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

Recommendations

A. Training of drafters

Drafting manual

The Commission has prepared a drafting manual, dealing with linguistic matters, to assist legislative drafters to write plainly and to avoid the defects which have been identified in present legal drafting.

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.

Legal Drafting Institute

Training drafters by the apprenticeship method is inadequate. It perpetuates poor drafting practices. At the Commission’s suggestion, Monash University is arranging for a feasibility study to be conducted by the Public Service Board into the establishment of a Legal Drafting Institute as a joint project between the University and the Government. The feasibility study is to be funded by the Law Foundation.

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 experience

Experience in private practice would help drafters to appreciate the needs and abilities of those who are affected by legal documents. Experience in policy units in departments and agencies would help drafters to appreciate the difficulties faced in policy development. Each would contribute to clear and intelligible drafting. Many recruits to the Office of Chief Parliamentary Counsel have very little experience in private practice. They also have little experience in policy development.

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 Departments and Agencies.

Use of electronic aids

Word processors and computers can provide valuable assistance in the drafting of clear documents. Software programs with capacity for textual criticism are already commercially available. Substantial improvements are likely to be made in the near future.

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 Chief Parliamentary Counsel elsewhere in Australia to facilitate clear and consistent drafting.

Relationship between parliamentary counsel and instructing officers

The traditional view of the relationship between parliamentary counsel and instructing officers is that instructing officers should formulate all the details of a legislative scheme before presenting it to parliamentary counsel for drafting. Parliamentary counsel can play a valuable role in assisting in policy development, particularly through advice on general legal principles and on the legal options available for achieving specific goals. Early involvement of parliamentary counsel in major policy development would contribute to the consistency and clarity of draft legislation.

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

A lack of clarity concerning the duties of policy officers with respect to the preparation of instructions for Parliamentary Counsel contributes to inadequacy in drafting instructions. Steps should be taken to clarify the role of policy officers and to assist them in performing their tasks.

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

Legislation is made up of Acts and regulations made under them. Acts are drafted by the Office of Chief Parliamentary Counsel. Regulations are usually drafted by subordinate legislation officers in the Departments and Agencies which administer the Acts. This arrangement is an unusual one. It makes quality control extremely difficult. The drafting of regulations is normally centralised in most other Australian jurisdictions. Chief Parliamentary Counsel should be responsible for maintaining drafting standards in relation to all legislation.

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.

Use of private practitioners

All Acts are drafted in the Office of Chief Parliamentary Counsel. In some cases, valuable assistance could be obtained by engaging expert members of the private profession.

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

Implementation of the Government’s plain English policy in the private Paras 146-150 sector should be achieved in cooperation with the Law Institute and business houses. Both lawyers and businessmen are already moving towards greater clarity in their documents. There is no need for legislation in this area.

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 of Victoria. 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.

B. Structure and design of Acts and Regulations

There are no clear criteria for determining what material should be included in the body of an Act and what should be left to Schedules. A considerable amount of the detail which is included in the body of Acts could be transferred to Schedules. This would enable principles to be clearly stated in Acts and would contribute to clarity in drafting.

Chief Parliamentary Counsel should ensure that the body of an Act commences with a clear statement of the relevant principles and that, as far as practicable, the details and qualifications which have to be included in the Act are relegated to Schedules.

There are also no clear criteria for determining what material should be included in Acts and what should be left to regulations. The development of clear criteria would contribute to better organisation of material and improved clarity.

In consultation with the Cabinet Office, the Regulation Review Unit and other interested bodies, Chief Parliamentary Counsel should develop guidelines to assist Ministers, Departments and parliamentary counsel in the allocation of legislative material between an Act and the regulations made under it. In developing the guidelines, Chief Parliamentary Counsel should take account of the practical and constitutional concerns referred to in this report. The guidelines should be presented for consideration by Government.

Improvements could be made in the design of Acts and regulations. A modern format should be adopted.

In consultation with the Cabinet Office, the Regulation Review Unit, the Victorian Government Printer and other interested bodies, Chief Parliamentary Counsel should develop a new design for Acts and regulations. The new design should incorporate improved cross-referencing systems and indexes for all major legislation. It should be presented for consideration by Government.

C. Rewriting existing legislation and Government forms

The earlier recommendations should result in substantial improvements in the drafting of original legislation. But they would leave untouched existing legislation. It would not be cost-effective to rewrite all existing legislation. A more selective approach should be adopted.

A legislation rewriting program should be established. It should be aimed at a limited number of important Acts (say, 50) and regulations made under them.

Considerable savings could be made if Government forms were to be redesigned and rewritten in plain English. Departments and agencies would benefit from expert assistance in conducting rewriting programs.

A small Plain English Unit should be established to assist in the implementation of the Government’s plain English program in relation to existing forms and documents. The unit should provide consultancy services to departments and agencies and should monitor implementation of the plain English policy. It should be dissolved within three years.