Victorian Government Legal Services Panel

Annual Report 2015-2016 Legal Panel Administration Do not delete section break below this paragraph. To change headings, click on Edit Front Page button.

Authorised and published by the Victorian Government, 1 Treasury Place, Melbourne

April 2017

© Government of Victoria

This report is protected by copyright. Apart from any use permitted under the Copyright Act 1968, and those explicitly granted below, all other rights are reserved.

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Contents

1 Purpose of the Report The purpose of this report is to provide information on the operation of the Victorian Government Legal Services Panel (‘the Panel’) and associated arrangements for the 2015- 16 financial year.

This report includes commentary on: the previous Panel and structure; the Panel refresh, tender and new Panel structure; the Legal Panel Gateway (LPG) and transition to the ARKpx web portal and the Business Intelligence Oracle (BI Oracle) system; administration of the Panel; expenditure on Panel legal services for 2015-16; and the operation of social justice policies incorporated in the Panel, specifically pro bono contributions by Panel firms and the briefing of women barristers.

2 Executive Summary The objective of the Panel arrangements is to provide access to high quality, consistent legal services to government departments and statutory agencies that represent good value for money. The Panel also aims to strengthen and support pro bono work and equal opportunity briefing practices by those firms selected onto the Panel.

The current Panel commenced on 1 March 2016. Expenditure under the previous Panel from 1 July 2015 to 29 February 2016 was recorded on the Legal Panel Gateway (LPG), a procurement system supporting the Panel arrangements. New Panel expenditure is extracted and reported through BI Oracle software. This Annual Report covers legal expenditure under both Panels and the data are extracted from both systems.

Legal expenditure for the period 1 July 2015 to 30 June 2016 under the previous Panel (captured through the LPG) totalled $58.00M (ex GST)1. Legal expenditure for the new Panel captured through BI Oracle software for the period 1 March to 30 June 2016 totalled $37.02M (ex GST).

1 Although the previous Panel expired on 29 February 2016, LPG reports were run to extract data to 30 June 2016 as some pre-existing work continued to be recorded in the LPG until the system was phased out in July 2016. Expenditure reported in the LPG to 29 February 2016 totalled $44.66M.

Legal expenditure for the financial year 2015-16, covering both the previous and the new Panels, totalled $95.04M. This figure is a significant increase from the figures reported annually under the previous Panel. For example, the reported expenditure was $66.82M for 2013-14 and $64.40M for 2014-15.

This increase in expenditure is largely attributable to:

 the improved process by which expenditure data are captured under the new reporting system;  the increased number of government entities that are utilising the new Panel; and  the increased amount of work in specific Areas of Law, in particular, Construction and Infrastructure Projects.

The new Panel has 13 areas of law (see section 4). Twenty-three law firms in total were appointed to the new Panel. Fifteen law firms were re-appointed from the previous Panel with 8 new law firms joining the new Panel. The new Panel includes more small and medium law firms and one regional law firm.

As at 30 June 2016, seven government departments and 41 statutory agencies were utilising the Panel.

Over the first six years of the previous Panel (2009 – 2015), Panel firms provided $114M in pro bono services to community organisations and disadvantaged clients as part of their Panel Contract obligations. Panel firms have until 31 December after the end of each financial year to upload their pro bono data. The 2015-16 pro bono data will be released when available and included in the 2016-17 Annual Report.

The Panel contract required each Panel firm to report on the firm’s briefing of women barristers. As at 31 December 2015, women barristers comprised 27% of the Victorian Bar. Data provided for 2015-16 showed that 66% of briefs and 43% of fees went to women barristers. These data are compiled by combining figures from panel-briefed barrister reports, VGSO brief report and direct briefs by panel clients (Tables 7 to 9, pp.17-18).

3 Background State Purchase Contracts (SPCs) are standing offer agreements for use across government to purchase commonly used goods and services and to provide more effective and efficient procurement. SPCs are established when multiple entities have a common requirement for frequently purchased goods and or services, and value for money can best be achieved through aggregating demand.

The Panel is a SPC arrangement that has been operating since July 2002, having been refreshed in 2009 and again in March 2016. Users are able to access details of the Legal Services Panel SPC via a web portal as well as the Victorian Government Procurement Board’s (VGPB) website. The VGPB website is also accessible to the general public and this report is available on the VGPB and the Department of Justice and Regulation (DJR) websites.

