Counsel Fees and Government Policy
Dear Attorney-General's Department,
I am writing to request access to documents under the Freedom of Information Act 1982. My request pertains to the policies and decision-making processes within the Attorney-General's Department or OLSC regarding the remuneration of junior counsel (barristers) engaged by the government.
Specifically, I am seeking documents detailing the following:
1. The policy of setting fees for new counsel rates at $1100 per day.
2. The basis or criteria used to cap fees at a 6-hour day for junior counsel.
3. Any analyses, reports, or correspondence discussing the comparison between the government's rate of $1100 per day and the average market rate/market cap (which is currently $2500 for most junior counsel as a starting rate, with a capped 10-hour day).
4. Any analyses, reports, or correspondence discussing why the initial rate of $1100 per day has not changed in over a decade.
5. Policy or guidance given to agencies relating to the annual adjustments of barristers' fees by government agencies.
Should AGD consider the application of any conditional exemptions, the following public interest matters should be considered: It is in the public interest to understand the rationale behind the setting of barrister fees at a relatively low amount by government agencies. The fees paid to legal counsel engaged by government departments directly impact the allocation of taxpayer funds and the quality of legal representation in matters of public importance. It is well known that the Commonwealth struggles to brief good barristers because of the low rates, and this problem is only increasing over time because the daily rates are not keeping up with inflation. Transparency regarding the decision-making process behind fee structures not only ensures accountability in the expenditure of public funds but also allows for an informed discourse on the adequacy of compensation for legal professionals. Additionally, insight into the factors influencing fee caps and adjustments is essential for assessing the fairness and competitiveness of government contracts within the legal services market, ultimately safeguarding the integrity of legal processes and the public's trust in the justice system.
Yours faithfully,
John B
Thank you for contacting the Freedom of Information (FOI) team at the
Attorney-General’s Department (the department). We get a high volume of
emails and FOI applications and work to respond as promptly as possible.
This email acknowledges your correspondence and provides some general
information in relation to FOI.
Please note that we will only respond to emails about the Freedom of
Information Act 1982 (the FOI Act). For information on how to make a
request under the FOI Act please refer to:
https://www.ag.gov.au/rights-and-protect....
For enquiries about other matters, please refer to:
https://www.ag.gov.au/about-us/connect-u...
The statutory processing time for FOI requests is 30 days, however this
may be extended if the department needs to consult third parties or for
other reasons. If you have submitted an FOI request, the department will
write to you again within 30 days of receiving your request. This
correspondence may:
* seek further information from you to help us process your request,
* provide you with a decision on your FOI request, or
* discuss whether an extension of time is needed to process your request.
Please do not send duplicate emails as this may cause delays to processing
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This FOI inbox is monitored business hours Monday to Friday, excluding
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expect respectful engagement in return.
Under s 89L of the FOI Act, disrespectful, threatening or abusive language
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with you.
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OFFICIAL
Dear John B
Thank you for your request, which was received by the Commonwealth Attorney-General’s Department (the department) Freedom of Information (FOI) section.
We received your FOI request on 8 February 2024 and the 30 day statutory period for processing your request commenced on the following day. Due to an increase in the number of information access applications currently being received by the department, a case officer is yet to be allocated and we seek your agreement to an extension of time to process this request under section 15AA of the FOI Act.
This would mean that a decision about your request would be due on 8 April 2024.
If we are in a position to make a decision earlier than this date, we will endeavour to do so. The statutory period may also be extended if we need to consult third parties or for other reasons permitted under the FOI Act. We will advise you if this happens.
Please reply by return email if you agree to this extension of time. If you do agree we will notify the Office of the Australian Information Commissioner (OAIC) of your agreement under section 15AA of the FOI Act, including your name and contact details.
Kind regards
Rebekah
Freedom of Information & Privacy
Attorney-General’s Department
Phone: (02) 6141 6666 | Email: [AGD request email]
OFFICIAL
OFFICIAL
Dear John B
Freedom of Information Request FOI24/077
I refer to your request to the Attorney-General's Department (the
department) under the Freedom of Information Act 1982 (FOI Act) for access
to documents.
