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

6. Improving the clarity of drafting: recommendations

108 In the preceding chapters, the Commission identified a number of defects in the language and the organisation of legislative material. It suggested that these defects might be cured by the adoption of a plain English policy. It examined a number of common objections to plain English and concluded that they are based on misunderstandings about the nature of plain English. It identified the benefits which would flow from the adoption of a plain English policy. This chapter is concerned with improving the clarity of drafting in legal documents, particularly legislation. It suggests ways in which the existing defects might be removed. It deals with the training of drafters, the organisation of Government drafting services, the engagement in appropriate cases of expert outside assistance, and the use of word processors and computers in the drafting process.

Training of drafters

A drafting manual

109 The implementation of the Government’s plain English policy in relation to legislation is already under way in the Office of Chief Parliamentary Counsel. To assist in the process, a drafting manual concentrating on language problems and aimed at assisting drafters to improve their drafting style and to avoid the defects noted in Chapter 2 of this Report has been prepared by the Commission. It forms Appendix 1 to this Report.* Much of its

content is equally applicable to other forms of legal drafting.

Recommendation

The drafting manual should be formally adopted by the Government as its official guide to Departments and Agencies in relation to the drafting of Acts, regulations and related forms and explanatory documents. The drafting manual should be supplemented by material prepared by Chief Parliamentary Counsel dealing with the technical aspects of legislative drafting.

Formal training courses

110 Parliamentary counsel are recruited from the ranks of lawyers, usually at a relatively early age.^[100] Lawyers themselves are not generally trained drafters. Although valuable drafting courses are available at both Melbourne and Monash Law Schools these are optional and only a small percentage of students enrol for them. There is no postgraduate course in drafting, either for practising lawyers or for staff of the Office of Chief Parliamentary Counsel.

111 The training of parliamentary counsel has traditionally been carried out by the apprenticeship method, under which:

the newcomer works with and alongside a more experienced officer and learns from him by watching the way he goes about his work.^[101]

Some people maintain that on-the-job training is the only way to learn the art. This is reminiscent of the views held by some members of the legal profession at the time of the establishment of legal practice courses^[102] as an alternative to articles of clerkship. One reason for the establishment of those courses lay in the recognition of the inadequacies of the articled clerk system to provide broad-based practical training at a uniform standard for all students. It is now recognised that formal courses can achieve a great deal in a relatively short time, even if on-the-job training is also needed for the development of a fully-rounded lawyer. So it is with the training of legislative drafters. In their case, too, on-the-job training has not been entirely satisfactory. As a leading writer on drafting observed some time ago:

The idiosyncrasies of masters were passed on to pupils. For too long, the experience of the teacher has been the sole criterion of what is correct. The tyro is bewildered by a mass of formless constructions and the abuse of tautologies potentially diverse. This is a sorry state of affairs, particularly as analysis or disciplined compliance with the principles underlying the drafting of legal documents can bring about not only consistency but also an overall improvement in the form of documents.^[103]

112 Particularly during parliamentary sessions, a competent drafter is likely to be under considerable pressure to meet drafting deadlines. Meeting those deadlines must take precedence over other tasks, including the training of apprentices. A formal course of training would not only be a valuable contribution to improving the technical skills of parliamentary counsel. It would also contribute to the clarity and intelligibility of legislation. But a formal course should not entirely replace on-the-job training. As a former First Parliamentary Counsel recently pointed out, no amount of formal training can teach drafters such matters as ‘how to cope with the idiosyncrasies of their clients, of members of the legislature or of Ministers.’^[104]

An earlier experiment

113 Formal courses of instruction for legislative drafting were run between 1975 and 1981 by the Commonwealth’s Legislative Drafting Institute, headed by the late Mr Noel Sexton. The Institute was established in 1974.^[105] Its functions were:

• To conduct courses of training and instruction in legislative drafting.

• To assist other countries (especially developing countries) in the training of legislative drafters.

• To undertake research into methods and techniques of legislative drafting with a view to the simplification of laws and procedures and the reduction of costs.

• To foster interest in, and encourage suitably qualified persons to enter, the profession of legislative drafting.

It was hoped that the Institute would provide training for people wishing to become legislative drafters in Australia. The first course in 1975 was limited to people nominated by the Commonwealth, the States and Papua New Guinea. Only the Commonwealth, New South Wales, Tasmania and Papua New Guinea nominated participants. In 1976, invitations were sent to the Commonwealth, the States, Papua New Guinea and other British Commonwealth countries in the South Pacific area. Because only two nominations were received, the Institute’s program was suspended until the following year. In 1977, it became clear that no nominations would be received from the Commonwealth or the states. The course was eventually given to participants from a number of developing countries. In subsequent years, invitations appear to have been extended only to developing countries. The Institute was abolished on 11 November 1981 as a result of

recommendations made by a Ministerial Committee to review Commonwealth functions (the Razor Gang). The training of legislative drafters from developing countries was to be left to on-the-job training in Canberra.^[106]

Other models

114 A more ambitious and ultimately more successful training program was established in Canada in 1970. Unlike the Australian Institute, it is attached to a University. The Legislation Training Programme is sponsored jointly by the University of Ottawa and the Federal Department of Justice. The course was the brain-child of Professor Elmer Driedger QC, former First Parliamentary Counsel for Canada and the author of leading works on legislative drafting.^[107] Originally a post-graduate certificate program, it is now also a Master’s program leading to an LLM degree. The course lasts for 30 weeks and consists of lectures, seminars and assignments. The assignments involve redrafting of existing provisions and drafting original legislative provisions. The redrafting assignments concentrate on improving comprehensibility and removing obscurity.^[108]

