Guidance Note 15 – Engagement of counsel

This guidance note provides information about the counsel rate regime under Part 7 of the Legal Services Directions 2025 (Directions). This guidance covers:

• selection of counsel and briefing requirements
• negotiating a daily rate with counsel, and
• approvals of counsel rates above the daily rate thresholds.

1. Part 7 of the Directions applies to the engagement of counsel by or on behalf of the Commonwealth or a Commonwealth entity (other than a government business enterprise). This includes engagements in respect of litigation and briefs to advise.

• 1.1 Consistent with the definition of litigation in section 4, this includes proceedings before courts, tribunals, inquiries, in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.

2. Part 7 also applies to the engagement of solicitors who, although not from the bar, are briefed as counsel in lieu of a private barrister for engagement in respect of litigation and briefs to advise (see Note 2 to section 70 of the Directions).

• 2.1 Part 7 captures Defence Reservist solicitors who act as counsel in certain situations.

3. The counsel rate framework is designed to generate downward pressure on counsel rates and ensure the Commonwealth receives value for money as a major purchaser of legal services.

Selection of counsel and briefing requirements

4. While the choice of counsel is a matter for the engaging entity (considering obligations under the Directions, advice from their lawyers, and availability of preferred counsel), entities are encouraged to brief a wide range of counsel. This ensures that there is a broad pool of experienced counsel available to perform Commonwealth legal work.

5. As per sections 71 to 73, entities must ensure that every brief to counsel includes:

• a copy of the model litigant obligation (Part 5, Division 2 of the Directions), and instructions that counsel must comply with the obligation
• marking the brief with an hourly rate up to a maximum daily rate or fee on brief, and
• requiring counsel to warrant that they have not, at any time, become bankrupt.
  • The bankruptcy requirements in section 73 support the engagement of counsel who conduct themselves to the highest ethical and professional standards.

6. Section 74 sets out the factors that entities must take into account when selecting counsel. The provision also outlines the reasonable endeavours that an entity is to make to select a diverse range of counsel, including those who identify as First Nations, culturally and linguistically diverse, a person with a disability and/or LGBTIQA+. This is to ensure a broad range of counsel are skilled in undertaking work for the Australian government and contributes to a diverse and inclusive profession that reflects the diversity of the community it serves.

7. The Note to section 74 encourages entities to annually publish information on whether the briefing targets for women counsel in paragraph 74(2)(d) are being met. The publication of briefing targets further promotes and supports the engagement of more diverse counsel.

Negotiating a daily rate with counsel

8. Negotiations with counsel are always underpinned by the usual value for money principles that apply to all Commonwealth expenditure under the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

9. The daily rate thresholds support a consistent whole-of-government framework for the engagement of counsel. This maximises the benefits to the Commonwealth from its position as a major purchaser of legal services, places downward pressure on counsel fees and ensures value for money principles are upheld.

10. Consistent with paragraph 8 above, daily rate thresholds operate as a ceiling for negotiations and they are not to be treated as the standard or starting point for negotiations. The thresholds under the Directions are:

• $5,000 per day (inclusive of GST) for senior counsel
• $3,300 per day (inclusive of GST) for junior counsel.¹

11. An entity does not require the approval of the Office of Legal Services Coordination (OLSC) or the Attorney-General to agree to a daily rate up to, and including, $5,000 for senior counsel and $3,300 for junior counsel. Additionally, OLSC does not require visibility of negotiated rates below the threshold amounts.

12. The freedom for entities to negotiate below the thresholds without the involvement of OLSC supports flexibility when engaging counsel whilst ensuring the Commonwealth receives high quality and value for money legal services.

Factors to consider when negotiating a daily rate

13. Entities must consider a range of factors relating to counsel’s experience, expertise and commercial rate, as well as the specific details of the matter for which counsel is briefed.

14. Other factors which may be relevant when determining a rate include, but are not limited to:

• previous experience from practice as a solicitor, particularly if counsel has worked in a State Solicitor’s office, a prosecutorial body, as a public defender, or similar
• whether before joining the bar, counsel worked as a solicitor-advocate
• whether the matter to be briefed has special sensitivities which requires the services of a particular counsel
• whether it is predicted that the matter will run for a significant period of time (e.g. a highly complex matter that may require counsel to be engaged for a year or more which will prevent them from taking other briefs) the lack of availability of other counsel who have the necessary relevant experience and expertise
• tight timeframes for the brief, and
• the rate set for previous engagements with counsel by the same entity.

15. Daily rates for counsel should also take account of the anticipated number of hours that counsel will work during the engagement. If the brief contemplates work hours beyond a ‘standard day’ (i.e. more than 6-8 hours), this should be reflected in the agreed daily rate. Briefs must be marked with an hourly rate up to the maximum daily rate (or marked ‘fee on brief’ if this is considered more economical) – see section 72.

Negotiating rates with solicitor-advocates

16. Solicitor-advocates would generally be considered equivalent to junior counsel. Entities should have regard to the solicitor-advocate’s experience performing work as counsel and not the number of years of experience as a solicitor.