The Legal Services Panel currently comprises 23 law firms appointed to 13 areas of law (‘Panel Firms’) that provide legal services to government departments and statutory agencies. DJR, as the ‘Lead Department’, is responsible for the development and ongoing management of the Panel.

All government departments are mandated to purchase legal services from the Panel. Some agencies that are mandated to comply with the VGPB Supply Policies are also required to use the Panel. Non-mandated agencies may agree to become part of the Panel arrangement. Under the Panel arrangement, departments and agencies may not purchase legal services from law firms not on the Panel unless a case for going outside the Panel can be justified under the Panel’s exemption policy.

4 New Legal Services Panel Tender DJR released an open public tender on 1 July 2015 for the establishment of a new Panel. Fifty-eight law firms submitted tenders, with a total of 375 bids across the 13 Areas of Law that constituted the new Panel.

After a rigorous assessment process that evaluated the best value for money proposals by reference to fees, experience, expertise, capability and pro bono commitment, 23 law firms were appointed for a term of three years and four months, from 1 March 2016 to 30 June 2019. The Panel Contract provides for an option to extend the Panel for a further three years to 30 June 2022.

Fifteen of the Panel firms from the previous Panel were selected to offer legal services under the new Panel. In addition, 8 new firms were selected on to the new Panel. Five Panel firms from the previous Panel did not gain selection to the new Panel.

The composition of the new Panel includes more small and medium firms as well as a regional firm.

Under the transitional arrangements, unsuccessful Panel firms from the previous Panel were able to continue to provide legal services in matters created under the previous Panel to the conclusion of the matters if their clients continued to provide instructions. Clients may not engage these firms to deliver services in new matters after 29 February 2016 unless the matters are ancillary to the existing matters or an exemption has been granted.

The previous Panel expired on 29 February 2016, after operating for six years and eight months. Details of the new Panel are at Appendix 1 and of the previous Panel at Appendix 2.

5 Legal Services Panel Structures The previous Panel comprised two main panels and seven specialist sub-panels. The two main panels were the General Panel and the Commercial Projects Panel. The General Panel covered a broad range of matters including Administrative Law, Commercial Law, Employment Law and Litigation. The seven specialist sub-panels were Resources, FOI and Privacy, Personal Injuries, Prosecutions, Property, Coronial Inquests, and Intellectual Property and Technology Law.

Government clients tended to engage the firms on the General Panel when they had matters that crossed the boundaries of more than one area of law. Expenditure data showed that 57% of expenditure over six years of the previous Panel was concentrated on firms in the General Panel.

In restructuring the Panel, DJR consulted the legal profession and other departments and agencies. The new structure, which is detailed in Table1, is intended to assist government clients in engaging service providers in the appropriate area of law in which legal services are required. Procurement guidelines permit a Panel firm to provide legal services in areas of law where they are not selected on the Panel if the services are ancillary to the substantive area of law in which the Panel firm may provide services, e.g. a firm on the Intellectual Property and Information Technology Area of Law list that is engaged to provide

services in an IT procurement may provide contractual and procurement advice relating to the project.

Early indications from the expenditure data for the first four months of the new Panel show a more even spread of work across the 13 Areas of Law (see Table 4) although there is a sizeable spend in the Construction and Infrastructure Projects Area of Law panel (30%) which is attributable to the number of large infrastructure projects underway in Victoria.

Table 1

Category Areas of Law Government and 1. Administrative Law Area Administrative  Legislation/Regulation/Policy development  Judicial and Administrative Review  Public law matters - including public governance  FOI, Privacy and Data Protection

2. Employment, Industrial and Equal Opportunity Area 1. Collective employment and bargaining 2. General employment law 3. Occupational Health and Safety 4. Equal opportunity (includes work in areas other than employment)

3. Prosecutions Area

Commercial 4. Construction and Infrastructure Projects Area 5. Includes Public Private Partnerships and project finance

5. General Commercial Area 6. Taxation 7. Banking and finance 8. Insurance

9. Corporations Law 10. Competition Law

6. Contracts and Procurement 11. Includes contract management

7. Intellectual Property, Information Technology Area 12. E-commerce 13. IT procurement, licences and contracts 14. Telecoms procurement, contracts and licences 15. Convergent technologies 16. Intellectual property rights 17. Data protection 18. Privacy Property, 8. Property Area Planning and 19. Acquisitions and disposals Environment 20. Leases, licences and conveyancing 21. Landlord and tenant matters 22. Site re-development, property development 23. Sub-divisions 24. Compulsory purchases 25. Social housing 26. Crown Land

