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

Appendix: Drafting Manual


1 This manual* has been prepared to help implement the Government’s policy to have legislation written in plain English. It should be read with the Law Reform Commission’s Report Plain English and the Law which explains what plain English is, the reasons why it should be used and how it should be written. The Law Reform Commission of Victoria believes that Acts, regulations and associated forms and statements should be not only legally sound but also easy to read. This will benefit the whole community and increase the efficiency of government.

2 The main aim of this manual is to help people involved in legislative drafting to prepare Acts which communicate their message efficiently and effectively. It is not a complete guide to plain English drafting and does not cover the technical legal matters that are dealt with in traditional manuals on legislative drafting. It focusses on particular forms of language which research has indicated lead to difficulties and misunderstanding. These deficiencies in language arise independently of the other causes of faulty legislation and can be eliminated by drafters themselves.

3 The manual is intended to be more than a set of guidelines. It draws on findings, knowledge and skills outside the law to explain why certain steps need to be taken to achieve effective communication. The object is to give drafters greater freedom and to help them to take a broad view of their role as communicators of the law. Although the manual is directed principally to drafters of legislation, it applies to all types of legal documents.

4 The basic principles and objectives set out in the manual are not novel. They have long been accepted and followed by many in the legal profession and leading writers on legislative drafting have proposed rules aimed at improving the intelligibility of legislation since the middle of the last century. The history of the plain English movement, particularly in its application to legislation, is described by the Law Reform Commission in its Report.

5 The measure of success for legal writing is not how well drafters manage to sound like lawyers but how well they achieve accuracy of content combined with plainness of expression. This manual is directed towards achieving that plain expression.

Writing plainly

6 Drafters of legal documents must state the relevant rules or standards exactly. But it is not enough to represent the facts accurately and formulate the law correctly. Drafters must do so in language which is immediately intelligible to their audience. They fail in their responsibilities as writers if they have not presented the facts and law clearly. Readers expect to make an effort to understand the subject matter in a document, but they should never be required to struggle with the language of the writers. Obscure or convoluted writing can be avoided for there is an alternative available in plain English.

It is language in which the meaning is immediately clear. A document is written in

plain English if it conveys the writer’s message in an effective and efficient manner.

As Professor Dickerson observed:

The ideal draft is the one that the legislative audience will find the easiest to understand and to use.[181]

7 The main justification for plain English is simply that people have the right to be informed in language which they can understand, of benefits to which they are entitled, and obligations which are imposed on them. This is only fair. It is part of the rule of law and was strongly endorsed by the Law Reform Commission in its Report. Misunderstanding and ignorance of the law diminish people’s ability to comply with laws and jeopardise their exercise of their rights. Moreover, parliamentarians should understand what is submitted to them for enactment. Provisions cannot be properly debated if they are not fully comprehensible.

Plain language

8 Plain English is not a simplified form of English or a type of basic English. On the contrary, it is a full version of the language, including all features of normal adult English. It is not limited to a small vocabulary nor to a simple grammatical structure but it may vary depending on the audience and the subject. It may use an uncommon technical word if the readers are specialists, or introduce alternatives and explanatory notes if they are non-expert. It may differentiate in its treatment of statutes which concern the whole community, such as traffic laws, and those which concern primarily only a special section, such as laws on the admissibility of evidence. Plain English means plain or clear to the intended audience which includes not only judges and lawyers but also parliamentarians, government officials and those affected by the legislation.


9 To achieve legal precision, a plain English document contains a complete and accurate statement of the rules or standards. It is not a simplified statement. Every essential item of information is present. It must be if the document is to protect the rights of the affected parties in relation to the benefits conferred, or the obligations imposed. However, plain English is rigorous in excluding material that is unnecessary or outmoded.

Organisation and layout

10 Plain English requires not only plain language but also proper organisation and layout. This was stressed by the Law Reform Commission in its Report. For example, it said

that if legislation is to be readily comprehensible, its central message should be introduced early in the document [182] and the general layout of the Act should be carefully planned before drafting commences. Poor organisation may obscure underlying principles.

The text should be structured according to the interests and priorities of the readers.

This will help them to absorb its message. The organisation of the text should be highlighted by its design features. These guide readers to the relevant information.

Modern approach to communication

11 The use of plain English does not alter or jeopardise the law. It makes it clearer and easier to understand. It is an efficient and modern form of communication. It incorporates knowledge from linguistics, psychology and typography about how people write and how they read. It is not a new style of writing that is alien to the legal profession or is being imposed from outside. There are lawyers today—as there always have been—who write plainly.

An illustration

12 The following example, although it is not a legislative provision, illustrates the major principles set out in the following chapters. It is the charge or direction given by a court official to jurors in Victoria. The version in use in 1986 read:

Members of the jury, the prisoner ABC is charged with XYZ. To that charge he has pleaded not guilty and for his trial has placed himself upon God and his country, which country you are. Your duty therefore is to say whether he is guilty or not guilty. Hearken to the evidence.·

13 The purpose of this direction is to explain to the jurors what they are required to do. Jurors are ordinary citizens with little knowledge of the law and little experience of court cases. For many of them, service on the jury would be their first experience of a court room. The direction explains to the jury that they must listen to the evidence and decide whether the accused is guilty or not. But look how it does it. First, it introduces archaic legal words which are unfamiliar to jurors. Take for instance, placed himself upon God and country. What do these words mean? What has God to do with the trial? From the average person’s point of view, a court case involves the police trying to prove a charge against the defendant. It does not involve God at all. Again, take which country you are. The jurors have no idea what country means in this context. The word hearken is even more obviously archaic. These terms have no place in a modern court room. They are more likely to make the legal proceedings seem ridiculous than to add an aura of solemnity to them. The content of the charge may also be criticised. It separates the task of reaching a decision from the method by which jurors reach a decision, that is by weighing the evidence. The direction does not state the important connection between weighing the evidence and making a decision on the basis of that evidence.

14 The jurors would understand their duties better if the direction read:

Members of the jury, the prisoner ABC is charged with XYZ. He has pleaded not guilty. Your duty is to listen to the evidence that is to be placed before you in this trial and to decide from it whether he is guilty or not.

This direction means the same as the first. For example, listen means the same as hearken. The second direction is more accurate than the first because it spells out the link between listening to the evidence and forming a conclusion. It is clearer and more modern not only because the language is modified but also because the needs of the audience and the real content have been identified. Good clear writing springs from good clear thinking—thinking about the purpose, the audience and the necessary content of the document.

The purpose behind writing

15 The purpose of a document determines not only its contents but also its format and the language in which it is written. This chapter explains how the purpose of an Act should be taken into account in drafting.

The impact of purpose on writing

16 All writers should consider the purpose of a document before commencing drafting. If the purpose is clearly understood at the outset, the document can be limited to essential information. Readers will not be burdened with irrelevant material which may distract them from the central message. The material can be presented in the right order and with the right emphasis. It can be written in a style which is appropriate for the document. For example, instructional manuals use sparse sentence patterns to enable readers to move quickly from one instruction to another: Unlock button 1, Depress button 5; Slide button 2 up. All functional documents refer to concepts meticulously by the same name. In an Act about building societies, readers do not mind having the words building society, Memorandum of Association, and Registrar repeated hundreds of times. This repetition helps readers as they concentrate on the powers, obligations or privileges set out in the Act. If, on the other hand, the document is a literary work, to give readers aesthetic pleasure, such repetition would be tedious.

17 When writers have identified the purpose of a document, they should make that purpose clear to the audience. No publication occurs in a vacuum. It is sparked by an identified need and must be interpreted in the context of its background. A statement of purpose provides readers with an understanding of the background to the document and gives them a context in which to interpret it. It allows readers to start from the same point as the writer.

Revealing the purpose of Acts

18 Acts in particular should begin with an informative statement of their purpose setting out what Parliament intends to achieve. Each Act changes the law. If its purpose is clearly stated, readers can readily understand the significance and intended scope of the change.

19 Before the Ministerial Statement Plain English Legislation 6 May 1985, Victorian Acts contained both a long title and a short title. The long title consisted of a statement of the purpose or scope of the Act. Long titles have now been abandoned and the material which would formerly have been placed in the long title should be placed in the purpose section (section 1).[183]

20 Some Victorian Acts also have a separate objectives section (for example, the Guardianship and Administration Board Act 1986 and the Mental Health Act 1986). This distinction is artificial and should not be maintained. It is confusing for readers to encounter in different places two sets of statements that are obviously related. The purpose section should contain all statements of objectives. It should not be so broad that it does not clearly indicate the scope of the Act.

21 In order to avoid listing all minor and ancillary matters covered by the Act, the purpose section may conclude with the words and for related purposes. Related is more specific than other which has been used in the past in Victorian Acts. Statements of purpose may also be used to introduce Parts of an Act.


22 Legal documents often start with a preamble which explains their background and the reasons for them. Parliamentary procedures require preambles in private Bills. However, in other legislation, they are outmoded and should be abandoned. They often contain material that is already known, is obviously inconsequential or appears elsewhere in the document. Occasionally they state the historic or socially important reasons for an Act. For example, the preamble to the Aboriginal Cultural Heritage Bill 1986 has obvious political significance:

The Parliament of Victoria acknowledges—

(a) the occupation of Victoria by the Aboriginal people before the arrival of Europeans;

(b) the importance to the Aboriginal people and to the wider community of the Aboriginal culture and heritage;

Other examples are the Australia Acts (Request) Act 1985, the Land (Miscellaneous Matters) Act 1985 and the Forests (Wood Pulp Agreement) (Amendment) Act 1985. If it is essential to include information on the background to or reason for an Act; that material should be placed in the purpose section of an Act. The Housing (Commonwealth-State-Northern Territory Agreement) Act 1985 shows how this can be done:

Purpose 1. The purpose of this Act is to ratify the execution of and to approve an agreement between the Commonwealth and other States and the Northern Territory of Australia relating to housing.

The agreement itself was printed in a Schedule.

The audience

23 In order to prepare documents which are readily comprehensible to their audience, writers must develop an awareness of the audience, its interests and needs. The first part of this chapter examines the audience of legislation. The second part suggests ways of improving communication from the perspective of the audience.

Part 1: The audience of legislation

24 The audience of legislation consists of four main categories of readers: Members of Parliament, the people affected by the Act, the officials administering the Act, and judges and lawyers.

a) Members of Parliament. Parliament has ultimate responsibility for the words in an Act and Members of Parliament are readers of draft legislation prepared for their consideration by Parliamentary Counsel. Draft legislation must therefore be instantly intelligible. This speeds the work of Parliament, saves unnecessary questions and debate and, above all, ensures that Members of Parliament are fully aware of the implications of their decisions. Any obscurity may be dangerous, for experience has repeatedly shown that obscure language or faulty structure may camouflage inadequacies in content.

b) People affected by legislation. Once an Act has been passed, it is obviously of vital concern to the people affected by it. The statement of law must be clear to help them understand their rights and obligations. It is inefficient if Parliament passes laws that need to be interpreted for the intended audience. People may not understand what they are entitled or required to do and may not appreciate that they need expert advice.

c) Officials. Officials who administer Acts and regulations may need to read them more frequently than others in the community. Most officials are not lawyers. Acts and regulations must be written in such a way that they can readily appreciate their meaning. Otherwise, they may misinterpret the law and infringe citizens’ rights, or impose burdens on Government, in a way not intended by the legislation.

d) Judges and lawyers. The aim of Parliament is to enact legislation that can be readily understood by those affected by it. The courts should be seen not as the primary audience of legislation but as a remedy if there is a failure in communication. An Act that can be understood by certain sections of the community and officials should not present any difficulties for judges and lawyers but should be even easier for them to comprehend.

