Should Australian Government Departments Pay Barristers More?

Some of the most senior and best barristers in Australia are King’s Counsel, or KC’s (formerly Queen’s Counsel, or QC’s while Queen Elizabeth was the monarch) and Senior Counsel – collectively known as ‘silks’ due to the silk robes they wear in the higher courts.

And while these barristers are paid very well by regular standard, there are calls for government departments to increase their pay rates to ensure corporate and competition watchdogs such as the Australian Securities and Investments Commission (ASIC) and Australian Competition and Consumer Commission (ACCC) are able to secure the strongest available legal representation to fight big corporations.

The reasoning

Why, you ask? Well the fact of the matter is these exclusive legal practitioners can be paid as much as five times of the going government rate if they choose to fight on the side of big business, rather than government. 

So, in that context, calls by those in the know such as former ACCC chiefs Allan Fells and Rod Sims, and former ASIC chairmen James Shipton and Greg Medcraft to raise government rates make sense – ensuring the very best lawyers are on hand to fight for the protection of the Australian public.

The former leaders say it has become impossible to fight big corporations who have virtually unlimited funds at their disposal, giving them the ability to not only secure teams of the very best lawyers, but also forensic experts to defeat white collar and corporate investigations and prosecutions by government departments.

Everyone deserves the best

It is not dissimilar to the situation with the Legal Aid Commission, which pays the private law firms to which it assigns cases far less than they would expect to receive if the cases had been funded privately, leading many premium law firms to refuse assignments by the Commission, and some to cease undertaking legal aid work altogether on the basis it is economically unviable to take on the cases.

In that context, there are also calls to lift legal aid rates to ensure the best lawyers stay on board and continue to represent clients pursuant to legal aid grants.

Calls to lift pay freeze

But back to the situation with top silks, whereby the Albanese government is being called upon to lift a 13-year pay freeze on barristers, with a view to better protecting the public.

According to industry sources, junior silks can command up to $9,500 a day from corporations, while receiving $2,730 from government departments. And while big business can afford to pay up to $25,000 a day for the most senior silks, they receive $4500 a day from government agencies.

Perhaps both predictably and understandably, the New South Wales and Victorian bar associations have also raised alarm about the disparity, asking both federal and state governments to reconsider pay rates.

2011 saw the most recent rate-setting without indexation. For junior counsel, the maximum daily rate was $2300, including GST. For senior counsel, it was $3500, including GST. Small increases are typical when the Attorney General’s Department approves a barrister’s fee; nevertheless, anything over $5,000 needs the Attorney General’s signature.

First-year barristers are expected to bill $1100 per day to federal government clients, less than half their $2500 maximum commercial fee. The difference increases after five years at the bar, since a barrister’s commercial rate can reach $4250 per day, whereas the Commonwealth rate is about $2500.

Sources claim that Attorney-General Mark Dreyfus is more willing than his predecessors to approve rates higher than the Commonwealth cap. However, such hikes still had to be factored into the current budgets, taking money away from other priorities.

Gender Discrimination

Ruth Higgins, the president of the NSW Bar Association and one of the nation’s most successful competition lawyers, claimed that Commonwealth rates were “badly inadequate,” much below those of comparable jurisdictions, and disproportionately harmed women practitioners.

“The fees act as a disincentive to barristers performing such work…The issue also disproportionately affects women barristers, thereby aggravating pay inequity for women at the bar.”

A study conducted by the Law Council found that just 31% of all briefings go to women, with just 21% of briefings to senior barristers going to females holding the position. By value, that comes to only 20% for women and 80% for men — a huge disparity in the opportunities for women, and the subsequent pay bonuses. 

Maximum daily rates

The Australian Financial Review conducted a study regarding Commonwealth rates approved by the Attorney General’s Department. The maximum range for each level of seniority differs based on the number of years practising, title held, and gender. For example, a senior silk practising for 10+ years has a maximum daily rate of $2,000. On the other hand, a first-year junior has a maximum daily rate of $1,500.  

Poor outcomes for taxpayers

Not only are the low fees troubling for female barristers, and exorbitantly expensive for senior barristers, but they also cost taxpayers more money in the long run. Cameron Moore, SC, head of the Banco Chambers, stated that Sydney barristers are under more pressure to win all their cases. 

“It (the legal fees) affects the utility of enforcement work if you don’t win all the cases you should win. It’s bad for the enforcement of our competition laws and corporate laws.” 

Since 2011, private sector payments have increased by nearly 50%, significantly increasing the pay gap between commercial and government barrister rates. 

Along with taxpayers paying more for less in return, there is less workforce, time, and effort dedicated to pro bono work. Barristers are limited to only billing six hours daily, even during lengthy and complicated trials. This means that the Commonwealth is attempting to eliminate ‘pro bono cases where the client can’t afford to play’, according to Philip Krutchfield, KC. 

How much does a lawyer cost in Australia?

Law is a self-regulating profession in all Australian states and territories, and at the end of the cost of a lawyer is governed by the market – in other words, the level of supply and the price a person is willing and able to pay.

That said, the price of a lawyer will often depend on a range of factors such as the level of experience and degree of specialisation of the particular lawyer and law firm, as well as the seriousness and complexity of the case itself. 

In terms of hourly rates, while a general practitioner with limited experience may charge $250 per hour or less in some instances, and a specialist lawyer such as a junior criminal lawyer may charge in the order of $400 an hour, an Accredited Specialist lawyer with extensive experience may $800 per hour or more in some instances.

For many cases, the best option may be to ask whether the case can be undertaken for a fixed fee, also known as a lump sum fee, providing transparency and certainty in terms of price.

Many specialist law firms will not need to engage a ‘wig and gown barrister’, as they will have sufficient knowledge, specialisation and courtroom experience to undertake cases from commencement to finalisation themselves.

However, if a case is serious and complex, and has been set down for a lengthy jury trial in the District or Supreme Court, having a legal team with an experienced criminal defence lawyer will often ensure the best prospects of success.

An experienced criminal defence barrister will generally charge anything from $3300 to $12000 for per day, for time spent in preparation as well as attending a trial.