Plain English and the Law: the 1987 Report Republished (html)

1. Introduction

Reference

1 On 10 September 1985, the Attorney-General, the Hon J H Kennan MLC, gave the Commission a reference dealing with the language used in legislation, legal documents and government forms. The reference followed a Ministerial Statement by the Attorney-General, Plain English Legislation, on 7 May 1985.^[3] In that statement, the Attorney-General referred to a number of developments concerning plain English. These included the publication in 1978 by the then Government of Plain English, a short guide aimed at improving expression in government documents. The Attorney-General then announced a number of changes to the format of Acts of Parliament. These included:

• abandonment of long titles

• insertion of a statement of purposes or objects

• simplification of the formal enacting words

• removal of archaisms, including reference to regnal years

• abandonment of unnecessary qualifications, such as ‘In this Act’; ‘notwithstanding anything in this Act’; and ‘subject to this Act’.

The Attorney-General continued:

What needs to happen now is to have a process whereby Parliamentary Counsel draft Bills and legislation officers draft subordinate legislation from the outset in plain English. This requires a radical departure from tradition and a break with the thinking of the past. It requires imagination, a spirit of adventure and a boldness not normally associated with the practice of law or with the drafting of legislation or subordinate legislation.^[4]

Work on the reference

Secondment of Professor Eagleson

2 The Commission’s work on the reference was facilitated by the secondment of Professor Robert Eagleson from the Department of English at the University of Sydney to the Attorney-General’s Department and by his appointment as a part-time member of the Commission for a year from 1 January 1986. The Chairperson appointed Professor Eagleson as Commissioner in charge of the reference. In that capacity, Professor Eagleson assisted the Attorney-General’s Department and the Historic Buildings Council to redraft important documents. Professor Eagleson assisted a number of other bodies with advice on plain English. He collaborated with the Office of Chief Parliamentary Counsel in the drafting of several Bills and gave a number of seminars to members of that Office on

plain English drafting. He also assisted the Department of Planning and Environment in redrafting its Planning Scheme Ordinance under the Melbourne and Metropolitan Planning Scheme.

Discussion paper

3 On 3 September 1986, the Commission published a discussion paper dealing with most aspects of the reference. Copies were sent to all members of parliament, all judges, all heads of government departments and all parliamentary counsel in Australia. They were also sent to all magistrates, all members of the Law Institute and all barristers in Victoria. The discussion paper identified a series of problems with present drafting styles and made a number of proposals for implementing a plain English policy in the Office of Chief Parliamentary Counsel and in the public service. Seminars were held in October 1986 with members of the Law Institute and with members of the Bar Council to discuss the Commission’s findings and proposals. The document was also discussed at meetings of chief administrators, subordinate legislation officers, instructing officers, and officers of Chief Parliamentary Counsel’s Office. Apart from these seminars and meetings, written submissions were received from numerous individuals and bodies, including ministers, judges, lawyers and public servants. Special mention should be made of the valuable submissions received from the First Parliamentary Counsel of the Commonwealth and from chief parliamentary counsel in Victoria, New South Wales, South Australia and Queensland. The Commission expresses its gratitude to all those, including its consultants, who made submissions or contributed to discussions.

Other developments

Commonwealth initiatives

4 Moves towards the adoption of plain English by government are not restricted to Victoria. The Commonwealth Government took important steps in 1983 and 1984. A number of tax and social security forms have been rewritten as have documents produced by the Electoral Commission, the Human Rights Commission and the Department of Health. Documents used in internal government communications have also been rewritten. Plain English has been adopted by the Opposition and its Policies on Business^[5] acknowledges the value of plain English in the context of an overall policy of business deregulation. It commits the Opposition to plain English in both legislation and legal documents.

Statements in state parliaments

South Australia

5 On 21 August 1986, Mr D Ferguson, the Member for Henley Beach in the South Australian House of Assembly, moved:

that this House supports the encouragement of the use of plain language in legislation, legal documents and Government forms.^[6]

Mr Ferguson referred to developments in Victoria and emphasised the benefits to the community and to government which would flow from the adoption of a plain English policy. He noted that the Commissioner for Consumer Affairs had criticised official documents in his last two annual reports. He also noted that the Motor Registration Division had redesigned a number of its forms with the assistance of members of the English Department of Flinders University.^[7]

