Bar president says fee cap conflicts with equitable briefing policies and risks litigation outcomes
The Victorian Bar has criticised the Victorian government’s decision to cap fees paid to barristers briefed on government matters, warning that the measure will disproportionately affect women barristers and could affect litigation outcomes for the state.
In a statement, Victorian Bar president Fiona Ryan SC said government work was disproportionately concentrated among women barristers, particularly junior counsel, and that they were already paid well below private-sector rates.
Ryan said the cap would push those rates lower, particularly affecting barristers who rely heavily on government briefs. She also said the decision conflicted with the government’s equitable briefing policies, which aim to support women’s advancement at the bar.
In January 2023, the Victorian government announced a new Legal Services Panel requiring participating law firms to increase the proportion of briefs and counsel fees allocated to women barristers.
The policy established a target of at least 50 percent of briefs going to women barristers. Firms were also required to report on diversity policies and practices, as well as gender pay gaps.
At the time, then Attorney-General Jaclyn Symes said the initiative would “ensure that more briefs go to women barristers, boosting equal opportunity.”
According to the Victorian Bar, women make up 35 percent of its membership. State government entities briefed junior women barristers 43 percent of the time, significantly outpacing the corporate sector. Government entities also briefed senior women barristers 36 percent of the time, although women account for only 25 percent of silks at the Victorian Bar.
Ryan expressed disappointment that the government had not consulted the Victorian Bar before announcing the fee cap. She warned that many experienced barristers would likely decline government briefs, affecting cases conducted on behalf of the state and ultimately the Victorian community.
Ryan also questioned the estimated savings, arguing that experienced counsel narrow issues, shorten hearings and resolve cases early. She said a single adverse result in significant litigation could cost the state considerably more than the cap would save.
Ryan said Victorian barristers had consistently delivered excellent results for the state over many years and warned that the fee cap put that record at risk.