Part 2: Meeting the needs of the audience

25 To communicate effectively to their audience, drafters must consider the knowledge and interest of the readers and the way that they are likely to read the text. Drafters should consider from the readers’ perspective questions such as the following:

• What are the main points to be emphasised?

• Are there any misconceptions about the subject in the community?

• How much background material needs to be included?

• What information is new to readers?

• What level of detail must be used to help them understand and act?

• What tasks will readers have to carry out?

• Which terms will readers understand at once and which will need to be explained?

It is impractical to require that every document be immediately understood by everyone who reads it. Some legislation deals with complex or highly specialised subjects which are difficult in themselves for people who have no training or experience in the area. Documents on an advanced part of a subject would run to impossible lengths if writers had to cover first principles and go through every detail each time they wanted to write. However, legislation should be readily comprehensible by those who are immediately affected by it. For example, a company director or a corporate lawyer knows what a takeover offer is. Therefore, a drafter may reasonably use the term takeover offer in legislation dealing with takeovers without fear of misleading or puzzling the most concerned audience. A certain amount of knowledge in the audience has to be assumed although it must always be remembered that Members of Parliament are also part of the audience of legislation and that they are not all corporate lawyers or economists. The amount of knowledge that can be assumed in drafting legislation is therefore more limited than it may be with other legal documents.

26 The structure of a statute, like the language, should be considered from the readers’ perspective. The matters which are most important for readers should appear first. For example, substantive provisions should appear before procedural provisions such as the date of commencement of the Act.

27 Labels for people or things should also be chosen from the readers’ perspective. In a section of the De Facto Relationships Act 1984 (NSW) dealing with court proceedings, de facto partners are called parties to the application. Most readers to whom the Act might apply would see themselves as partners and not as parties to court proceedings. To draft the Act from the readers’ perspective, the court section should have referred to partner making an application. Similarly, an amending Act should not refer to the Act to be amended as the Principal Act but should refer to it by name. The term Principal Act is familiar to drafters but not to readers. The use of Principal Act does not necessarily save space. In the Water Sewerage Authorities (Financial) Act 1985, six of the seven Parts are concerned with amendments. Each of these six Parts is concerned with amending a different Act. So in the space of eight pages, the reader has to cope with six different meanings of Principal Act. In Part VII the convention is raised just to make one change and occupies 2.5 times the space of the title of the Act.

Using the practices of the community

28 Formulas, maps, charts and tables. If formulas, maps, charts and tables are the usual way in which particular items of information are handled in the community, then it is proper to use them in legislation. Section 46A of the Construction Industry Long Service Leave Act 1983 inserted by section 13 of the Construction Industry Long Service Leave (Amendment) Act 1985 asks readers to cope with the following wording:

For the purposes of sub-section (3) the ‘prescribed amount’ is an amount equal to the amount that bears the same proportion to the amount paid to the person as the period of service in the construction industry in Victoria bears to the total service in respect of which the payment was made.

To apply this provision readers have to convert these words into a mathematical formula:

It was the job of the drafter to do this job for them (indeed the drafter probably translated some such formula into words to produce the provision!). Acts need to become more like other technical publications in their use of devices in addition to words.

29 Omit unnecessary material. Drafters must be rigorous in selecting the material to be included in a document. Unnecessary material conceals the main points. Consider, for example, subsection 33 (3) of the Companies (Acquisition of Shares) (Victoria) Code:

If, after the making of a take-over announcement in relation to shares in a company and before the end of the period in which offers constituted by the take-over announcement remain open, being a take-over announcement made on behalf of a natural person or on behalf of two or more persons at least one of whom is a natural person, that natural person, or if there are two or more natural persons, either or any of them—

(a) dies;

(b) becomes bankrupt; or

(c) is declared by a court to be incapable of managing his affairs,

such of the offers made by virtue of the take-over announcement as have not been accepted shall be deemed to have been withdrawn on the day on which the person died, became bankrupt or was declared to be so incapable, as the case may be.

Much of the information in this section could have been omitted. Readers are already well into a document on takeovers by the time they reach section 33. They have already been through the procedures for making an announcement so that the context is clear. Even if they are following up a cross-reference and are just consulting this section, they would be aware of its background. The opening four or five lines could be dispensed with for there is no need to traverse again the making of the announcement. The closing lines are repetitious. Without the extraneous material, the subsection may be written as follows:

An offer that has not been accepted is withdrawn when

a) the offeror or one of the offerors

i) dies; or

ii) becomes bankrupt; or

iii) is declared by a court to be incapable of managing his or her affairs …

iv) is placed under official management; or

v) commences to be wound up; or

vi) becomes subject to a provisional liquidator.

Plain English version, Companies (Acquisition of Shares) (Victoria) Code

Pertinently worded sections—such as this one—reduce the burden on readers and help to ensure that they get the essential message.

There is a temptation to regard some material as essential for precision but often this is a false argument as subsection 71 (2) of the Credit Act 1984 illustrates:

The amount of a charge in respect of the deferral of the payment of an amount payable under a credit sale contract or a loan contract determined in accordance with this sub-section is … (emphasis added)

All the words in italics should be omitted. The use of the in front of deferral and the fact that subsection (2) follows subsection (1) and is part of section 71 make it obvious that the deferral being talked about in (2) is the same as the one in (1). Subsection (2) can be reduced to:

2) The amount of the charge for the deferral is …

This taut wording adds to precision by concentrating on the main idea.

30 Avoid unnecessary concepts. Similarly, the introduction of unnecessary concepts should be avoided. For example, it is not necessary to introduce the concept eligible person in section 19 (2) of the Adoption Act 1984. The material could have, been inserted directly into section 19 (1) so that instead of commencing:

19 (1) An eligible person may apply …

it would read:

19 (1) The adopted child to whom the adoption order relates, or a natural parent of the adopted child, or an adoptive parent of the adopted child, or the Director-General or the Principal Officer of the approved agency by which the adoption was arranged may apply …

This approach saves readers from having to cope with the information dressed up as a concept whose meaning they then have to master and apply.


31 The success of a document in communicating depends greatly on the careful organisation of the material in it. The right facts must not only be selected, but must also be put in an order that shows the interconnections between the facts, that allows one fact to support or qualify the other. Incisive clarity of thinking, sensitive consideration of the audience, skilful choice of language, and thoughtful attention to all the other components in the writing process can all be undermined by slipshod organisation.

32 The first part of this chapter concerns the importance of the organisation of a document in making it comprehensible and discusses the principles to be considered in arranging material. The second part suggests ways in which the structural units of an Act may be used in organising it. The third part mentions some problems in organising material in Acts, such as cross-referencing.

Part 1: The importance of organisation

33 Proper organisation helps both writers and readers. For writers, it provides a valuable internal check on their control of their material. They can see gaps in information, jumps in reasoning, duplication, overlap and omissions. The exercise of arranging the material in order clarifies and tests their thoughts. Are they logical? Do they fit neatly together? Are they needed at all? For readers, proper organisation enables them to grasp the writer’s message more quickly. Reading is essentially a learning activity. Readers learn efficiently and effectively if they can proceed by carefully graded steps, moving from easier to more difficult, from known to unknown material.

34 Writers must organise their material in order to ease readers into the topic, and to provide them with sufficient background material to interpret it. They must structure the document to give readers the information they want as quickly as possible. If the document flows in a logical sequence, readers see at once how the text will unfold. Proper organisation is as important to readability and comprehensibility as the choice of vocabulary and sentence structure.

35 Readers of legislation have particular needs. Often they approach an Act with specific problems or questions in mind. They are not likely to read the Act from beginning to end. This is certainly true if they are consulting the Act for a second or later time. They use the Act by referring to the particular sections and subsections which are relevant to the issue at hand. Proper organisation helps them find the material required without having to read or reread the whole Act. Writers should use all the devices employed in other publications to help readers to locate information quickly.

Important items first

36 Some items in an Act are more important than others. These should come first and should be made to stand out. This is what readers expect and they may overlook or underestimate the main point in the Act if it is buried in the middle of the text. Also, if the material is arranged in a hierarchical fashion, reserving the positions at the beginning of the Act, or of a Part or Division, for the most important items, readers are more likely to remember them. Readers pay more attention to the opening Parts and spend more time on them.

37 Acts should start with the important substantive provisions. The current practice of commencing with a less important provision, such as when the Act commences and whether it binds the Crown should be abandoned.[184] Similarly, definitions need not appear at the beginning of Acts. They are better placed at the end with words which are defined being highlighted in the text.[185] In Parts or Divisions of the Act also, the most important provisions should be placed first. In the setting up of a Commission, for example, the duties of the Commission should precede its composition, the tenure of members, payment, annual reports and so on. Indeed many minor and ancillary matters can be relegated most satisfactorily to Schedules.

Assessing importance

38 Importance is a relative concept. What is important in a given context may vary depending on one’s interest or point of view. In writing, drafters should decide what is important from the readers’ perspective and not from their own. That material should then come first. For example, if injured workers and their representatives consult the Accident Compensation Act 1985, their prime concern is the compensation available for injuries and their eligibility for it. They are less interested in the matters with which the Act starts—the establishment of the Accident Compensation Commission and the Accident Compensation Tribunal. The payment of compensation is in fact not dealt with until Part IV. This is to approach the subject from the bureaucrats’ or lawyers’ orientation rather than from the public’s.

Revealing the organisation

39 Writers should reveal a document’s organisation to readers so that they can see the direction which it is going to take. Introductory structural or procedural paragraphs may be used to explain what is to come and the order in which it is to appear, for example:

This chapter is about organising, writing, and designing documents so that information is readily accessible to readers. In the following sections, we will:

• Illustrate the problems in two special documents.

• Suggest some techniques for making the information in documents accessible to readers.

• Discuss some of the reasons that non-academic writing is so often poorly organised.

• Consider the applications of these findings for teachers of composition.

• Explore the need for further research on non-academic writers and documents that they write.[186]

There is scope for descriptive statements like this in Acts, especially at the beginning of Parts and Divisions. They give readers an overview of what is to come. It is immaterial that such opening paragraphs are not part of the law. Published Acts should communicate the law and make it clear to the intended audience. There is no reason why they should be a flat, unhelpful statement of the law. There are, moreover, typographic devices which would enable these paragraphs to be set apart from the rest of the text.

Title of an Act

40 The title of an Act serves a dual purpose. It identifies the Act by giving it a distinctive label and it broadly indicates its subject matter. The title is used in indexing the Act and, carefully constructed, it helps people find the law more easily. If the Act has a general title which may cover a range of subjects, it may be helpful to indicate its subject matter by a more specific description in brackets, for example:

• Infertility (Medical Procedures) Act.

• Building Control (Plumbers, Gas Fitters and Drainers) Act.

• Sale of Land (Allotments) Act.

