Purpose

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 rates that ensure the Government achieves value for money.

The Attorney General is responsible for approving the engagement of Senior Counsel and approving the rate of remuneration.

It is a requirement for all government agencies to obtain approval from the Attorney General prior to briefing 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. 

How to apply for approval to retain Senior Counsel 

All applications must be made in writing and sent to:

Legal
Department of Communities and Justice
Locked Bag 5000
Parramatta NSW 2124
By email: [email protected]

All applications should include the following information:

1. An outline of the legal proceedings or legal matter, in as much detail as possible. This should include any critical dates, for example, upcoming filing or court dates.

2. Reasons that determine the need for Senior Counsel. For example:

   • The complex or novel nature of the matter.

   • The significant ramifications for the agency or for the Government.

   • The significant costs which would be saved for the agency or the Government.

   • The need for specialist advice and representation.

3. The names of three (3) Senior Counsel proposed who are available to undertake the work, including at least one female Senior Counsel. If there is a preference for one of the Senior Counsel over the others, this preference should be clearly indicated, and reasons for the preference must be provided.

4. Confirmation that each of the proposed Senior Counsel will accept the brief at the Attorney General’s rates of legal representation (AG’s rates). The Attorney General may consider fees above the AG’s rates in exceptional cases only, and where strong reasons are provided.

Urgent requests

All applications must be submitted in a timely manner. Where approval is required urgently (i.e., within 1-2 business days), reasons for the urgency should be provided in the written application.

Advance telephone contact should also be made with the Department of Communities and Justice, Legal (DCJ Legal) on (02) 8346 1388. DCJ Legal will endeavour to expedite the process.

Factors that will be considered

 The Attorney General will take several considerations into account, including the following:  

•  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.

The Equitable Briefing Policy

The Attorney General is responsible for monitoring compliance with the NSW Government Equitable Briefing Policy for Women Barristers (attached). This policy applies to all NSW Government sector agencies, with effect from 1 July 2018.

 It is designed to promote opportunities for women at the Bar and is founded on equity principles. Under the policy, when government agencies engage counsel, they are to make reasonable endeavours to:

•  Identify and engage women barristers in the relevant practice area;

• Monitor and review the proportional rate of engagement; and

• Report annually on the number and value of briefs to women barristers.

Application of the Equitable Briefing Policy to C2025-03

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, the attempts made to identify available female Senior Counsel should be included in the written application.  

Kate Boyd PSM
Secretary