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

3. Survey of legislation

32 Isolated complaints about legal language do not establish the existence of a general problem. To assess how widespread the problem is, the Commission made a special study of Acts passed by the Victorian Parliament during 1985 and 1986. It also made a study of some recent Commonwealth legislation. This examination confirmed that the defects alleged to exist in legal language appear frequently in legislation. There are two main types: defects in language and defects in organisation. The problems are described in the following paragraphs. Examples are given from the relevant statutes. In some cases, additional examples are given from other Victorian or Commonwealth legislation.

Language problems

33 Many of the problems for comprehension posed by legislation arise from a failure to observe a number of basic rules about language and communication. These rules are well known and not difficult to observe. Many of them were referred to in the discussion paper. They are set out in greater detail in the Drafting Manual in Appendix 1.* The following paragraphs deal only with three recurring problems which give rise to grave difficulty for readers—sentence length, the creation of unnecessary concepts, and a failure to state underlying principles.

Length of sentences

Example 1

34 It has long been recognised that long sentences present a considerable obstacle to understanding a document.^[43] Long sentences abound in legislation. The following example is from section 128 (1) of the Accident Compensation Act 1985 (Vic):

Where in respect of any claim the Tribunal determines that compensation is or may be payable under this Act, but is unable presently to ascertain the total amount of the compensation, the Tribunal may make an interim award for payment of the whole or any part of the compensation and the making of any such interim payments shall not preclude the Tribunal from making in respect of the same claim a further interim decision or determination or a final decision or determination or prejudice the rights of either of the parties in respect of any such further or final decision or determination.

In this extract, the conjunction ‘and’ (in ‘and the making …’) is simply a substitute for a full stop. The readability of the section would have been improved substantially if it had simply been split in two.

Example 2

35 The clearer the structure of a long sentence, the less the difficulty it creates for understanding. But the longer a sentence runs, the greater the probability that it will become structurally complex. It is this complexity rather than the mere length of a long sentence which leads to incomprehensibility. For example, subsection 27 (2) of the Companies (Acquisition of Shares) (Victoria) Code states:

Where an offeree who has accepted a take-over offer that is subject to a prescribed condition receives a copy of a notice under sub-section (1) in relation to a variation of offers under the relevant take-over scheme, being a variation the effect of which is to postpone for a period exceeding one month the time when the offeror’s obligations under the take-over scheme are to be satisfied, the offeree may, by notice in writing given to the offeror within one month after receipt of the first mentioned notice and accompanied by any consideration that has been received by the offeree (together with any necessary documents of transfer), withdraw his acceptance of the offer and, where such a notice is given by the offeree to the offeror and is accompanied by any such consideration and any necessary documents of transfer, the offeror shall return to the offeree, within 14 days after receipt of the notice, any documents that were sent by the offeree to the offeror with the acceptance of the offer.

This sentence runs to 174 words. But it is not just its length that creates the difficulty. It is, rather, the mass of information which it contains and its intertwining of ideas that create the problem. The information could have been presented much more clearly if the requirements relating to the form and timing of the relevant notice had been set out separately.

Example 3

36 Another example is subsection 25 (3) of the Credit Act 1984 (Vic):

Where, by reason of sub-section (1), a tied loan contract is discharged when a contract of sale is rescinded or discharged—

(a) the credit provider is liable to the buyer for the amount (if any) paid by the buyer to the credit provider under the tied loan contract to the extent that it is discharged;

(b) the supplier is liable to the credit provider for—

(i) the amount (if any) paid under the tied loan contract, to the extent that it is discharged, by the credit provider to the supplier;

(ii) the amount paid under the tied loan contract, to the extent that it is discharged, by the credit provider to the buyer and paid by the buyer to the supplier; and

(iii) the amount of the loss (if any) suffered by the credit provider by reason of the discharge of the tied loan contract, being an amount not exceeding the amount of the accrued credit charge under the tied loan contract; and