9. Planning & Environment Area 27. Heritage 28. Water 29. Climate change 30. Strategic Planning 31. Statutory Planning

General 10. General litigation Area Litigation, 32. Common law including Tort and Contract Coronial Inquiries 33. Equity and Personal 34. Miscellaneous (does not cover litigation arising from Injuries other Areas)

11. Public inquiries Area

12. Personal injuries Area

13. Coronial inquiries Area

6 Role of the Victorian Government Solicitor’s Office The Victorian Government Solicitor's Office (VGSO) is able to compete for work across all Panel categories. The expenditure set out in Table 2 includes fees paid to the VGSO for services provided under the Panel arrangements.

Additionally, the government has reserved certain areas of legal services2, which may only be provided by the VGSO. The exclusive services include matters relating to the State’s constitutional powers, native title and the Charter of Human Rights. Over the last 5 years, legal expenditure relating to VGSO’s exclusive services totalled $39.07M.

7 Procurement Rules As part of the 2015 tender, law firms were required to submit maximum hourly fee rates for partners, associates and other lawyers with differing levels of experience. Law firms were able to submit different hourly rates for each of the Areas of Law. The Panel Contract allows for a price adjustment annually in line with the Consumer Price Index (All groups, Melbourne) for the term of the Contract.

The Panel Contract allows clients to engage Panel firms using the hourly rate or alternatively, to negotiate and agree other pricing options such as an agreed fixed price, maximum daily rates, volume discounts, rebates or event-based pricing.

All matters must have an agreed cost estimate based on the scope of the work outlined in a Legal Services Order. Where the scope of the work changes or additional legal services are required, the budget for a matter may be varied by agreement between the client and the law firm.

Transactional Guidelines for purchasing legal services from the Panel were introduced to require clients to consider and obtain quotes from a number of providers on the Panel. The objectives were to extract better value for money and improved services through competitive tension and to encourage a broader distribution of work across the Panel. The Transactional Guidelines are at Appendix 3.

8 Administration Administration of the Panel Contract is the responsibility of DJR. It manages Panel firm performance and monitors the delivery of legal services according to the provisions of the

2 Schedule 3 VGSO Exclusive Services, Deed of Standing Offer for the Provision of Legal Services

Panel Contract, including the Service Level Agreement (SLA) incorporated in the Panel Contract.

The Deputy Secretary, Civil Justice is the Executive Contract Manager for the Panel Contract. The Executive Contract Manager has oversight and responsibility for the Panel Contract including determining variations to the service standards and key performance indicators, making decisions on exemption requests that are above the value of exemptions able to be determined by client agencies, and exercising the option for extension or termination of the Panel Contract and the service level agreement.

The Contract Manager role is responsible for the day to day administration of the Panel Contract and reports to the Director, Civil Law Policy and the Executive Contract Manager. The Contract Manager also oversees the technology systems supporting the Panel through data collection and analysis, monitors the performance of service providers, manages and reports on exemption requests, manages and reports on conflicts of interest notifications, and approves any application by an agency to join the Panel. The Contract Manager also monitors and reports on service providers’ compliance with pro bono, model litigant and other policies.

Agency Contract Managers within each department and participating statutory body manage their entities’ engagements with Panel firms and the VGSO. They have the responsibility to ensure that their agency procures legal services in compliance with the Panel Contract.

The Government Legal Services Executive Group, comprising the Agency Contract Managers from all Departments, Victoria Police and VicRoads, meets on a quarterly basis. The Executive Group is chaired by the Executive Contract Manager. The Executive Group provides strategic direction on the management of the Panel and the broader aspects of managing government legal risks.

9 Support Systems 9.1 Legal Panel Gateway The LPG was implemented on 1 July 2009 to coincide with the commencement of the previous Panel arrangements. It was designed to inform purchasers in the selection of providers and to support the administration of the Panel Contract in managing the contractual obligations of Panel firms through improved reporting capability.

Feedback from users, particularly clients, was that the system was complex to use. This complexity led to the system not being used consistently to capture all legal procurement under the Panel arrangement. This under-reporting is evident when expenditure data for the 2015-16 financial year are compared to data reported in the previous financial years of the last Panel.

