Legal Eagles

Legal Eagle “Falconer” Edition No 1: Dr Jeffrey Barnes

Dear Friends,

With the festive season fast approaching the LSA felt it fitting to provide you with a very special edition of the Legal Eagle publication.

Over the coming months we’ll be working hard to bring you a range of interviews with academics from the La Trobe Law School. And who better to kick things off than Dr. Jeffrey Barnes, La Trobe’s resident statutory interpretation expert. It gives the LSA great pleasure to give you our first Legal Eagle ‘Staff Festive Season Edition’.

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1. So, you have had a range of diverse experiences in the legal profession, ranging from acting as an Associate to Justice Michael Kirby to working as a legislative drafter with the Parliamentary Counsel’s Office of New South Wales. And of course, as a distinguished member of the La Trobe academic staff. Can you tell us about where you started and how you ended up where you are today?

 

I started as a Legal Officer with the Parliamentary Counsel’s Office of NSW three weeks after finishing law school at UNSW. I had no background in drafting but fortunately passed a test administered by the office.

How did I end at La Trobe?  While at University, I decided I wanted to ‘see the world of law’ before applying for an academic position. I did not deliberately stay in jobs a short time, but the nature of my jobs tended to make them short-term or part-time. This facilitated my ‘see the world’ objective. As mentioned, I started out as a legislative drafter. During this time, I got admitted to the Bar and worked part-time (moonlighting) as a law reporter for the Australian Law Reports (this continued for several years). After a period at parliamentary counsel I grew restless and moved across to the Law Reform Commission. First as Associate to Justice Kirby for a fixed term of 15 months. Then as a Law Reform Officer (part-time) to finish off reports in child welfare and privacy I had been working on while his Associate.

After a period studying at the College of Law I went to work as a solicitor with Stephen Jacques Stone James (who later became absorbed into Mallesons) for a short period. Again that period was contracted because I shortly planned to do the big overseas trip. But an opportunity came up in Canberra with the Administrative Review Council (my pet area was administrative law and these were the early exciting years of the new administrative law). Despite the solicitor’s office putting a gold plaque with my name on my door I moved to Canberra for a fixed 2-year contract as a Project Officer, to work on a research project on merits review. During that time, I completed a Masters Degree in Public Law (part-time).  At ANU I made a good acquaintance with a lot of very fine public lawyers, including Dennis Pearce, John McMillan, Geoffrey de Q Walker, and Peter Bayne. After that contract ended, I finally got my big overseas trip. While in London, I received a call from a former teacher of mine at the University of NSW, the late Robert Hayes. He said, can you fill in for me at the University of New South Wales? I said ‘yes’ (it was part of my original plan, remember). That was initially a fixed term 1 year of lecturing and tutoring in Legal System/Torts, but was extended a further fixed term year. So in the end I kind of fell into academia. At the UNSW I met someone who had been to, and said lots of good things about, Monash University and he said, why don’t you apply to Monash as they have great opportunities for tutors? I did apply, and my law reform writing was crucial in the appointment. After several years there I moved across to La Trobe. This turned out to be a very good decision.

While at La Trobe I have continued to dabble in various things legal, including a time as a Member of the Social Security Appeals Tribunal (now absorbed into the AAT). With the support of the School, the Centre for Legislation, Its Interpretation and Drafting is my latest expedition in the law.

2. Anyone who has attended one of your lectures can see how passionate you are about the law and statutory interpretation. What makes you so passionate about statutory interpretation?

 

It’s hard to say why one is passionate about something. It’s kind of innate. But it helps to have confidence that what you saying is correct and that what you are talking about is important for students. Statutory interpretation keys into the whole body of law. Obviously my background as a legislative drafter is a factor, especially as it was my first legal experience. The subject matter, which is extremely varied and intellectually challenging, is another factor. As the subject is new, that is a factor too. And of course, I enjoy law teaching.

3. Did you always have a clear picture of where you wanted to work when you started your legal career?

 

Only at a general level. As mentioned above I developed a broad picture of where I wanted to go while at law school: I want to be an academic, because I like teaching and research, but only after several years of legal experience including holding responsible positions in the law. So I wanted to see the law in operation first, and then pursue an academic career later. Remarkably, that is how it has worked out. However, in those early days I did not at all foresee or plan the particular path in the law!