(c) the buyer is liable to the credit provider for the amount (if any) paid under the tied loan contract, to the extent that it is discharged, to the buyer by the credit provider, other than amounts paid to the buyer and paid by him to the supplier—

and, where the contract of sale is a contract of sale of goods or services—

(d) if the goods are in the possession of the buyer—

(i) where, before the rescission or discharge of the contract of sale, there was a mortgage relating to the tied loan contract to the extent that it is discharged, the buyer shall deliver the goods to the credit provider; and

(ii) where before the rescission or discharge of the contract of sale, there was a mortgage relating to the tied loan contract to the extent that it is discharged, the buyer shall deliver the goods to the credit provider; and

(e) if the goods are in the possession of the credit provider and no amounts are owed to the credit provider under paragraph (b), the credit provider shall deliver the goods to the supplier.

This subsection is made up of a single sentence of 345 words. The division into paragraphs and subparagraphs certainly helps the reader. But the structure is too complex for clear communication. Take subparagraph (d) (i). There is a subordinate clause, ‘Where, before the rescission … ‘ which is embedded in another subordinate clause, ‘if the goods are in the possession … ‘. This, in turn, is embedded in yet another subordinate clause, ‘where the contract of sale … ‘ which is coordinated with another subordinate clause introduced some 200 words earlier at the beginning of the subsection, ‘Where, by reason of …’. It is also related to an item within a subordinate temporal clause, ‘when a contract of sale … ‘.

Unnecessary concepts

Example 1

37 Another practice which causes difficulty is the creation of special concepts in order to deal with complex subject matter. This practice is followed in a number of sections of the Companies (Acquisition of Shares) (Victoria) Code. Section 39 of the Code is an example. It imposes obligations on persons to report to securities exchanges if they acquire or dispose of voting shares at certain times. It commences with 26 lines which create the concepts ‘relevant period’ and ‘prescribed person’:

39. (1) For the purposes of the application of this section in relation to a listed public company–

(a) each of the following periods is a relevant period:

(i) if a Part A statement is served on the company–

(A) the period commencing when the statement is served and ending at the expiration of 28 days after the day on which the statement is served or, if take-over offers are dispatched pursuant to the statement within those 28 days, at the expiration of the period during which the take-over offers remain open; and

(B) if take-over offers are dispatched; in accordance with an order under section 46; pursuant to the statement—the period during which the take-over offers remain open; and

(ii) if a take-over announcement is made in relation to shares in the company—the period commencing when the announcement is made and ending at the expiration of the period during which offers constituted by that announcement remain open; and

(b) a person is, at a relevant time, a prescribed person in relation to a period that is, by reason of the service of a Part A statement or the making of a take-over announcement, a relevant period in relation to the company if–

(i) he is the person who is, or one of the persons who constitute, the offeror under the take-over scheme to which the Part A statement relates or is the person or one of the persons who caused the take-over announcement to be made; or

(ii) he is, at that time, entitled to more than the prescribed percentage of the voting shares in the company and he is not, and is not associated with, a person referred to in sub-paragraph (i).

38 The remaining subsections specify the persons who are to report, the circumstances in which they are to report and the particulars to be covered in a report. Subsection (2) imposes obligations on:

[a] person who, at the commencement of a period that is a relevant period in relation

to a listed company, is a prescribed person in relation to that period by reason of subparagraph (1) (b) (i) …

Similarly, subsection (3) imposes obligations on:

[a] person who, during the period that is a relevant period in relation to a listed

company, becomes a prescribed person in relation to that period by reason of subparagraph (1) (b) (ii) …

It would have been far better to dispense with these artificial constructs and to build into each subsection the precise description of the relevant person and period. This would have resulted in a much simpler statement of the law.^[44]