The purpose of this email is to advise you that the period for processing
your request has been extended by 30 days to allow the department to
undertake consultation with a third party.
The new date for the completion of your FOI request is 8 May 2024.
The FOI Act requires the department to consult with third parties before
making a decision about the release of documents containing their
information.
More information is available on the Office of the Australian Information
Commissioner's Website. Information about extensions of time can be
accessed from:
https://www.oaic.gov.au/freedom-of-infor...
If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [1][AGD request email].
Kind regards,
[Personal Information Redacted]
Freedom of Information & Privacy
Attorney-General’s Department
Phone: 02 6141 6666 | Email: [2][AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
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References
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2. mailto:[AGD request email]
OFFICIAL
Dear applicant
Please find attached a decision letter and attachments regarding your
freedom of information request to the Attorney-General’s Department.
Kind regards
Dana
Dana
Assistant Director, FOI and Privacy Section
Enabling Services Group
Attorney-General’s Department
T: 02 6141 6666 E: [1][AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
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been sent to you in error, that error does not constitute waiver of any
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1. mailto:[AGD request email]
Dear Attorney-General's Department,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of the decision dated 8 May 2024 concerning my FOI request for Counsel Fees and Government Policy.
I thank Mr Johnson for taking the time to provide the additional information in his decision letter. This additional information is informative but does not address the matters I sought to understand through categories 1, 3, 4 or 5 of my initial request.
I seek internal review of the decision concerning documents numbered 2 and 3 in Attachment B (Schedule of documents). I do not seek access to personal information and am content for the information marked as exempt pursuant to s 47F of the Act to be omitted from the scope of the review.
Section 47C - The decision explains that document 3 was created for the purpose of briefing the Attorney-General in relation to a response to correspondence from the ACT Bar Association. Mr Johnson found this document to contain entirely deliberative matter. Section 47C(2)(b) provides that deliberative matter does not include operational information or purely factual material. The exemption would not be properly applied to document 3 as a whole if there is purely factual material in the document. If there are any non-deliberative parts of the document, the document should be unredacted accordingly and made available in part.
For the deliberative parts of document 3, I reiterate that it would be in the public interest for the public to understand the rationale behind the setting of barrister fees at a relatively low amount by government agencies for the reasons set out in my initial request.
Section 47E(d) – The application of the exemption to page 72 of document 2 is inconsistent. It appears to apply to a commercial rate, but the commercial rate of $2,200 has not been redacted in the table on the same page.
Disclosing the commercial rate of a counsel is not a matter that could affect the operations of an agency. That rate is set by counsel, not AGD. It is entirely unclear how disclosing commercial rates (particularly without saying whose rates they are) would undermine AGD’s operations. Commercial rates are generally publicly accessible. You can call any barrister’s clerk and ask their rates. Some barristers even publish their rates on their websites.
The relevant operation of the agency said to be affected for s 47E(d) is the processing of rate applications through the use of databases and commercial rates. Although not explained in the decision, I infer that the effect that is said to be reasonably expected from the disclosure of the information is that the external parties will not provide information to the Department in future, thereby hampering the Department’s ability to call on complete and up to date databases or information about commercial rates when determining rate applications.
The flaw in Mr Johnson’s reasoning is that he has not explained why disclosing how the Department uses databases/commercial rates would reasonably be expected to have the anticipated effect of external parties not providing information to the Department in future. Nor is there any explanation for how the setting of rates would actually be affected, let alone substantially adversely affected.
Other documents?
There does not appear to be any documents in the Schedule falling within category 5 of my initial request. Page 137 of the Secretary’s Review of Commonwealth Legal Services (Chris Moraitis PSM, 2016) suggests that AGD has provided agencies with information or guidance on increasing rates in the form of “a simple formula to increase rates per year of experience.” No document/information of this kind is apparent in the Schedule. I request that the internal reviewer check that appropriate searches have been undertaken and all documents within the scope of my request have been identified.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...