115 Legislative drafting is also the subject of formal instruction in other countries. In the United States, special mention should be made of the course run at Indiana University by Professor Reed Dickerson, author of a pioneering collection of materials on legal drafting in the American Casebook Series.^[109] In the United Kingdom, Edinburgh University has established an honours course on the subject of legislative drafting.^[110] Formal training of legislative drafters to assist developing countries of the Commonwealth is well under way. Initiatives in this direction were taken by the Commonwealth Law Ministers at their meeting in London in 1973. As a consequence, six-month courses have been regularly run by the Commonwealth Secretariat in a number of countries. They have been attended by more than 300 participants nominated by their respective Governments. Drafting courses associated with universities have now been established in the West Indies^[111] and Africa^[112]. In each case, the degree of LLM is now available.^[113]

A Legal Drafting Institute

116 The lack of a formal training course for parliamentary counsel and for legal drafters in general seriously affects their capacity to write plainly. They rely too much on poorly expressed precedents and outmoded drafting conventions. After discussions with the Attorney-General and with the Director-General of the Department of Management and Budget, the Commission approached the Dean of Monash Law School, Professor R. Baxt, to investigate the possibility of establishing a Legal Drafting Institute at Monash University to be jointly funded by the University and the Government. An application for funding of a feasibility study has been made to the Victoria Law Foundation. It is expected that the study will be conducted by the Public Service Board. The study will include:

• Assessing the degree of interest and support for such an Institute from government, commercial and professional bodies both within Australia and more generally in South East Asia and the South Pacific region.

• Investigating the possible product range of such an Institute in legislative and non-legislative drafting, for example, commercial and public documents.

• Assessing the likely on-going demand for the services of such an Institute from government, commercial and professional bodies within Australia, in South East Asia and in the South Pacific region. This will include an assessment of the likely competition from other similar institutes and training programs and the appropriate role of a new Institute in the future delivery of such services.

• Estimating the likely establishment and annual operating costs of the Institute and assessing its financial viability given the likely market demands for its services.

• Estimating the level at which private and State and Commonwealth Government funding could be warranted.

• Researching the secondary effects of improved drafting in both legislative and non-legislative areas and investigating methods for assessing their financial implications.

117 Unlike its Canadian model, the Institute would cover not only legislative drafting, but also other forms of legal drafting. It would have both teaching and research functions. The projected teaching functions of the Institute include those at the postgraduate level. The possibility of certificate and diploma courses, as well as degree courses, is to be investigated. The projected research functions of the Institute include:

a) the principles and techniques of drafting;

b) techniques of evaluation of the standard of drafting; and

c) the administration and delivery of drafting services, the organisation of drafting units and the qualifications and training of personnel.

Its management structure and the precise basis of its on-going funding are matters for discussion after successful completion of the feasibility study.

Recommendation

The Government should support the establishment of a Legal Drafting Institute at Monash University as a joint project between the University and the Government. When the Institute is established, qualifications obtained from it should become, except at base grade and in the absence of exceptional circumstances, a mandatory requirement for appointment to, or promotion within, the Office of Chief Parliamentary Counsel.

Broadening the experience of parliamentary counsel

118 The development of skills in relation to clear communication requires more than a manual or a formal course, important though these are. It also requires a keen appreciation of the needs and abilities of the audience of relevant documents. Lawyers in private practice deal regularly with the business community and the general public. They are more likely than parliamentary counsel to understand the needs and abilities of the business community and the general public in relation to legislation. Policy officers in departments and agencies also have regular contact with client groups, as well as with senior administrators and politicians. They are more likely than parliamentary counsel to appreciate the particular administrative and social goals which specific proposals are intended to serve. Few recruits to the Office of Chief Parliamentary Counsel come from within the public service. Many of them enter the Office shortly after completion of their degrees or after only a very brief period in private practice. Chart 1 indicates the extent of experience in

private practice of recruits to the Office in the past five years. Of 27 recruits, nine had no private professional experience at all. Seven others had less than one year’s experience. Only four of the 27 had had more than five years in private practice.

119 On entry to the Office, recruits have as their clients only ministers and government Departments. They deal with instructing officers who are either government lawyers specialising in policy development or career bureaucrats. They have little if any professional contact with ordinary citizens or interest groups or lawyers in the private profession. As an English commentator has said: ‘At present, the Parliamentary draftsman gets further and further removed from the day to day application and use of statutes in legal practice.’^[114] There is a grave danger of organisational isolation. There is a clear need to bring legislative drafters into closer contact with their audiences.

Recommendation

The Secretary to the Attorney-General’s Department should investigate ways of diversifying the experience of parliamentary counsel. The options which should be investigated include exchange schemes with, and secondments to, private solicitors’ offices and policy Units in Government Departments and Agencies.

Figure 1: Parliamentary counsel recruits: experience in private practice (in years)

Electronic aids to drafting

120 Better training and greater experience should lead to increased clarity in legislative drafting. But these are not the only ways in which drafting might be improved. Word processors and computers have already transformed the process of technical writing through their remarkable capacity for editing and revising documents. Drafters can identify all uses of a word to help them check consistency in usage. Some systems can also generate a list of all words used in a document in order to assist in the preparation of indexes. They could also be used to assist in generating and retaining standard forms and variations on standard forms to assist in achieving consistency across the statute book.