Example 2

39 Another example of the creation of unnecessary concepts comes from section 150 of the Futures Industry Act 1986 (Cth). The purpose of this section is to ensure that a continuing failure to comply with the Act’s requirements continues to be an offence even if the time for complying has passed and even if the offender has already been convicted of the relevant offence. In subsection 150 (6), a number of concepts are established:

(6) In this section—

…

“primary derivative offence”, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of this section) of which a person is guilty by virtue of being an officer of a body corporate who is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the commission by the body corporate of a primary substantive offence in relation to failure to do the act;

“primary substantive offence”, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of this section) constituted by failure to do the act, or by failure to do the act within a particular period or before a particular time;

…

“relevant day”, in relation to an offence of which a person is guilty by virtue of this section, means—

(a) in a case where the information relating to the offence specifies a day in relation to the offence for the purposes of this section, being a day not later than the day on which the information is laid—the day the information so specifies; or

(b) in any other case—the day on which the information relating to the offence is laid;

…

“secondary derivative offence”, in relation to failure to do an act, means an offence or further offence of which a 2. See the plain English version of s37 in Appendix 2. 25 person is, in relation to failure to do the act, guilty by virtue of paragraph (4) (c) or (d);

“substantive offence”, in relation to failure to do an act, means—

(a) a primary substantive offence in relation to failure to do the act; or

(b) a further offence of which a person is, in relation to failure to do the act, guilty by virtue of sub-section (3).

40 The remaining subsections make use of these concepts. Subsection (4) is the main provision:

(4) Where—

(a) a body corporate is guilty of a primary substantive offence in relation to failure to do the act; and

(b) throughout a particular period (in this sub-section referred to as the “relevant period”)—

(i) the failure to do the act continues;

(ii) a person (in this sub-section referred to as the “derivative offender”) is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the failure to do the act; and ·

(iii) the derivative offender is an officer of the body corporate,

then—

(c) in a case where either or both of the following events occurs or occur:

(i) the body corporate is convicted, before or during the relevant period, of the primary substantive offence;

(ii) the derivative offender is convicted, before or during the relevant period, of a primary derivative offence in relation to failure to do the act,

the derivative offender is, in relation to failure to do the act, guilty of an offence (in this paragraph referred to as the “relevant offence”) in respect of so much (if any) of the relevant period as elapses—

(iii) after the conviction referred to in sub-paragraph (i) or (ii), or after the earlier of the convictions referred to in sub-paragraphs (i) and (ii), as the case may be; and

(iv) before the relevant day in relation to the relevant offence; and

(d) in a case where, at a particular time during the relevant period, the derivative offender is first convicted of a secondary derivative offence, or is convicted of a second or subsequent secondary derivative offence, in relation to failure to do the act—the derivative offender is, in relation to failure to do the act, guilty of a further offence in respect of so much of the relevant period as elapses after that time and before the relevant day in relation to the further offence.

41 The constant cross-referencing required by this method of drafting is exhausting. The message could have been conveyed without creating special concepts. The following plain English version of the whole of section 150 dispenses with the artificial constructs in subsection (6). It reduces the total length of the section from 960 words to 208:

1) Even if the period specified for an act has ended—

a) a person is guilty of an offence if he or she continues to fail to do an act after being convicted of an offence in relation to failure to do the act; and

b) an officer of a body corporate is guilty of an offence if he or she is knowingly concerned in a continuing failure by the body corporate to do an act if either the body corporate has been convicted of an offence, or the officer has been convicted of an offence under section 151, in relation to failure to do the act.

2) A person may be guilty of successive offences in relation to a continuing failure to do an act.

3) The penalty for a further offence is $50 multiplied by the number of days in the period during which the further offence continued between

a) the person’s or officer’s most recent conviction for failure to do the act or, in the case of an officer’s first offence in relation to a continuing failure to do an act, an earlier first conviction of the body corporate for failure to do the act; and

b) the earlier of

i) the laying of the information;

ii) the day specified in the information.

