Briefing Senior Counsel in Government matters

Department of Premier and Cabinet Circular 2018-06 sets out the procedure to be followed when government agencies wish to retain Senior Counsel to do government work. Circular 2018-06 replaces the former Premier’s Memorandum 2009-17.

The Circular notes that the Attorney General is responsible for ensuring the Government receives effective legal advice and representation. The Government must ensure that Senior Counsel are selected on merit and engaged at the most appropriate rate of remuneration.

The Attorney General is responsible for confirming that Senior Counsel is required for a particular matter, approving the proposed Senior Counsel and approving the appropriate rate of remuneration. It is a requirement for all government agencies to obtain approval from the Attorney General prior to briefing Senior Counsel, including for representation in proceedings and in advice matters.

Approval should ideally be obtained before any Senior Counsel is formally engaged to do government work. Retrospective applications will not be entertained unless valid reasons are provided to the Attorney General to do so.

How to apply for approval to retain Senior Counsel

All applications need to satisfy the Attorney General's requirements. These are all outlined in the Applications for Approval to Engage Senior Counsel - Fact Sheet which is available from the Briefing of Senior Counsel page.

All requests for approval need to be sent to the Legal, Department of Communities and Justice to Enquiries-DCJLegal@dcj.nsw.gov.au

Applications must be made in writing to the Attorney General, and can be made care of the Department of Communities and Justice or direct to the Attorney General.

The application must set out the legal proceedings, or situation requiring legal advice, in as much detail as possible. If the application does not contain enough information, delays may occur while the Department seeks further information from the agency about why Senior Counsel is required, as opposed to a junior or senior junior. Reasons which could be advanced might include:

• the very complex or novel nature of a set of legal proceedings
• the very significant ramifications for the agency or the wider Government of a court's finding in a matter;
• the very significant costs which would be saved to the agency or the wider Government
• that the area of law is so specialised, or the stakes so high, that it would be extremely rare for junior counsel to take the leading role.

It will not be enough, of itself, to state that an opponent has engaged Senior Counsel.

The Circular sets out the requirement that THREE Senior Counsel should be nominated from whom the Attorney can choose. An agency is entitled to request that a particular Senior Counsel be approved, however it is still necessary for two alternative names to be put forward. This requirement can only be waived where good reasons are shown.

The Equitable Briefing Policy

The Attorney General supports and promotes the NSW Equitable Briefing Policy (PDF, 397.5 KB) and monitors compliance by government agencies with this Policy.

Agencies are expected to make reasonable endeavours to identify possible female Senior Counsel who could be engaged when nominating senior counsel. Agencies are expected to propose at least one female Senior Counsel in a request to the Attorney General. Where a female Senior Counsel is not nominated, reasons should be provided. It is acceptable to indicate that there are no female Senior Counsel practising in the relevant area, if this is the case.

The Attorney General's rates

The Attorney General's rates (also referred to as AG's Rates or Attorney's rates) are rates which have been set by the Attorney General and are payable to legal representatives (solicitors, Junior and Senior Counsel) engaged by and on behalf of Government departments and agencies and public officials.

The current Attorney's rates and further information on the AG Rates are available at the Attorney General's rates page.

The Attorney General will not as a rule approve applications to retain Senior Counsel at higher rates than the prescribed rates. If an agency wishes to request remuneration of Senior Counsel at higher rates than the Crown rates, it is recommended that this be discussed first with Legal.

Applications

Legal
Department of Communities and Justice
Locked Bag 5000
Parramatta NSW 2124

By email: Enquiries-DCJLegal@dcj.nsw.gov.au