121 Other relevant capacities of word processors and computers are less well known. A recent review^[115] discussed software systems which can check and even correct spelling, abbreviations and common capitalisations. They can also note excessive sentence length, the relative frequency of word use and the ‘tonal’ features of a passage (for example, the extent to which formal language is used, and the use of hackneyed words and phrases). More sophisticated aids to drafters are being developed. It is hoped to produce programs which identify common misuses of particular words (for example ‘infer’ in place of ‘imply’) and the use of particular words in different senses in the same context. Plans are being drawn up to write programs to identify ungrammatical sentences, particularly those involving failure of agreement in number, person, gender and case.

122 Systems which provide some of these functions are already commercially available. Major developmental work is taking place in a number of quarters, notably in IBM’s ‘Epistle Project’ at the Yorktown IBM Watson Research Center. Means of assisting drafters of legal documents has been the subject of a special study.^[116] These developments are of profound significance for future legal drafting.

Recommendation

Chief Parliamentary Counsel should investigate existing software programs and closely monitor developments to ensure that appropriate use is made of electronic aids to drafting. A software program should be developed in cooperation with other Chief Parliamentary Counsel elsewhere in Australia to facilitate clear and consistent drafting.

Organisation of drafting services

123 The recommendations in the preceding section of this chapter should go a considerable way towards implementing the government’s plain English policy, particularly in relation to legislation. However, the Commission’s examination of the way in which legislation is drafted has led it to the conclusion that implementation of that policy would be enhanced if a number of other steps were to be taken. These include clarification of the role of legislative drafters, clarification of the duties of instructing officers, re-organisation of responsibility for subordinate legislation, and the use of expert private professional services to draft legislation in appropriate cases.

Clarification of the role of legislative drafters

124 Clear drafting can only proceed on the basis of clear instructions about the policy to be implemented. Not all drafting instructions are as clear and well thought out as they might be. That is sometimes the fault of instructing officers but it may also be attributable to a lack of a clear definition of the respective roles of parliamentary counsel and instructing officers. The traditional view of the division of functions between parliamentary counsel and Departmental instructing officers is clearly expressed in the following statement:

The Office of Parliamentary Counsel is not really geared to provide this kind of assistance; nor indeed is any similar drafting office. The traditional role of Parliamentary Counsel, and indeed the only role for which they are trained, is to incorporate formulated proposals into a legislative framework. It is not, and has never been, their role to render substantial assistance in the construction of a viable policy scheme. The Parliamentary Counsel are supposed to be experts in drafting, not experts in the formulation of policy proposals. When they are called upon to draft a Government Bill, the policy and scheme to which legislative form is to be given have been worked out in considerable detail by persons in the instructing Department who have the necessary expertise in the relevant area. If Parliamentary Counsel are to perform for a private member the role for which they are trained, namely, the incorporation into a legislative framework of a scheme that has been worked out, it will be necessary for the member to have a fully-developed scheme in readiness …^[117]

Commonwealth

125 The Commonwealth’s Legislation Handbook^[118] reflects a similar approach. It provides for the preparation of drafting instructions in two stages. Preliminary instructions are prepared for attachment to the Cabinet submission. These are normally circulated beforehand to other Departments for any comment which may need to be included in the submission. Final instructions are prepared after Cabinet has approved the submission in whole or in part. They are lodged with the Office of Parliamentary Counsel within five days after the instructing Department has been notified of the Cabinet decision. Parliamentary counsel themselves appear to play little role in the development of the instructions. The Legislation Handbook specifically states that ‘Preliminary drafting instructions need not normally be sent to the Office of Parliamentary Counsel’.^[119]

126 The Legislation Handbook deals in some detail with the respective functions of parliamentary counsel and of instructing officers. Instructing officers are required to provide instructions covering:

a) the objectives of the proposed legislation and, in detail, the means (the administrative structure) by which it is suggested they be achieved;

b) difficulties of a legal, administrative or other nature that appear to be involved;

c) reference to other similar existing legislation which may be affected or require modification; and

d) any other details necessary for the preparation of a draft bill by Counsel.^[120]

The extent of the detail required in instructions can be gauged by referring to the section of the Legislation Handbook which deals with specific matters which may need consideration. It contains almost seven pages dealing with the specific matters which may need consideration by instructing officers. These include a number of matters on which expert legal knowledge is essential. In several cases, such as the effect of the proposed legislation on State legislation, instructing officers are advised to seek guidance from the Attorney-General’s Department. But the instructions which officers are required to present must incorporate both the main principles of the legislative scheme and all relevant matters of detail.^[121]

127 The role of the Office of Parliamentary Counsel is to draft legislation on the basis of the instructions it receives. However, the Handbook recognises that:

the dividing line between policy and drafting … is not always clear and Counsel may often be involved in the resolution of policy issues. Counsel considers how a proposed policy may best be implemented and is often required to round out the policy and fill in the details.^[122]

Moreover, the legislative plan:

may be in a different form from that envisaged in the proposal approved by Cabinet or set out in the drafting instructions. The legislative plan is usually discussed with officers of the instructing department and modified until agreement is reached.^[123]

Even so, the distinction between the roles of instructing officers and parliamentary counsel is generally clear. Instructing officers must formulate instructions in considerable detail, generally without assistance from the Office of Parliamentary Counsel.^[124] The Attorney-General’s Department fills the void when expert assistance on legal policy is required by the instructing officers.