Absence of underlying principle

Example 1

42 The third practice which creates difficulty for readers is common in complex legislation, in particular. It is the tendency to deal at length and in separate subsections with a series of variations instead of integrating the relevant statements in a single provision which states the underlying principle. Again the Companies (Acquisition of Shares) (Victoria) Code contains numerous examples. The Act provides two main methods for a takeover. A person who wishes to take over a target company may proceed by way of takeover offers made directly to shareholders or by means of a takeover announcement through the stock exchange. Part V of the Code contains provisions which are applicable to both types of procedure. In some sections, however, takeover offers and takeover announcements are dealt with separately in different subsections. Section 40 is an example:

(1) Subject to sub-section (3), during the period commencing when a Part A statement is served on a target company and ending at the expiration of 28 days after the day on which the statement is served or, if take-over offers are dispatched pursuant to the statement within those 28 days, at the expiration of the period during which the take-over offers remain open the offeror, or a person associated with the offeror, shall not give, offer to give or agree to give to a person whose shares may be acquired under the relevant take-over scheme, or to a person associated with such a person, any benefit (whether by payment of cash or otherwise) not provided for under the take-over offers or, if the take-over offers are varied in accordance with section 27^[45], under the take-over offers as so varied.

(2) Subject to sub-section (3), during the period commencing when a take-over announcement is made in relation to shares in a company and ending at the expiration of the period during which offers constituted by that announcement remain open the on-market offeror, or a person associated with the on-market offeror, shall not give, offer to give or agree to give to a person whose shares may be acquired pursuant to the take-over announcement, or to a person associated with such a person, any benefit (whether by payment of cash or otherwise) not provided for under the terms of the take-over announcement or, if those terms have been varied under section 17, under the terms as so varied.

(3) …

43 There is simply no need for all this separate treatment. It is true that the period during which the obligation continues varies from one type of offer to another, but that variation can be captured in a single provision covering both direct offers and offers made by an announcement at the stock exchange. This not only reduces the length of the provision, it also reveals the essential similarity of treatment of the two types of procedure:

1) An offeror or an associate must not give, or offer or agree to give, to an offeree or an associate of an offeree a benefit not provided for under the offers

a) within 28 days after the Part A statement is served;

or

b) if offers are made within that time—within the offer period; or

c) after the takeover announcement is made until the end of the offer period.

Example 2

44 A similar example of a failure to state the underlying principle is provided by section 35 of the Code. This imposes a restriction on the disposal of shares by the offeror during particular periods. Direct offers are again treated separately from offers made by way of an announcement:

(1) During–

(a) the period commencing when a Part A statement is served on the target company and ending at the expiration of 28 days after the day on which the statement is served or, if take-over offers are dispatched pursuant to the statement within those 28 days, at the expiration of the period during which the take-over offers remain open; and

(b) if take-over offers are dispatched, in accordance with an order under section 46, pursuant to the statement-the period during which the take-over offers remain open,

the offeror shall not dispose of any shares in the target company included in the same class of shares to which the Part A statement relates unless another person (not being a person associated with the offeror) has, after the Part A statement is served and before the disposal takes place, made a take-over offer or caused a take-over announcement to be made in respect of shares in the target company included in that class of shares.

(2) After the making of a take-over announcement in relation to shares in a company and before the end of the period in which offers constituted by the take-over announcement remain open, the on-market offeror shall not dispose of any shares in the target company included in the same class of shares as the first-mentioned shares unless another person (not being a person associated with the on-market offeror) has, after the making of the announcement and before the disposal takes place, made a take-over offer or caused a take-over announcement to be made in respect of shares in the target company included in that class of shares.