• Motor Car (Photographic Devices) Act.

• Forest (Wood Pulp Agreement) (Amendment) Act.

For ease of reference, the title should be as brief as it is informative and as indexing requirements allow.


41 The headings in a document are a useful device for revealing its organisation and act as signposts to assist readers in locating information. They allow informed readers to recognise at once the sections they can omit and those that they need to read closely. They assist readers not only in their first contact with the document but whenever they need to refer to the document again. For these reasons, headings must be as informative as possible. For example, Part II Division 2 of the Professional Boxing Control Act 1985, which deals with the registration of boxers and not with others connected with the sport such as promoters, managers and trainers, should be headed Registration of Professional Boxers, not simply Registration as it is at present. The proposed revision is not only more self-explanatory but it is far more useful in locating information.

42 Headings should describe the content and not try to summarise it. Taken together, all the section headings should give a reasonable indication of the contents of an Act. Headings may be in the form of questions resembling the type of questions that users of an Act are likely to ask:

• What are the duties of applicants?

• When does the right to compensation arise?

• When does the Act begin?

Readers seem to find headings in the question form more helpful. They are also useful for drafters when they check the accuracy of a section: does it answer the question satisfactorily?

Each heading should be short and, with sections particularly, no longer than a line. If any heading is longer than this, perhaps the section is too long and should be divided.

Part 2: Using the structural units of an Act in organisation

Levels of structure

43 The accepted arrangement of Acts, with their various units and levels of structure, is well suited to allow the material to be organised methodically and presented in manageable segments that readers can absorb easily. The possible levels of structure are:











The relationship between the levels is hierarchical. Divisions occur within Parts, subsections within sections and so on. However, only the section is an indispensable element. Every Act contains sections. All the other levels are optional; whether any of them is used depends on the nature of the material and its length. As a result, a Part may consist of sections and dispense with Divisions; a section may contain paragraphs and not subsections. Schedules do not form part of the central hierarchy. They are supplementary and contain secondary or subordinate material. A table of contents and an index form an outer layer of structure, functioning as guideposts to the location of items within an Act.

Parts and Divisions

44 Sections in many Acts fall into coherent groups, with each group forming a unit of information. If the groups are presented as Parts, the relationship between the sections in each group is then revealed visually. Readers can immediately identify the Part of the Act which interests them and see all the sections relevant to that matter. Drafters can also refer to a group of sections more easily if a cross-reference is necessary. Parts may be organised in Divisions which show that particular groups of sections within a Part are closely related and function as a unit.

Labelling of Parts and Divisions

45 Parts and Divisions should be labelled with Arabic and not Roman numbers. The beginning of a new Part or Division and its separation from other Parts and Divisions can be emphasised by typographic treatment.


46 An Act may consist of one provision, a small number of provisions or a range of them which may be grouped in various ways. The section is the vehicle for carrying a provision, so it is the basic unit of structure in an Act. Sections—and subsections also—usually consist of only one sentence, but this is a general practice and not an obligatory rule. When two ideas in adjacent sentences form a close-knit unit, the sentences should be kept together in the same section or subsection, for example:

1) To vary an offer, the offeror must serve on the target company a notice

a) signed in the same way as Part A statement must be signed; and

b) setting out the terms of the proposed variation and particulars of any necessary modifications of the statement; and

c) if the variation will postpone the offeror’s obligation to provide the consideration for a period exceeding one month—stating the effect of subsection 23(1).

The offeror must copy of the notice to each offeree in an approved manner.

(Plain English version, subsection 21(1) Companies (Acquisition of Shares) (Victoria) Code)

There is no justification for contorting the language or producing a cumbersome sentence just to force the ideas into the one sentence. Subsection 80 (1) of the Property Law Act 1958 provides further evidence that the convention does not need to be followed mindlessly:

A covenant and a bond and an obligation or contract under seal made after the thirty-first day of January One thousand nine hundred and five shall operate to bind the real estate as well as the personal estate of the person making the same if and so far as a contrary intention is not expressed in the covenant, bond, obligation or contract. This sub-section shall extend to a covenant implied by virtue of this Part.

Labelling of Sections and Subsections

47 Sections should be labelled with Arabic numbers in the margin. They should be labelled consecutively from the beginning of an Act even if the Act is divided further into Parts and Divisions. Subsections should be labelled with Arabic numbers in brackets in line with the text.


48 Sections may be divided into subsections if this helps to present the material in a more manageable way for readers, for example, if it avoids long complex sentences. Each step in a process or procedure may then be allowed a separate sentence, and each sentence—and hence step—is clearly signposted for the reader by a subsection number. The message is revealed both by grammatical structure and by layout. This approach may be used even if the section itself is not very long.[187]

49 Each subsection must form a coherent unit. Its contents must fit in with the heading of the section in which it is included. Because it forms a unit, it is seldom necessary to repeat material from one subsection to the next, for example:

Appeals against certified assessments

s30A (1) An employer or working sub-contractor to whom a certified assessment under section 30 applies may within fourteen days from the date of service of notice of that certified assessment appeal to the Industrial Relations Commission in Court session.

(2) The Industrial Relations Commission in Court session may hear and determine an appeal against a certified assessment …

(3) If in the hearing of an appeal against a certified assessment evidence is produced which is not available to the Board when making the assessment the Commission upon receiving an application from the Board to do so may return the matter to the Board for a further assessment.

(4) In hearing an appeal against a certified assessment the Commission may determine the amount of long service leave charges to be paid by the employer to the Board and any interest and costs payable in respect of those charges and may by order exercise

any power in relation to the payment of those charges which a Magistrates’ Court may exercise …

The repetition of an appeal in (3) and against a certified assessment in (2), (3) and (4) is unnecessary and forces the readers to study many superfluous words to reach the main message. Needless repetition conflicts with everyday use of language in which sentences regularly imply obvious material from previous sentences. It also runs counter to the principle of interpretation established by courts that an Act should be read as a coherent whole. It follows from this that a subsection should be read in the light of a previous related subsection.

Paragraphs and subparagraphs[188]

50 Sections and subsections may be divided into paragraphs and subparagraphs. Again, the purpose is to help the reader by providing a visual aid to comprehension. Provisions can cover items which are parallel to each other. If the items are presented in separate paragraphs this displays parallelism both structurally and visually. Compare versions (A) and (B):

(A) A company must not make a loan to a director, a spouse of the director, a relative of the director or spouse, a corporation that is a subsidiary of the company, or a trustee of a trust that has a beneficial interest.

(B) A company must not make a loan to—

i) a director, a spouse of the director, or a relative of the director or spouse; or

ii) a corporation that is a subsidiary of the company; or

iii) a trustee of a trust that has a beneficial interest.

There is no difference in content nor in the order of material in these two versions. The material has simply been set out differently so that the parallel items stand out in (B). The reader can note each item before proceeding to the next.

51 However paragraphing should not be used unthinkingly. Too many paragraphs or subparagraphs may defeat the intended purpose by overloading readers with too much material. For instance, if a sentence runs to eight or more paragraphs, by the time that readers read paragraph (h), they may have forgotten paragraphs (a) and (b). If the paragraphs are written in plain English, the problem arises from limits on the short term memory, not from any difficulty in the language. It is the accumulation of the paragraphs that leads to lapses in short-term memory. The paragraphing helps readers to retrieve the introductory words easily if they start to forget them, but it is better to group the material differently and spread it over two or more subsections.

52 Paragraphs and subparagraphs are only part of a sentence. Any that belong to a series must be preceded by general words that are applicable to all of them and that make their grammatical structure complete, for example:

73 (1) A referral authority must consider every application referred to it and may tell the responsible authority in writing that—

(a) it does not object to the granting of the permit; or

(b) it does not object if the permit is subject to the conditions specified by the referral authority; or

(c) it objects to the granting of the permit on any specified ground.

Planning and Environment Act 1987

53 Paragraphing to avoid ambiguity. Paragraphing is a useful device for avoiding ambiguity. Consider the following section of the Motor Car Act 1909 (Vic) (now repealed):

10 (1) If any person drives a motor car on a public highway recklessly or negligently or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature condition and use of the highway and to the amount of traffic which actually is at the time or which might reasonably be expected to be on the highway shall be guilty of an offence against this Act.

In Chammen v Gilmore[189] it was held that the words in italics modified all of the four preceding expressions, recklessly, negligently, at a speed and in a manner; in Kane v Dureau[190] they were treated as not applying to recklessly.[191] The matter could be put beyond doubt by the following arrangements:

[A] [In order to make the words having regard to … highway applicable to each of the four expressions]:

If a person drives a motor car on a public highway—

recklessly, or

negligently, or

at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature condition and use of the highway and to the amount of traffic which is actually at the time or which might reasonably be expected to be on the highway, he shall be guilty, etc.

(B) [In order to make the words apply only to the last two of the expressions]:

If a person drives a motor car on a public highway—

recklessly, or

negligently, or

at a speed or in a manner which is dangerous to the public having regard in either case to all the circumstances … highway,

he shall be guilty, etc.

54 Conjunctions between paragraphs. If the provisions in a set of paragraphs or subparagraphs are to be taken cumulatively, and is inserted between each paragraph or subparagraph, for example:

(4) Before making an enforcement order under this section, the Planning Appeals Board must consider—

(a) whether the application for the enforcement order should be made to the responsible authority under section 130, in the case of an application under subsection (1); and

(b) what the effect of not making the enforcement order would be; and

(c) whether the applicant should give any undertaking as to damages; and

(d) whether it should hear any other person before the enforcement order is made.

Planning and Environment Act 1987

If only one of the provisions is likely to apply in a particular case, or is inserted between each paragraph or subparagraph, for example:

1) If there is a proposal, or the directors of a target company have reason to believe that there is a proposal, to make offers or if offers that have been made have not been accepted

a) a person who proposes to make or has made the offers; or

b) an associate of such a person; or

c) the target company; or

d) an associate of the target company or of an officer of the target company; or

e) if the person or an associate mentioned in (a), (b) or (d) is a corporation, an officer of that corporation or a person associated with such an officer,

must not make a profit forecast to the public or to a member of the target company (except a statement made solely to the target company’s officers or advisers).

(Plain English Version, Companies (Acquisition of Shares) (Victoria) Code)

Convention has approved the insertion of and or or only after penultimate paragraphs. However experience and research with general readers have shown that this can lead to misinterpretation, with readers applying or especially only to the last two paragraphs.[192]

55 There are occasions when neither and nor or is correct, and the paragraphs or subparagraphs are presented as a simple list with no linking conjunction, for example:

6 (2) … a planning scheme may—

(a) set out policies and specific objectives;

(b) regulate or prohibit the use or development of any land;

(c) designate land as being reserved for public purposes;

(j) provide for any other matter which this Act refers to as being included in a planning scheme.

Planning and Environment Act 1987

The intention here is to allow a planning scheme to contain any or all of the matters set out in paragraphs (a) to (j). Inserting and after each paragraph could imply that a scheme had to contain all of the matters. On the other hand, the insertion of or after each paragraph could imply that a planning scheme could cover only one of the matters. If there is any possibility of misunderstanding with a series of paragraphs such as this, the series can be introduced with such words as any of the following, for example:

2) The responsible authority may serve the enforcement order personally or by registered post on one or more of the following persons

a) the owner of the land

b) the occupier of the land

c) any other person who has an interest in the land.

