Department of Premier and Cabinet
Category
Department of Premier and Cabinet Circular
Identifier
C2018-06
Status
Active

C2018-06-Briefing Senior Counsel

Description:

This Circular restates the guidelines that apply to NSW government agencies when engaging Senior Counsel. The
guidelines outline the administrative requirements for requests to the Attorney General to engage Senior Counsel, and set
out the requirements for all NSW Government sector agencies to implement the revised NSW Government Equitable
Briefing Policy for Women Barristers from 1 July 2018.

As First Law Officer of the State, 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 is to be obtained prior to engaging any Senior Counsel.

In matters where the Crown Solicitor is acting for an agency, the Crown Solicitor will negotiate an appropriate level of
remuneration and make a submission to the Attorney General as a matter of course. Where the Crown Solicitor is not
acting for an agency, approval is required from the Attorney General as to the appropriateness of briefing Senior Counsel
and the level of remuneration to be paid.

Written Requests

All requests to the Attorney General to brief Senior Counsel must be in writing and submitted in a timely manner.

The submission should include the following information:

  • The name of the matter;
  • An outline of the matter with particular attention to the reasons that determine the need for the engagement of Senior Counsel;
  • The name of three (3) Senior Counsel proposed, including at least one female Senior Counsel - if there is a preference for one of the Senior Counsel over the others, the reasons for the preference;
  • The fees for proposed Senior Counsel in the matter - Where the proposed fees are in excess of the approved rate, information needs to be included as to why a higher fee is appropriate. (Approved rates are the standard accepted rates nominated by the Attorney General for matters being managed by the Crown Solicitor).

Approval is to be sought as far as possible in advance of the scheduled date for the delivery of a brief to Senior Counsel. In considering a request to brief Senior Counsel, the following factors will be taken into account:

  • The expertise or skill of the Senior Counsel proposed;
  • The probable total cost of Senior Counsel's fees in the matter;
  • The specific request of an agency that a particular person be briefed and the reasons for that preference;
  • The importance of the matter, including any special sensitivity; and
  • The normal market daily fee at which the relevant Senior Counsel is briefed.

Written requests should be forwarded to:

Office of General Counsel
Department of Justice
GPO Box 6 SYDNEY NSW 2001
DX 1227 SYDNEY
Email: enquiries_generalcounsel@justice.nsw.gov.au
Fax: (02) 8346 1804

Urgent Requests

Where approval is required urgently, contact should be made with the Office of General Counsel in the Department of
Justice on phone number (02) 8346 1388. The Office of General Counsel will endeavour to expedite the process.

Equitable Briefing of Barristers

The Attorney General is responsible for monitoring compliance with the NSW Government Equitable Briefing Policy for
Women Barristers (attached). The Attorney General has released this revised Equitable Briefing Policy with effect from 1
July 2018.

In selecting barristers, NSW Government sector agencies are required to make all reasonable and genuine endeavours to
identify women barristers in the relevant practice area, and to engage women barristers.

In selecting barristers each agency is to take all reasonable efforts to:

  • Brief or select women senior barristers accounting for at least 20 per cent of all briefs and/or 20 per cent of the value of all brief fees paid to senior barristers
  • Brief or select women junior barristers accounting for at least 30 per cent of all briefs and/or 30 per cent of the value of all brief fees paid to junior barristers.

Each agency that briefs barristers should regularly monitor and review its progress towards meeting the above targets.

At the end of each financial year, each briefing agency is to prepare a confidential report for that financial year, for
submission to the Office of the General Counsel, Department of Justice. The report is due by 31 October each year, and
must outline, in respect of the agency:

  • The number of women senior barristers who were briefed
  • The number of women junior barristers who were briefed
  • The value of brief fees paid to women senior barristers
  • The value of brief fees paid to women junior barristers.