Victoria

128 The Commonwealth approach has been adopted in slightly modified form in Victoria. Drafting is only to commence when a Cabinet submission for a Bill in Principle has been approved by Cabinet. Drafting instructions must be attached to the Cabinet submission. These are to be prepared by instructing officers rather than parliamentary counsel. They must set out in detail the proposed legislative scheme. Early editions of the Legislation Handbook appeared to assume that parliamentary counsel would only become aware of the instructions after they had been approved by Cabinet along with the Bill in Principle. However, a change in emphasis was made in the 1985 Cabinet Handbook:

An instructor should usually have discussions with Parliamentary Counsel prior to completing the drafting instructions. Parliamentary Counsel should also consider drafting instructions on complex legislative proposals. However, time spent by Parliamentary Counsel on such discussions should not be excessive. Also officers should not use Parliamentary Counsel to avoid their responsibility in presenting a coherent, adequate and comprehensive drafting proposal.^[125]

Parliamentary counsel have in fact collaborated at an early stage with policy officers in relation to a number of recent sensitive and major projects, including those dealing with accident compensation and transport accidents.

A more radical approach

129 A much more active role for parliamentary counsel in relation to policy was put to

the Commission by the Chief Parliamentary Counsel for South Australia, Mr G. Hackett-Jones QC:

the important point is not that it is untrue but that it really oughtn’t to be true. After all, a parliamentary counsel ought to be a person with a wide knowledge of the law and of statute law in particular. He or she knows how a vast range of legal problems have been dealt with in the past and, on the basis of that knowledge and a certain amount of innate ingenuity, should be able to suggest possible ways of approaching any problem that is likely to be thrown up. A parliamentary counsel is—at least according to my perception—a legal theoretician who plays a central role in the shaping of legislative policy. This is not to say that the parliamentary counsel imposes policies on the client. He or she is in this respect like an architect who works within the client’s reasonable specifications and will not design a mansion for clients who have asked for plans of a home unit. But, like the architect, the parliamentary counsel should be responsible for designing the juristic and linguistic structures of statute law and for ensuring that the structures are sound. The traditional view of the parliamentary counsel’s function grossly demeans that function. A parliamentary counsel is, according to that view, rather like a medical practitioner who insists on his patients diagnosing their own illnesses and prescribing their own remedies while he merely sits at his desk translating the prescriptions into appropriate language for the pharmacist.^[126]

130 According to Mr Hackett-Jones, the result of adopting the traditional approach is that drafting instructions are elaborated in more detail than is necessary or desirable. As a result, the instructions dictate not only the policy but also the juristic and linguistic structures of the Bill. The drafter loses control of the structure to the client. In functional terms, the logic of the traditional approach is pursued in the following manner:

When the first draft of a Bill has been prepared, it is often apparent that, despite the instructors’ best endeavours to cover every eventuality, important gaps remain. The draftsman does not consider it appropriate to use his own experience and imagination to fill these, so the instructors are assembled and a process known as ‘drafting in committee’ takes place. In this process, the draftsman acts as a kind of midwife and tries to squeeze instructions from constipated bureaucratic minds. The draftsman stands ready to catch them as they emerge and often amends the draft on the spot. When this process is completed, the draft is sent out for comment. Someone may point out that the incipient legislative creature has no arms. Arms are taped on. Someone may point out that it has no head. A head is improvised and stitched on. No-one dares to mention the unmentionable truth: that it would be better to cut its throat and secrete it in the nearest drain. The draft ends up resembling an accident victim-covered in linguistic bandages

from head to foot. It is, by now, riddled with cross-references—these are often primary indicators of a basic structural malaise.^[127]

131 None of this suggests that parliamentary counsel should assume the role of policy officers. The development of policy is a matter for ministers and their departments. But the development of complex policies which are to be translated into legal form requires the early involvement of those who must make the translation. Ministers are entitled to early advice from experts on whether their policies can be put into a legal form which is consistent with the Government’s legal policies. There is a growing awareness of this fact in Victoria. Although parliamentary counsel should not take over the role of policy officers, neither should they be divorced from the development of policy. They are in a far better position than policy officers to work out the details of a legislative scheme. They are experts in the alternative methods by which a formulated policy may be put into legislative form, and the amount of detail which must be put into legislation if the policy is to be made effective. Often enough, policy officers are forced to amend aspects of their policy because it is not practicable to implement them in legislative form. Insights such as these are the province of parliamentary counsel almost alone; they are not normally enjoyed by the general run of policy officers, many of whom have no legal training.

132 Early involvement of parliamentary counsel in a major policy development would contribute to the clarity of the legislation designed to implement it and would also reduce the risk of inconsistency in the statute book. There are, or should be, general themes running through all legislation. The statute book should be as coherent as possible in matters of legal principle. These include such disparate matters as government structures, the division between judicial and administrative powers, the liberty of the subject, the presumption of innocence, and controls over administrative decisions.

Recommendation

Appropriate amendments should be made to the Cabinet Handbook to give positive encouragement to instructing officers and parliamentary counsel to consult with one another during the development of detailed policy proposals in respect of major new legislation and major rewriting of existing legislation. These consultations should not be restricted to the period immediately before the making of the Cabinet submission for a Bill in principle. A Cabinet submission should not go forward for consideration by the normal procedures unless parliamentary counsel have indicated that the drafting instructions are appropriate and adequate. Where consideration of the Bill in Principle cannot await the production of revised instructions, the defects noted by parliamentary counsel should be attached to the Cabinet submission when it goes forward for consideration.

