increasing fees for counsel.
As you have not sought a review of any other parts of the request, the Department has not
reassessed the documents it found to be exempt in the original decision, which fall within the
scope of point 4 of the request.
5
Authority to make decision
I am authorised under section 23 the FOI Act to make decisions to release and to refuse access
to exempt documents and to conduct internal reviews.
In accordance with section 54C(3) of the FOI Act, I have made a fresh decision on your FOI
request.
6 Relevant
material
In reaching my decision, I referred to the following:
•
the document within the scope of your request
•
the terms of your original request
•
the terms of your request for internal review
•
the searches undertaken by the Department in response to the original decision
•
the searches undertaken by the Department in response to your internal review request
•
advice from Departmental officers with responsibility for matters referred to in the
documents(s) to which you sought access
•
advice from other Commonwealth Departments
•
the FOI Act, and
•
Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines).
7
Internal review decision
I have decided to vary the original decision of the Department dated 8 April 2025 (‘the original
decision’) and replace it with a decision:
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•
to refuse points 1 and 2 of your request under section 24A of the FOI Act.
As the Department has not reconsidered its decision in relation to the documents it identified
as falling within the scope of point 4 of the request, or of its searches in relation to point 3 of
the request, its decision on these parts of the request is taken to be affirmed.
As advised in paragraph 8 below, in its searches in response to the request, the Department
identified one document that it considered not to fall within the scope of the request. While I
remain of the view that this document is outside the scope of the request, for the reasons I
have outlined in paragraph 8, I nevertheless consider the document is suitable for
administrative release to you outside the FOI Act.
As the Department is releasing this document to you administratively, you do not have review
rights in relation to it under the FOI Act.
I have provided the reasons for my decision below.
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Reasons for decision: reasonable steps to locate documents
Section 24A of the FOI Act requires agencies to ensure that they take all reasonable steps to
locate documents that may fall within the scope of the request.
Searches undertaken in response to original request
In response to the original request for access, searches were undertaken by the relevant
areas of the Department. These searches involved:
•
searches of the Department’s electronic document and record management system,
OpenText Content Manager, using the following keywords
‘counsel’, ‘rates’, ‘fees’
Appendix D of the Legal Services Directions
•
searches of the operational email accounts maintained by the Practice Management
Support Section and General Counsel Executive Support teams, including archived
emails, using the keywords ‘counsel’, ‘rates’ and ‘fees’.
The above searches located the documents indicated in paragraph 2 above, which fall within
the scope of point 4 of the request.
The decision maker considered Appendix D to the Legal Services Directions 2017 to fall
generally within the scope of bullet points 1 and 2 of the request.
Further enquiries undertaken in response to internal review request
In response to your request for internal review, I have sought further advice from Legal
Strategy and Services Branch of the Department in relation to:
•
the existence of documents within the scope of points 1 and 2 of the request
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•
whether the document ‘‘Setting and negotiating Commonwealth Counsel rates –
Guidance Material for agencies” fell within the scope of point 2 of the request.
I have considered that advice below.
Documents considered out of scope of the request
‘Setting and negotiating Commonwealth Counsel rates – Guidance material for agencies’
In searches conducted in response to your 12 February request, the Department identified a
document ‘Setting and negotiating Commonwealth Counsel rates – Guidance Material for
agencies’ but it was considered out of scope because it was not current policy.
I have assessed this document and affirm the decision that it was outside the scope of point
2 of your 12 February 2025 request, for the following reasons:
•
This document is undated and refers to the 2005 Legal Services Directions which means
it has not been updated or likely used since 2017. Accordingly, the document is not the
current policy for increasing fees for counsel.
•
The document is not endorsed by the Office of Legal Services Coordination (OLSC) in
the Attorney-General’s Department and it is also not available or promulgated as current
policy for increasing fees for counsel.
However, consistent with the objectives of the FOI Act,
I have released this document to you
administratively.
External Legal Service Provider (ELSP) standing instructions and update
Searches of our holdings in response to the internal review have identified two documents
that contain references to how the Department applies the policy set out in the Legal
Services Direction on counsel fees:
• Standing
Instruction
“External Legal Service Provider standing instructions for the
conduct of litigation” (Version 11, 25 November 2020)
•
“External Legal Service Provider (ELSP) Update” (6 September 2024).