56 It might be best to adopt a clear practice with respect to conjunctions in order to avoid the risk of misunderstanding. The following is one suggestion:

• and means that all the paragraphs apply together

• or means that only one of them applies

• the omission of a conjunction means that the paragraphs represent a series of options, any or all of which may apply.

57 Labelling of paragraphs and subparagraphs. Paragraphs are indented and labelled with lower case letters with brackets to the right: a), b), c) etc. If a section or subsection is divided twice into paragraphs, the lettering of the second set follows on consecutively from the letters of the first set, for example:

2. The taxation by a State, in common with other salaries earned within the State, of—

(a) the official salaries of officers of the Commonwealth residing in the State after the commencement of this Act; and

(b) the allowances and salaries, paid after the commencement of this Act, of Members of the Parliament…

shall not … be deemed—

(c) to be an interference with the exercise of any power of the Commonwealth, or

(d) to be inconsistent with any Act by or in pursuance of which the salary is fixed or made payable.

Commonwealth Salaries Act 1907 (Cth)

Because the labelling here can mislead readers into regarding (c) and (d) as parallel with (a) and (b), the division of a section or subsection twice into paragraphs should be avoided as far as possible and other ways should be explored for presenting the provision. Subparagraphs are indented and numbered with small Roman numerals with a right hand bracket: i), ii), iii) etc.


58 Subparagraphs should be divided only in very exceptional circumstances. Generally a division into subparagraphs indicates a complicated approach to the material and it

should be reconsidered and preferably redrafted. There are occasions, however, when sub-subparagraphs are legitimate because the details belong together. If that is the case, the sub-subparagraphs are indented and labelled with a capital letter in brackets: (A),

(B), (C) etc.


59 Schedules are similar in function to appendixes in other documents. They allow secondary matters to be removed from the main body of an Act so that the general principles and main issues can be more readily understood. Schedules may provide for matters such as the appointment of members to a statutory body;[193] plans, maps, or descriptions of areas; the wording of agreements; methods of calculating taxes; repeals and amendments. Schedules can be divided into segments which are generally referred to as clauses, subclauses, paragraphs and subparagraphs. These segments parallel the segments of sections, subsections, paragraphs and subparagraphs in the body of an Act.

Explanatory footnotes

60 Footnotes or marginal notes are already used in Acts to give technical details, for example, the numbers of amending Acts. Their use may be extended to matters related to content in much the same way as footnotes are used in general publications. For example, if it is necessary to make a cross-reference in an Act, a brief summary of the material in the cross-reference may be given in the footnote: Part 5 of the XYZ Act sets out the function of the Board. This practice can be particularly helpful if the cross-reference is to another Act which is not immediately available, or to a matter which is not central to the readers’ present concern. Readers can be given some information about the other provision which may be sufficient for their purpose and avoid the need to consult the other document. Footnotes may also be used to answer common questions. Clause 55 (1) of the Residential Tenancies Bill 1985 stated:

A landlord has a right to refuse to allow a tenant to keep a pet on the rented premises, but must not refuse unreasonably.

A footnote to this subsection adds:

A guide dog for a blind person is not a pet under the Equal Opportunity Act 1984.

Footnotes may contain brief definitions of technical words, or references to other relevant material in the Act, its Schedules or elsewhere. Although such explanatory footnotes may seem unusual and unconventional, if properly used they may increase the readability of Acts, particularly as reference documents. Other examples of explanatory footnotes are the footnotes to sections 3(1) and 52(1) of the Road Safety Act 1986 and section 7(3) of the Retail Tenancies Act 1986 and the endnote to the Corrections Act 1986.


61 Acts may be read from beginning to end once or twice, but thereafter readers regard them as reference works to which they return to check on one item or another. This calls for mechanisms to help readers locate information. Long Acts in particular present problems of access. A table of contents offers only limited help. An index offers a more extensive listing of subjects and because its entries are listed alphabetically it can be a more speedy source of reference. Indexes then should be a regular feature especially of long Acts. An index need not be confined to words used in an Act. It may include commonly used alternative words. This helps readers who approach the Act with a different set of technical or colloquial terms from those used in the Act. By using the index, they can readily locate relevant provisions, including definitions, even if they use a different reference term.[194]

Part 3: Special problems in organisation


62 Strict restraint should be exercised with cross-references. They may distract the reader and make the text difficult to read, for example subsection 107 (4) of the Credit Act 1984:

107 (4) The notice referred to in paragraph (d) of subsection (1) or paragraph (b) of sub-section (2) is complied with if within the period of one month after service of the notice (or where a longer period is specified in the notice, that longer period) the default is remedied (except as referred to in sub-paragraph (1) of paragraph (b) of sub-section (3)), the amounts referred to in sub-paragraph (ii) of paragraph (b) of sub-section (3) have been paid or tendered and the enforcement expenses referred to in sub-paragraph (iii) of paragraph (b) of sub-section (3) (if any) have been paid.

Here in the space of nine lines the reader is confronted with five cross-references. The construction may have been unnecessary as the message appears to be implied in subsection (3). If it was essential to make the point explicit, a general statement would have been sufficient:

A debtor complies with the notice if he or she meets its requirements within the specified time.

If a lot of cross-referencing seems necessary in an Act, it may indicate a fault in its organisation. Drafters should not have to refer readers back and forth but should lead them through the material in a steady progression.

63 Global cross-references should be particularly avoided, for example:

21 (1) Subject to any other provision made in this Act or in any other enactment with respect to the constitution of the Tribunal …

Administrative Appeals Tribunal Act 1984

Global cross-references place an unfair burden on readers. They require readers to find the relevant reference themselves and leave them with the constant fear that they might have missed a provision. Drafters should indicate whether provisions apply or not.

64 Cross-references to provisions in other Acts may be tiresome if readers do not have those Acts to refer to. Explanatory footnotes may be used to provide some idea of the content of the cross-reference. Even within an Act, a cross-reference by number alone can be irritating, especially if the reference is not pertinent. The practice followed in some United Kingdom Acts of including the heading after the cross-reference number is recommended, for example:

103 (7) … sanctioned in accordance with section 425 (company compromise with creditors and members) or section 582 (liquidator in winding up accepting shares as consideration for sale of company property) … Companies Act 1985 (U.K.)

65 References should be specific rather than general. A cross-reference to another provision by its number (for example 5 (2) a)) cannot be misconstrued and is easy to find. Relative descriptive labels such as preceding, previous, and following (for example the preceding section) are less precise for readers. Moreover, they create confusion if an additional section is inserted later.

66 The forward method of cross-referencing should be used, that is: 5 1) a) rather than paragraph a) of subsection 1) of section 5. Practice varies over which descriptive label should be used—the name of the section or the name of the paragraph, for example section 5) 1) a) or paragraph 5 1) a). The Commonwealth practice of referring to the lowest subdivision down the scale is preferred, for example subsection 10 9) or paragraph 6 2) b). This means that the cross-reference specifies the precise segment to which readers are directed. An even simpler form would omit the descriptive label altogether, for example the rules in 5 1) a) require.

67 It is not necessary to include the words of this Act, Part, or section in cross-references to items in the same Act, Part or section (section 19, Interpretation of Legislation Act 1984). One may refer to Part 3 (not Part 3 of this Act); Division 4 (not Division 4 of this Part); and subsection 1) (not subsection 1) of this section). However, if a reference includes a section of the same Act and a section of another Act, to avoid confusion it is necessary to write, for example, section 3 of this Act and Part 3 of the Audit Act 1958.

Special circumstances

68 Special circumstances are often treated erroneously as exceptions. This forces drafters into a type of cross-reference, for example:

1) This Act, except sections 4 and 6, begins on 1 January 1988.

2) Section 4 begins on 1 March 1988.

3) Section 6 begins on 1 July 1988.

This approach forces readers to hold sections 4 and 6 in suspense while they absorb the rest of 1). Only then can they have the situation with sections 4 and 6 resolved. Consequently their attention is divided. It is better to reorganise the information so that the special circumstances are dealt with before the general provision, for example:

1) Section 4 begins on 1 March 1988.

2) Section 6 begins on 1 July 1988.

3) The rest of the Act begins on 1 January 1988.

This arrangement allows the material to flow naturally. It does not introduce an item only to have to reintroduce it later; readers can finish with it before they have to deal with any other items. A similar approach needs to be adopted when it is desired to exclude some activities from the effects of a repeal. A common approach is to introduce the repeal and then to countermand its effect in part through a subsection introduced by notwithstanding, as occurs in subsection 8 (3) of the Water and Sewerage Authorities (Financial) Act 1985:

8 (3) Notwithstanding the repeal by sub-section (1) of section 71 of the Principal Act where, immediately before the commencement of this section, a Sewerage Authority within the meaning of the Principal Act has as a term or condition of the issue of a debenture or mortgage under that Act provided a sinking fund in respect of that debenture or mortgage, the Sewerage Authority shall continue to provide a sinking fund in respect of that debenture or mortgage during its currency as if section 71 of the Principal Act had not been repealed.

To avoid frustrating readers and asking them to live out a fiction as if the section had not been repealed, it is better to reorganise the material along some such lines as:

1. A Sewerage Authority must continue any sinking fund for a debenture or mortgage in existence immediately before the beginning of this Act under the same conditions as applied to it under section 71 of the Sewerage Districts Act 1958.

2. Section 71 of the Sewerage Districts Act 1958 is repealed.

If approaches similar to this are adopted readers are saved from having to go through the steps of cancelling an item in their minds only to find that they then have to cancel the cancellation. It means organising material so that there is a logical flow of ideas without backtracking.

Grammatical structure

69 Convoluted and awkward grammatical structure is a far greater hindrance to readability than the occasional occurrence of a technical word. Again, there are structures which are difficult only for some readers but for which equally acceptable alternatives are available. This chapter examines aspects of grammatical structure which are a recurring source of difficulty in Acts. It explains the principles that should be followed to avoid difficulties.

Length and complexity of sentences

70 Every authority on legislative drafting condemns long and complicated sentences even if they are accurate and grammatical. Readers’ short-term memory cannot handle large stretches of material. The volume of detail obscures the central message. The longer a sentence is, the greater the danger that details will be overlooked or a connection missed.

71 Some writing manuals propose an average length of 20–25 words for sentences in a text. Some sentences would of course be longer, and others shorter, but this average may be taken as a guide. If writers find that they are exceeding this limit, especially when the material is complicated, then they should check their sentences. The structure may be unduly complex. It is this complexity rather than the length of the sentence which leads to incomprehensibility, for example, subsection 27 (12) of the Companies (Acquisition of Shares) (Victoria) Code:

Where an offeree who has accepted a take-over offer that is subject to a prescribed condition receives a copy of a notice under subsection (10) in relation to a variation of offers under the relevant take-over scheme, being a variation the effect of which is to postpone for a period exceeding one month the time when the offeror’s obligations under the take-over scheme are to be satisfied, the offeree may, by notice in writing given to the offeror within one month after receipt of the first-mentioned notice and accompanied by any consideration that has been received by the offeree (together with any necessary documents of transfer), withdraw his acceptance of the offer and; where such a notice is given by the offeree to the offeror and is accompanied by any such consideration and any necessary documents of transfer, the offeror shall return to the offeree within 14 days after receipt of the notice, any documents that were sent by the offeree to the offeror with the acceptance of the offer.