Duties of instructing officers

133 A lack of early consultation with parliamentary counsel in relation to major policy developments is only one factor contributing to inadequacy in drafting instructions. Another is a lack of clarity concerning the duties of policy officers with respect to the preparation of instructions for Parliamentary Counsel.^[128] Suggestions have been made that Chief Parliamentary Counsel should arrange seminars on the subject with policy officers and should develop a set of guidelines, or a check-list, to assist policy officers in understanding the matters and the level of detail required to be covered in drafting instructions. Detailed sets of questions could be developed to guide instructing officers in relation to the detail that is needed by. parliamentary counsel. On the subject of powers of entry, search and seizure, for example, the questions might include the following:

a) Are powers of entry, search and seizure necessary?·

b) Who is to exercise the power?

c) Is a warrant or other authority required?

d) What limitations as to time or prior notice should be included?

e) Is provision required for an obstruction offence?

f) Is a power to stop and search a person or vehicle necessary?

g) Is a power to take samples for analysis or a power to seize records necessary?

h) Is a power to take names and addresses necessary?

i) Should there be provision for compensation; if so, in what circumstances?

Recommendation

Chief Parliamentary Counsel should take urgent steps to develop guidelines and sets of questions to assist instructing officers in drawing up drafting instructions, and to arrange periodical seminars involving parliamentary counsel and instructing officers to increase understanding on all relevant matters.

Improving regulations

Split responsibilities

134 Acts and regulations form part of a single and coherent legislative message. Ideally, the persons involved in drafting an Act should also be involved in drafting the regulations. That is likely to produce a clear and consistent message. It is also likely to be the most efficient use of resources. In Victoria, however, while parliamentary counsel are responsible for drafting Bills, subordinate legislation officers of departments and agencies have the prime responsibility for drafting regulations. A similar division of responsibility exists nowhere else in Australia, apart from Tasmania. In New South Wales, South Australia, Western Australia and the Northern Territory, parliamentary counsel draft regulations. In the Commonwealth, the Australian Capital Territory and Queensland, the Office of Parliamentary Counsel does not draft regulations, but neither do departments

and agencies. The task is performed centrally, by the Commercial and Drafting Division of the Attorney-General’s Department in the case of the Commonwealth and the Australian Capital Territory; and in the Solicitor-General’s Office in the case of Queensland.

Role of Chief Parliamentary Counsel

135 Although subordinate legislation officers are primarily responsible for drafting regulations, the Office of Chief Parliamentary Counsel plays an important role in the process. For some time, it has had the responsibility of settling the regulations drafted by subordinate legislation officers. Since 1986, it has taken sole responsibility for drafting regulations under Acts administered by the Attorney-General. Moreover, since 1984, it has had statutory functions with respect to regulations by virtue of the Subordinate Legislation Act 1962 (Vic). Under subsection 13 (3), a proposed regulation must be submitted to Chief Parliamentary Counsel for advice on a number of questions including whether it ‘is expressed as clearly and unambiguously as is reasonably possible’.

Reasons for concern

136 There are two main reasons for concern about the present division of drafting duties between Chief Parliamentary Counsel and subordinate legislation officers. The first is one of efficiency. Except in relation to the Attorney-General’s areas of responsibility, there is a double handling of regulations, first by departments or agencies and then by parliamentary counsel. This inevitably wastes resources. It may put parliamentary counsel in the difficult position of making judgments on matters without adequate background knowledge. Moreover, while Chief Parliamentary Counsel is required to advise whether regulations are expressed as clearly and unambiguously as is reasonably possible, Chief Parliamentary Counsel has no formal say in whether a particular regulation should be made despite its perceived defects. While the Subordinate Legislation (Review and Revocation) Act 1984 (Vic) requires Chief Parliamentary Counsel’s advice to be given to the Governor-in-Council, it might be better if Chief Parliamentary Counsel’s approval were normally required before subordinate legislation is proposed.

137 The second reason for concern is that, as Chart 2 demonstrates, by no means all subordinate legislation officers in departments and agencies are lawyers. Drafting is for many of them a part-time job. There is no coordinated system of training. Subordinate legislation officers cannot be expected to acquire the level of technical skill required for marrying precision and clarity in legislative drafting. Inevitably, some regulations are less well drafted than they might be. Poorly drafted regulations, like poorly drafted Acts, impose large and unnecessary costs on the community. In some cases, the regulations are the most important part of a legislative scheme. They should be as well drafted as the Acts under which they are made.

Figure 2: Subordinate legislation officers: required qualifications by agency

Achieving quality control

138 Adequate quality control of regulations is not likely to be achieved indirectly by the vetting of regulations under section 13 of the Subordinate Legislation (Review and Revocation) Act 1984 (Vic). It is only likely to be achieved if the function is directly managed. Clear lines of accountability should be created between those who perform the task and those who are responsible for quality control. There are several ways in which that might be done:

• The function and resources could remain decentralised, but Chief Parliamentary Counsel could be given specific responsibility, perhaps in conjunction with the Public Service Board, for the training and development of officers and for the maintenance of standards across the system.

• The function and resources could be located centrally in the Office of Chief Parliamentary Counsel, but officers could be seconded out in appropriate cases to maintain the desired level of client services.

• The function and resources could be located centrally in the Office of Chief Parliamentary Counsel, but the function could be organised along client services lines, with specific expertise being developed for particular program areas.

• The function and the resources to perform it could be located centrally in the Office of Chief Parliamentary Counsel and the resources organised on the same basis as for primary legislation.

139 It is unlikely that adequate quality control could be achieved by Chief Parliamentary Counsel if the function of drafting subordinate legislation and the resources necessary for that function were to remain decentralised. Split accountability of the relevant officers is likely to lead to confusion about responsibilities, uncertainty of priorities and ineffectiveness in management. The main benefit of decentralisation is said to lie in the immediate responsiveness of subordinate legislation officers to the relevant program managers.^[129] Subordinate legislation is said to be inseparable from management of programs: an understanding of the problems facing management is essential if the drafting of subordinate legislation is to correspond with the needs of program managers. The Commission does not doubt the need for drafters to understand the nature of the problems which legislation is intended to resolve. But the point applies equally to drafters of primary legislation as to drafters of subordinate legislation. Indeed, the need is greater in the former case than in the latter, since primary legislation establishes the framework within which regulation and management must take place. Once enacted, it is much more difficult to alter than subordinate legislation. Despite this, no-one suggests that the function of drafting primary legislation should be decentralised.