The use of the LPG ceased on 31 July 2016 to allow for matters that commenced under the previous Panel to continue to be recorded beyond the commencement of the new Panel on 1 March 2016.

Panel firms commenced using the web portal ARKpx for uploading their system data (matters and invoices information) and compliance documentation for all new matters under the new Panel from 1 March 2016.

9.2 ARKpx, Business Intelligence Oracle (BI Oracle)

Under the new Panel, clients are not required to enter data to set up or create matters in any procurement system. Clients need only complete a Legal Services Order and send this to their chosen Panel firm for work to commence.

Panel firms report on Panel-related matters in their Active Matters Report which is submitted on a monthly basis to DJR via a secure web portal, ARKpx3.

Invoices are sent to government clients. On a monthly basis, Panel firms report the amounts in the invoices rendered and withdrawn, including barrister fees, in a spreadsheet that is submitted to DJR via the ARKpx site.

DJR extracts this data and runs it through its reporting software, BI Oracle, to produce a comprehensive suite of reports to enable tracking and analysis of legal expenditure by areas of law and government clients.

In addition to expenditure data, Panel firms also upload reports to the ARKpx portal on pro bono activities and in compliance with their equal opportunity obligations.

10 Compliance with Government Policies All Panel firms are required to comply with the following policies, which are incorporated into the Panel Contract:

3 The ARKpx is a cloud-based service which is a transfer mechanism (not a permanent storage solution) provided by an Australian company, KL Data Security. All data are encrypted at rest and in transit. All data uploaded by panel firms are transient and these data are destroyed at the end of the ARKpx service contract. Note that from March 2017 the hosting arrangements changed to Microsoft SharePoint, a similar secure cloud-based platform.

 The Victorian Bar Equality of Opportunity Model Briefing Policy – this policy promotes the adoption of equitable briefing practices for legal practitioners and clients, with the objective of maximising opportunities for women in the law, the judiciary and the wider community;

 The Pro Bono Guidelines – outline the criteria and requirements for approved pro bono services for firms under the Panel Contract when providing assistance to disadvantaged persons or organisations or in the promotion of the public interest; and

 The Model Litigant Guidelines – set standards for how the State of Victoria, its departments and agencies behave as model litigants in the conduct of any legal proceedings.

10.1.1 Equal opportunity legislation and barrister briefing policy Panel firms report on equal opportunity and diversity principles in their employment and work practices annually. They must also report to government on the use of barristers for government work in accordance with their contractual obligation to adhere to the Victorian Bar Equality of Opportunity Model Briefing Policy. The VGSO also monitors and reports on its briefing of barristers by gender.

10.1.2 Pro bono services policy The pro bono work undertaken by Panel firms is part of pro bono work done more generally by the legal profession and reflects the particular interests and skills of each firm. Pro bono legal services worth $114 million were provided by Panel firms over the period 2009 to 2015. There is no evidence that the pro bono requirement has increased the hourly rates tendered by Panel law firms. The current Panel firms have contracted to provide pro bono legal services, on average, equivalent to 20% of revenue earned from Panel work (up from 15% for the last Panel).

10.1.3 Model Litigant guidelines The Model Litigant Guidelines oblige the government to act fairly and consistently in handling claims and litigation and to avoid litigation wherever possible. The guidelines aim to ensure that government disputants keep costs to a minimum, do not rely on technical defences and do not take advantage of a claimant who might not have the resources to litigate against the government.

11 Expenditure 11.1 Total Legal Services Panel Expenditure 2011 – 2016

This table draws data from the LPG and in the FY2015-16, includes data from the ARKpx.

Table 2: Government Legal Services Panel Expenditure 2011 to 2016 ($ millions, ex GST)

2011-16 Panel Expenditure4 2011-12 2012-13 2013-14 2014-15 2015-16 5-year total

Legal Fees (includes secondments and some 47.60 47.10 48.29 51.03 78.32 272.34 barrister fees)5

Barrister fees6 (where specifically recorded and 4.82 3.69 5.15 2.80 7.04 23.50 excluding direct briefs)