This sentence contains 174 words. But the excessive complexity of the sentence comes not simply from its length but mainly from the compression of too many ideas and qualifications into the one sentence. It begins with a conditional clause in which the subject is modified by a relative clause. The flow is interrupted again while the subject is modified by a relative clause, which contains another relative clause modifying an item in it, and which in turn has another relative clause built into it. It is only after all this that readers come to the main clause, to be confronted with another round of entangled interruptions to the main idea, including a parenthetical phrase. This structure forces readers to break up the sentence into smaller components so that they can assimilate it. The sentence should have been divided into more manageable parts, as is provided for in the plain English version of subsection 27 (12):

1) If an offeree who has accepted an offer that is subject to a defeating condition receives under subsection 21(1) a copy of a notice of a variation that would postpone the fulfilment of the offeror’s obligations for a period exceeding one month, the offeree may withdraw his or her acceptance by

a. giving the offeror written notice of the withdrawal within one month after receiving the notice; and

b. returning any consideration received by the offeree, together with any necessary documents of transfer.

2) Within 14 days after receiving the offeree’s notice, the offeror must return any document that the offeree sent with the acceptance of the offer.

Each sentence introduces a new piece of information which readers may note before proceeding to the next.

72 Far from being the products of haste or lack of time, many long sentences are the result of the greater amount of time available in writing to reflect, to elaborate and to revise. This is one of the reasons that writing is different from speech. But it may present hazards for writers. They may be led to integrate more information into each sentence especially in view of the conviction that each section of an Act should contain only one sentence.[195] The ultimate result is often that readers are presented with language which is different from the type they are familiar with in speech and which is therefore more demanding. While writing is not the same as speech, drafters of Acts should aim to keep written forms as close as possible to speech. Above all, their approach to sentences should be to keep discrete items of information apart. They should use the many devices that are available to link sentence to sentence—and hence idea to idea—rather than compressing all the ideas into one sentence. The use of short sentences does not require that they be limited to one clause. An unrelieved series of such sentences is tedious to read. Also, extra clauses are usually necessary to show the interrelationships between ideas. What is required is that sentences should be as brief as possible and well constructed.

Order of clauses within a sentence

73 A conditional clause presents readers with a task of reasoning, and the use of more than one conditional clause at the beginning of a sentence should be avoided. If there are a number of conditional clauses linked together, they require a complex chain of reasoning, as paragraph 25 (3) (d) of the Credit Act 1984 demonstrates:

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

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

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

(i) where, before the rescission or discharge of the contract of sale, there was not a mortgage relating to the tied loan contract, the buyer shall deliver the goods to the supplier; …

Contributing to the difficulty in applying the conditionals here is their arrangement at the beginning. Readers have no context in which to interpret them until they reach the main clause at the end of the sentence. This is no problem for the drafters because they already know the solution before they write. The arrangement may also be satisfactory for lawyers who are familiar with it from experience. But it does not seem so well-suited for general readers. It is better for them if drafters put the main clause first and if they break up a series of conditionals. As Thornton[196] recognised, this often allows the conditions to be set out in a series of paragraphs which helps readers negotiate the various steps in reasoning that they have to take. If there is only one conditional clause and it fits in with the structure of the discourse, it may be stated first without causing any problems for readers.

Order of sentence components

74 The structural components of a sentence in the form of a statement are subject, verb, complement (including the object) and adverbial, for example:

The boy [subject] chased [verb] the cat [complement] yesterday [adverb]

The subject and verb, or subject, verb and complement are essential components of a sentence and should be kept together.

75 Do not separate the auxiliary and the main verb. In speech, and in most writing, the auxiliary and the main verb are kept together. This is often not the case in legislative drafting where readers may be confronted with unexpected separations of these components. For example, section 74 (1) of the Credit Act 1984 interposes 107 words, including three paragraphs, between the auxiliary and the main verb:

Where a debtor by reason of illness unemployment or other reasonable cause is unable reasonably to discharge his obligations under a regulated contract, the debtor may, where he reasonably expects that he would be able to discharge his obligations—

(a) if the period of the contract were extended and the amount of each payment due under the contract accordingly reduced (without a change being made to the annual percentage rate);

(b) if the dates on which payments due under the contract during a specified period were postponed (without a change being made to the annual percentage rate); or

(c) if the period of the contract were extended and the dates on which payments due under the contract during a specified period were postponed (without a change being made to the annual percentage rate) …

apply to the credit provider for a variation of the contract.

There is no advantage to be gained from this arrangement. Readers cannot be expected to retain the auxiliary in short-term memory across a gap of 200 or more words. By the time they reach the main verb, apply, they may have forgotten the auxiliary and would need to look for it again to make sense of the verb group. Alternatively, having passed the auxiliary they may not concentrate fully on the adverbial because they may be looking for the main verb to complete the verb structure. This difficulty could be avoided by placing the words apply to the credit provider for a variation of the contract immediately after the auxiliary, may.

76 Do not separate the subject and the verb. Similarly, the subject and verb should not be separated by lengthy relative clauses. For example, section 226 of the Accident Compensation Act 1985 reads:

Any person who—

(a) fails or neglects duly to furnish any return or information or to comply with any requirement of the Commission as and when required by this Part or the regulations, or by the Commission;

(b) without just cause refuses or neglects duly to attend and give evidence when required by the Commission or any person employed in the administration of this Part and duly authorised by the Commission, or to answer truly and fully any questions or to produce any books or papers required by the Commission or any such person to be produced by that person;

(c) makes a statement of remuneration in response to a request under section 200 that is false in any particular;

(d) makes or delivers a return which is false in any particular or makes a false answer whether orally or in writing; or

(e) contravenes any provision of this Part for the contravention of which no penalty is expressly provided—

shall be guilty of an offence.

There is too large a gap in this provision between the subject any person and the verb shall be. Select instead alternative structures that avoid this difficulty, for example, A person is guilty of an offence if that person ... or A person is guilty of an offence who … Both of these forms keep the subject next to its verb which promotes comprehension.

77 The adverbial. Misplacement of the adverbial weakens the emphasis that it should receive. Adverbials carry an important part of the message and in most cases should come towards the end of their clauses so that they receive the normal end stress which is associated with the final position in English sentences. For example, in section 12 (1) of the Fundraising Appeals Act 1984, the adverbial is placed between the auxiliary and the verb and so loses the impact it would have if it were placed at the end of its clause. The subsection reads:

Subject to this Act, a person who has given notice pursuant to section 11 and who has not within 21 days of giving that notice received from the Minister a direction as provided for in section 14 may conduct a fundraising appeal … (emphasis added).

The italicised words should be rearranged:

who has not received a direction from the Minister as provided for in section 14 within

21 days of giving that notice …

Active or passive voice

78 Legislation often confers a power or imposes an obligation on a person and if the reduced form of the passive voice is used it does not specify who is to have the power or obligation, for example, A copy shall be given to the woman; who is to give the copy? Similarly section 44A of the Superannuation Act 1958[197] reads:

If any refund or benefit payable to a person under this Act is not paid within 2 months of the person becoming eligible for the refund or benefit, the Board must pay to that person, in addition to the refund or benefit, interest … (emphasis added).

It is not clear who is responsible for the original payment. The mention of the Board in the second clause does not resolve the uncertainty. Its omission from the first clause could suggest that it was being appointed to salvage the situation. The active voice, on the other hand, clearly indicates who is to have a duty or obligation, for example The doctor (hospital, etc) must give a copy to the woman; The employer (Board, etc) must pay any refund. In these situations the active voice is more precise than the reduced passive because it identifies all the parties involved explicitly.

79 Although the full version of the passive voice (for example Any declaration may be revoked by the Treasurer) includes the agent and therefore indicates the agent’s responsibilities, it is often less satisfactory than the active. The passive uses more words and reverses the expected order in which the agent occupies the subject position. It may lead to a confusing series of reversals:

4 (3) If an employer has after the appointed day and before the commencement day made a payment which should have been by reason of the coming into operation of this section, made by the Board out of the Fund and which would have been authorized by this Act to have been made from that Fund the employer is entitled to be reimbursed from that Fund the amount of that payment.

Construction Industry Long Service Leave (Amendment) Act 1985

Only once in this sentence does the agent appear in the subject position before the action; on the four other occasions it occurs after the verb.

80 Use of the passive may also lead to uncommon expressions, for example, for subsection (1) there shall be substituted … ; after the expressionsubsection (5)’ (where respectively occurring) there shall be inserted … The structure there shall is unusual in general writing. It should not be used in Acts. The active imperative is clearer, for example, for subsection (1) substitute … ; and after ‘subsection (5)’ insert …

81 There are many occasions, however, in which the passive is the proper voice to use, for example where the agent is unimportant or universal and therefore does not have to be specified. The Infertility (Medical Procedures) Act 1984 has two clear illustrations:

1. This Act may be cited as the Infertility (Medical Procedures) Act 1984.

10(3) A procedure to which this section applies shall not be carried out unless …

Also the passive may assist in allowing writers to arrange their material so that known and old information occurs in the subject position and unknown or new information occurs in the final position where it can receive end stress. At the same time it may promote a smooth transition from one sentence to the next, for example:

5 (d) … The Minister may … cancel the approval of the hospital …

(6) Where the approval of a scheduled hospital … is cancelled under this section, the Minister …

Infertility (Medical Procedures) Act 1984

In subsection (6) the passive allows the approval to be shifted to the subject position so that it establishes an immediate link with subsection (5).

82 The use of the active or the passive voice depends on the aspect of the message that is important both informationally and contextually. The principle for legal and official writing is not never use the passive but rather do not use it excessively. Above all, writers should avoid it in those contexts in which it creates vagueness and imprecision.

Nouns from verbs

83 Using nouns derived from verbs tends to rob an event of its sense of action and to introduce a degree of abstractness and detachment. It is preferable to retain the verb—to write to apply not to make an application; to consider not to give consideration and to conclude not to reach a conclusion. The single verb is shorter and more precise, especially when used in the active voice, for example unless the buyer has asked the supplier in writing to satisfy the judgment is clearer and more direct than unless a written demand has been made on the supplier for satisfaction of the judgment. Similarly, if the objector does not appear before the Tribunal is clearer than in default of the appearance of the objector before the Tribunal. It also expresses the conditional nature of the action more explicitly.

Positive or negative

84 When an idea can be expressed either positively or negatively, it should be expressed positively. Using the negative forces people to convert to the positive to find out what they can do. Positive statements are therefore generally easier to understand than negative ones. For example Wait until the subscriber answers and then insert your money is more quickly understood than Do not insert your money until the number answers. Similarly, Indigents with children may … is better than Indigents other than those with no children may

85 Multiple negatives in particular should be avoided. They force readers to follow a tangled web, subtracting, and then adding, and then subtracting again, so that they cannot get the basic information easily, for example:

49 (1) The Court shall not make an order under section 45, … if it is satisfied that the order would unfairly prejudice any person.