Recommendation

Urgent consideration should be given to the possibility of transferring to Chief Parliamentary Counsel responsibility for the drafting of all regulations. The necessary reorganisation should take account of the need not to interfere with the obligation of departments and agencies, under section 5 of the Subordinate Legislation (Review and Revocation) Act 1984 (Vic), to update and re-enact 1962–1972 regulations by 30 June 1988. If it is decided not to transfer drafting responsibility to Chief Parliamentary Counsel, consideration should be given to other organisational options to ensure proper training of subordinate legislation officers and the system-wide monitoring of standards by Chief Parliamentary Counsel.

The first of these recommendations would require the transfer to the Attorney-General’s Department of funds representing the present cost to each Department of drafting its own regulations. A reduction in the total cost of drafting regulations would more than compensate for the costs associated with implementation of the proposal.

Drafting assistance from private practitioners

140 The greater the understanding of the subject matter possessed by a drafter, the better the chances of a clearly intelligible draft. The Office of Parliamentary Counsel may not always contain experts in the field to which the Act refers. Expertise may be restricted to the private legal profession or the universities. The possibility of engaging members of the private profession for appropriate drafting tasks has been raised from time to time. Not surprisingly, there has been some resistance to the suggestion.

141 A Management Review of Chief Parliamentary Counsel’s Office in 1986 recorded some of the reasons behind this resistance.^[130] They included:

• The need to preserve confidentiality in relation to government business.

• The ignorance of the private profession in relation to the machinery of government and related legislative measures.

• The inability of the private profession to meet tight deadlines and to be available at short notice during the passage of legislation through Parliament.

On this basis, and on the ground of high cost and lack of accountability and control, the Review Team rejected the suggestions that legislative drafting be contracted out.

142 The need for confidentiality must be recognised, but should not be exaggerated. Details of proposed legislation are often announced in advance by Ministers and consultation often takes place with interested groups and individuals in connection with the development of policy and its translation into Bill form. The Credit Act 1984 (Vic) and the legislation which comes from the Ministerial Council on Companies and Securities Law are outstanding examples. In other cases, where confidentiality is regarded as important, there is no reason to believe that members of the private profession are more likely to break confidences than members of the public service. Confidentiality is, after all, fundamental to the lawyer-client relationship. There may be some reason for concern that a member of the profession who is engaged to do drafting work may subsequently make

use for another client of ‘inside’ information which is obtained. This might be against the interests of the relevant Government department. But that risk could easily be met by appropriate contractual terms between the Government and the relevant member of the private profession.

143 It is true that members of the private profession are subject to a wider variety of demands on their time than members of the Office of Parliamentary Counsel. Many of them may also lack the specialist knowledge of government processes possessed by members of the Office. That may preclude handing over total responsibility for particular Bills to members of the private profession. But it is no objection to involving the profession in the drafting of legislation under the ultimate authority and control of Chief Parliamentary Counsel. Management of the general drafting program itself demands that the Office coordinate all relevant work. The need to maintain legal consistency and the highest level of intelligibility across the statute book as a whole also demands centralised control. However, none of these factors requires that the Office and the Government be deprived of the benefits which would flow from involvement of members of the private profession in legislative drafting in appropriate cases. Their expertise and their insights, particularly in relation to the practical operation of legal rules, would be invaluable. They would also bring a fresh approach to language. They could be engaged, in appropriate cases, to prepare drafts of legislation themselves and to comment on, and correct, drafts prepared within the Office.

144 Lying behind some of the objections to the engagement of members of the private profession for legislative drafting is the view that drafting is a job for an expert in drafting rather than an expert in the subject matter of the draft. A member of the United Kingdom Parliament once colourfully referred to this view as the ‘fanatical belief that writing law is a monopolistic mystery of the Parliamentary draftsman’s impenetrable monastery.’^[131] While the belief may not be fanatical, it is certainly in error. Leaving technical aspects to one side, drafting legislation is, in principle, little different from drafting private legal documents.

145 Before the establishment of centralised parliamentary counsel offices^[132] most legislative drafting was done by members of the private profession. In most cases they were conveyancers, not expert in the areas in which they were drafting. Their efforts were far from outstanding. Drafting has improved substantially since the creation of centralised legislative drafting offices. The structure of legislation and its language have been improved. Greater consistency has been achieved across the statute book. Even so, some of the best examples of legislative drafting are to be found in statutes drafted by people other than parliamentary counsel, notable cases being the Sale of Goods Act 1893 (U.K.), the Bills of Exchange Act 1882 (U.K.)^[133] (both drafted by Chalmers),^[134] and the Queensland Criminal Code 1901 (drafted by Sir Samuel Griffith, Chief Justice of the Supreme Court of Queensland, later Chief Justice of the High Court).^[135] There are many improvements which still need to be made in legislative drafting. A monopoly in the Office of Chief Parliamentary Counsel may be unhealthy and undesirable. As an English commentator has said, ‘competition, in a co-operative sense, should broaden the experience and expertise available to the drafting office’.^[136] It should also ultimately lead to improvement in the intelligibility of legislation.

