This is an edited version of a paper given by Nick Renton some years ago.
While it deals specifically with "plain English" in legislation the principles involved in using a "clear English" drafting style apply equally to all legal documents and have particular relevance to contracts between business houses and consumers - for example, loan agreements and insurance policies.
The paper also refers briefly to a pilot project to rewrite the income tax law in Australia. Nick Renton acted as a consultant to the Law Reform Commission of Victoria in this exercise.
The term "plain English" was defined in a report Plain English and the Law issued by the Law Reform Commission of Victoria in 1987 as follows:
"`Plain English' involves the use of plain, straightforward language which avoids ... defects and conveys its meaning as clearly and simply as possible, without unnecessary pretension or embellishment. It is to be contrast that with convoluted, repetitive and prolix language. The adoption of a plain English style demands simply that a document be written in a style which readily conveys its message to its audience. However, plain English is not concerned simply with the forms of language. Because its theme is communication, it calls for improvements in the organisation of the material and the method by which it is presented. It requires that material is presented in a sequence which the audience would expect and which helps the audience absorb the information. It also requires the document's design be as attractive as possible in order to assist readers to find their way through it."
British textbooks on the English language sometimes quote the following famous passage from one of their pieces of subordinate legislation:
"In the nuts (unground) (other than ground-nuts) order, the expression `nuts' shall have reference to such nuts, other than ground-nuts, as would, but for this amending order, not qualify as nuts (unground) (other than ground-nuts) by reason of their being nuts (unground)."
But are things any better in Australia? Consider the following extract from a judgement of the Federal Court:
This brings us then to subsections (6) and (7) upon which the Commissioner founded his submissions.
While both subsections present difficulties of construction, the former is drafted with such obscurity that even those used to interpreting the utterances of the Delphic oracle might falter in seeking to elicit a sensible meaning from its terms.
Subsection (6) provides as follows:
"A disposal of an asset that did not exist (either by itself or as part of another asset) before the disposal, but is created by the disposal, constitutes a disposal of the asset for the purposes of this Part, but the person who so disposes of the asset shall be deemed not to have paid or given any consideration, or incurred any costs or expenditure, referred to in paragraph 160ZH(1)(a), (b), (c) or (d), (2)(a), (b), (c) or (d) or (3)(a), (b), (c) or (d) in respect of the asset."
- Justice Hill in the Federal Court, discussing section 160M of the Income Tax Assessment Act 1936 in re Commissioner of Taxation and Cameron Richard Cooling No. G89 of 1990 Fed No. 297 Taxation
Unfortunately, judges are not perfect either. The noted tax expert, Ray Conwell, in the course of a paper which he gave to a seminar, quoted from a High Court judgement by Justice Windeyer:
"The wording ... appears involute and to have the aberration of tenses and in the use of the subjunctive mood. But if meanings of both the protasis and the apodosis sufficiently emerge we need not be concerned by inelegances appearing on a syntactical analysis."
Conwell then commented:
"It would be a cruel blow indeed if after finally coming to grips with the legislation you cannot understand the judgement."
LAW REFORM COMMISSION OF VICTORIA
For all practical purposes only one official organisation in Australia has ever actively attempted to promote "plain English" as a drafting style not only for legislation but also for private legal documents.
This was the Law Reform Commission of Victoria in the late 1980s, an organisation which has already been mentioned above. While perhaps better known for its reports and discussion papers on topics ranging from bail to enduring powers of attorney and from the law of rape to the road traffic regulations the Commission also involved itself in some pioneering work in the "plain English" area. By 1992 it had built up considerable expertise in this field and had earned itself an international reputation.
In an act of monumental stupidity and astonishing vindictiveness this Commission was abolished by the Kennett Government in November 1992. The legislation for this modern equivalent of book burning was introduced in the first few days of the Parliamentary session immediately following the election of the new Government. Destroying an organisation is, of course, always much easier than building one up.
This legislation was passed in great haste by politicians who did not seem to understand that a poorly drafted set of laws inevitably involves the community in an enormous hidden cost and that their foolish action really amounted to a false economy. Naturally, the cost and inconvenience of complex legislation is not just confined to the time and money wasted in the conduct of actual court cases.
The Commission was restored by the Bracks Government in 2000, but it is no longer doing any work in the plain English area.
A New South Wales body, the Centre for Plain Legal Language, was founded in 1991. However, it ceased operating in 1997.
© N E Renton 2006
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