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Engagement of Counsel

Important Information: From 31 January 2015, once the Office of Legal Services Coordination (OLSC) has approved an initial rate for junior and senior counsel, OLSC will no longer review counsel applications for increases under the threshold of $2300 for junior counsel and $3500 for senior counsel (inclusive of GST). After this date, an agency and counsel may choose to negotiate a different ongoing rate for a particular brief up to the threshold limit, without approval from OLSC.


Summary of the Commonwealth Counsel Engagement Policy

  • Australian Government agencies must use legal counsel who have an approved Commonwealth ongoing rate (paragraph 4E of the Legal Services Directions 2005 (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.

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. Counsel should apply to OLSC for a rate if they:

  • do not have an ongoing Commonwealth rate
  • have taken silk since their last rate was approved
  • wish to request  an ongoing Commonwealth rate above the threshold
  • require a one-off rate for a particular brief above the threshold.

The threshold daily rate for junior counsel is $2300 (inclusive of GST) and $3500 (inclusive of GST) for senior counsel (paragraph 5).

When approval is not required

Once counsel has an ongoing rate, no further applications for increases under the threshold will be considered by OLSC (other than on a junior counsel taking silk). An agency and counsel may choose to negotiate a different ongoing rate for a particular brief up to the threshold limit for both junior and senior counsel. OLSC has provided guidance material to agencies to assist with this.

When negotiating a rate for counsel, the instructing agency should consider obligations outlined in Appendix D of the Directions. In particular, paragraph 12 of Appendix D provides that the threshold rate ‘should not be regarded as the standard or starting point for fee negotiations’. All negotiated rates must also meet the requirements in the Public Governance, Performance and Accountability Act 2013 to achieve value for money.

How to apply to OLSC

To apply for an initial rate or an increase over the threshold, counsel will need to fill in Parts A, B and C 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, counsel will need to fill in Parts A, B and D. The application should 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 must approve 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.

All applications should be emailed to OLSC@ag.gov.au. If the matter is urgent, please mark this in the email with any relevant dates.