Recommendation

In appropriate cases members of the private profession should be retained to assist the Office in drafting legislation. Chief Parliamentary Counsel should retain ultimate authority and responsibility for the legislation. Members of the private profession should be retained only with the knowledge and approval of the Minister responsible for the legislation in question. The risk of the subsequent use of ‘inside’ information should be dealt with by contractual arrangements between the Office of Parliamentary Counsel and the private practitioner.

Private legal documents

146 Implementation of the Government’s plain English policy in relation to private legal documents is more difficult. The control that exists in relation to legislative and Government documents is lacking. One possibility is the passing of a plain English law requiring that all legal documents or certain types of documents achieve an appropriate level of intelligibility. This might be modelled on the Federal and State plain English laws in the United States.^[137] The Federal laws apply only to a narrow field of consumer documents. The scope of the State laws is also limited by reference to types of document or a monetary maximum or both. The types of document covered include credit purchase, money lending, leasing and insurance contracts. The monetary limits range from $25,000 to $200,000.^[138] Of the seven American States which had general plain English legislation by 1984, three imposed legibility requirements, dealing with such matters as type size, spacing and contrast. All seven States imposed language requirements as well. In New York the relevant documents had to be written in ‘a clear and coherent manner using words with common and everyday meanings’.^[139] Only one State imposed an objective test as well, requiring an average word length of less than 1.55 syllables, an average sentence length of fewer than 22 words, an average paragraph length of fewer than 75 words, no sentence in excess of 50 words and no paragraph in excess of 150 words.^[140] However, State legislation dealing solely with insurance contracts commonly uses objective standards based mainly on the Flesch Test.^[141] Remedies for breach of the United States plain English laws include damages awards with relatively low ceilings and the recovery of lawyers’ fees. In most States, class actions may be brought. Injunctive relief is also available.^[142]

147 There is no legislation in Australia comparable with Northern American plain English laws. However, minimum legibility and intelligibility standards are set in some Commonwealth and Victorian statutes. The most extensive treatment of the subject is in the Credit Act 1984 (Vic). That Act is limited to a range of consumer contracts. It forbids the issue of documents that are ‘not readily legible’. The Credit Licensing Authority may direct that a document not be used if in the opinion of the Credit Tribunal, it is:

a) expressed in language that is not readily comprehensible;

b) written or printed in a colour, or on paper of a colour, that detracts from the legibility of the document; or

c) written or printed on a page in a style or manner that detracts from the legibility of the document.^[143]

Documents may also be submitted to the Credit Licensing Authority for clearance by reference to these standards.^[144] The Insurance Contracts Act 1984 (Cth) deals with the problem differently. It is not restricted to consumer contracts. It contains a number of provisions which simply require that an insured be ‘clearly informed’ of certain matters which are relevant to a decision whether or not to enter into a particular contract of insurance.^[145]

148 In a recent assessment of North American plain English legislation, Professor Reed Dickerson concluded that they had performed a valuable function.^[146] A survey of banks, credit unions, finance companies, real estate firms and other groups affected by the plain English law in New York revealed that 75 per cent of the 200 or more businesses surveyed were complying with the law. Most firms acknowledged that they would not have revised their forms if it had not been for the plain English law.^[147] However, there have been reports suggesting that some plain English laws may actually impede bodies in redrafting their documents to make them more comprehensible.^[148] Certainly, the limitations of ‘objective’ plain English tests, such as the Flesch test,^[149] are enough to suggest that any plain English laws should not impose objective criteria.

149 Considerable resistance to the enactment of generally applicable plain English standards was exhibited in some responses to the discussion paper. In the case of legal documents relating to consumers much of the field is already covered. Competitive forces are bringing further changes, particularly in the field of insurance. In the case of commercial documents, very little of the field is covered. But the need for many commercial clients to use their contracts not only to establish rights and duties, but as working documents to ensure compliance by them, and by other parties, is leading to a simpler and more straightforward style of drafting in many commercial documents. The movement towards simplifying the language and structure of legal documents is already well under way on a voluntary basis. That movement is not restricted, as are the North American plain English laws, to consumer contracts. The Commission believes that the introduction of North

American style plain English laws might be counterproductive. The need for a general plain English law has not been established.

150 The Attorney-General’s Department has already had discussions with the Law

Institute of Victoria and the Victoria Law Foundation concerning the setting up of a project to encourage implementation of a plain English policy throughout the legal profession and the business community. Such a project would constitute a valuable complement to the steps already taken by the Government and to the recommendations contained in this report for further implementation of the Government’s plain English policy in the public sector.

Recommendation

The Secretary to the Attorney-General’s Department should consult with the Law Institute of Victoria and the Victoria Law Foundation with a view to setting up a program to implement the Government’s plain English policy in the private sector. That program should concentrate initially on the standard forms which have been prepared with the authority of the Law Institute. It should then be extended to forms used by business houses, including banks, real estate agents and insurers. The steering committee for the program should include representatives of the Law Reform Commission of Victoria and of the proposed Legal Drafting Institute at Monash University.

100. * Published separately.

     A Samuels, ‘Improving the Quality of Legislation’, (1974) 3 Anglo-American Law Review 523, 532.

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101. J Q Ewens, ‘Legislative Draftsmen: Their Recruitment and Training’, (1983) 57 Australian Law Journal, 567.

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102. In Victoria, at the Leo Cussen Institute.

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103. S Robinson, ‘Drafting—Its Substance & Teaching’, (1973) 25 Journal of Legal Education 514, 515.

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104. J Q Ewens, ‘Legislative Draftsmen: Their Recruitment and Training’, (1983) 57 Australian Law Journal, 569.