 

4. What was it like to work as an associate to Justice Kirby? Are there any memorable moments that stand out?

 

I should point out that I was his associate at the Australian Law Reform Commission (then simply called the Law Reform Commission). There are lots of memorable moments. One day I did research on the band Kiss because they had arrived in Australia and his Honour wanted to work what the band was doing into one of his many speeches.

Seeing how his Honour worked also made an indelible impression. He would write speeches this way. He would turn a blank page to landscape and with a black nib pen draw a tree diagram of the structure of the speech. Drawing on the structure, he would then dictate the speech into a microphone for his Secretary to type up and me to proof read.  He had a huge room and each speech had a pile of papers. He would draw on the pile as he went. Some years later as a junior academic at the University of NSW I suddenly began using tree diagrams to outline the elements of Torts. It then became a habit. In Administrative Law at La Trobe I have put an outline of each lecture on the whiteboard, with the neat result that the whole subject is mapped by the end of it. (But only if you attend.) I also like to use diagrams in statutory interpretation. The Glazebrook spiral model can easily be represented diagrammatically of course.

5. There’s a great quote about making laws and sausages, but for students who may be interested in a career in policy or legislative drafting, what advice would you give to them?

 

Don’t be deterred by the quotation attributed to Bismarck likening the legislative process to sausage-making. The legislative process is highly satisfying if you are that way inclined. One of the great things about law is that there are so many levels to approach it. If you are interested, find out the possible places and write to them expressing interest in any position that suits your background and experience. One of our graduates, who had done my elective, Legal Change, Legislation and Law Reform got a summer research position with the Office of the Chief Parliamentary Counsel of Victoria straight after finishing law school and not long later, after a short stint in legal practice, was successfully appointed to the OCPC. He is still there and you have probably been studying his statutes!

6. What is your proudest achievement?

 

On the day of my graduation for my La Trobe doctorate a lot of my former students were being awarded their Bachelor of Laws. I shall not forget the support and recognition I received from the graduands and my family on that day.

7. You have been widely praised for your statutory interpretation problems. Can you talk us through the process of creating one of these intricate law puzzles?

 

I did not know I had been widely praised! This is news to me. The kind of feedback I usually get is a kind of grudging admiration – how do you do make them so crafty? I will answer this question in a way that does not give the game away. First, I choose legislation (a) that will be interesting to students (b) with subject matter that is accessible (c) that has not been interpreted in the courts or relevantly interpreted in the courts (d) that is reasonably complex. I usually supplement the exercise with cases. It helps to realise that legislation is often a compromise. So I often look for tensions in the legislation where competing values and policies underlie the legislative ‘solution’. These ‘fissures’ will be good fodder for problems. The 2015 end-of-semester assignment was a good example of that. The government had provided a scheme of compensation for police torts but had merely specified that the Minister must pay an ‘amount’ in s 79(2) of the Victoria Police Act 2013 (Vic):


 

79              Payments by the State if police or protective services officer liable

(1)                  This section applies if, on a police tort claim, a person (the claimant) is awarded damages against a police officer or protective services officer in respect of a police tort committed by the officer.

(2)                  The Minister, on behalf of the State, must pay an amount to the claimant, not exceeding the amount of damages and any costs ordered to be paid to the claimant, if the Minister is satisfied that—

(a)                  the claimant is unlikely to recover the amount from the officer who committed the police tort; and

(b)                  the claimant has exhausted all other avenues to recover the amount.

Example

The amount may be recoverable by the claimant from a co-defendant or an insurer.


 

Note also the uncertainty about what are ‘other avenues’ in s 79(2)(b). The Example gives some guidance (this is a plus for an examiner who wants to encourage the students to read in context). All an examiner then has to do is choose a reasonably borderline avenue other than the ones mentioned in the Example.

I perhaps make it sound easier than it is. You have to look very carefully at the legislation and hope that scenarios pop into your head. You have to filter the ideas until you are happy with the problems. You have to test them with model answers.

8. What are your top 3 favourite movies of all time?

 

  • Chariots of Fire (for the sporting heroism)
  • Evil Angels (for its legal themes)
  • Pride and Prejudice (the BBC version is the best. I am a great fan of Jane Austen).

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