Disbursements 5.32 9.18 13.38 10.57 9.68 48.13

Total 57.74 59.97 66.82 64.40 95.047 343.97

VGSO Exclusive Work 9.52 8.02 7.75 8.34 5.44 39.07

11.2 Expenditure under previous Legal Services Panel 1 July 2011 – 30 June 2016

Table 3: Expenditure by Panel type ($ millions, ex GST)8

Panel Type 2011-12 2012-13 2013-14 2014-15 2015-169 2011-16 General 31.88 32.68 33.13 41.98 35.25 174.92 Commercial Projects 9.55 12.29 17.13 9.09 12.09 60.15 Personal Injury 3.57 4.1 5.98 4.92 3.19 21.76 Property 3.89 4.08 4.21 4.57 3.88 20.63 Secondments10 2.1 2.15 2.49 0.56 1.20 8.5 4 Includes VGSO contested panel work but excludes departments’ and agencies’ in-house legal costs (of salaried staff) and direct briefs to barristers. 5 While ‘Secondments’ are considered as a separate category of payments, it is included in ‘Legal Fees’ as secondments have historically been recorded as part of the data for legal fees. 6 Some panel providers do not report barrister fees separately but include them in Legal Fees or Disbursements. The total expenditure on barristers is therefore more than reported under this item. 7 The 2015-16 data covers two panel arrangements and two IT reporting systems and processes. The data captured for the new Panel from 1 March 2016 were by Panel providers reporting through the web portal, the ARKpx, resulting in a more comprehensive capture of legal expenditure. In the four months of the new Panel using the new system, the reports show $37.02M compared to $58.00M for the first eight months of the financial year under the old panel and IT system (the LPG). This spike in reported expenditure might also be due to the increased number of clients on the new Panel and increased expenditure in particular areas, such as Construction and Infrastructure Projects. 8 Includes disbursements and barrister fees. 9 The data for 2015-16 includes work on existing matters which continued after 29 February 2016 and were reported in the LPG to 30 June 2016. 10 Secondment, while not a panel type, is included here as an expenditure item because it was a distinct category of payments to providers under the previous Panel Contract.

Prosecutions 2.56 1.59 0.75 0.34 0.87 6.11 Coronial Inquest 2.05 1.08 1.64 1.65 0.79 7.21 FOI & Privacy 0.77 0.84 0.48 0.33 0.20 2.62 IP & IT 0.62 0.65 0.79 0.76 0.27 3.09 Resources 0.42 0.29 0.21 0.20 0.26 1.38 Total: 57.41 59.75 66.81 64.40 58.00 306.37

11.3 Expenditure under current Legal Services Panel 1 March to 30 June 2016

Table 4: Expenditure by Area of Law ($ millions, ex. GST)

1 March - 30 June 2016 Area of Law ($ millions) Administrative Law 5.88 16% Construction and Infrastructure Projects 11.21 30% Contracts and Procurement (includes contract 2.32 6% management) Coronial Inquiries Area 0.60 2% Employment, Industrial and Equal Opportunity 3.46 9% General Commercial 4.50 12% General Litigation Area 2.58 7% Intellectual Property, Information Technology Area 0.34 1% Personal Injuries Area 0.73 2% Planning & Environment Area 1.79 5% Property Area 1.48 4% Prosecutions 2.12 6% Public Inquiries Area 0.01 <1% Total 37.02 100%

Diagram 1: Expenditure by Area of Law under current Legal Services Panel 1 March to 30 June 2016 (%)

11.4 Expenditure by Panel Clients 2015-16 Table 5 shows expenditure incurred by the main departments and agencies. The data were extracted from the LPG and the ARKpx and are the combined total under the previous Panel and the current Panel for the 2015-16 financial year.

Table 5: Total Client Expenditure 2015-16 compared to 2014-15 ($ millions, ex GST)

$M ex $M ex % increase GST GST 2015-16 from Client Name 2014- 2015- % Total 2014-15 to 15 16 2015-16 Department of Economic Development, Jobs, Transport 13.63 16.31 17% 20% and Resources11 Department of Justice and Regulation 11.13 13.68 14% 23%

Department of Treasury and Finance12 5.97 11.99 13% 101% VicRoads 6.01 10.86 11% 81%

Department of Education and Training13 7.12 9.32 10% 31% Public Transport Victoria 1.74 7.08 7% 307%

Department of Health and Human Services14 4.63 6.01 6% 30% Victoria Police 4.71 6.26 7% 33% Department of Environment, Land, Water and 5.05 5.14 5% 2% Planning15