Companies (Acquisition of Shares) (Victoria) Code

This could be redrafted: A Court may make an order only if it is satisfied. The construction may … only is easier to understand than a negative and unless, particularly for those who do not speak English as their native language. A structure such as A company must not send out a notice unless it has the consent of the Commission does not occur in many languages. It is better expressed A company may send out a statement only if it has the consent of the Commission.

86 Negatives should of course be used for prohibitions, for example Do not walk on the grass. This negative form states the prohibition more effectively and precisely than a positive alternative such as Walk on the paths.

Cohesion among sentences

87 Because sentences that follow one another are read together, it is not necessary to repeat material from earlier sentences. For example, subsection 112 (1) of the Mental Health Act 1986 outlines the powers of inspection of a community visitor:

A community visitor is entitled when visiting a mental health service to—

(a) inspect any part of the premises; and

(b) see any person who is receiving treatment or other services unless that person has asked not to be seen; and

(c) make enquiries relating to the admission, detention, care, treatment and control of patients or residents; and

(d) inspect any document or medical record relating to any patient or resident if he or she has given informed consent in writing and any records required to be kept by or under this Act.

Subsection 112 (2) then provides that:

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

The opening clause of (2), Where a community visitor … under this Act, is unnecessary: its content has already been stated in (1). Because (2) follows immediately on (1) and is part of the same section, it is obvious that it relates to (1) and could appear more briefly as:

(2) Members of the mental health service must give any reasonable help that the community visitor requires to carry out any of these activities.[198]

Subsection (2) also ignores internal connections. The last clause virtually repeats the material in the first clause. Some drafters defend repetition on the ground that it makes the meaning of the text absolutely certain. This defence conflicts with a basic rule of interpretation that an Act should be read as a whole—a rule which drafters expect readers to observe. Rather than adding to the precision of the text, the excessive caution detracts from its sharpness.

88 If it is necessary to show the links between certain subsections pointedly, then there is a set of words available to express the connection, for example alternatively, however, in addition, instead, moreover, nevertheless and similarly. There can be no objections to using these words because one of their class—notwithstanding—is already in constant use in legislation. The Companies Act 1985 (U.K.) shows what can be done:

103 (4) But sub-section (3) does not exclude the application of sub-section (1) unless under the arrangement it is open to all the holders of the shares in the company in question (or, where the arrangement applies only to shares of a particular class, to all the holders of shares in that other company, being holders of shares of that class) to take part in the arrangement. In determining whether that is the case, shares held by or by a nominee of the company proposing to allot the shares in connection with the arrangement, or by a nominee of a company which is that company’s holding company or subsidiary or a company which is a subsidiary of its holding company, shall be disregarded. (5) Sub-section (1) also does not apply to the allotment of shares by a company in connection with its proposed merger with another company; that is, where one of the companies proposes to acquire all the assets and liabilities of the other 41 42 in exchange for the issue of shares or other securities of that one to shareholders of the other, with or without any cash payment to shareholders.

108 (2) However, where it appears to the independent person (from here on referred to as ‘the valuer’) to be reasonable for the valuation of the consideration, or part of it, to be made (or for him to accept such a valuation) by another person who—

(a) appears to him to have the requisite knowledge and experience to value the consideration or that part of it; and

(b) is not an officer or servant of the company or any other body corporate which is that company’s subsidiary or holding company or a subsidiary of that company’s holding company or a partner or employee of such an officer or servant,

he may arrange for or accept such a valuation, together with a report which will enable him to make his own report under this section and provide the note required by sub-section (6) below.

To use these linking devices is to adopt the normal and natural methods of English.


89 There is probably no section of legal language that gives rise to more extreme and clouded debate than vocabulary. On the one hand, there are some in the community who condemn the words of the law utterly, as if the great bulk of them were unnecessary, or intentionally difficult and obscure, to keep general readers in the dark. On the other hand, there are some in the legal profession who are equally dogmatic in their advocacy of legal words, defending all of them as if the fabric of the law would collapse without them.

Part 1 of this chapter looks at some aspects of legal vocabulary. Part 2 concerns the use of words in amending legislation. And Part 3 concentrates on the meaning of words and the practical aspects of definitions.

Part 1: Aspects of legal vocabulary

Litigated words

90 Writers should not assume that because a word or phrase has been a subject of judicial interpretation, they should continue to use it instead of a simpler, more widely understood alternative. While it is true that in some cases the substitution of another word may change the meaning of legislation, that is not always so. Indeed, the fact that the meaning of a word has been constantly litigated may indicate that its meaning was not, and perhaps is not yet, clear. Moreover, a court’s ruling on the meaning of a word is limited to a particular context. Its meaning is judicially settled—if it is settled at all—only for that context. And, in any event, the meanings of words change, even judicially settled words. The meaning determined fifty years ago by a court may no longer be the established usage of the word. For these reasons, writers should check every uncommon word or phrase for possible alternatives and should consider expressing the idea in a way which does not require the use of a litigated word, for example:

41 (4) (i) Where the evidence for the prosecution has, in the opinion of the Justice or Justices, established a prima facie case …

Justices Act 1902 (New South Wales) (emphasis added)

was rewritten to help 1985 readers as:

Where the Justice or Justices form the opinion referred to in subsection (2) (b) that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence …

Schedule 1, Justices (Amendment) Act 1985 (New South Wales) (emphasis added)

This version sets out more clearly what is required of jurors: there has been gain rather than loss by the change. The success of many plain English versions of traditionally worded documents supports substituting modern day alternatives as a general rule. If necessary, explanatory notes may be used to indicate the changes from the traditional terminology.

Terms of art and other technical terms

91 Words that are genuine terms of art or technical terms may be used in appropriate contexts. They include words such as affidavit, habeas corpus, hearsay, hereditaments, easement and mandamus. They also include words which have a particular meaning in a legal context, such as incapacity, dependant, and tax-free threshold. These words have precise meanings and there is often no convenient substitute for them in common language. Explanatory notes or footnotes may be used to help readers understand them. For example, a recent mortgage form reads:

I waive my right to require the note holder to do certain things. Those things are: (1) to demand payment of amounts due (known as ‘presentment’); (2) to give notice that amounts due have not been paid (known as ‘notice of dishonour’); (3) to obtain an official certificate of nonpayment (known as a ‘protest’).

National Mortgage Association and the Federal House Loan Mortgage Corporation

92 The use of legal and technical terms calls for delicate decisions and sound knowledge. Explanation of a concept may not be enough. It may be equally essential to counteract any misconceptions which members of the public may have. In a study of default clauses in consumer contracts, Davis found that many consumers believed that negligent injury to the collateral could not constitute default if all the instalments had been paid on time.[199] As Davis recognises, it is of little use giving a definition of default which does not also tackle this misconception. Often the everyday situation does not match the legal situation; for example, negligence in law may not be the same as what members of the public understand by negligence.

Ordinary words with a special legal meaning

93 As well as the technical words for which there are no everyday equivalents, there are also technical legal words which occur in everyday language with much the same meaning, for example, contract, husband, mortgage and motor vehicle. The distinction is one of greater specification or implication rather than conflict or contradiction. In general usage, a contract is an agreement, or the document containing the agreement; for lawyers, it includes notions of offer, acceptance and consideration that are necessary for contractual obligations to·be imposed. While words of this type may have more precision in law than in ordinary language, they are readily intelligible and there is sufficient common agreement about their meaning so that there is no need to use substitutes.

94 Some of the words which are shared by both the general language and legal language do not overlap so closely in meaning. There is still a core element, but the words have a limited meaning in a legal context, for example cattle, domicile and good faith (in insurance). It may not be possible to avoid using such terms because suitable synonyms are not available, but again drafters may improve the understanding of non-experts by providing explanatory notes.

Archaic words

95 Archaic words should generally be replaced by more modern words or entirely omitted. For example, words such as indenture, hereto, hereinafter, part (of the one part), chattels, situate, execution, instrument, presents, aforesaid, said and witnesseth, which are frequently used in legal documents cannot be justified in the late twentieth century. They are often redundant or imprecise as well as off-putting for readers. For example, hereby adds nothing in the context I hereby promise or the XYZ Act is hereby amended. Other words such as aforesaid, hereinafter, abovementioned, preceding and the same may also be uncertain and misleading in their reference.

96 Drafters need not fear that legal documents will be unenforceable if they depart from traditional legal terminology. There is no risk that a court would rule that rented premises is different from demised premises; particularly in view of the recent Victorian and Commonwealth legislation requiring a purposive, rather than a literal, reading of statutes.[200] The Attorney-General, in his Ministerial Statement of 7 May 1985, took an important step towards ridding legislative language of archaic forms when he directed that must should replace shall in its obligatory sense, and where should no longer be used as a synonym of if to introduce a condition.

97 As well as avoiding archaic words, writers should avoid using words in an archaic sense. There are a number of words which have archaic meanings when they are used in legal documents which are different from their meaning in general usage, for example action (in court proceedings) and instrument (for document). As with archaic words, these archaic senses should be abandoned wherever there are acceptable equivalents in general usage.

Latin and French words

98 Latin and French words should generally be avoided unless they have become part of the English language. For example, words such as adjudicate, appeal, court, exception, indictment, jury, legal, perjury and verdict are obviously acceptable. Words such as ab initio, corpus delicti, in re, de novo, in custodia legis, ejusdem generis, chose in action, cy-pres, mesne and presents (document) should be replaced with English words. The Commercial Arbitration Act 1984 gives a neat illustration that Latin and French words do not have to be used. The heading to section 22 contains the French amiable compositeur and the Latin ex aequo et bono, but the drafter correctly abandoned them in the text and expressed the ideas clearly through general English words:

22 (2) If the parties to an arbitration agreement so agree in writing, the arbitrator or umpire may determine any question that arises for determination in the course of proceedings under the agreement by reference to considerations of general justice and fairness.

The pity is that the drafter did not use these effective English words in the heading as well. As this example shows most foreign terms have no essential role to play.

Doublets and triplets

99 The unnecessary synonyms that are often used in legal language should be omitted, for example, acknowledge and confess, act and deed, goods and chattels, in my stead and place, give, devise and bequeath, terms and conditions, made and signed, cease and desist, fit and proper, keep and maintain, force and effect, and have and hold. Such tautologies confuse readers who strain to see a difference between the terms, believing that the writer would not use two or three words where one would do. Even lawyers have been misled into trying to find differences in meaning where none exist, for example in null and void, cease and desist and rest, residue and remainder, and are afraid to omit one of a set of synonyms.

Overlapping words

100 Similarly, writers should take care when using words which overlap, for example authorise and direct, due and payable, obtain and consider, extend and apply to, and read and construed as. In each of these pairs, the second term presupposes the first. If officials are directed to carry out a task, they are authorised by the direction. If a debt is due, it is also payable. It would be better to use only the second term as the use of both terms may confuse readers or lead to a limited meaning being given to each word. This is even more so with a series of related words, for example:

112 (3) (c) assaults, obstructs, hinders, threatens, intimidates or attempts to obstruct or intimidate a community visitor …

Mental Health Act 1986 (emphases added)

Here, the use of five different verbs may lead readers to question whether they are exclusive. What of thwart, curb, impede, block, delay or frighten? Are they covered or has the drafter overlooked them? In effect this practice of drafters is self-defeating. One generic term such as interfere with would be more effective in conveying the meaning than a string of words. By including closely related words like threaten and intimidate, the drafter encourages readers to look for gaps between the words, especially when only some of the verbs after attempts are repeated.

