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

4. Plain English and objections to it in the law

Nature of plain English

57 The drafting defects catalogued in the preceding chapter are not unique to legislation. Other legal documents examined by the Commission contain equivalent or analogous defects.[52] These defects can only be eradicated by the adoption of a plain English approach to communication. ‘Plain English’ involves the use of plain, straightforward language which avoids these defects and conveys its meaning as clearly and simply as possible, without unnecessary pretension or embellishment. It is to be contrasted 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 that a document’s design be as attractive as possible in order to assist readers to find their way through it.

Objections to plain English in legal drafting

58 During the course of its work on the reference, the Commission was confronted with a number of specific objections to the adoption of a plain English policy in relation to legislation and other legal documents. The rest of this chapter examines each of these objections. The conclusion reached is that they are based on misunderstandings concerning the nature of plain English and the objectives of those who advocate it.

a. ‘Plain English involves a debasement of the language’

59 It would certainly be a debasement of language if Shakespeare’s:

I’ll call thee Hamlet,

King, father, royal Dane: Oh answer me,

Let me not burst in ignorance; but tell

Why thy canoniz’d bones hearsed in death,

Have burst their cerements, why the sepulchre

Wherein we saw thee quietly inurn’d

hath op’d his ponderous and marble jaws,

To cast thee up again?[53]

were to be translated as:

What are you doing out of your coffin, Dad?

We buried you the other day and you’re supposed to be dead,

Don’t keep me waiting! I’m bursting to know.[54]

The message conveyed by the translation is a poor shadow of the original. It has lost its sense of the awful solemnity of Hamlet’s meeting with his dead father. It has none of the elegance of the original and generates no aesthetic pleasure.

60 But legal documents are functional documents, not literary ones. Their aim is to establish, and to communicate information about, rights, duties, benefits and burdens. They are not intended to be works of art, to convey atmosphere or to generate aesthetic pleasure. That is not to say that they may be written clumsily or inelegantly. Like convolution and prolixity, clumsiness and inelegance detract from the efficiency with which a document communicates its message. Like convolution and prolixity, they are inconsistent with plain English. Writing legal documents in plain English requires direct and clear expression. It does not involve any debasement of the language.

b. ‘Plain English is incompatible with precision’

61 For lawyers, accuracy and precision are fundamental. Adoption of a plain English policy in relation to legal drafting would be unacceptable if it involved a change in the intended allocation of rights and duties or if it made a clear document ambiguous. Some responses to the discussion paper pointed out that statements in plain language can lead to uncertainty because of their lack of precise meaning. Section 92 of the Commonwealth Constitution was given as an example:[55]

Trade commerce and intercourse between the States shall be absolutely free.

Section 92 has given rise to a large amount of litigation aimed at determining how it applies in particular situations. But it is quite wrong to blame the simplicity of its language. The fault (if it be a fault) lies with the lack of precision of the Founding Fathers in developing the policy which lay behind section 92. If the policy had been more detailed, the section would certainly have been longer. Much of the litigation which has followed would have been avoided. But the detailed policy could still have been expressed in simple language. The fact that statements in plain language can lead to uncertainty when they express an imprecise policy is irrelevant to the question of the utility of a plain English approach to legal writing in general.

62 Other critics of the plain English movement have strenuously maintained that clarity and precision are inconsistent goals. The 1984–85 Annual Report of the Commonwealth Office of the Parliamentary Counsel states that:

Critics of legislative drafting fail to appreciate that the reason that even a well-drafted law may be difficult to understand (even to an expert on the subject matter of the law) is that the law has to be unambiguous. This contrasts with literary English where the main object of the writing is to convey an idea readily to the reader and it does not matter that it may not be conveyed precisely. The drafter of legislation is not likely to receive any thanks from the Government for drafting a law that is easily comprehensible but is imprecise. As Sir Ernest Gowers pointed out in The Complete Plain Words, … [l]ack of ambiguity does not go hand in hand with intelligibility, and the nearer you get to the one, the further you are likely to get from the other.[56]

63 This statement, like other similar ones, begs the question whether accuracy and intelligibility really are inconsistent goals. The authority relied upon is certainly an impressive one. Sir Ernest Gowers has been described by Professor Robert Benson, an advocate of plain English, as ‘the patron saint of sensible writing’.[57] Yet, in a chapter entitled ‘A Digression on Legal English’, Gowers argued that the reason for the peculiarities of legal English lay in the necessity not to be unambiguous:

