The never-ending challenge of drafting and interpreting statutes - a meditation on the career of John Finemore QC.

• Jurisdiction: Australia
• Author: Kirby, Michael
• Date: 01 April 2012

[In this article, the author describes the life of John Finemore QC, who rose to be Chief Parliamentary Counsel of Victoria (1965-84) in a period of unprecedented growth in the statute book. He explains the special qualities required of a legislative drafter, viewed from his encounters with them in institutional law reform. He then identifies several notable federal exemplars of the art. Drafters are, in a sense, the first lawyers who interpret the legislative text that they propound, doing so in the course of their drafting. The article proceeds to describe the shift in interpretation in Australia from an exclusively textual approach towards an increasing emphasis on the context and purpose of the language. Still, the author suggests, the text retains primacy because of the special legitimacy it enjoys in the political theory of electoral democracy. This proposition is illustrated by reference to the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v B. Finally, the article examines the terms ors 15AA of the Acts Interpretation Act 1901 (Cth), as amended in 2011. It concludes that the amended section does not 'swamp' the operation of other interpretative rules. It clarifies the operation of a statutory provision that itself reinforces the common law trend towards a purposive interpretation of enacted words, so long as those words permit that approach.]

CONTENTS I John Finemore, Legislative Drafter II Federal Parliamentary Counsel III Statutory Interpretation: The Big Shift IV A 2011 Amendment V Fashion and Change in Statutory Interpretation [ILLUSTRATION OMITTED]

I JOHN FINEMORE, LEGISLATIVE DRAFTER

John Charles Finemore was one of those rarae ayes whom most lawyers take for granted. His impact upon law, especially the law expressed in the statute books of Victoria, was considerable. My object is to pay a tribute to him and to others of his calling. As well, it is to explain the ways in which a gifted drafter of legislation contributes to the rule of law; to the task of judges and lawyers who translate text into action; and to the challenge of interpretation, when uncertainties as to meaning arise. In a sense, the drafter of legislation, as of other forms of the written law, is the first interpreter of the text. (1) It is the drafter who first looks at the text, ponders upon its meanings and hypothesises about the potential ambiguities that must, as far as possible, be eliminated if the will of the lawmaker is to be given effect.

John Finemore became the head of the Office of the Chief Parliamentary Counsel in Victoria. That position was first created in 1879, in colonial times. Earlier, it had been normal to engage members of the private Bar to draft statutes. However, as Victoria became more prosperous and the statutes more numerous and substantial, a full-time draftsman was recruited. From the first, the office-holder was a distinguished and respected lawyer, with interests in, and talents for, legal drafting.

Drafting public laws is a special vocation within the profession of the law. It requires particular mental capacities. They include viewing the subject matter of the proposed legislation as a conceptual whole; expressing the proposed rules conformably with the constitution and the instructions of the government or other proponent; grafting the intended new law onto an already large and complex body of statute law; attending to inconsistent statutory provisions needing to be repealed or modified; and doing all this with clarity and brevity, and generally with great speed, essential to accommodate the urgencies of the parliamentary timetable. John Finemore manifested all of these capacities in rare combination.

He was born on 19 March 1924 in Melbourne. He attended St Patrick's College in East Melbourne and the University of Melbourne where, in 1940, he began his studies towards the bachelor's degree in law. Also in 1940, at the age of 17, he joined the Crown Law Department in Melbourne, in whose service he was to remain for 44 years.

In 1942, with Australia at war, John Finemore volunteered for military service in the Australian Special Wireless Group, with whom he served as a signalman. He was demobilised in 1946 and returned to Crown Law and to the University to complete his part-time LLB studies. By 1955, he had risen to the rank of Second Assistant Parliamentary Draftsman under the head of the office, Andrew Garran, son of the great Commonwealth lawyer Sir Robert Garran who had served as the first Secretary of the federal Attorney-General's Department. Thus began John Finemore's daily acquaintance with the constitutions of the Commonwealth and of the State of Victoria, of the provisions of both of which Victorian drafters had to be cognisant, so as to avoid the ever-present danger of constitutional invalidity. (2) This was a challenge that Finemore accepted with enthusiasm and met with much success.