Country Fire Authority16 N/A 2.01 2% N/A Department of Premier and Cabinet 0.96 1.42 1% 47% Greyhound Racing Victoria 0.94 1.10 1% 17%

Ambulance Victoria17 N/A 0.60 1% N/A

Victorian Building Authority18 0 0.51 1% 0% Total for clients with annual expenditure less than 2.51 2.75 3% 10% $0.5M Total for above clients: 64.40 95.04 100% N/A

11 2014-15 figure includes data for DEDJTR and, prior to machinery of government changes, Department of State Development and Business Innovation and Department of Transport, Planning and Local Infrastructure. 12 Data for the State Revenue Office was included in the data for DTF under the LPG for the period of 1 July 2015 to 29 February 2016. 13 2014-15 figure includes data for DET and, prior to machinery of government changes, Department of Education & Early Childhood Development 14 2014-15 figure includes data for DHS and, prior to machinery of government changes, Department of Health and Department of Human Services. 15 2014-15 figure includes data for DELWP and, prior to machinery of government changes, Department of Environment and Primary Industry, Department of Sustainability and Environment and Department of Planning and Community Development. 16 CFA joined the Panel in 2015-16. 17 Ambulance Victoria joined the Panel in 2015-16. 18 No expenditure was recorded on the Legal Panel Gateway for 2014-15.

Apart from improved reporting systems and new Government clients utilising the Panel, the increased expenditure in 2015-16 is mainly due to increased infrastructure spending, with the size of the increase estimated to be approximately $14M. The largest increases occurred in those departments and agencies that are mainly responsible for the Government’s infrastructure program, such as DTF, Vic Roads, DJR19 and Public Transport Victoria. The DPC increase was mainly due to the Family Violence Royal Commission and the Hazelwood Mine Fire Inquiry.

An amount of $4.42M in the increased expenditure figure was due to new agencies utilising the Panel. It is not possible to fully measure the components of the overall increase as some of the variation is due to improved reporting systems that were introduced on 1 March 2016.

12 Social policies

12.1 Pro bono legal services under the previous Panel

The pro bono work undertaken by the 20 law firms on the previous Panel is a part of the pro bono work done more generally by the legal profession. Pro bono legal services worth $114M were provided under the previous Panel from 2009 to 2015.

Panel firms report annually on their pro bono obligations in accordance with the policy guidelines set out in the Panel Contract. Pro bono services provided by Panel firms must constitute an “approved cause” as defined in the Panel Contract. The objectives of pro bono work are to enhance access to justice for disadvantaged persons or organisations or to promote the public interest.

Panel firms report on their pro bono activity by 31 December following the end of each financial year. Table 6 shows data for the 2014-15 year. The 2015-16 pro bono data will be released when available and will be included in the 2016-17 Annual Report.

Under the previous Panel contract, Panel firms, on average, contracted to provide pro bono services equivalent to 15% of the net legal fees earned by the firm under the Panel arrangement.

Panel firms under the current Panel contract have increased their commitment to pro bono services and will provide on average, services equivalent to 20% of the net fees earned by the firms under the current Panel.

Table 6: Recipients* of Panel Pro Bono Services (% and $ millions, ex GST)

2014-2015

19 The data recorded in the LPG system for DJR is mainly attributed to the significant infrastructure projects for Corrections Victoria.

($M) % Charities/not for profit organisations 4.2 27% Community and Specialist Legal Centres 1.9 12% Direct pro bono case work/legal services 2.8 18% Seniors Law – Justice Connect 0.4 3% Homeless Law – Justice Connect 4.2 27% Human Rights Law Program ( Asylum Seeker 1.0 6% Resource Centre) Justice Connect (formerly PILCH) 1.1 7% Total 15.6 100.00

*Note that the Attorney-General’s Community Law Partnerships and the Law Institute of Victoria Legal Assistance Scheme received nominal pro bono services and are not listed in Table 6.

12.2 Equality of opportunity in the briefing of female barristers

Panel firms must report to government on the use of barristers for government work in accordance with their contractual obligation to adhere to the Victorian Bar Equal Opportunity Model Briefing Policy.

The Victorian Bar reported that, as at December 2015, there were 1,999 Victorian practising counsel comprising 549 female counsel (27%) and 1,450 male counsel (73%).