That is by no means the same as being readily intelligible; on the contrary, the nearer you get to the one, the further you are likely to get from the other … It is accordingly the duty of a draftsman of these authoritative texts to try to imagine every possible combination of circumstances to which his words might apply and every conceivable misinterpretation that might be put on them, and to take precautions accordingly. He must avoid all graces, not be afraid of repetitions, or even of identifying them by aforesaids; he must limit by definition words with a penumbra dangerously large, and amplify with a string of near synonyms words with a penumbra dangerously small; he must eschew all pronouns when their antecedents might possibly be open to dispute and generally avoid every potential grammatical ambiguity.[58]

64 Commenting on this passage, Benson stated that it was ‘as if the Sunday preacher has unveiled himself as Judas Iscariot’.[59] Gowers was, of course, a lawyer and a civil servant. Like many lawyers, he appears to have been seduced by the claim of parliamentary counsel that clarity must be sacrificed to precision. Benson rightly compares Gowers’ defence of this claim with the response made by the Swiss clockmaker to the mayor’s criticism of a clock of great precision which had been installed in the tower on the main square:

‘But Johann,’ complained the mayor, ‘the clock has no hands or numbers and the citizens cannot tell the time.’ ‘I give you the finest precision-instrument in Europe,’ grumbled Johann, ‘and you are ungrateful. Besides, if the citizens want to know the time, they can pay me to climb the tower, inspect the workings, and announce it.’

As Benson points out, Gowers was guilty of sleight of hand in altering the concept of precision by removing from it the requirement of communicability. It is hardly surprising to find that Gower’s ‘Digression’ was removed by a subsequent editor[60] and that the treatment of legal English as a separate dialect has been all but abandoned in the most recent edition.[61]

65 In fact, precision and clarity are not competing goals. Precision is desirable in order to minimise the risk of uncertainty and of consequent disputes. But a document which is precise without being clear is as dangerous in that respect as one which is clear

without being precise. In its true sense, precision is incompatible with a lack of clarity.

As Thornton says:

The purposes of legislation are most likely to be achieved by the draftsman who is ardently concerned to be intelligible. The obligation to be intelligible, to convey the intended meaning so that it is comprehensible and easily understood by the affected parties, is best satisfied by writing with simplicity and precision … A law which is drafted in precise but not simple terms may, on account of its incomprehensibility, … fail to achieve the result intended. The blind pursuit of precision will inevitably lead to complexity; and the complexity is a definite step along the way to obscurity.[62]

In summary, neither precision nor simplicity should be sacrificed at the altar of the other.[63]

66 Despite all this, the view that the adoption of plain English is inconsistent with achieving the required degree of legislative precision is a persistent one. A number of submissions[64] pointed to the fact that the Commission’s earlier attempts to redraft particular legislative provisions in plain English had in several cases failed to reproduce the detail contained in the originals. Some submissions attributed this to the tension between precision and clarity. In the Commission’s view, that is not correct. The errors found in the earlier drafts resulted from difficulties in establishing the exact meaning of the original. Once that was done, the errors were readily corrected without departure from a plain English style.[65] The same is true of the plain English version of the Companies Acquisition of Shares (Victoria) Code in Appendix 2. Considerable effort has gone into reproducing the detail of the original. If some detail has been missed, it could readily be included without affecting the style of the plain English version. It would not be necessary to resort to the convoluted and repetitious style of the original, nor to introduce the unnecessary concepts which it contains. Any errors in the plain English version are the result of difficulties of translation, particularly difficulties in understanding the original version. They are not inherent in plain English itself. Ideally, of course, plain English should not involve a translation. It should be written from the beginning. In that event, all necessary detail would be included automatically in the draft Bill. There would be no question of a failure to reproduce the precise amount of detail required.

c. ‘It is impossible to draft complex laws which are intelligible to the average citizen’

67 Underlying this objection is a misconception concerning the audience of legislation. The view of many drafters is that they should draft with prime concern for lawyers and judges.[66] Clearly lawyers must have access to an intelligible text in order to advise their clients. Similarly, judges must be able to·understand legislation in order to construe and apply it. But that does·not mean that a law is satisfactory if it is intelligible to lawyers and judges. Lawyers and judges are an important audience, but they are a secondary one.