Tasmania

6 On 16 September 1986, Mr M Weldon, the member for Braddon in the Tasmanian House of Assembly, drew attention to the Commission’s discussion paper in expressing the hope that the Government would give consideration to requiring a simpler drafting form:

Parliamentary draftspeople are operating in a system they believe they are familiar with and have been for some time. I am suggesting that the time has come when the parliamentary draftspeople, legislators and the public generally should be able to read and understand legislation in plain English. I recommend to the Government that it give due consideration to this [discussion paper] from the Law Reform Commission of Victoria and that it also take up some of the other drafting technique references which exist.^[8]

Recent endorsements

Federal Government

7 Two other recent endorsements of plain English drafting should be noted. First, on

9 January 1987, the Minister for Industry, Technology and Commerce (Senator Button) issued a news release announcing the Commonwealth Government’s strengthened commitment to the review of business regulation. In the course of his statement, the Minister announced that:

The Government has also committed itself to a policy of, as far as possible, expressing laws and regulations in simple English. That is in ways that can readily be understood by those affected. This requires that—

• definitions will be set out at the front of the legislation

• sections will be expressed in short sentences

• jargon and legalese will be avoided wherever possible.

New South Wales

8 Secondly, in January 1987, the Select Committee of the Legislative Assembly of the New South Wales Parliament on Small Business delivered its report Business Regulation and Licensing. That report referred to and quoted from the Commission’s discussion paper.^[9]

It referred to the Commission’s view that plain English need not lead to a lack of accuracy and precision in legislation.^[10] It concluded that a plain English style should be adopted in relation to all legislation regulating business:

In drafting regulations, the Parliamentary Counsel’s Office should, as far as possible, simplify the wording of regulations by using ‘plain English’ to facilitate the understanding of regulatory requirements by those organisations which are required to comply with them. The plain English policy must be implemented in an appropriate manner to ensure that legal clarity is not jeopardised, and legal loopholes are not created.

Structure of report

9 The report is divided into 8 chapters. Chapter 2 deals with existing legal language. It notes the criticisms which have been made of that language and analyses the reasons why legal drafting is so obscure. Chapter 3 contains the results of the Commission’s survey of recent legislation. It comments on the language and organisational defects found in that legislation. Chapter 4 examines the nature of plain English and the objections made to its use in the law. Chapter 5 discusses the benefits which would flow from using plain English in Government legal documents, in particular. Chapters 6, 7 and 8 discuss implementation of the Government’s plain English policy: chapter 6 examines ways of improving legal drafting; chapter 7 proposes changes to the form of Acts and regulations; chapter 8 deals with the rewriting of existing legislation and Government forms.

Appendices to report

Manual and Takeovers Code

10 Attached to this report* are 5 appendices of particular significance. The first is a Drafting Manual prepared by Professor Eagleson with the assistance of officers of the Commission. The Manual is not concerned with technical matters peculiar to legislative drafting. Instead, it concentrates on issues of language and communication. It provides detailed guidance on how to avoid obscurity and unnecessary obstacles to comprehension. It is designed for use by those who draft legislation and related forms and documents. The second appendix is a plain English version of the Companies (Acquisition of Shares) (Victoria) Code (the Takeovers Code). This document demonstrates that legislation can be written in plain English, even when it deals with a difficult and complex subject. Initial drafts of the plain English version were prepared by the Commission and refined and improved with the critical advice and assistance of a number of people.^[11] The final version was prepared after wider consultation at meetings of lawyers and regulators in Melbourne and Sydney.

Legal documents

11 The third, fourth and fifth appendices contain examples of government documents and private legal documents redrafted in plain English. The government documents are the Summons and Information used for both summary and indictable offences and the Covenant and Agreement under sections 41 and 47 of the Historic Buildings Act 1981 (Vic). The private document is the Law Institute’s form for a mortgage over business. The plain English summons form was developed by Professor Eagleson with assistance from a number of officers of the Attorney-General’s Department and the Ministry of Police and Emergency Services.^[12] The summons will come into use on 1 January 1988. The plain English form combining the original covenant and agreement under the Historic Buildings Act 1981 was prepared by the Commission with the assistance of a number of officers from the Ministry of Planning and Environment, the Attorney General’s Department and the Department of Property and Services.^[13] It is already in use. The Law Institute’s mortgage over business document was redrafted at the request of the Law Institute and with considerable assistance from its members.^[14] It has been submitted to the Institute for its consideration.