45 The variation in the period during which the restriction applies does not require separate treatment in separate subsections. The variation can be captured in a single, integrated provision:

An offeror must not dispose of shares in the class covered by a takeover scheme or a takeover announcement

a) within 28 days after the Part A statement is served; or

b) if offers are made within that time or are sent in accordance with an order under section 64—during the offer period; or

c) from the making of the announcement until the end of the offer period.

unless, after the Part A statement was served or the announcement was made, a person who is not an associate of the offeror has made offers under a takeover scheme or by an announcement for shares of the same class.

Example 3

46 The Fair Trading Act 1985 (Vic)^[46] provides another example of a failure to state the underlying principle. Section 35 enables a court to make certain orders in respect of a contravention of another provision in Part II of the Act. The orders are of two types: an order to disclose information and an order to publish certain advertisements. Subsections (2), (3) and (4) set limits on those orders by reference to the amount that a person would have to expend in order to comply with them:

(2) Where, on an application made under sub-section (1), the Court is satisfied that a contravention of a provision of Part II. has been committed, the Court shall not, in respect of that contravention, make an order or orders under subsection (1) that the Court considers would, or would be likely to, require the expenditure by the person or persons to whom the order or orders is or are directed of an amount that exceeds, or of amounts that, in the aggregate, exceed, $50,000.

(3) Where, on an application made under sub-section (1), the Court is satisfied that a person has committed, or been involved in, two or more contraventions of the same provision of Part IL, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time (whether or not the person has also committed, or been involved in, another contravention or other contraventions of that provision that was or were of a different nature or occurred at a different time), the Court shall not, in respect of the first-mentioned contraventions, make an order or orders under sub-section (1) that the Court considers would, or would be likely to, require the expenditure by the person or persons to whom the order or orders is or are directed of an amount that exceeds, or of amounts that, in the aggregate, exceed, $50,000.

(4) Where—

(a) on an application made under sub-section (1), the Court is satisfied that a person has committed, or been involved in, a contravention or contraventions of a provision of Part II; and

(b) an order has, or orders have, previously been made under sub-section (1) against the person who committed, or against a person who was involved in, that contravention or those contraventions in respect of another contravention or other contraventions of the same provision, being a contravention which, or contraventions each of which, appears to the Court to have been of the same nature as, or of a substantially similar nature to, and to have occurred at or about the same time as, the first-mentioned contravention or contraventions (whether or not an order has, or orders have, also previously been made under subsection (1) against any of those persons in respect of another contravention or other contraventions of that provision that was or were of a different nature or occurred at a different time)—

the Court shall not, in respect of the contravention or contraventions mentioned in paragraph (a), make an order or orders under sub-section (1) that the Court considers would be likely to require the expenditure by the person or persons to whom the order or orders is or are directed of an amount that exceeds, or of amounts that, in the aggregate, exceed, the amount (if any) by which $50,000 is greater than the amount, or the sum of the amounts that has or have been or that the Court considers would be or be likely to be, expended in accordance with the previous order or previous orders first mentioned in paragraph (b).

Three separate, but closely analogous, situations are dealt with in three separate subsections. The fact that each is to be treated in much the same way is lost in the maze of words. Subsections (2), (3) and (4) could have been readily integrated in the following provision:

A Court may not make an order under subsection (1) if, either alone or together with any other orders in respect of contraventions which

a) are of the same provision of Part II; and

b) are of the same or a substantially similar nature; and

c) occurred at or about the same time,

it would be likely in the Court’s opinion to require the person or persons to whom it is directed to spend more than $50,000.

Organisation problems

47 The second main type of defect in legislation is poor organisation of material. The importance of organisation in the drafting of legislation was well explained in a Study Paper published by the Canadian Law Reform Commission in 1981:

the order in which the ideas in a discourse appear has more than a merely aesthetic importance, for it also carries a functional significance that is relevant, on the one hand, for an understanding of the discourse, and on the other hand, for retrieving the various elements. Indeed, a disorganized discourse, in which the writer presents his ideas without following a logical sequence, has less of a chance of being understood than a discourse in which the reader can follow a certain chain of reasoning.^[47]

Despite this fact, many Acts suffer from defects in organisation which add to the difficulties already posed by the language in which they are expressed. Indeed, there are occasions when the organisation of material is so poor that it displaces language problems as the main cause of the obscurity and incomprehensibility of legislation.