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105. Legislative Drafting Institute Act 1974 (Cth).

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106. Legislative Drafting Institute, Annual Reports, 1975-1981, AGPS, Canberra.

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107. Composition of Legislation, 2nd ed, Department of Justice, Canada, 1976; A Manual of Instructions for Legislative Writing, Department of Justice, Canada, 1982.

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108. E Driedger, ‘The Legislative Training Programme in Ottawa’, (1973) 54 The Parliamentarian 228.

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109. Materials on Legal Drafting, Wests Publishing Co, 1981.

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110. H Henderson and T Bates, ‘Teaching Legislation in Edinburgh: An Outline’, [1980] Statute Law Review, 151.

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111. Barbados, 1979.

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112. Zimbabwe, 1985.

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113. K Makamure, ‘The Diploma in Legislative Drafting at the University of Zimbabwe: An Experience from the New Commonwealth’, [1985] Statute Law Review 21.

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114. A Samuels, ‘Improving the Quality of Legislation’, (1974) 3 Anglo-American Law Review 523, 532.

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115. L Miller, ‘Computers for Composition: A Stage Model Approach to Helping’, (1986) 20 Visible Language 188.

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116. D Halpern and L Miller, Automated Legal Writing, 1984.

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117. G.K Kolts, (then First Parliamentary Counsel of the Commonwealth), ‘The Provision of Drafting Services for Private Members of the Federal Parliament’ in K Turner (ed), The Information Sources of Parliament, 97–8.

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118. Legislation Handbook, AGPS, Canberra, 1983.

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119. At paragraph 4.6.

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120. At paragraph 4.17.

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121. At paragraph 4.18.

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122. At paragraph 5.4.

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123. At paragraph 5.5.

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124. The Legislation Handbook itself states that ‘preliminary drafting instructions need not normally be sent to the Office of Parliamentary Counsel’: paragraph 4.6.

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125. At paragraph 152.

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126. Submission, 3 December 1986, 12.

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127. At 14.

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128. This problem·may be compounded by the practice adopted in some departments and agencies of requiring a legislation officer rather than the responsible policy officer to prepare the instructions: meeting with policy advisers, 25 May 1987.

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129. Meeting with subordinate legislation officers, 23 April 1987.

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130. Information supplied by Attorney-General’s Department.

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131. A Samuels, ‘Improving the Quality of Legislation’, (1974) 3 Anglo-American Law Review 523, 532.

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132. Britain in 1869; New South Wales in 1878; Victoria in 1879. See R Parsons, Lawyers in the New South Wales Parliament, 1870–1890: a Study of the Legislative Role of Private Members (PhD thesis, Macquarie University) 1972, 275f.

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133. The Bills of Exchange Act 1882 was described by Mackinnon LJ as ‘the best drafted Act of Parliament which was ever passed’. Bank Polski v Mulder [1942]1 All ER 396, 398.

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134. Subsequently appointed to the Office of Parliamentary Counsel and made First Parliamentary Counsel in 1902.

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135. See A Castles, An Australian Legal History, Law Book Co, Sydney, 1982, 487.

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136. A Samuels, ‘Improving the Quality of Legislation’, (1974) 3 Anglo-American Law Review 523, 532.

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137. For details, see H Lloyd, ‘Plain English Statutes: Plain Good Sense or Plain Nonsense?’ (1986], Law Library Journal, 683, 686–688.

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138. J Wetter, ‘Plain Language in Pennsylvania: Fading Issue or Development on the Horizon?’,(1985) 89 Dickinson Law Review 441,444–445. See also B Leete, ‘Plain English Legislation: A Comparison of Approaches’, (1981) 18 American Business Law Journal 511; R Moukad, ‘New York’s Plain English Law’, (1980) 8 Fordham Urban Law Journal 451’; A Millus, ‘Plain Language Laws: Are They Working?’ (1983) 16 Uniform Commercial Code Law Journal 147; B Bowen, T Duffy & E Steinberg, ‘Analysing the Various Approaches of Plain Language Laws’, (1986) Communications Design Center, Carnegie Mellon University, Pennsylvania.

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139. New York General Obligation Law §5-702.

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140. J Wetter, ‘Plain Language in Pennsylvania: Fading Issue or Development on the Horizon?’, (1985) 69 Dickinson Law Review 441, 448.

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141. R Flesch, The Art of Readable Writing, 25th Anniversary Edn, Harper & Row, New York, 1974, 247f. The Flesch test and other ‘objective’ tests are useful in detecting incomprehensibility of language. However, they are mechanical in nature. The Flesch test, for example, relies on average syllables and words per sentence; it takes no account of word familiarity, let alone grammar, syntax and structure. There is, therefore, considerable doubt whether such tests are useful as statutory standards. See H Lloyd, ‘Plain English Statutes: Plain Good Sense or Plain Nonsense?’ [1986) Law Library Journal 683, 692.

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142. J Wetter, ‘Plain Language in Pennsylvania: Fading Issue or Development on the Horizon?’, (1985) 69 Dickinson Law Review 441, 449.

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143. s 152.

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144. s 153.

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145. For more restricted examples, see s 19, Penalties and Sentences Act 1981 (Vic) and ss 36 (5) and 37 (4) Prisons Act 1981 (WA).

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146. ‘Plain English Statutes and Readability’, (1985) 64 Michigan Bar Journal 567, 569.

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147. Department of Justice, Canada: Access to Justice, Report No I, 41.

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148. H Lloyd, ‘Plain English Statutes: Plain Good Sense or Plain Nonsense?’, [1986) Law Library Journal 683, 692.

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149. Paragraph 146.

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