68 The primary audience of draft legislation is Parliament.[67] Parliament bears the ultimate responsibility for the language used in an Act. An Act contains only what Parliament has approved. But members of parliament must themselves read Bills if they are to vote on them. If they are not readily comprehensible, parliamentary time may be wasted and the Government’s legislative program interfered with. Worse still, laws may be enacted without members fully understanding and appreciating their significance. Parliament regularly has to grapple with complex content. It should not also have to struggle with obscure language.

69 Once a Bill has been passed, the primary audience is the group of people who are affected by it and the officials who must administer it. A clear statement of the law is necessary if citizens are to be aware of their rights and obligations. It is also necessary if the officials who administer the law are to do so properly. When Parliament passes a law applying to citizens or to a selected group of citizens, its prime concern is not with the reaction of judges or lawyers or even administrators. Its prime concern is with the conduct of the citizens whom it regulates or on whom it imposes burdens or confers benefits. That is not to say that drafters should not be concerned with accuracy and precision. They certainly should. But the prime aim should be to ensure that those to whom the law is addressed act in accordance with it. The law should be drafted in such a way as to be intelligible, above all, to those directly affected by it. If it is intelligible to them, lawyers and judges should have no difficulty in understanding it and applying it.

70 The correct relationship between drafter and audience has been admirably described by Thornton. He distinguishes between three groups to whom the communication of a law is relevant: (1) the members of the law-making authority, (2) the members of society who are concerned with or affected by the law, and (3) the members of the judiciary. He continues:

It is unrealistic to believe that laws should be drafted in language and in a style which is familiar and instantly intelligible to the man in the street. Nevertheless the draftsman must in each case endeavour to draft in such a way that the law is successfully communicated to the persons who make up the three groups. Legislation having a high technical content may not be fully understood by groups 1 and 3, at least without comprehensive technical explanation. This is inevitable. A law to regulate radio communication may justifiably contain phrases such as ‘intermediate frequency gain’ and ‘sinusoidal tones’ and other phrases equally meaningless to most people. What is vital is that the words be chosen and a style adopted which those whose interests are affected (i.e. group 2) should be able to comprehend without unnecessary difficulty. Technical purposes are likely to require technical words and technical law may still be good law, even if unintelligible to most people, so long as it achieves ready communication with those who matter so far as that law is concerned. On the other hand, because in its application to some specialist areas legislation must be virtually unintelligible to most people, that does not provide the slightest justification for widespread unintelligibility. The style of legislation should deviate from common language only when a specialist topic requires. Even in such cases, the style should deviate from common language no more than is made necessary by the technical content. This principle cannot be emphasised too strongly.[68]

71 The plain English movement does not require that laws always be drafted in such a way as to make them intelligible to the average citizen. However, it does require that every effort be made to make them intelligible to the widest possible audience. There is no justification for the defects in language and structure which were noted in Chapter 2 and which sharply reduce the range of people who are capable of comprehending a document. Many legal documents are written in such a way that not only the people to whom they are directed but also judges and skilled lawyers have extreme difficulty in comprehending them. In such a case, it is not unfamiliarity with the subject matter or a lack of technical knowledge which causes the problem; it is the language and structure of the document itself. These should be improved, not in the hope of making the document intelligible to the average citizen, but in order to make it intelligible—and immediately intelligible—to as many of those as possible who are concerned with the relevant activities.

72 This point has not always been fully appreciated. In its 1984–85 Annual Report, the Commonwealth Office of Parliamentary Counsel stated that plain English criticisms of legislative drafting styles appeared to be based on the mistaken belief that all statutes should be able to be expressed in simple language capable of being understood by the average citizen. Professor Robert Eagleson was cited as one person who holds such a view. In fact, he does not. Writing of the effect which the adoption of a plain English policy would have, Professor Eagleson said that:

An advanced text on cancer or a law about the ownership of shares … will remain complex. But the complexity will reside solely in the subject matter, and not be compounded by difficulty in language. For it is an error to assume … that difficulty in context must be matched by difficulty in language … complexity in subject matter does not call for complicated, convoluted language.[69]

A similar point was made in the discussion paper.[70] It is re-emphasised here. The Commission’s criticisms of the traditional drafting style are not based on the view that all statutes can be expressed in simple language capable of being understood by ordinary citizens. They are based on the view that style decreases the number of persons who can understand statutes by imposing unnecessary barriers in the way of comprehension.

d. ‘There often isn’t sufficient time to draft in plain English’