Within a single section

Example 1

48 In some cases, the problem arises within a single section. Take the following example from the Life Insurance Act 1945 (Cth):

16 (1) A person or company shall not be deemed to carry on any class of life insurance business by reason only-

(a) of collecting renewal premiums under a policy in respect of that class of business issued outside Australia to a person resident outside Australia at the date of issue of the policy; or

(b) of making payments due under any such policy.

(2) Subject to the last preceding sub-section, a person or company receiving premiums or proposals in respect of life insurance business shall be deemed to be carrying on the class of life insurance business to which the premiums or proposals relate.

A person first reading subsection (1) would be mystified, because neither the collection of the relevant premiums nor the making of the relevant payments could possibly have the relevant, or indeed any, deeming effect. The deeming provision itself has been missed out. It is found in subsection (2). Subsection (1) makes no sense without it. The drafter has dealt with an exception to a principle without first stating the principle.

Example 2

49 Another example of poor organisation within a single section is to be found in the Mental Health Act 1986 (Vic). Section 112 is headed ‘Powers of inspection’. Subsection (1) entitles a ‘community visitor’ -a person appointed to make certain inquiries in relation to the provision of mental health services-to inspect premises, see patients and make other inquiries. Subsections (2) and (3) read:

(2) Where a community visitor wishes to perform or exercise or is performing or exercising any power, duty or function under this Act, the person in charge and every member of the staff or management of the mental health service must provide the community visitor with such reasonable assistance as the community visitor requires to perform or exercise that power, duty or function effectively.

(3) Any person in charge or member of the staff or management of a mental health service who–

(a) unreasonably refuses or neglects to, render assistance when required to do so under sub-section (2); or

(b) does not give full and true answers to the best of that person’s knowledge to any questions asked by a community visitor in the performance or exercise of any power, duty or function under this Act; or

(c) assaults, obstructs, hinders, threatens, intimidates or attempts to obstruct or intimidate a community visitor visiting a mental health service–

is guilty of an offence against this Act and liable to a penalty of not more than 25 penalty units.

The location of these subsections is misleading. They are not limited, as their location suggests, to requiring cooperation with a community visitor in relation to the exercise of powers conferred by subsection (1). They require cooperation with a community visitor in the performance or exercise of any duty, function or power conferred under the Act. The general functions of community visitors are set out in section 109. They are considerably wider than those set out in section 112. Subsections 112 (2) and (3) should have been drafted as a separate section, with a different heading, in order to avoid the risk of the mistaken inference that they are only relevant to the exercise of the powers conferred by subsection 112 (1).

Example 3

50 Perhaps the clearest example of the problems caused by poor organisation of material within a single section is section 44 of the Companies (Acquisition of Shares) (Victoria) Code. That section prohibits the making of false or misleading statements in a wide variety of documents produced by parties in an attempted takeover. Because of the different types of documents and the different people who in each case are responsible for them, it was necessary to create a number of separate offences in respect of each type of document. Each had to specify the people covered by it and the defences available to them.

51 Instead of exhaustively dealing with all aspects of each offence in turn, the drafter first set out each ofthe offences in subsections (1) to (7). In the case of the offences set out in subsections (4) to (6), the people who may be guilty of those offences are identified in each case. Not so, however, with the offences set out in subsections (1)–(3) and (7). In each case, the person who may be guilty of an offence is identified only by the phrase ‘a person to whom this sub-section applies’. There is not even a cross-reference to the provisions which give this phrase substance. These appear as subsections (11) to (14) of section 44, some two or three pages after the subsections to which they refer. The defences available to the relevant people covered by subsections (1) to (7) are, in each case, entirely separate from the provisions which they qualify. Instead, they appear as subsections (16) and (17) of section 44. The consequence of this organisation is that section 44 is little better than a jigsaw puzzle. The provisions would be more easily understood if they were set out in tabular form, with the circumstances of each offence in one column and the relevant persons and defences side by side in other columns. The reader could then identify all the relevant information at once. This format has been adopted in the plain English version of section 44 in Appendix 2.^[48]