Table 7 provides information about the briefing of women barristers during 2015-16. Barrister fees for both Panel and direct briefs for 2015-16 totalled $14.37M, as detailed in Table 7. There were 10,933 briefs in total with women barristers receiving 7,222 briefs or 66% of the briefs. Women barristers received $6.21M or 43% of total brief fees. The number of briefs to women barristers was largely composed of direct briefs in Children’s Court child protection matters. The VGSO also had a high proportion of briefs to women barristers.

Table 7: Barrister briefing by Panel Firms and Direct Briefs 2015-16 ($ millions, ex GST)

No. of No. of Female Total of Male Fees Total Fees Female Male Fees Briefs ($M) ($M) Briefs Briefs ($M) Panel firm 152 325 477 2.7 4.42 7.12 briefs Direct 7,070 3,386 10,456 3.51 3.74 7.25 briefs Totals 7,222 3,711 10,933 6.21 8.16 14.37

Table 8 provides information on the briefing of barristers sorted by seniority and gender for the current Panel for 2015-16 as well as comparative data for the previous Panel for the years 2009- 15. Data for this table were extracted from the LPG and the ARKpx.

As explained in footnote 2 in Table 2, some Panel providers did not report barrister fees separately. Therefore, the table below under-reports barrister briefs and fees where the data were extracted from the LPG. The data from the ARKpx include barristers briefed by the VGSO for Panel and VGSO Exclusive matters for the period 1 March to 30 June 2016.

Table 8: Female / Male barrister briefing by Panel Firms 2015-16, compared to 2009-15 (number, % and $ millions, ex GST)

Female Female Total Male Male Total Senio Total Junior Female Senior Junior Male r20 Total briefs 2009-15 1,694 3,159 4,853 N/A N/A N/A N/A (%) 35% 65% 100% Total briefs 24 128 152 120 205 325 477 2015-16 (% of total briefs) (5%) (27%) (32%) (25%) (43%) (68%) (100%) Total fees 2009-15 8.12 23.88 32.00 ($ millions) N/A N/A N/A N/A (%) 25% 75% 100%

Total fees 2015-16 0.96 1.74 2.70 2.62 1.80 4.42 7.12 ($ millions) (14%) (24%) (38%) (37%) (25%) (62%) (100%) (% of total fees) The VGSO also monitors its briefing practices from an equal opportunity perspective. Table 9 provides information on the proportions of briefs provided and fees paid by VGSO, to male and female barristers.

Table 9: Barrister briefing by the VGSO (proportions by %)

Male Barristers Female Barristers

2013/14 2014/15 2015/16 2013/14 2014/15 2015/16

Total fees 71% 70% 64% 29% 30% 36% (%) Total briefs 59% 64% 58% 41% 36% 42% (%) Table 10 provides data about the briefs provided directly by client departments and agencies to the private Bar, without the intermediation of the VGSO or a Panel firm. The high number of briefs is attributable to the briefs provided by DHHS for appearances in the Children’s Court.

Table 10: Direct Briefs to Counsel by Client Departments and Agencies 2015-16 ($ millions, ex GST) Female Female Total Male Male Total Total Senior Junior Female Senior Junior Male No. of briefs 16 7,054 7,070 64 3322 3,386 10,456

20 A breakdown of senior and junior briefs for the previous Panel is not available.

% of total <1% 67% 68% <1% 32% 32% 100% briefs Fees paid 0.16 3.35 3.51 1.40 2.33 3.74 7.25 ($ millions) % of total 2.2% 46.3% 48.5% 19.3% 32.2% 51.5% 100.00% fees Table 11 provides data about the briefs provided to female barristers by reference to the areas of law on the old and new Panels. As the two Panels were composed of different areas of law, care should be taken in drawing comparisons between the two. The data for the new Panel only covers the period from 1 March 2016 when the new Panel commenced21. In respect of the Areas of Law for which there is a nil percentage for female barristers, there was one brief for Construction and Infrastructure, and 8 briefs for Contracts and Procurement during the relevant period. The Intellectual Property and Information Technology area of law is not included because there were no reported briefs. Table 11: Proportion of briefs and fees to female barristers by Panel firms for previous and new Panels (%)

2009 - 2015 1 March 2016 – 30 June 2016 Legal Panel Gateway Legal Services Panel Briefs to Fees to Briefs to Fees to female female female female Area of Law barrister barrister Area of Law barrister barrister s s s s (%) (%) (%) (%) General 32% 24% Administrative Law 42% 33%