17. A solicitor-advocate who is admitted in a ‘fused’ jurisdiction (SA, VIC, WA, ACT, TAS and NT) may have relevant significant experience as counsel. For example, they may have considerable experience before tribunals and/or experience working at a State Solicitor’s office, a prosecutorial body, or as a public defender. In these instances, an entity might consider a starting point for negotiations that recognises this experience.

Indicative starting point for negotiations

18. As a starting point for negotiations, entities should consider:

• counsel’s year of admission to the Bar (the year of admission generally indicates counsel’s seniority)
• counsel’s expertise and/or experience in a particular area of law, and
• counsel’s commercial rate.

19. The Counsel Rate Tables at Attachment A may also assist in negotiating an appropriate daily rate with counsel.²

Negotiating an hourly rate

20. Entities and counsel must ensure that an agreed hourly rate reflects value for money principles and the nature and complexity of the brief.

21. Entities must mark briefs with an agreed hourly rate up to the maximum daily rate - unless counsel is engaged under a ‘fee on brief’ arrangement (see section 72).

22. The invoiced amount per calendar day for the engagement must not exceed the applicable daily threshold amounts, regardless of the agreed hourly rate.

23. The Directions do not prescribe a restriction on hourly rates. Entities should ensure that the hourly rate aligns with a comparable daily rate

24. Consistent with paragraph 15, the expectation is that daily rates are negotiated based on 6-8 hours per day on a matter. However, where it is anticipated that the number of hours counsel will work exceeds 6-8 hours per day, then the agreed daily rate should take into consideration the actual anticipated number of hours per day. For example, during a hearing for a matter, counsel may work an 8- or 10-hour day.

25. If counsel works less than the agreed number of hours on any given day in relation to an engagement, the hourly rate charged should reflect the maximum daily rate divided by the agreed number of hours, which should not exceed one-sixth of the maximum daily rate.

Hourly rates – example 1: An entity briefs Barrister A who is junior counsel with 2 years’ experience. It is anticipated that Barrister A will be required to work 6 hours in any one day on the matter, with the matter listed for a 3-day hearing.

The entity and Barrister A agree to use the suggested mid-point of the daily rates in OLSC guidance material ($1,640 per day for a 6-hour day for counsel with 2 years’ experience for a routine matter) to inform negotiations for an appropriate hourly rate. The entity negotiates an hourly rate of $274 (inclusive of GST) reflecting the agreed daily rate of $1,640 (hourly rate ($) x 6).

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Hourly rates – example 2: An entity briefs Barrister B who is senior counsel with 6 years’ experience. The matter is complex and requires particular expertise. It is anticipated that Barrister B will be required to work 4-6 hours in any one day on the matter.

The entity and Barrister B agree to the upper end of the daily rates in OLSC guidance material ($4,485 per day for a 6-hour day) to inform negotiations for an appropriate hourly rate. This agreement is based on the complexity of the matter, the experience of counsel, and the tight timeframes for the brief. The entity negotiates an hourly rate of $747.50 (inclusive of GST) capped at a maximum daily rate of $4,485 (hourly rate ($) x 6).

Approval of a counsel rate above the daily rate thresholds

26. An approval is required to pay counsel a daily rate above the applicable thresholds in subsection 75(1). The Attorney‑General has delegated the decision on approvals for amounts up to and including $10,000 (inclusive of GST), to senior executives in OLSC. The Attorney‑General is the decision-maker for daily rates over $10,000 (inclusive of GST).

27. Entities can apply for two types of Commonwealth counsel rates above the daily rate thresholds:

• One-off rate – where a Commonwealth entity wishes to brief counsel at a rate over the applicable threshold for a specific brief, for example where entities require counsel with highly specialised skills or experience in a particular area of law, or where the matter may have special sensitivities, significance, implications or complexities which require specific counsel, or
• Ongoing rate – where an entity wishes to put in place an ongoing rate for counsel above the applicable daily rate threshold. This would generally only occur in exceptional circumstances but may be appropriate where counsel has a history of one-off rate approvals with a range of Commonwealth entities.

28. Applications for approvals for daily rates over the threshold should be made using the counsel rate application form on the Attorney-General’s Department website and should be made as far in advance as possible of the scheduled date for delivery of the brief to counsel.

29. Applications for one-off rate approvals should generally be submitted by the engaging entity. A legal services provider acting in the particular matter can submit an application but must provide evidence of endorsement by the engaging entity. Applications for ongoing rate approvals must be submitted by the engaging entity. Counsel cannot apply directly to OLSC for a rate.

30. Completed application forms should be emailed to OLSC@ag.gov.au. If the matter is urgent, the email should state the reasons for the urgency and include all critical dates (for example, any urgent court deadlines). Processing will be delayed if further information is required by OLSC to process the application.

Operation of one-off and ongoing rates above the daily rate threshold

31. If a one-off rate above the threshold is approved, this rate applies only to the matter for which that rate was approved (and in some cases, only particular phases of a matter) and ceases once that matter is finalised. If an entity wishes to brief that same counsel at a rate over the applicable thresholds in relation to a new matter or a new phase of the same matter, the entity should seek a new approval each time.