Inflated words

101 A simple or common word should generally be used in legal documents rather than a grander or more unusual word. For example, divide is better than allocate, tell than appraise, car than automobile, get than come into possession of, try than endeavour, fair than equitable, end than expiration, if than in the event that, rank than prioritise, send than transmit, and about than with reference to. Part of the problem for writers is that many of these inflated words have an established place in the custom of their organisations. They are used by force of tradition rather than through any real merit. These words may function satisfactorily in internal documents but because of their limited local use, they let writers down seriously in documents which go to wider audiences.

Elegant variation

102 Similarly, there is no need in legal writing to use different words to refer to the same object or idea in order to avoid the monotony caused by repeating the same word. Often this may not cause any harm, especially when the alternatives are equally familiar, for example author–writer, holiday–vacation, oppose–resist, and frank–candid–honest. However, in some cases, change simply for the sake of variation, elegant variation, may confuse readers. They may wonder if the same matter is being discussed. For this reason, the same word should be used for the same concept throughout a document. For example, there is no need to change from person to defendant in the following section:

47 39 (6) In a prosecution of a person for failing to serve a notice on a securities exchange under this section, it is a defence if the defendant establishes …

Companies (Acquisition of Shares) (Victoria) Code (emphases added)

Part 2: The use of words in amending legislation

103 Amendments to legislation should be written in plain English even if the principal Act is not in plain English. Drafters may be concerned that if they use different words in an amending Act, those words will be given a different meaning from the words in the original Act. This fear is unfounded. It arises largely from a confusion between words and substance and the mistaken belief that an idea can be expressed in only one way. But provisions can be expressed in various ways without altering the content. For example, in pairs of tautological words, such as each and every and order and direct, one word may be omitted. Similarly, same, such, and aforesaid could generally be deleted. It shall be the duty of and shall may be replaced by must. Punctuation may be improved. Inserting commas in a series, for example, may improve the readability of an Act and occasionally remove an ambiguity. If the principal Act contains confusing or archaic terms, these should not be repeated in amending legislation. The idea should be paraphrased.

Part 3: The meaning of words

Definition section

104 Efficient communication depends on writers using words in the same way as the rest of the community does. They only create confusion and hinder communication if they give words unusual meanings. A definition section should be seen as a last resort, to be used only in an extreme contingency. It should be kept as short as possible. The primary goal for drafters is to use words in their ordinary sense so that they do not need to be defined. If a word is defined in a statute, it suggests that it is not being used in its ordinary sense. This in turn implies that readers must continually refer to the definition section to check the meaning of the word because it is unreasonable to expect them to memorise an unusual meaning.

105 If a concept is used only once in an Act, writers should avoid coining a special term for it which needs to be defined; it is better to spell out the concept. For example, the term substantial period is used in the De Facto Relationships Act 1984 (NSW): ·

15 (1) A court shall not make an order under this Part unless it is satisfied …

(b) that—

(i) both parties were resident within New South Wales for a substantial period of their de facto relationship; or

(ii) …

(2) For the purposes of sub-section 1 (b) (t), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their de facto relationship if they have lived together in the State for a period equivalent to at least one-third of the duration of their relationship.

Substantial period is imprecise and so in subsection (2) the drafters have defined it. This is a wasteful procedure. A much briefer solution is to omit substantial period and to merge (1)(b)(i) and (2):

1) both parties were resident within New South Wales for at least one-third of their relationship.

This approach is much easier for readers who in the original version are compelled both to grapple with the concept substantial period and are left in the dark about its meaning until they have passed through (b) (ii) to (2).

Functions of definition section

106 Definitions may serve several functions:

a. To confine a word to only part of its range of meanings. Although the context usually makes it clear which meaning is intended in a given sentence, there are times when writers want to confine the use of a term to one segment of its range of meanings and not to leave the matter to chance, for example ‘oil’ means any liquid hydrocarbon; ‘property’ means only personal property. The object of these definitions is to obtain clarity; it is not to introduce new meanings or to depart from ordinary usage. A liquid hydrocarbon, for instance, is an oil, just as personal property is property. In other cases, the purpose of a definition is to specify that particular meanings are being used, for example:

a. ‘employee’ means—

(a) in relation to Part 11—a public employee;

(b) in relation to the remainder of this Act—a person appointed to the Public Service (including a Chief Executive Officer)

Government Management & Employment Act 1985 (UK)

b. To promote understanding where a usage is only partially established in the community, for example, in vitro fertilisation, disinflation and joint float. This function offers a way of handling new words which may not yet appear in dictionaries.

c. To avoid ambiguity where a word has competing usages, for example, ‘bimonthly’ means twice a month.

d. To remove uncertainty, for example, ‘spouse’ includes de facto spouse; ‘amended’ includes ‘altered’; and ‘construct’ includes reconstruct, make structural changes. (Note the use of a comma in the third example, rather than a conjunction, because it is a list of alternatives. If both elements are necessary, connect them with and, for example, ‘trading’ includes buying and selling).

e. To explain technical words, especially legal ones, for example, information in the sense of laying a charge.

f. To make the document shorter and more readable by using a shorthand expression, for example, ‘odd lot’ means a parcel of shares that is less than a marketable parcel. This follows the frequent practice of using one or two words to replace a group of words in referring to a concept. This procedure should only be used if the concept appears several times in an Act. Otherwise, readers are required to learn a new word for a concept for no advantage. Abbreviations, however, should not be introduced into definition sections, for example, ‘Commission’ means the Accident Compensation Commission established under this Act; ‘Court’ means Supreme Court. Since the Accident Compensation Act was concerned with only one Commission, it is not necessary to clutter the definition section with this item. Similarly, since Supreme Court is not much longer than Court, the space saving is not sufficient to warrant a special definition. The short form (Court) could be allowed to arise naturally from the context because if the long form (Supreme Court) occurs several times in the same section, it can be safely abbreviated on the second or later occasion without having to list the short form in the definition section. The same principle applies to long titles within a section—use the full title in the first reference and then a short form; the meaning will be clear from the context without the need for a formal definition. For an abbreviation to be justified in an Act, it should be so obvious that it would not need to be listed in the definition section. If it is not obvious to readers, then the full form should be used.

g. To identify words which have the same referent. While as a general principle only one word should be used to refer to the same concept in an Act, another word or phrase may occasionally be used to refer to the same concept. For example, one section of an Act may set out the duties of de facto partners, another the duties of parties to an application. In the Act, the terms de facto partners and parties to the application may refer to the same individuals. It is not that they have the same meaning, but in the given context they are equivalent in their referents. In the past, the following device has been used to show this overlap: A reference to ‘parties to the application’ is a reference to ‘de facto partners’. The items treated in this way appeared in a separate section after the definitions. Instead of this form, it is preferable to rephrase these items as: ‘parties to the application’ refers to ‘de facto partners’. Having one of the equivalent words first rather than the words a reference in this Act to means that the treatment of the equivalents is similar to the treatment of words being defined. As a result equivalents can be incorporated in the appropriate alphabetical order along with the other items in the definition section. This saves readers from having to look to at least two separate places, as happens at present, if they want to check the meaning of a word. However, before introducing equivalents, writers should consider whether both terms are essential. In the De Facto Relationships Act, for example, one may say the partner who applied for an order and omit entirely parties to the application.[201]

Equivalents and definitions

107 Items are sometimes presented as equivalents when they are really definitions or explanations of meaning, for example:

5 (10) In this Act, a reference to remuneration does not include a reference to allowances for· travelling or accommodation paid or payable at a rate in a particular case or class of cases that does not exceed such rate as is prescribed in respect of that case or class of cases.

Accident Compensation Act 1985

This provision can be written more briefly and accurately as a definition: ‘remuneration’ does not include allowances for … Not only does this revision identify the item correctly as a definition but it also eliminates the verbiage of a reference to.

Commonness of definitions

108 Definitions should not give words or concepts strange or novel meanings. They should indicate the specific aspect of a word’s ordinary meaning that is relevant. This may be one part of its ordinary meaning or an extended meaning beyond its ordinary meaning. An example of an extended meaning for a word is ‘boat’ includes motors and sails, but does not include personal effects and water-ski equipment. This is an acceptable definition because motors and sails are things associated with boats and may reasonably be regarded as part of at least some boats. To extend the meaning in this way does not depart from the usual meaning of the word boats. The following definition of formal search, however, is not only an extended form of the general meaning but also an unusual meaning:

44 (1) A person who wishes to enter or remain in a prison as a visitor must, if asked, submit to a formal search.

(2) In this section ‘formal search’ means a search to detect the presence of drugs weapons or metal articles carried out by an electronic or mechanical device.

Corrections Act 1986 (emphasis added)

This idiosyncratic definition is not what readers of subsection (1) would expect and in any event is not necessary. The two subsections could be simply amalgamated: A person who wishes to enter or remain in a prison as a visitor must, if asked, submit to a search to detect …

Unnecessary definitions

109 Words and concepts whose meanings are obvious should not be defined, for example:

5 (1) unsolicited goods means goods sent to a person without any request made by or on behalf of that person.

Fair Trading Act 1985

Also there is normally no need to define words which have already been defined in

the Interpretation of Legislation Act 1984. Such words should be defined only if their meaning is crucial to the understanding of the Act being drafted. The repetition of definitions in an Act clutters it with unnecessary detail. The definition sections in the Interpretation of Legislation Act 1984 includes sections 21 (meaning of certain expressions in Act); 23 (construction of subordinate instruments); 37 (gender and number); 38 (definitions); 39 (parts of speech and grammatical forms); 44 (time); 45 (may and shall); 46 (references to the Sovereign); 47 (references to officer in general terms); 48 (references to officers, localities etc.); 49 (service by post) and 55 (construction of references to British subjects etc).

Generality of definitions

110 Drafters should endeavour wherever possible to use a definition which is consistent with the way in which the word is used in other Acts. If the definition is only suitable in one Act, that may be an indication that a word is being defined in an unusual way and the definition should be reconsidered. If a word is used in the same way as it has been defined in another Act, a deceptively simple solution is to refer to the definition in that Act, for example:

3 (1) Insolvent under administration has the same meaning as in section 5 (1) of the Companies (Victoria) Code.

Building Societies Act 1986

This should not be done. Not only does it force the reader to look elsewhere, but the other Act may not be immediately accessible. An exception to this principle is amending legislation where a reference from an amending Act to the Act being amended is unnecessary, for example:

4 (5) Board has the same meaning as in the Principal Act. Employer has the same meaning as in the Principal Act.

Construction Industry Long Service Leave (Amendment) Act 1985

Consistency in definition

111 If a word is defined in an Act, the word should be used with only that meaning. It is confusing for readers to see a word which has been defined in a particular way used in a different sense. Similarly, parts of speech which are related to the defined word should be used consistently. If a noun is defined with a particular meaning, its related verb should be used with the same meaning. For example, if associate (the noun) is defined in a particular way, the corresponding verb associate (with) and its past participle associated (with) should be used in the same sense. This of course agrees with general linguistic principles since a look is an act of looking; knowledge is what one knows; (to) contact is (to) make contact with. But subsection 7 (4) of the Companies (Acquisition of Shares) (Victoria) Code, defines associate in one way and subsection 7 (5) defines a person who is associated with another person in a different way. This may confuse readers who are likely to treat associate and associated with alike.

