Engagement of Counsel
The ACTGS provides legal advice and representation to the ACT Government across the full spectrum of ACT Government functions and areas. The Law Officers Legal Services Directions 2023 (Legal Services Directions) provides that all Territory legal work is performed by the ACTGS and that with the approval of the Chief Solicitor, legal work can be undertaken by external legal service providers. To ensure that the Territory has sufficient capacity and capability a diverse balance of legal service arrangements are necessary.
The Legal Services Directions provide that ACTGS may engage Counsel, if required, to assist in providing effective legal advice and representation.
The breadth of matters in which the ACTGS is involved can be located in the Justice and Community Safety Annual Report.
Approval of Counsel for use by ACTGS
The Solicitor-General approves the Counsel that may undertake Territory legal work.
Counsel interested in being considered for approval, should write to the Solicitor-General and provide a copy of their bio which outlines areas of expertise, the date admitted to the Bar and proposed rates. A written application for approval as Counsel should be forwarded to ACTGSO@act.gov.au marked Counsel Coordination.
As provided in the Legal Services Directions, the Attorney-General has approved the maximum rate for Counsel which cannot be exceeded without the approval of the Attorney-General these rates cannot be exceeded. A rate range may be considered by the Solicitor-General and may include considerations such as expertise and experience of relevant Counsel, years practising at the Bar, nature of a matter and Court jurisdiction. In ensuring value for money for the Territory the ACTGS may negotiate with Counsel to ensure consistency in comparable rates for a briefing.
A guide to rate thresholds can be viewed here (PDF).
Where a Counsel is identified by a Government Solicitor, following consultation with Counsel, the Government Solicitor will make a referral to the Solicitor-General, through the Executive Group Manager, Legal Practice (EGM, Legal Practice).
Once an application is approved by the Solicitor-General, Counsel will be notified in writing and provided with Terms of Engagement. An approved Counsel is also registered on the ACTGS Register of Approved Counsel. The Register contains information related to Counsel’s professional details and qualifications. This Register is only accessed by ACTGS.
Once approved, Counsel will be required to register as an ACT Government supplier. The Supplier Registration SmartForm is also available from the Access Canberra website.
Counsel Engagement in a matter
The ACTGS engages Counsel consistent with the Directions and is committed to the implementation of the Law Council of Australia’s Equitable Briefing Policy 2016.
Counsel are considered for engagement on the basis of the following:
- complexity of a matter;
- available ACTGS capacity or need for specific capability;
- expertise and skills of Counsel in particular field of law and/or jurisdiction;
- availability of Counsel within the required time frame;
- the efficiency of Counsel, including prior knowledge and experience in similar matters relative to the complexity of the matter that is sought for;
- the importance of the matter;
- ability to deal with special sensitivities;
- government policy – for example regarding the equal opportunity briefing of Counsel;
- teamwork – including the ability of senior and junior Counsel to work together to ensure the best team is formed to represent the interests of the client; and
- the fee that the relevant Counsel proposes to charge.
The engagement of Counsel in a matter is subject to an internal approval process. The Terms of Engagement can be viewed here (PDF). The Terms of Engagement and any additional terms relating to a specific matter, including the scope of the work required and fees payable may vary.
Counsel who wish to provide further information about individual circumstances or comparative deidentified rates by reference to gender or otherwise, should liaise directly with the General Manager or EGM, Legal Practice via ACTGSO@act.gov.au.
Request for Variations of Approval
From time to time Counsel may wish to amend the information associated with their approval for use.
Counsel should notify the Solicitor-General where any variation to information associated with their registration as Approved Counsel is required. Request for variations may include rate increases or amendments to the Terms of Engagement. This notification should be directed via ACTGSO@act.gov.au.
Compliance with government policy and guidelines
Anyone performing Territory legal work must comply with the Legal Services Directions including in particular Part 2 – Legal Services (Model Litigant Guidelines) Directions. Counsel should familiarise themselves and have regard to the Legal Services Directions.
Legal Services (Model Litigant Guidelines) Directions
Consistent with ACTGS responsibility for the maintenance of proper standards in litigation, anyone performing Territory legal work, including Counsel engaged by ACTGS, must comply with the Legal Services Directions which prescribes the Legal Services (Model Litigant Guidelines) Directions. These guidelines apply to civil claims and litigation and requires that the Territory act honestly and fairly in handling claims brought by or against the Territory.
Accountability
The use of Counsel to perform Territory legal work involves the expenditure of public monies. Decisions associated with engagement of Counsel include monitoring of services received consistent with the Terms of Engagement and legislative obligations.
ACTGS publicly reports on the use and expenditure on Counsel in the Justice and Community Safety Directorate Annual Report. The name of Counsel and the annual amount paid to each Counsel is published as part of the annual reporting requirements. ACTGS performance against the Law Council of Australia’s Equitable Briefing Policy 2016 is also reported publicly in the Justice and Community Safety Directorate Annual Report.
In addition, ACTGS completes an annual confidential return to the Law Council of Australia on its briefing practises and measures taken to implement the Equitable Briefing Policy.
