Briefing Senior Counsel in Government matters (Premier's Memorandum 2009-17)
Briefing Senior Counsel in Government matters (Premier's Memorandum 2009-17)
Premier's Memorandum 2009-17 sets out the procedure to be followed when government agencies wish to retain Senior Counsel to do government work.
The Memorandum 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 must be obtained before any Senior Counsel is formally engaged to do government work.
How to apply for approval to retain Senior Counsel
Applications must be made in writing to the Attorney General, and can be made care of the Department of Attorney General and Justice or direct to the Attorney General. Applications must be made before Senior Counsel is engaged and approval will not be granted retrospectively.
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 Memorandum 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 Equitable Briefing Policy 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 approved Crown rate
The approved Crown rate for Senior Counsel to appear and advise in NSW Government legal matters (as of 18 October 2010) is $400 per hour, with a daily maximum of $4000.00 (excluding GST).
The rates include all overheads, secretarial, legal and administrative assistance but do not include out of pocket disbursements.
The Attorney General will not as a rule approve applications to retain Senior Counsel at higher rates than these. 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 the Legal Services Branch.
Applications
Please send applications to;
Legal Services Branch
NSW Department of Attorney General and Justice
GPO Box 6
SYDNEY NSW 2001
DX 1227
Fax: (02) 8224 5335
By email: director_lsb@agd.nsw.gov.au