Thresholds and the Commonwealth Counsel Rate Process

23/02/2011

On 11 February 2011 the Australian Financial Review published an article entitled "Win for barristers, loss for solicitors".� The article referred to an amendment to the Legal Services Directions 2005, made on 9 February, which has increased the threshold rates for counsel.

The Commonwealth Attorney General's Department has advised_ In Brief_ that there has been **no change **to the Commonwealth Counsel Rate process. The enactment of this legislative instrument does not create an automatic increase in barristers rates. Instead, it raises the threshold rates for which barristers are required to gain Office of Legal Services Coordination (OLSC) approval. Previously these rates were $1,600 per day for junior counsel, and $2,400 per day for senior counsel. The new thresholds are now $2,300 per day for junior counsel and $3,500 per day for senior counsel.

All counsel intending to do Commonwealth work are still required to gain initial approval from OLSC, and an approved rate will be provided as per normal. Appendix D of the Legal Services Directions 2005 then stipulate that approved counsel wishing to be paid above a threshold amount require subsequent OLSC approval. There has therefore been no change to the engagement of counsel policy, rather, threshold rates have been raised to account for market rates changing since 2000 when the previous thresholds were set.

In practice however, agencies commonly seek OLSC guidance and approval on what rate should be given to a particular counsel, even if the rate remains underneath the threshold. It is then up to the agency to utilise this recommendation as they see fit.� Also, OLSC will not approve an application over the threshold rate if it is not justified� based on their data and processes.

This will allow counsel, with an approved Commonwealth rate, to negotiate a different rate with agencies for a particular brief up to the threshold limit ($2300 JCs & $3500 SCs) without further approval from OLSC.� An application to OLSC is recommended where an agency and counsel cannot agree on a suitable rate for a brief. Please note that these negotiated rates do not supersede a counsel’s approved ongoing rate.�** Changes to ongoing rates must still be approved by OLSC.** �

In addition, an application to OLSC is still required where:

• counsel is new to Commonwealth work and does not have an approved Commonwealth rate; and

• counsel is seeking an ongoing or one-off rate above the threshold amounts.

For further information, e-mail OLSC at olsc@ag.gov.au

**23 February 2011 **

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