32. Where the Attorney-General or their delegate approves an ongoing rate above the threshold, this rate will be counsel’s ongoing rate, and any entity can negotiate a matter-specific rate up to and including the approved ongoing rate without further approval.

33. Any proposed rate above counsel’s approved ongoing rate will require a new application for a one-off rate for the particular matter.

34. If counsel has an approved ongoing rate above the threshold, entities are still required to negotiate an appropriate daily rate for each particular matter, taking into account the skills and experience of the counsel and the complexity and importance of the matter. It is not intended that the approved ongoing daily rate is the floor for negotiations. Rather, the ongoing rate operates as a ceiling for the negotiated daily rate allowed without further approval from OLSC or the Attorney-General. The negotiated rate may be lower than the approved ongoing rate depending on the type of engagement.

Applications for daily rates over $10,000

35. The Attorney-General is the decision-maker for requests to engage counsel above $10,000 (inclusive of GST) per day. Entities should apply through OLSC for approval to pay counsel a daily rate above $10,000 (inclusive of GST) and the application will be referred to the Attorney‑General for decision.

36. Entities should apply using the counsel rate application form. Entities and counsel should be aware that the Attorney-General will only approve rates above $10,000 per day in exceptional circumstances.

37. Entities must factor in appropriate timeframes for seeking the Attorney‑General's approval. Typically, it can take up to 4 weeks for a decision to be made by the Attorney-General.

Information required to process a counsel rate application

38. A counsel rate application must address each of the factors in subsection 79(2) of the Directions. Entities must also include a critical date for a decision on the application and the reason for that critical deadline.

39. In addition to these factors, the counsel rate application form requires the following information:

• the expected duration of the relevant matter
• alternative counsel who have been considered for the brief, and details of their proposed rate for the matter
• other counsel engaged in the matter (if applicable) including their agreed daily rate
• the expected total cost of the matter (total for the engagement of all counsel in the matter), and
• upcoming court events or key dates.

40. It is likely that processing the application will be delayed if all of the required information is not provided to OLSC in the application form.

Transition of one-off or ongoing rates approved under the 2017 Directions

41. Any approvals given under the 2017 Directions for an ongoing or a one-off rate that is above the daily rate threshold amounts in subsection 75(1) have been preserved under the Directions.³ These approvals have transitioned in accordance with section 117 of the Directions. Preserved one-off rates will continue to apply for the duration of the relevant matter or phase of the matter whilst it is on foot.

42. If an entity or counsel believe that a new higher rate is appropriate and necessary for a matter, the agreement to a new rate must be undertaken consistent with the obligations set out in the Directions.

Further information about approved ongoing rates

43. To check whether a particular counsel has an approved ongoing rate above the daily rate threshold, please contact OLSC by email at OLSC@ag.gov.au or by phone on 02 6141 3642.

Where can I get further help?

44. If you have any questions about the engagement of counsel, please contact OLSC at olsc@ag.gov.au.

Office of Legal Services Coordination
Phone: 02 6141 3642
E-mail: olsc@ag.gov.au
Issued: March 2026

This guidance material is of a general nature only and does not convey or contain legal advice.

Attachment A

Counsel rate

Indicative range for negotiations of daily rates with counsel

Rates are inclusive of GST

Junior counsel

Senior counsel

Entities can negotiate rates with counsel up to the applicable daily rate thresholds (see subsection 75(1) of the Legal Services Directions 2025) without informing the Office of Legal Services Coordination. Any proposed rate above the daily rate thresholds will require an approval for a one-off rate for the particular matter.

Starting point for negotiations – example: You are negotiating to engage junior counsel for a routine matter in July 2026. Counsel was admitted to the bar in May 2020. The suggested starting point for negotiations is a daily rate in the range of $1,870-$2,020 per day (inclusive of GST) based on counsel having 6 years of experience.
A final decision on the rate payable must be informed by the directions on the selection of counsel at section 74 of the Directions. Other factors to be considered when deciding an appropriate daily rate are set out in paragraphs 13-18 above.

Important notes:

1. The indicative rates in this table should not be considered a floor or a ceiling when negotiating counsel rates. Negotiations are to be underpinned by the usual value for money principles that apply to all Commonwealth expenditure under the Public Governance, Performance and Accountability Act 2013. Entities should also consider the factors set out in paragraphs 13-18 above.
2. The indicative rates in this table contemplate a brief for a routine matter in a settled area of law and are based on a 6-hour day.

Endnotes

¹ The daily rate thresholds in subsection 75(1) will be indexed every two years as set out in section 80. The first increase will apply from 1 July 2027. The indexed rates will be calculated by OLSC and published on the Attorney-General’s Department website (via the OLSC web pages).

² Attachment A is a general guide for entities in determining a starting point for negotiations. The tables are not determinative, and entities must comply with their obligations under Part 7 to consider a range of factors when negotiating an appropriate rate as well as PGPA Act obligations.

³ Noting that the approval for a one-off rate for the particular matter stated in the approval email expires when that matter concludes.