Yours faithfully,
John B
Thank you for contacting the Freedom of Information (FOI) team at the
Attorney-General’s Department (the department). We get a high volume of
emails and FOI applications and work to respond as promptly as possible.
This email acknowledges your correspondence and provides some general
information in relation to FOI.
Please note that we will only respond to emails about the Freedom of
Information Act 1982 (the FOI Act). For information on how to make a
request under the FOI Act please refer to:
https://www.ag.gov.au/rights-and-protect....
For enquiries about other matters, please refer to:
https://www.ag.gov.au/about-us/connect-u...
The statutory processing time for FOI requests is 30 days, however this
may be extended if the department needs to consult third parties or for
other reasons. If you have submitted an FOI request, the department will
write to you again within 30 days of receiving your request. This
correspondence may:
* seek further information from you to help us process your request,
* provide you with a decision on your FOI request, or
* discuss whether an extension of time is needed to process your request.
Please do not send duplicate emails as this may cause delays to processing
times.
This FOI inbox is monitored business hours Monday to Friday, excluding
public holidays.
You can expect our team to provide a helpful, respectful service and we
expect respectful engagement in return.
Under s 89L of the FOI Act, disrespectful, threatening or abusive language
may be an abuse of the access action process. If this happens, we may not
be able to help you or we might take steps to manage how we communicate
with you.
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
OFFICIAL
Dear John
Internal Review of Freedom of Information Request: FOI24/077-IR
I refer to your request to the Attorney-General's Department (the
department) under the Freedom of Information Act 1982 (FOI Act) for a
review of the decision for FOI24/077.
Your request for review is for:
… You are seeking review of the decision to refuse access to material in
documents 2 and 3 made by the department on 8 May 2024.
If you disagree with this interpretation of your review, please let me
know in writing as soon as possible.
The department received your request for review of decision on 5 June
2024 and the 30-day statutory period for processing your review commenced
from the day after that date. The department proposes to have the review
completed by 5 July 2024.
Please note that, with some exceptions (such as personal information),
documents released under the FOI Act may later be published online on the
department's disclosure log
[1]http://www.ag.gov.au/RightsAndProtection....
If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [2][AGD request email].
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Strategy & Governance
Branch
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
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References
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1. http://www.ag.gov.au/RightsAndProtection...
2. mailto:[AGD request email]
Hi Alistair
My request is for review of the decision to refuse access to material in documents 2 and 3 made by the department on 8 May 2024, and review of whether any further documents falling within the scope of my original request exist.
Yours sincerely,
John B
OFFICIAL
Good afternoon John
Thank you for your response.
I am currently working on your internal review and I am seeking to clarify two matters, as outlined below.
Clarification 1:
I note that in your Internal Review request, you wrote:
"Section 47E(d) – The application of the exemption to page 72 of document 2 is inconsistent. It appears to apply to a commercial rate, but the commercial rate of $2,200 has not been redacted in the table on the same page."
You provided further submissions in favour of disclosure of commercial counsel rates. We can advise that neither of the redactions on page 72 of document 2 are exempting a dollar figure or commercial counsel rate.
Noting this advice, could you please consider and let us know if this advice resolves your request for review of the s 47E(d) exemptions on page 72 of document 2?
Clarification 2:
I refer to your submissions in relation to part 5 of your request, where you seek "Policy or guidance given to agencies relating to the annual adjustments of barristers' fees by government agencies."
The department has conducted additional searches for this part of your request and has identified historical policy or guidance documents which are no longer in use. Can you advice whether you are you seeking only current policy or guidance documents, or all documents identified, even if no longer current.
Please can you review and respond as soon as possible. This will allow us to work towards finalising your review as soon as possible.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
Dear Alistair
Thanks for getting in touch.