73 The proposition that it takes more time to write clearly than to write obscurely is neatly put in the remark made by the famous seventeenth century mathematician and philosopher, Blaise Pascal: ‘I am sorry that this letter is unusually long. I did not have enough time to write a shorter one.[71] Much the same view was adopted by the Commonwealth Attorney-General’s Department in response to criticisms made by members of the Commission in relation to the drafting of certain provisions in the Takeovers Code and Futures Industry Act 1986:

No doubt, given opportunity or time, there would be scope for simplification … [While] the [plain English] provisions are more readable … they have the advantage and result from the editing of a completed text. This is a far less arduous task than that confronting the original draftsman who had to formulate the total text under considerable time pressures.[72]

74 Legislative drafting is certainly subject to time constraints. The time given to prepare drafts is often inadequate. Ministers and instructing officers sometimes make radical changes to the policy which has been incorporated in earlier drafts. Amendments are sometimes passed in Parliament at short notice. As Sir George Engle, former First Parliamentary Counsel in the United Kingdom, has said:

for too many Bills, the time left for serious work on their preparation is less, and for large and difficult Bills often far less, than the minimum time needed to do the job satisfactorily. Instructions may have to be sent before the policy is finally settled. Drafting too often has to begin on the basis of partial or incomplete instructions. And if the requirements of the Parliamentary timetable make it necessary for a particular Bill to be introduced at the earliest practicable moment in the session, the draftsman may find himself hard put to it to produce a Bill at all in the time, and is most unlikely to be· allowed the luxury of a period of calm in which to consider how the. drafting could be improved. Given time, the draftsman of a Bill can nearly always perceive ways in which its structure and wording could be bettered; but this is not something that can be done in a rush. [73]

The very process by which drafts develop is such as to make continuous redesign of a Bill impracticable:

In the early stages it may be comparatively easy to redesign each successive draft to fit the latest version of what is wanted; but as each successive draft embodies a larger proportion of material that has been seen and commented on by the various departments interested in the Bill, it becomes more and more difficult, in the time available before introduction, to make radical changes in the way the Bill is drafted, since to do so would mean taking to pieces many provisions which have been generally agreed.

Once the Bill has been introduced, there is little enthusiasm for redesign for redesign’s sake. Yet, in the case of nearly all complex or controversial Bills, the process of amendment goes relentlessly on; and though the draftsman can sometimes achieve a measure of redesign in the course of preparing government amendments to the Bill,

his ability to do anything radical in this line is limited by the fact that it is usually not until the Bill is nearing the end of its course that its ultimate content becomes settled in substance—and by then Ministers are not only reluctant to disturb provisions which have emerged from earlier stages of the Bill, but are also … unwilling to devote valuable time on the floor of the House to amendments which are not strictly necessary.[74]

75 There can be little doubt that pressures of time and the process involved in refining draft legislation militate against coherence of structure and form. But not all legislation is subject to such pressures. As Benson says:

even statutes … are initially conceived in silent minds and quiet rooms and have a gestation period of many months. It is only the moment of birth of these documents that tends to be quick and violent. If the prose is clear and simple from conception through gestation, chances are that a good deal of clarity and simplicity will survive the birth.[75]

Moreover, it is by no means clear that the reason for legislative obscurity lies in a lack of time for a final edit of the material. In the Commission’s view, the reason is more deep-seated than that. Some drafters fail to recognise the needs of the various audiences to whom the legislation is directed. They follow established styles and drafting conventions which legitimise excessive caution, repetition and convolution. They see no need for the type of editing which is necessary to remove or minimise obscurity. They lack a forum for reassessing long-held assumptions about legislative drafting.

76 If these factors were considered during the early drafting stage of a new Bill or an amendment to an existing one, there would be little need for a final edit of legislation to produce a clear version. Indeed, there would be considerable savings in time and substantial opportunities for increased productivity. The amount of writing required by the present style is typically more than twice that required by a plain English style. The writing time saved should more than compensate for any additional time which might be required to write more directly and concisely.

77 In any event, the assertion that it takes longer to write in plain English is a doubtful one. It seems to assume that legislation has to be written in traditional legal language and then ‘translated’ into plain English. That is wrong. Legislation can, and should, be written in plain English from the start. In fact, traditional legal writing is, in some cases at least, a clumsy collation and translation of plainer originals. Much legislation is long-winded. Sentences run on, sometimes for hundreds of words. They consist of numerous clauses entwined in and entangled with other clauses. No one could possibly produce such sentences in an initial draft. They must have started as a series of short sentences which were gradually merged; or even as one simple sentence to which qualification upon qualification was added.