Context of criticisms

12 Drafting legislation and other documents is no simple task. The drafting of legislation, in particular, requires knowledge of the law, facility with language and a good understanding of policy making and parliamentary processes. Above all, it requires intellectual rigour. The work done by parliamentary counsel is of critical importance to the Government and the legal profession. The traditional drafting style detracts from its value by placing unnecessary obstacles in the way of the various audiences of legislation. Parliamentary counsel themselves recognise that the present drafting style could be improved. As Chief Parliamentary Counsel for Western Australia has said:

Statute books contain at the present time much that is unsatisfactory and much that is difficult to understand. The need to communicate appears not infrequently to have been overlooked· … [I]t is very clear that drafting techniques have a long way to go before they satisfy all those who have a right to be satisfied with the state of written laws. There is, I think, an acknowledged obligation to take stock of contemporary drafting practices and to improve legislative drafting where this is seen to be possible.^[15]

13 Since the Attorney-General’s Ministerial Statement, the Office of Chief Parliamentary Counsel has been developing a simpler drafting style. Notable achievements include the Supreme Court Act 1986 and the Planning and Environment Act 1987 (Vic). In the course of this report, the Commission concentrates not upon those achievements but on defects in the traditional style. It does so in order to analyse the source of the difficulties and to demonstrate how those difficulties could be resolved. The criticisms which it makes are intended to be constructive. They are not aimed at disparaging those who drafted the documents or at calling in question their undoubted professionalism. Indeed, it would be quite wrong to assume that the defects in drafting are the sole responsibility of the drafters. There are many factors, historical and other, which have contributed to the present drafting style. In relation to legislative drafting, several submissions pointed to the fact that instructing officers themselves are often wedded to a drafting style. In some cases, they strongly resist a simpler method of exposition, particularly if it involves a reduction in detail and a greater emphasis on statements of principle. The Commission’s criticisms are directed at the style of legislation and of other legal documents, not at those who have been trained to use it. They are aimed at assisting drafters to recognise the defects and to assist in making the law and legal documents more readily comprehensible and intelligible to a much wider audience.

3. Hansard, Legislative Council, 1985, 432.

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4. Hansard, 437.

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5. Adelaide, September 1986.

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6. Hansard, House of Assembly, 1986, 532.

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7. Hansard, House of Assembly, 28 August 1986, 756.

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8. Hansard, House of Assembly, 1986, 2508.

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9. Paragraph 4.4.10.

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10. Paragraph 4.5.8.

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11. * The appendices were printed separately and are not included in this edition.

    These included Mr Bruce Cameron of Gledhill Burridge & Cathro; Ms Marina Darling of Corrs Pavey Whiting & Byrne; Mr Mark Dickens, then General Counsel to the National Companies & Securities Commission; Mr Mark Dreyfus, then Ministerial Adviser to the Attorney-General; Mr John Ewens, CMG, CBE, QC, former First Parliamentary Counsel of the Commonwealth; Professor Harold Ford, Chairman, Companies & Securities Law Review Committee; Ms Eve Grimm of the Law Institute; Mr Peter lckeringill of Mallesons Stephen Jaques; Mr Ian Jamieson, Corporate Affairs Commission; Mr Peter Marks of Mcintosh Hamson Hoare Govett Ltd; Mr Leigh Masel, a part time member of the Commission, and former first Chairman of the National Companies & Securities Commission; and Mr Ian Renard of Arthur Robinson & Hedderwicks. Mr Renard was briefed to assist in settling the final draft.

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12. These included Mr D Hourigan, Deputy Secretary, Courts Management Division, Attorney General’s Department; Ms M Ardlie, Mr G Brooks, Mr R de Saram, Mr J Ferguson, Mr SMackie and Mr T Wilson of the Attorney-General’s Department; and Inspector P. McDonald of the Ministry of Police and Emergency Services.

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13. These included Mr J Delves, Deputy Registrar of Titles; Mr T Falkiner, then from the Department of Planning and Environment; Mr David Gray, Ministerial Adviser to the Minister for Planning and Environment; Mr Ray Harman from the Crown Solicitor’s Office; and Mr Boyce Pizzey and Mr David Syme from the Historic Buildings Council.

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14. Among those who assisted were Mr David Burridge of Gledhill Burridge & Cathro; Mr Campbell Johnston of Blake & Riggall; and Ms Kathy Walter of Clayton Utz.

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15. G C Thornton, Legislative Drafting, 3rd ed, Butterworths, London, 1987, vii.

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