Construction and <1% <1% Commercial Projects 43% 5% Infrastructure

Property 19% 17% Property Area 36% 26% Personal Injury 17% 12% Personal injuries Area 20% 6% Coronial Inquests 34% 24% Coronial inquiries Area 31% 43% Prosecutions 21% 17% Prosecutions 29% 36%

Contracts and <1% <1% Resources 33% 79% Procurement

Employment, Industrial 35% 30% FOI & Privacy 44% 28% and Equal Opportunity General Commercial 6% 21% General litigation Area 20% 26%

Planning & Environment 7% 7% VGSO exclusive Area matters 38% 41% VGSO Exclusive 57% 54%

21 Data for the period 1 July 2015 to 29 February 2016 is not available from the LPG.

13 New Panel Structure and Composition

14 Previous Legal Services Panel

14.1 Panel Types – Areas of Law

General Panel Freedom Of Information and Privacy Specialist Panel  Administrative Law  FOI  Employment Law  Privacy  Commercial Law  Confidentiality  Litigation  Access to government records and information Commercial Projects Panel Intellectual Property & Technology Law Specialist  Infrastructure Panel  Construction and Project Management  Copyright, Trademarks, Patents and Design  Joint ventures and Private/Public Law Partnerships  IT Software licences and contracts  Strategic Sourcing  E-Commerce  Banking & Finance  Brand Protection  Public Sector concessions and Franchising  Data Protection  Biotechnology Property Specialist Panel Resources Specialist Panel  Real Property & Conveyancing  Energy, Water and Environmental Law  Leases and Licences  Climate Change and Emissions Trading  Crown Land  Planning  Primary Industries  Compulsory Acquisition  Mining, Extractive, Petroleum and  Pollution Control Geothermal Energy  Social Housing  Site Re-development Personal Injury Specialist Panel Prosecutions Specialist Panel  Compensation and damages for Personal  Statutory offences Injury Coronial Inquests Specialist Panel  Acting for clients before coronial Inquests  Assisting the Coroners Court

14.2 Previous Panel Structure and Composition

Commercial Personal Coronial FOI & PANEL FIRM General Property IP & IT Prosecutions Resources Projects Injury Inquests Privacy

Allens

Baker & McKenzie

Ashurst Australia

Clayton Utz

Corrs Chambers Westgarth

Norton Rose Fulbright

DLA Piper Australia

FAL Lawyers

FOI Solutions

Herbert Smith Freehills

Meridian Lawyers

Thomson Geer

Holding Redlich

Lander & Rogers

Maddocks

K&L Gates

Minter Ellison

Moray & Agnew

Rigby Cooke

Russell Kennedy

Green denotes firms providing legal services on the two main Panels (General Panel and Commercial Projects) and some specialist sub-panels. Blue denotes firms only on the specialist sub-panels.

14.3

15 Transactional Guidelines for Government Clients (Note, these guidelines also apply to the procurement of VGSO work)

1. The LSP offer agencies a choice between the following procurement processes: a. Adoption of the guidelines in these Transactional Guidelines (representing the minimum threshold requirement), or b. Where client agencies’ internal quote and tender thresholds are equal to or lower than those used in this guideline, use of clients’ internal procurement policies, or c. Use of another procurement mechanism which demonstrates value for money, where this is approved by DJR. 2. A department or agency must advise the contract manager of which of the options in paragraph (1) it will be using. 3. The default procurement guideline will require: a. One written quote to be sought and obtained for work estimated to be likely to cost less than $50,000; b. Three written quotes to be sought and obtained for work estimated to be likely to cost between $50,000 and $200,000; and c. An invitation to all firms for the relevant Area of Law to tender for work estimated to cost more than $200,000. 4. Subject to demonstrating value for money, an Agency Contract Manager may waive requirements if a particular procurement is: a. urgent (eg. certain types of litigation); or b. unusually sensitive; or c. is linked to previous work undertaken by a particular firm; or d. requires particular, highly specialised expertise not otherwise available on the panel; or e. raises conflict of interest issues that restrict the number of firms on the Panel that are available to undertake the work. 5. Departments and agencies are expected to make a realistic estimate of the likely costs of a matter in deciding what procurement process to follow but should not need to follow any additional process if a threshold is exceeded during the course of a matter.