78 Writers often begin plainly but then work through a series of revisions to produce an inflated version. Take the development of a section in a report of a Commonwealth authority dealing with housing loans. In an early draft, it stated:

The Commission gives equal consideration to joint applicants where the partner is non-Aboriginal.

It was then expanded into:

Consistent with the provisions of the Act, the Commission gives equal consideration to joint applicants where the partner is non-Aboriginal.

It finally ended up as:

Consistent with the provisions of the Act, the Commission gives equal consideration to joint applicants where one partner is non-Aboriginal. The children of mixed marriages are regarded as Aboriginal and benefit from the provisions of a stable environment.[76]

79 Similar revision of a simple statement must have led to the following description by a government accounts officer of the procedures for a publications division of a Commonwealth Government Department:

It should be borne in mind that the annual publishing program consists of not only those publications scheduled for printing during 1984–85 but also those publications which will be paid for during 1984–85, i.e. publications which are not expected to be delivered to the AGPS until May or June of this year should be included in your 1984–85 program. Notwithstanding this, those publications which you expect to deliver to the AGPS during May and June of 1985 should be included in the 1984–5 program.

Thankfully, the writer explained what was meant in a postscript.

P.S Above is very long-winded. Maybe we could just say that the service covers May 1984 to June 1985 when material is delivered to the AGPS.

If a plain English policy were adopted in relation to legal writing, the long-windedness created by revision of simple statements could be avoided. Less time, not more, would be required for drafting a document. There would be substantial savings for the whole community.

e. ‘Plain English would lead to uncertainty through the loss of words and phrases whose meanings have been settled by judicial interpretation’

80 The concern over the loss of established and precise meanings for many legal words and phrases is understandable. As Prather said:

Legal language gradually has become precise and relatively certain; when a word, term or phrase is used in a contract, and that contract has been the subject of judicial interpretation, the precise meaning of the words therein has become more certain or determinable. Thus, one can depend upon what the particular words mean (or certainly what they do not mean) because a court has ruled, and probably would rule in the future, that they mean just that.[77]

In fact, however, there are relatively few words and phrases which have been subject to the type of detailed interpretation which this argument assumes. Professor Mellinkoff examined at length the question whether the vocabulary of the law is precise. His conclusion was that only a tiny part of the language of the law was technical and precise:

The defect in the dogma of precision is that it claims too much. Law language is but rarely precise. In a few particulars, ‘Yes’; as a whole pattern of communication, ‘No’. And it is as important to the lawyer to make himself aware that his language is not generally precise as it is for him to know the precision that is there.

If the language of the law is stripped first of its overwhelming mass of ordinary English … and next of the repeated words and phrasings of tradition … precedent, and requirement which are occasionally precise but only by coincidence, there still remains a distinctive nubbin of precision. It is achieved by the discriminating use of terms of art and some of the law’s argot and by a striving for precision–for limitation of meaning, a striving that can be detected in the works of draftsmen of every degree of competency.

This small part—this precise part—of the language of the law is almost lost in any given square foot of law language. Put to better use, with some of the dross skimmed off, the precise part could make a better showing. As it is, the sprinkling of precision is no more representative of the whole than the nuggets in a slated gold field.[78]

Plain English does not require that this ‘small part’, this ‘precise part’ of legal vocabulary be abandoned. It recognises that a technical vocabulary has developed and that it could not be eradicated without a loss of meaning. But that does not justify the retention of the convolution, repetition and overwriting which now characterise legal writing. They could be removed without any loss at all to precise expression.

f. ‘Plain English has only a limited role in relation to documents establishing rights and duties’

81 Several submissions suggested that the discussion paper indicated that the Commission had not adequately appreciated the differences between different types of legal writing.[79] Legislation and private legal documents create rights and duties. Other writings do not. They are simply explanatory in nature. Some of the submissions accepted that plain English is important in relation to explanatory texts. But they went on to argue that it has only a limited role in relation to documents creating rights and obligations, the precise statement of which might be prejudiced by plain English.

82 This objection is based on a misunderstanding of the aims of the plain English movement. It assumes that plain English involves a loss of precision, partly, no doubt, through the loss of a peculiarly legal terminology. The falsity of that assumption has already been demonstrated.[80] Plain English does not involve a loss of precision. Nor does it require rejection of legal terminology. It demands simple straightforward statements, the avoidance of repetition and an economical use of words. None of that is incompatible with the retention of precision and of technical legal words which lack a substitute in everyday language. Although statutes and private legal documents which create rights and obligations are subject to certain technical rules, they are subject to the same rules of grammar and structure as other legal documents.