Consistent with the objectives of the FOI Act, I have included the guidance provided in these
documents below for your reference.
Whether all reasonable steps taken to locate documents
Paragraph 3.88 of the FOI Guidelines notes that the Act is silent on what constitutes ‘all
reasonable steps’ to search for a document, but suggests that the term should be:
‘construed as not going beyond the limit assigned by reason, not extravagant or
excessive, moderate and of such as amount, size or number as is judged to be
appropriate or suitable to the circumstances or purpose’.
Paragraph 3.89 of the FOI Guidelines further provides that, at a minimum, an agency’s
searches for documents should have regard to:
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•
the subject matter of the documents
•
the current and past file management systems and the practice of destruction or removal
of documents
•
the record management systems in place
•
the individuals within an agency or minister’s office who may be able to assist with the
location of documents, and
•
the age of the documents.
Having considered the searches conducted above, and the outcomes of these searches, I
am satisfied that the Department has undertaken all reasonable steps to locate documents
that fall within the scope of your request.
In making this decision, I have taken into consideration the following advice received from
Legal Strategy and Services Branch.
•
Further documents do not exist that would fall within the scope of points 1 and 2 of the
request (and therefore by extension point 3).
•
Individual agencies do not set commencement rates for legal services. Initial rates are
set by OLSC in the Attorney General’s Department. Accordingly, a document that
specifies the Department’s policy for setting initial fees for counsel (point 1 of the request)
does not exist.
•
The Legal Services Directions 2017, which are administered by OLSC within the
Attorney-General’s Department, provide that Commonwealth agencies may only engage
counsel with an approved ongoing Commonwealth rate. Once OLSC approves an
ongoing rate, counsel and agencies can negotiate a rate up to the relevant threshold
amounts ($2,300 per day incl. GST for junior counsel and $3,500 per day incl. GST for
senior counsel) without seeking further approval from the Attorney-General or their
delegate. If a rate in excess of the relevant threshold rates is sought, counsel is advised
to direct that request to Attorney-General’s Department.
•
The Department has the discretion to approve an increase in Counsel rates up to the
relevant threshold above if it considers it value for money. It requires requests for rate
increases to be sent to the Department’s Relationship Manager for consideration by the
Department.
• The document standing Instruction
“External Legal Service Provider standing
instructions for the conduct of litigation” (Version 11, 25 November 2020)
states the
following:
Increases to Commonwealth counsel rates
If counsel seeks an increase to their rates, ELSPs must assist the Department by
submitting the rate increase to the Relationship Manager rather than referring
counsel directly to the Relationship Manager. Rate increases will only be
considered where it has been no less than 12 months since the last increase was
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approved. All changes to counsel rates will be reported in the weekly ELSP
update.
•
The ELSP update of 6 September 2024 states the following:
Counsel rate increases as approved by the Department
The Department asks that ELSPs remind counsel that after an OLSC rate has
been set, increases are to be sought by request to the Department. The
Department does not match rates agreed to by other Agencies, nor are we
notified if a rate requiring OLSC approval has been negotiated. Request [sic] for
increases to rates, or notifications of new OLSC approved rates should be sent
on behalf of counsel by an ELSP to the Department’s Relationship Manager.
Additionally, there is not automatic increase to rates for counsel under the Legal
Services Directions 2017, however there is flexibility for agencies to negotiate a
rate up to and including the relevant threshold. The Department generally
considers $75 per annum as a rule of thumb to the maximum increase it will
consider to daily rates in a 12 month period, however all increases are to be done
by request, and factors such as experience, track record and the normal value for
money principles that apply in all Commonwealth expenditure will be factored into
any decision. ELSPs are asked that they remind counsel of this when submitting
any requests for increase on counsel’s behalf.
•
As it is my view, based on the above advice, that no additional documents exist that
would fall within the scope of points 1 and 2 of the request, there are no further
reasonable searches that the Department can take for these documents.
9 Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562.
9.
Making a complaint
You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a different
process to the Information Commissioner review process.
You can make an FOI complaint using the FOI complaint form on the OAIC website.
Brooke Hartigan
Authorised Decision Maker
Department of Home Affairs
Attachment A: Document released administratively: ‘‘Setting and negotiating
Commonwealth Counsel rates – Guidance Material for agencies”
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