Within an Act as a whole

Failure to highlight central message

52 If legislation is to be readily intelligible, its central message should be introduced early in the document. That is not generally done at present. A substantial amount of technical material is included at the beginning of Acts. They commence with a number of ‘preliminary’ sections. For example, the preliminary sections of the Dangerous Goods Act 1985 (Vic) cover commencement of the Act, definitions, the question whether the Crown is bound by the Act, commencement of repeals and amendments noted in the Schedule. The sections also include the continuation of existing regulations and those repealed by the Act, the continuation of existing legislation, the matters to which the Act applies and the adoption by regulation of provisions of the Transport Code. Much, if not all, of this material would be better placed elsewhere. The commencement provision should be located at the back of the Act, as is already done in several Canadian jurisdictions. The remainder of the preliminary sections could also be relocated easily. That would enable a swifter introduction to the central provisions of the legislation, with considerable improvement in communication.

53 Even after dealing with ‘preliminary matters’, legislation often goes to peripheral or less important issues before dealing with the central provisions. Again, the Dangerous Goods Act 1985 provides an example. Part II, consisting of 10 sections, deals with the appointment and powers of inspectors. The central requirements of the Act—those dealing with licensing of people and with the requirements imposed on licensees and other people to provide information to the Government and to take care with respect to dangerous goods—follow in Parts III, IV and V, respectively. These should appear before Part II. The appointment of inspectors and the provision of information to the Government are not ends in themselves. They simply facilitate enforcement of the Act’s main provisions.

54 But the Act’s principal defect is its failure to state anywhere in Part III the people who are required to obtain a licence. Section 21 simply indicates that a person is required to obtain a licence if the regulations say so. One must then turn to section 52 in Part VII, which deals with the power to make regulations. This refers to Schedule 2 of the Act. Clause 27 of the Schedules (‘Subject matter for Regulations’) covers:

Requiring licences to be obtained by persons in relation to—

(a) the manufacture, storage, sale, use, handling or transfer of dangerous goods (other than in relation to the storage, use, handling or transfer of dangerous goods by a primary producer being dangerous goods which are used or intended to be used in connexion with the business of the primary producer and are not held by the primary producer for the purpose of resale);

(b) the transport of dangerous goods;

(c) the carrying out of work in respect of the installation, alteration, repair, maintenance or testing of equipment, piping, fittings or appliances which is or are used or intended to be used for or in connexion with dangerous goods;

(d) the import of explosives into Victoria;

(e) the sale of explosives; or

(f) the assembling and blending of the inexplosive component parts of any prescribed explosive mixture–

and prescribing the conditions to be complied with before licences can be issued.

Separation of related material

55 Another organisational problem within an Act as a whole is the separation of closely related provisions. A relatively straightforward example of unexpected separation of related matters is found in the Companies (Acquisition of Shares) (Victoria) Code. Company takeovers are conducted by two main methods: direct offers to the shareholders; and indirect offers through a takeover announcement to the stock exchange. Some provisions of the Code deal with takeover offers; others with takeover announcements; still others with both. The relevant provisions are set out in Parts III, IV and V of the Code, respectively. But the central provisions which define the procedure to be followed in respect of takeover offers and takeover announcements are located not where they might be expected to be found, at the beginning of Parts III and IV, but in Part II, which defines the circumstances in which shares may be acquired. One result is that the central provision dealing with takeover announcements is physically placed some 14 sections before those which, in conceptual order, immediately follow it.