Re clarification 1, I do still wish for review of the s 47E(d) claim on page 72.
Re clarification 2, I do not wish to limit my request to only current documents. However, I am content to limit the request to only the most recent policy/guidance (even if it no longer in use).
Yours sincerely,
John B
OFFICIAL
Good afternoon John
Thank you for your response.
In order to assist us with our review of the s 47E(d) claim on page 72, please can you provide further details about the basis of your review of this specific page, the information you are seeking; and why you disagree with the use of the redaction in the initial decision.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
Dear Alistair
As my initial request explained, I am seeking the policies and decision-making processes within the Attorney-General's Department or OLSC regarding the remuneration of junior counsel (barristers) engaged by the government. I am trying to understand why OLSC continues to consider $1100 to be the appropriate initial rate when that rate was first set well over a decade ago and is not increased to keep pace with inflation or market rates.
Since you have clarified that the information on page 72 is not a dollar figure, it remains entirely unclear what it is. (What does OLSC thinks $2200 is 50% of? If it’s 50% of the rate counsel charged pre-2013 this might be plausible, but its certainly not 50% of a 2024 commercial rate).
I therefore seek to understand why OLSC continue to labour under the misapprehension that $1100 is 50% of a junior counsel’s commercial rate and to set its policies by reference to an outdated figure. If the s 47E(d) information is masking the source of where OLSC gets its information that $2200 is a commercial rate, I would be greatly interested in knowing what that source is. There is a strong public interest in uncovering the source so that steps can be taken to correct wherever that information originated.
I disagree with the use of the s 47E(d) redaction in the initial decision for the reasons set out in my internal review request. The original decision maker did not explain how disclosing the information would reasonably be expected to have an adverse effect. I also maintain that the public interest test in the conditional exemption weighs in favour of disclosing the information for the reasons set out in my initial request.
I hope this clarification helps.
Thanks
John.
Dear Alistair,
Can you please provide an update on this internal review? It is unclear whether there has been an extension of the review period or if the initial decision is now deemed to be affirmed.
Yours sincerely,
John B
OFFICIAL
Good afternoon John
Sorry for the delay in responding to your email and finalising your internal review. There hasn't been an extension of time applied to the initial deadline. To provide you with an update, I am currently working on the final decision for the decision maker.
The Attorney-General's Department is seeking your agreement to the removal of staff workplace email addresses, signatures and contact phone numbers of all departmental staff, and the removal of the names of non-Senior Executive Service (non-SES) staff, which may be contained within the documents identified in relation to your internal review.
Please can you respond as soon as possible.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
OFFICIAL
Good afternoon John
I am just following up on the email I sent to you on Tuesday 3 September 2024.
To avoid any further delays with finalising your request, please can you respond by COB Thursday 12 September 2024.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
Dear Alistair,
I agree to the removal of staff workplace email addresses, signatures and contact phone numbers of all departmental staff, and the removal of the names of non-Senior Executive Service (non-SES) staff.
Yours sincerely,
John
Thank you for contacting the Freedom of Information (FOI) team at the
Attorney-General’s Department (the department). We get a high volume of
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The statutory processing time for FOI requests is 30 days, however this
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* seek further information from you to help us process your request,
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Please do not send duplicate emails as this may cause delays to processing
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This FOI inbox is monitored during business hours Monday to Friday,
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You can expect our team to provide a helpful, respectful service and we
expect respectful engagement in return.
Under s 89L of the FOI Act, disrespectful, threatening or abusive language
may be an abuse of the access action process. If this happens, we may not
be able to help you or we might take steps to manage how we communicate
with you.
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OFFICIAL
Good morning John
Thank you for your response and confirming this with me.
Please can you confirm that you are willing to exclude duplicates, incomplete email chains, internal administrative email addresses and metadata from your request.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
Thank you for contacting the Freedom of Information (FOI) team at the
Attorney-General’s Department (the department). We get a high volume of
emails and FOI applications and work to respond as promptly as possible.
