The Never-Ending Challenge of Drafting and Interpreting Statutes - a Meditation on the Career of John Finemore QC
Kirby, Michael, Melbourne University Law Review
[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
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. …