83 That is not to say, however, that explanatory texts should not be used. There may well be value in using them in relation to complex legislation in particular. There is, of course, a risk that simplified explanatory texts may not accurately reflect the originals and may, to that extent, mislead their audience. Nonetheless, they are likely to reach a wider audience than the originals, and to be more widely used than other means of informing the public. As one submission put it:

the eradication of the structural and linguistic vices that disfigure and obscure so much statute law would make it intelligible to a wider audience. But even so, there would be a substantial section of the public to which the law would remain incomprehensible in statutory form. The people who comprise this group have difficulty in coping with the degree of abstraction that is necessarily involved in the statement of legal principles. If we want them to understand the significance of a law, we need to link the legal principles embodied in the law to situations in real life with which they can identify; we need to show them how the principle operates in those situations. For this purpose, radio and television are much more effective mediums of communication than the written word.[81]

The Commission agrees that more could be done to inform the public of the content of legislation, either by explanatory text or by the use of radio and television. But that is not a matter for report by the Commission. The primary task is to improve the quality of

legislation. Only then will it be possible to identify what more needs to be done in relation to explanatory texts and other forms of publicity.

g. ‘Plain English cannot succeed without a new approach to statutory interpretation’

84 This objection is based on a fear that judges, in particular, will fail to appreciate the significance of a change to plain English drafting. They will continue to interpret legislation and other legal documents on the basis that they have been drafted to cover the finest of detail; if gaps appear to have been left, they must have been intended. One answer to this objection is that many, if not most, of the changes produced by adopting a plain English style could not give rise to the risk on which the objection is based. The shortening of sentences, the removal of repetition and circumlocution, and improvements in the structure and layout of legislation involve no loss of detail and create no gaps. The only change which may create a risk of misunderstanding by judges is the abandonment of attempts to spell out each particular case covered by the legislation and the adoption, instead, of words of more general coverage.

85 In many cases, that approach is no more likely to give rise to misunderstandings than the one it is intended to replace. A prohibition against ‘assaulting, obstructing, hindering, threatening or intimidating’ another person raises doubt about whether ‘impeding’ or ‘delaying’ that person is also covered. Lawyers and judges may feel obliged to determine the precise coverage of each of the terms used and gaps may result which bear little relationship to the policy which the words are intended to implement. That risk would be avoided if a more general phrase, such as ‘interfering with’ were used instead.

86 However, the use of general expressions in place of the listing of particulars may give rise to difficulty in some cases. Lawyers have a tendency to restrict the coverage of general expression. The term ‘power’, for example, undoubtedly covers a power which is given expressly but may not cover one given by implication. It obviously covers lawful power, but may not cover a power whose exercise involves a breach of the law. This tendency to read down the ambit of general expressions is detrimental to clarity. Drafters are sometimes led to pile qualification upon qualification to counteract it. Take section 9 of the Companies (Acquisition of Shares) (Victoria) Code. That section deals with relevant interests in shares. Subsection (1) states that a person has a relevant interest in a share if that person has power to control its disposal or to control the exercise of the right to vote attached to it. Subsections (2) and (3) continue:

(2) It is immaterial for the purposes of this section whether the power of a person—

(a) to exercise, or to control the exercise of, the right to vote attached to a voting share; or

(b) to dispose of, or to exercise control over the disposal of, a share,

is express or implied or formal or informal, is exercisable alone or jointly with another person or other persons, cannot be related to a particular share, or is, or is capable of being made, subject to restraint or restriction, and any such power exercisable by a person jointly with another person or other persons shall, for those purposes, be deemed to be exercisable by either or any of those persons.

(3) A reference in this section to power or control includes a reference to power or control that is direct or indirect or is, or is capable of being, exercised as a result of, or by means of, or in breach of, or by revocation of, trusts, agreements, arrangements, understandings and practices, or any of them, whether or not they are enforceable, and a reference in this section to a controlling interest includes a reference to such an interest as gives control.