This auto-reply email confirms your email has been delivered to the
[AGD request email] mailbox. If you have written to the department to submit an
FOI request, please consider this email to be an acknowledgement of its
receipt.
Please note that we will only respond to emails about the Freedom of
Information Act 1982 (the FOI Act). For information on how to make a
request under the FOI Act please refer to:
https://www.ag.gov.au/rights-and-protect....
For enquiries about other matters, please refer to:
https://www.ag.gov.au/about-us/connect-u...
The statutory processing time for FOI requests is 30 days, however this
may be extended if the department needs to consult third parties or for
other reasons. If you have submitted an FOI request, the department will
write to you again within 30 days of receiving your request. This
correspondence may:
* provide assistance to you to help you make a valid FOI request,
* seek further information from you to help us process your request,
* provide you with a decision on your FOI request, or
* discuss whether an extension of time is needed to process your request.
Please do not send duplicate emails as this may cause delays to processing
times.
This FOI inbox is monitored during business hours Monday to Friday,
excluding public holidays.
You can expect our team to provide a helpful, respectful service and we
expect respectful engagement in return.
Under s 89L of the FOI Act, disrespectful, threatening or abusive language
may be an abuse of the access action process. If this happens, we may not
be able to help you or we might take steps to manage how we communicate
with you.
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
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If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
Dear Alastair,
What is happening with this request? AGD has now had several months to consider the internal review. Has the IC given AGD further time to deal with the internal review application and, if so, how long? I will lodge a review application with the IC if AGD does not substantively respond to my internal review request promptly.
Kind regards,
John
Thank you for contacting the Freedom of Information (FOI) team at the
Attorney-General’s Department (the department). We get a high volume of
emails and FOI applications and work to respond as promptly as possible.
This auto-reply email confirms your email has been delivered to the
[AGD request email] mailbox. If you have written to the department to submit an
FOI request, please consider this email to be an acknowledgement of its
receipt.
Please note that we will only respond to emails about the Freedom of
Information Act 1982 (the FOI Act). For information on how to make a
request under the FOI Act please refer to:
https://www.ag.gov.au/rights-and-protect....
For enquiries about other matters, please refer to:
https://www.ag.gov.au/about-us/connect-u...
The statutory processing time for FOI requests is 30 days, however this
may be extended if the department needs to consult third parties or for
other reasons. If you have submitted an FOI request, the department will
write to you again within 30 days of receiving your request. This
correspondence may:
* provide assistance to you to help you make a valid FOI request,
* seek further information from you to help us process your request,
* provide you with a decision on your FOI request, or
* discuss whether an extension of time is needed to process your request.
Please do not send duplicate emails as this may cause delays to processing
times.
This FOI inbox is monitored during business hours Monday to Friday,
excluding public holidays.
You can expect our team to provide a helpful, respectful service and we
expect respectful engagement in return.
Under s 89L of the FOI Act, disrespectful, threatening or abusive language
may be an abuse of the access action process. If this happens, we may not
be able to help you or we might take steps to manage how we communicate
with you.
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
If you have received this transmission in error please notify us
immediately by return e-mail and delete all copies. If this e-mail or any
attachments have been sent to you in error, that error does not constitute
waiver of any confidentiality, privilege or copyright in respect of
information in the e-mail or attachments.
OFFICIAL
Good morning John
Thank you for your email.
I got back from unexpected leave last week and I am currently working on drafting up the final decision for your internal review. Sorry for the ongoing delays in finalising your matter.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Office of Corporate Counsel
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
Daniel S Day left an annotation ()
This is a sterling access request.
I hope you have more luck with the AGD than some of the other access applicants on this site:
https://www.righttoknow.org.au/request/p...
https://www.righttoknow.org.au/request/s...
https://www.righttoknow.org.au/request/b...
https://www.righttoknow.org.au/request/r....
The AGD's performance in respect of processing access requests according to law (if at all) has been appalling of late.