56 Another example is contained in the ‘Uniform’ Credit Act 1984. In a commentary on the New South Wales version of the Act, Mr Warren Pengilley, a Sydney solicitor, criticised the Act’s organisation of the material in the following terms:

The Act believes in ‘the treasure trove’ principle of statutory interpretation. By this method, the draftsman drops clues in certain sections of the Act which enable the astute seeker of truth to see the possibility of the relevance of other sections, and thus by shuttling back and forth, hopefully to arrive at the correct conclusion. ^[49]

He illustrated the difficulties by attempting to answer the ‘not unreasonable question’ whether a mortgage of goods is regulated under the Act and, if so, what steps a mortgagee has to take to exercise the power of sale:

… the following sections need to be studied before such questions can be answered:

1. Is the mortgagee a credit provider?—s 5 (1) (a), (b), (c).

2. Is the credit for any transaction prescribed by the Act or regulations as not being within the above?—see government gazettes.

3. Is there a credit sale contract?—ss 5 (1), 13, 14, 16 and various subsections of each, plus government gazettes for classes of credit sale contract within the statutory definition but prescribed as outside it.

4. If there is a credit sale contract, is it a regulated credit sale contract?—ss 5 (1), 18, 30 (1) (b),(c). S.

5. Is there a loan contract?—ss 5 (1), I5, 16 and government gazettes for classes of loan contracts within the statutory definition but prescribed as outside it.

6. If there is a loan contract, is there a regulation loan contract?—ss 18 (1), (2), 30 (2).

7. Is there a continuing credit contract?—ss 5 (1), 16, 48 and various subsections, plus government gazettes for classes of continuing credit contracts within the statutory definition but prescribed as outside it.

8. If there is a continuing credit contract, is there a regulated continuing credit contract?—ss 5 (1), 18 (1), 49 and various subsections.

9. Are there any orders under s 19 exempting various persons or classes of conduct?—see government gazettes.

At this stage, one may pause and state that if question 4, 6 or 8 is answered positively and question 9 is inapplicable, then the basic transaction is a regulated one. The next question for the mortgagee is whether the mortgage is regulated—something he can find out from an evaluation of ss S (1), 18 (1), (2) and 89. An assessment then is required as to whether the mortgage has invalidity aspects, which requires searching at least through ss 98, 99, 100, 119 and 120. Our mortgagee can then find out from ss 106 (six alternative possibilities), 107 (which may involve up to 29 alternative considerations), 110 (three alternatives), 115 (nine alternatives) and 116 (12 matters for evaluation), how he exercises his rights and what factors affect his decision.^[50]

Having written out a summary of the Act, Mr Pengilley still found it to be incomprehensible:

Only when [I] put it on to a series of ‘Computer Analysis Flow Charts’ did the legislation make any sense. This analysis, however, took a period of many weeks. The cost to the nation of lawyers, business persons and consumer advisers going through this process must be astronomical.^[51]

43. * The appendices to this book were published separately.

    1. E Gowers, The Complete Plain Words, HMSO, 3rd ed, London, 1986, 13. Renton Committee, The Preparation of Legislation, Sweet & Maxwell, London, 1975, Cmnd 6053, paragraphs 11.9 to 11.11 G.C. Thornton, Legislative Drafting, 3rd ed, Butterworths, London, 1987, 61.

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44. See the plain English version of s39 in Appendix 2.

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45. The plain English version (Appendix 2) contains no reference to variation under s27. If an offer is varied, so is the offer period.

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46. Based on s 80A Trade Practices Act 1974 (Cth).

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47. Drafting Laws in French, 241.

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48. See also plain English version of s 39.

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49. W Pengilley, Credit Act 1984, Longman Professional, Sydney, 1984, 12.

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50. At 12–13.

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51. At 14. Similar criticism of the structure of the Credit Act was made by A J Duggan Reader in Law, University of Melbourne, submission,
    
    25 February, 1987.

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