87 The extent to which all these points would be covered by a general expression is a matter for judgment. ‘Any kind of power whatever’ might appear to cover all of them. Nonetheless, there is a danger that some powers would escape the net. In its rewrite of the Companies (Acquisition of Shares) (Victoria) Code, the Commission recognised this point. It qualified the word ‘power’ in the definition of ‘relevant interest’ in clause 3 of Schedule 2, adding:

of any kind (however it arises and whether it may be exercised alone or jointly, including a power that is subject to restraint or restriction or whose exercise involves a breach or revocation of a trust, understanding or practice) …

The Commission’s recognition of the risks associated with the use of general expressions did not require a retreat to the exhaustive listing method used in the original. Moreover, section 9 is an extreme example of the difficulty. In many cases, the risk of lawyers and judges reading down a general expression is much less than it would have been in relation to the word ‘power’ in section 9. In those cases, the requirement that courts adopt a purposive approach to interpretation[82] should ensure that plain English has no adverse effect on the intended coverage of the relevant provision.

88 The example in the preceding paragraph indicates how the objection being considered should be met. Those who wish to substitute clear statements of principle for a list of particulars must be careful to ensure that the statement of principle clearly covers each of the particular cases that it is intended to cover. They must also ensure that the statement of principle does not cover particular cases which it is not intended to cover. Errors are possible. But they are also possible in the method which relies on particulars rather than principle.

89 Whether there is a need to modify particular rules of interpretation is more difficult to assess. It is important to recognise, however, that many of the so-called ‘rules’ of interpretation are really only maxims. They suggest possibilities; they do not require results. The possibilities which they suggest are dictated by common sense. Take the ejusdem generis maxim as an example. This states that a general phrase following a list of particulars may be limited to particulars ‘of the same class’ as the ones listed. Consequently ‘or any other bird’ after ‘sparrow, starling, blackbird’ may be limited to introduced birds. This possibility is apparent enough. It is suggested by the particulars themselves. The maxim would be unaffected by a plain English approach to drafting. So, too, would other maxims, including noscitur a sociis (it is known by its associates), expressio unius est exclusio alterius (express mention of one thing implies the exclusion of another) and generalia specialibus non derogant (general provisions do not detract from particular ones). Their only magic is in the language of their labels.

90 There are, however, other rules of interpretation which might possibly impede total acceptance of a plain English drafting style. The Commission has in mind those ‘rules’ of interpretation which call for a narrow construction of certain types of legislation. They include the ‘rule’ that penal provisions should be construed narrowly and the presumption that legislation is not intended to derogate from fundamental principles of the common law and is not intended to take away common law rights. On bases such as these, courts have sometimes read legislation so narrowly that its purpose has been defeated. One example is Great Fingall Consolidated Ltd v Sheehan.[83] That case concerned the question whether an employee could ‘compromise’ his rights to compensation under the Act by accepting that an amount paid to him was in full settlement of his claim. Both Griffith CJ and O’Connor J referred to the common law presumption against interference with common law rights. Griffith CJ could see no reason why the Workers Compensation Act should be taken to deprive a worker of his entitlement to release or compromise claims against his employer—despite the fact that the aim of the Act was to ensure the payment of adequate compensation, and to prohibit contracting out of its provisions.

91 The rule that penal provisions should be construed narrowly, like the presumptions against derogation from fundamental principles of the common law and against the taking away of common law rights, developed during the period when statutes were regarded as an unusual method of lawmaking and an unwelcome intrusion on the common law. While those days have now passed, neither the ‘rule’ nor the presumptions need to be discarded. Like maxims, they do not require particular results. They simply serve as a warning that certain values are deeply imbedded in the law and that it would be surprising if Parliament were to reject those values without saying so in quite clear terms.[84] On this basis, they pose no particular problem for plain English drafting. They simply call for clear expression when it is intended to impose criminal liability on a person or to depart from previously recognised principles. The risk that they will be used to frustrate the legislative intention has all but disappeared with the passage of section 15AA of the Acts Interpretation Act 1901 (Cth) and section 35 of the Interpretation of Legislation Act 1984 (Vic).[85]

92 The interpretation of private legal documents is subject to many of the rules and maxims that apply to the interpretation of legislation. However, there are significant differences. One arises from the fact that recent Commonwealth and Victorian legislation requiring a purposive approach to interpretation and allowing for use to be made of extrinsic material applies exclusively to legislation. Even so, the interpretation of private legal documents now generally proceeds on a purposive basis. Moreover, the original rule prohibiting reference to facts and circumstances outside the document being interpreted has been largely consumed by exceptions.[86] It would be possible to supplement these developments by legislation, but there is no obvious need to do so. The Commission is not aware of any recent evidence that the courts lack the required degree of flexibility in their approach to the interpretation of private legal documents.[87]

  1. Appendices 4 and 5.

  2. Hamlet, Act I, Sc iv.

  3. G A Hackett-Jones, Submission, 3 December, 1986.

  4. The examples given by I.M Turnbull (‘Problems of Legislative Drafting’, [1986) Statute Law Review 67 at 69) are in much the same category. In each case, the criticism is of a failure to express a developed policy. Mr Turnbull does not use them to cast doubt on plain English, but on the abbreviated form of Continental drafting.

