Starting in March, Commonwealth agencies must brief women counsel wherever possible to meet higher diversity and inclusion targets – but whether the agencies decide to disclose this compliance remains to be seen.
Under Attorney-General Michelle Rowland’s new Legal Services Directions 2025, due to come into effect on 2 March, Commonwealth agencies will be required to make “all reasonable endeavours” to hire women silks who have the seniority, expertise, and experience in the relevant practice area.
This is with the view of seeing women counsel account for at least 40 per cent of all the entity’s briefs and receive 40 per cent of the total value, which is in line with the Law Council of Australia’s Equitable Briefing Policy.
This is a marked improvement on the Legal Services Directions 2017, which aimed to have senior women barristers account for at least 25 per cent of the briefs and values, and junior women barristers account for 30 per cent.
However, no hard and fast rules about compliance disclosures were made.
“Entities are encouraged to publish annually, in a manner that does not disclose the rates paid to individual counsel, information that makes it possible to assess whether the entity is meeting the target,” the rules set out.
In this same section, Rowland encouraged entities to consider a broad range of candidates, including those who identify as LGBTI, First Nations, culturally and linguistically diverse, and those with a disability.
Further, the process for selecting counsel must take into account the interests of the Commonwealth in securing suitable and expert counsel, “but not in a manner which results in only a narrow pool of counsel being used for any particular category of Commonwealth legal work”.
There were no disclosure notes relating to these guidelines.
The Legal Services Directions 2025 also increased the daily rates for senior counsel from $3,500 to $5,000. The daily fees for junior barristers increased by about 40 per cent from $2,300 to $3,300.
These amounts will be indexed every two years.
Actual rates would be negotiated by the agencies themselves, rather than at rates set by the Attorney-General’s Department. However, the agencies were told not to treat the daily rates “as the standard or starting point for negotiations”.
The negotiations must also have regard to the nature and complexity of the brief and “securing value for money for the entity”.
While higher, the new daily rates still do not come close to the fees charged by silks representing a private client.
