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President of the Law Council discusses the Marks Royal Commission

ELIZABETH JACKSON: The issue of Health Minister Carmen Lawrence's legal fees has become a subject of major controversy - only marginally less heated, I suppose, than the Marks Royal Commission itself. I know one of the arguments doing the rounds in politics is why should taxpayers pick up the bill when there's a need for more funds for legal aid assistance? That part of the debate, at least, seems to have found some more backing today by the Law Council of Australia. The Council's president is Michael Phelps; he joins us now.

What does the Council think of the proposed establishment of a trust to raise funds for Dr Lawrence's fees?

MICHAEL PHELPS: I think that's really a matter for the Government or the Labor Party if it wishes to do that. But it seems to me that it may be prudent for Government if taxpayers are to meet any component of the Minister's legal expenses that there should be some guidelines established as to the basis upon which those expenses will be funded.

ELIZABETH JACKSON: Does the Council have a view about whether or not it's appropriate for taxpayers to meet these expenses?

MICHAEL PHELPS: That really is a decision by the Government, it seems to me. It's been debated in the Parliament and, as we know, the Senate rejected that component of the Bill that related to the challenge of the Royal Commission. The Parliament agreed to meet the expenses of Carmen Lawrence relating to the royal commission itself, but the court challenge to the establishment commission of course was the component of the fees which the ALP is now seeking to raise separately.

ELIZABETH JACKSON: And was that an appropriate decision for them to take, according to the Council?

MICHAEL PHELPS: Well, I mean, the establishment of royal commissions is established by the executive arm of the government and to that extent it is political. I suppose it's even more political when the royal commission is going to inquire into the conduct of a politician. But, as I say, I think if the commission arises and the conduct of the Minister in the course of her duties, then it's probably appropriate that the Government should meet the proper expenses of that commission.

ELIZABETH JACKSON: Does it irk you that the taxpayer, it looks anyway as though the taxpayer is going to be up for a really hefty bill because of all of this, when ordinary average Australians really struggle to get any legal aid assistance? Is that the nut of the problem?

MICHAEL PHELPS: I think the problem is that the community, I think broadly in the community it's not recognised, the plight of the legal aid situation at the moment and the inadequacy of the funding. We are now at levels of funding whereby you'd have to have an injection of something like $50 million into the legal aid budget to bring it up to what it was in 1988-89. And, I mean, the real concern is that the only people that are qualified for legal aid essentially are those on social security or some other form of pension. And the vast majority of Australians are just totally excluded from it.

ELIZABETH JACKSON: Are you saying, then, that our priorities are all wrong?

MICHAEL PHELPS: It's not just ... I mean, in terms of priorities for government there doesn't appear to be any votes in adequately resourcing legal aid and until such time as the community prioritises that and makes the funding of legal aid in the same category as supply, delivery of medical services and education funding, then sadly I don't think we're going to see proper levels of funding by governments to it. There don't appear to be any votes in it, sadly.

ELIZABETH JACKSON: Michael Phelps, I'd be interested to hear whether or not you and your council have a view on Paul Keating's continued personal attack on Commissioner Kenneth Marks - the hired gun, as he likes to call him.

MICHAEL PHELPS: Well, I think it's legitimate for a government to criticise the establishment of a royal commission and the process as to why it was established. I think that's totally legitimate if there is some perceived political motivation for it - and, as I mentioned earlier, can be said to be perceived to the extent that was set up by government.

However, I don't think it serves any particularly useful purpose and doesn't bring any great credit on a government or the office of prime minister to actually attack the individual, the commissioner. That's not to say that judges and others aren't subject to criticism, both constructive or otherwise. And we see that often in the media, whereby judicial decisions will be criticised.

However, in this particular case I've not seen any criticism of the basis of the findings by the Royal Commission. There doesn't appear to be any criticism of the findings in the light of the evidence before the royal commission. It's very much a personal attack upon the commissioner himself. And I think when we talk about we need the independent judiciary being absolutely fundamental to our democracy, I think it is a matter of great concern that a prime minister is prepared to publicly question the integrity and impartiality of the Royal Commission.

ELIZABETH JACKSON: Yes. Just how much of a concern is that, the independence of the executive and the judiciary?

MICHAEL PHELPS: It underpins our whole democratic process and our whole society. Now, as I said, it's not to say that the judiciary is beyond criticism but it serves no useful purpose to attack the individual, it seems to me.

ELIZABETH JACKSON: In that sense do you think the Prime Minister's personal attack on Kenneth Marks does, to some extent, undermine our democratic set-up here in Australia?

MICHAEL PHELPS: It does indeed, and we've seen instances of it, too, in Victoria where increasingly there have been measures down there which do undermine the intents of the judiciary and the separation of the powers, and I think that's a retrograde step. I think federally, in terms of the Prime Minister's attack, I think you can just attribute it to the political pressure under which he was at the time in Parliament. And, hopefully, there won't be any repeat of it.

ELIZABETH JACKSON: It's been fairly ongoing, though, hasn't it? It hasn't seemed to ease up much.

MICHAEL PHELPS: We're in election climate, no doubt, it's in response to that. But I don't think that's any excuse and I think it's sad that the outburst did occur. It also occurred at the time the commission was established. There was a personal attack on the commissioner at that point in time, too. And hopefully we won't see any more of those personal type attacks.

ELIZABETH JACKSON: Do you believe that the authority, and perhaps the value of royal commissions has been seriously devalued by the whole affair?

MICHAEL PHELPS: The royal commissions have an important place to play in our society and you look at the role of the royal commission in New South Wales, for instance, into the police corruption, an absolutely critical role in our way of life and trying to get to the bottom of particular issues of community concern. In respect of the Marks Royal Commission, because of the nature of it, I suppose, politically, it was going to be attacked by the side of politics into whose conduct they were looking at.

ELIZABETH JACKSON: Michael Phelps, it's been fascinating talking to you. Thank you very much for joining us this morning. Michael Phelps is the President of the Law Council of Australia, joining us this morning with some rather scathing words for the Prime Minister and his attack on Justice Kenneth Marks.