In 1965, he was elevated to be First Assistant Parliamentary Draftsman of Victoria. Upon the unexpected death of the head of the office later that year, he was appointed by the Bolte government to be Chief Parliamentary Counsel of Victoria. The honours appropriate to that office duly followed. Several of his predecessors, in earlier times, had been knighted. Virtually all of them had been appointed King's Counsel or Queen's Counsel, as applicable. So was Finemore in 1970. In 1974, he received a civic distinction, common for senior public servants in those days, by his appointment as an Officer of the Order of the British Empire (OBE). It was at this point that our lives intersected.

In 1975, following my appointment as the inaugural chairman of the Australian Law Reform Commission ('ALRC'), I met John Finemore for the first time. It happened in the earliest days of the ALRC and on one of my regular visits to Melbourne. Although he was always professional and impeccably courteous, Finemore never disguised his deep suspicions about a professional law reformer; his particular anxiety about a federal office-holder with that function; and his especial cautions about such an office-holder appointed by the Whitlam government. Those were difficult days for federal-state relations in Australia. Understandably perhaps, with an energetic and inventive federal government, the states, and their officials, were suspicious about of the ever-expanding tide of federal legislation, intruding into areas that, up to that time, had been regarded in the Australian federation as sacrosanct territory of the 'sovereign states'. Years later on the High Court of Australia, in New South Wales v Commonwealth ('Work Choices Case'), I remembered John Finemore as I wrote my dissenting opinion, with its defence of the federal idea that lies at the heart of our Constitution. (3) In fundamentals, John Finemore and I probably had more values in common than either of us suspected at the time.

In 1980, Finemore joined the Faculty of Law in the University of Melbourne and he served on that body until 1987. In 1984, he stood down from his post as chief legislative drafter, commencing service in the following year as Chief Executive Officer of the Council of the Australian Constitutional Convention. This was a body set up to review the Constitution and to propose and facilitate any amendments deemed necessary and desirable. Remarkably enough, notwithstanding the labours of that body, no formal constitutional change has occurred in Australia since the amendments last adopted in May 1977, which provided for the appointment of Senators of the same party as those elected who die in office or resign; (4) allowed territory residents to vote in federal elections and referendums; (5) provided for the compulsory retirement of High Court judges; and for the end of the life tenure of federal judges. (6) I supported, and voted for, all of these changes, including the last, which I supported on the ground that it secured generational change in the composition of the federal judicature--the third branch of the national government.

Following his retirement as Chief Parliamentary Counsel, Finemore continued his public activities as a member of the Victorian Law Foundation and as a director of several companies, including Union Fidelity Trustee Co of Australia Ltd. In 1985, his public service was further recognised by his being appointed an Officer of the Order of Australia. The following year his wife, Margaret Finemore, died. With her, he had three sons and five daughters. He himself died in 1996 at the age of 72 years--a very young age, being my own at the time of this lecture. He was a lifelong pipe smoker and became known to his grandchildren as 'Tobacco'.

In 1998, the Victorian Department of Justice created an award in honour of John Finemore that was continued under successive Attorneys-General of differing political stripes. This memorial lecture was inaugurated in 2010. The first was delivered by Sir Daryl Dawson, who was serving on the High Court of Australia at the time of my appointment in 1996. Sir Daryl spoke on a subject and with a viewpoint that would have delighted Finemore: 'The Increasing Extent of Commonwealth Power'. This was a phenomenon that Justice Dawson, like Finemore, regarded with steadfast resistance.

Fortunate was Victoria to have in its service John Finemore as its Chief Parliamentary Counsel. The work of parliamentary counsel has been likened to that of an artist, holding up the mirror to reality and producing at best an imperfect reflection in the text of the intended law. Finemore's drafts were as good as they get in Australia. Ahead of his time, he was always a strong supporter of the recruitment of women and of their advancement in the service. Finemore's immediate successor in office in 1984 was Rowena Armstrong QC, the first woman to be employed as Parliamentary Counsel in Victoria and the first woman to be elevated to be Chief Parliamentary Counsel. His current...