  5. At 250. Similarly, Sir John Rowlatt’s aphorism ‘the intelligibility of a Bill is in inverse proportion to its chance of being right’. See Sir Harold Kent, In on the Act, McMillan, London, 1979, 97. Whether precision and a lack of ambiguity are in fact achieved by the present style is questionable. Compare D Mellinkoff, The Language of the Law, Little Brown & Co, Boston, 1963, 293f.

  6. R Benson, ‘The End of Legalese: The Game is Over’, (1985) 13 Review of Law & Social Change, 519, 559.

  7. The Complete Plain Words, 1st ed, Pelican, London, 1954, 18–20.

  8. R Benson, ‘The End of Legalese: The Game is Over’, (1985) 13 Review of Law & Social Change, 519, 560.

  9. Fraser, 2nd ed, 1972.

  10. Greenbaum & Whitcut, 3rd ed, 1986.

  11. G C Thornton, Legislative Drafting, 3rd ed, Butterworths, London, 1987, 49.

  12. At 48.

  13. For example, P Balmford, submission, 7 November, 1986; G K Kolts, submission, 19 December 1986; I M Turnbull, submission,

    18 March 1987.

  14. See, for example D St L Kelly, ‘Legislative Drafting and Plain English’, (1987) 10 Adelaide Law Review, 409, 415, 418.

  15. For example, E Driedger, ‘Legislative Drafting’, (1949) 27 Canadian Bar Review, 296.

  16. Parliament is not the only audience, however. The community is also interested in proposed legislation.

  17. G C Thornton, Legislative Drafting, 3rd ed, Butterworths, London, 1987, 44–45.

  18. Sydney Morning Herald, 20 January 1985, 8.

  19. Paragraph 25.

  20. Lettres Provinciales (1657), xvi; cited by I.M Turnbull, Legislative Draftjng—Use of Plain English, 1986, 5.

  21. Drafting Styles, Policy Formulation and the Role of the Courts with Reference to the Takeovers Code, 12 September 1986, 18.

  22. G Engle, ‘Bills are Made to Pass as Razors are Made to Sell: Practical Constraints in the Preparation of Legislation’, [1983) Statute Law Review 7,14.

  23. At 15.

  24. R Benson, ‘The End of Legalese: The Game is Over’, (1985) 13 Review of Law & Social Change, 519, 568.

  25. Australian Aboriginal Development Commission, Annual Report, 1981–82, AGPS, Canberra, 23.

  26. W Prather, ‘In Defence of the People’s Use of Three Syllable Words’, (1978) 39 Alabama Lawyer, 394, 395; cited in R Benson, ‘The End of Legalese: The Game is Over’, (1985) 13 Review of Law & Social Change, 519, 561.

  27. D Mellinkoff, The Language of the Law, Little Brown & Co, Boston, 1963, 388. 28.

  28. For example, Francis Bennion (the renowned English critic of legislative drafting), submission, 8 October 1986; R M Armstrong (Chief Parliamentary Counsel for Victoria), submission, 22 December 1986.

  29. Paragraph 80.

  30. G A Hackett-Jones, submission, 3 December 1986.

  31. s 35 Interpretation of Legislation Act 1984 (Vic); s15AA Acts Interpretation Act 1901 (Cth).

  32. (1906) 3 CLR 176.33.

  33. R v Bolton; Ex parte Beane (1987) 70 ALR 225.

  34. These sections do not, however, require that an interpretation be accepted merely because it is suggested by the extraneous material.

    See R v Bolton; Ex parte Beane (1987) 70 ALR 225, 227–229 (Mason CJ, Wilson and Dawson JJ); 238 (Deane J).

  35. See, for example, Antaios Compania Naviera SA· v Salen Rederierna AB (1985] AC 191, 200, 201.

  36. K Lindgren, J Carter & D Harland, Contract Law in Australia, Butterworths, Sydney, 1986, paragraph 723.