No substantive material in definitions

112 Definitions should contain only an explanation of the meaning or use of terms. They should not contain substantive material. For example, readers of the Building Societies Act 1986 would not expect to find details of the appointment of directors in the definition section:

3 (4) The composition of a corporation’s board of directors is controlled by a building society or company if the building society or company can appoint or remove all or a majority of the directors by the exercise of a power exercisable whether with or without the consent or concurrence of any other person;

(5) For the purposes of sub-section (4), a building society or company is deemed to have power to make an appointment of directors if—

(a) a. person cannot be appointed as a director without the exercise of such a power by the building society or company in that person’s favour; or

(b) a person’s appointment as a director follows necessarily from the person being a director or other officer of that building society or company.

(6) Sub-section (4) does not limit by implication the circumstances in which the composition of a corporation’s board of directors is to be taken to be controlled by a building society or company.

Drafting definitions

113 The analytical approach is generally used in drafting definitions. That is, a meaning of the word is divided into its separate components of general class, sub-class, and distinctive features of the sub-class. A definition of kookaburra could appear in the form of:

Kookaburra: bird of the kingfisher family with cackling cry, found in Australia.

This definition consists of these components:

general class: a bird

sub-class: kingfisher family

distinctive features: cackling cry, found in Australia.

While this approach distinguishes the creature from all other birds and from all other objects, it also enables us to see its relationship with other types of birds and creatures.

114 A second approach to definitions is to illustrate the meaning of a word by listing some of the items to which it refers. For example, ‘books’ includes any register or other record of information; ‘send’ includes dispatch, forward, post. The defined word is intended to have the full range of its normal meanings. The items are listed to ensure that readers understand that they are definitely included. All possible items are not listed. In fact, the list should contain the minimum number of items so that it does not appear an exhaustive explanation of the meaning of the word.

115 Occasionally the two approaches are combined: X means Y, and includes Z. This type of definition is used if there is uncertainty about whether Z is. included. It says clearly that it is included. The following wording allows all the words requiring special attention to appear in one alphabetical list for the convenience of readers:

a means b.

a includes c, d.

a means b, and includes c, d, e.

a refers to b.

a is a short form for b.

a has the same meaning as in section 000 of the XYZ Act.

116 Sometimes a definition includes the phrase in relation to, to indicate that the word is to have a specific meaning in a particular case or context. For example, ‘owner’, in relation to land, means the person for the time being entitled to receive the rent of the land. This method must be used cautiously. It may imply that outside a particular context or case, the word is being used in its ordinary sense in the Act. If it has been used elsewhere to convey those wider senses, then it may not be the most appropriate word to use in the nominated context.

Using the computer to prepare definitions

117 Programs are available to enable a computer to produce either an alphabetical list of every word in the text, or a concordance which sets out every occurrence of a given word with some surrounding context. A concordance may be produced at any time after a draft has been entered into a word processor. It should be prepared at least on a final draft. This is the most efficient stage to draw up a complete definition section. The concordance enables writers to produce exact and complete definitions economically and without tedium. Writers should check that they have included every word that might cause readers difficulty and that all the material included is relevant. For example, if a definition contains the word includes, it is counterproductive to add to the list items which are not affected by the provision. The list should only be as full as necessary. The concordance also shows the various uses of a word and whether the word has been used in more than one sense. If that occurs, the word should be replaced where necessary so that it is used in only one sense in the text.

Where to put definitions

118 The present system is to place definitions at the beginning of an Act. This gives readers early warning of any special ways in which terms are used in the Act. But, on the other hand, it may provide them with a hurdle before they reach the main provisions of the Act. Generally, the principal substantive matters in an Act should come first and less important or procedural matters later. It would therefore be better to put the definition section at the end of the Act—see Appendix 2. This could be done quite conveniently if defined words were identified typographically (for example, by italics or bold type)[202] to warn readers that they should check the definitions of those words. A footnote should then refer the reader to the section in which the word is defined. This saves readers from continually turning to the definition section at the front or the back of the Act. But if words are defined in a Part or Division, there should not also be a definition section in the Act. Readers should know that definitions are either in the definition section or in the body of the Act; they should not need to check both positions.

Usage of certain words

119 This chapter concerns the usage of certain words in legislation which may give rise to dispute, especially in the context of introducing plain English. The Style Manual produced by the Australian Government Publishing Service,[203] which is followed by the Victorian Government Printer, should be consulted on routine matters.


120 The meaning of and and or appears straightforward. And is seen as conjunctive, cumulative, adding items together, for example, Penalty: A fine of $1000 and 6 months imprisonment. On the other hand or is disjunctive, taking items separately, proposing alternatives. For example Penalty: A fine of $1000 or 6 months imprisonment. But practice is more complex than this and sometimes and and or overlap in use. Certainly or can have inclusive senses. For example, A or B may do X can be interpreted either as A may do X, B may do X, both A and B may do X, or either A or B may do X, but not both of them.

121 The confusion and ambiguity that this overlap may cause in practice may be counteracted by other linguistic devices. For example, to make the conjunctive force of and certain, writers may use both … and: organisations that are both political and educational. The disjunctive use of or can be highlighted by either … or … but not both: organisations that are either political or educational but not both. Other ways of making the meaning certain include: for any of A, B and C and A or B or both. The solution will depend on the context.[204]

122 And/or should not be used in legal documents. It can readily be replaced. For example, shares and/or options may be written shares, or options, or both.


123 The particular force of these words should not be weakened by overuse. Frequently the determiner may be omitted or the indefinite article may be used, for example, Any director may be re-appointed may be written A director may be re-appointed or directors may be re-appointed. Any is best reserved for situations where there are no qualifications or limitations, for example, A secretary may be dismissed at any time. Each and every should be used if an obligation is to apply to all members of a class and not just to a single member, for example, Each qualified state officer may; Every qualified state
officer may


124 Deemed is obsolete. It should be replaced by considered, regarded, taken or treated as. It should not be used even in the technical sense of expressing a hypothetical case or legal fiction.

Duty (it shall be the duty of)

125 Use must to express obligations, not it shall be the duty of.


126 Forthwith is obsolete. It is better to use as soon as possible.

Gender neutral language

127 Gender neutral pronouns. It is now Government policy not to use language in legislation which specifies gender, such as the pronouns he and she and words such as chairman. Since there is no gender neutral singular pronoun for the third person in English, the following devices may be used:

• Repeat nouns, for example: If a person holds particular shares in a class of shares, the shares which the person holds on account of another person …

• Use he or she, for example, A tenant may renew a lease if he or she gives the landlord notice. Repetition of he or she can become ungainly, for example, The offeree contravenes this subsection if he or she knows that he or she is not entitled to give the notice. It would be better in these cases to repeat the noun in at least one instance, for example, The offeree contravenes this subsection if the offeree knows that he or she is not entitled to give the notice. Do not use he/she or s/he.

• Replace third person singular pronouns wherever possible, for example, say A director must submit the application not A director must submit his application. The possessive can sometimes be omitted altogether, for example A member of a Tribunal may resign his office by writing a letter signed by him and delivered to the Minister may become A member of a Tribunal may resign by writing to the Minister.

• Change nouns to plural, for example, A tenant may renew a lease if he or she gives the landlord notice may be written Tenants may renew a lease if they give their landlords notice.

128 Gender neutral words. Avoid using sex-specific nouns such as chairman, manpower, mailman, mankind, mothering and statesman. Try to select words which are gender neutral, for example, personnel for manpower and (to) staff for (to) man. Be prepared to consider the use of recently invented words such as chairperson. This word is now recognised in dictionaries, and may become as acceptable as other words which were once opposed, like presidential, advocate, and speculation. In amendments, introduce non-sexist forms despite what might appear in the provisions in the Act that are not being amended. It is against Government policy not to do so.


129 The use of hereby is generally unnecessary. It should be omitted in contexts such as it is hereby agreed and section 5 is hereby amended.· Words such as agree, amend, declare, and promise are effective without the addition of hereby.

Lawful (it shall be lawful for)

130 Use may instead of it shall be lawful for.


131 Use the word money. The form moneys or monies is obsolete and should not be used.


132 Other is an adjective; otherwise is its adverbial counterpart. They should be used correctly, for example, she faced many hardships, financial and other and not financial and otherwise; other parallels financial. Similarly, say an employee may not appeal otherwise than in the prescribed manner not other than; otherwise is an adverb modifying appeal.


133 The Style Manual sets out the generally accepted conventions of punctuation. Punctuation assists readers. It is important for avoiding ambiguity and confusion in meaning. Drafters should adhere to conventions that are used elsewhere in the community. For example, the absence of commas between items in a series is confusing for readers who would expect commas in other writing:

55 (1) (c) require the production at the time and place specified by the Inspector of any books registers certificates notices records and documents required to be kept under this Act and the production of any pay-sheets or books in which …

Construction Industry Long Service Leave Act 1983, amended by section 16 of the Construction Industry Long Service Leave (Amendment) Act 1985

The following subsection is better:

24 (3) On and from the commencement of section 10, unless the context otherwise requires, any reference in any Act or in any proclamation, appointment, Order in Council, order, rule, regulation, legal·proceedings, instruments, document or writing of any kind whatsoever …

Construction Industry Long Service Leave (Amendment) Act 1985

Similarly, the following passage would read better if commas were inserted before and after the group of words a copy … Melbourne Magistrates’ Court:

30A (6) An order made under subsection (4) a copy or certificate of which has been filed with the Clerk of the Melbourne Magistrates’ Court is deemed to be an order requiring the payment of money made by a Magistrates’ Court and may be enforced accordingly.

Construction Industry Long Service Leave Act inserted by section 11 (6) Construction Industry Long Service (Amendment) Act 1985


134 The problem in dealing with quantity concerns the point of reference. There is a danger that it may be omitted from a provision. For example, the phrases more than X and less than X do not take in X. If we wish to include X then we need to use forms such as not less than X, X or more, not more than X, and X or less. Similar problems occur with above, below, nearer than and further than.

Referential words

135 These are words that we use in references to another part of a document, for example above, abovementioned, aforesaid, below, herein, hereinafter, hereinbefore, preceding, said, same, and succeeding. They should be avoided because they are imprecise and frequently archaic. Herein, for example, could refer to the section being read, a subsection, a Division, a Part or even the whole Act. It is more satisfactory to use specific labels such as 5 1) a). Also, these words are often unnecessary. This is particularly true of said and aforesaid. In the said person, for example, said is superfluous. The definite article the is a specific reference. If there is a possibility of ambiguity, the use of said cannot eliminate it. Below, for example, in section 7 below, is also redundant; section 7 is sufficient to indicate the location of the reference. Even following can cause problems if the reference does not come immediately after it.


136 Save is obsolete in the sense of except or but, for example, save as otherwise expressly provided. It should be replaced by current words, especially except.


137 Use must to describe obligations and not shall, for example, the Minister must seek the advice not the Minister shall seek the advice.[205]


138 Spelling should follow Australian practice. The preferred spelling in the latest edition of the Macquarie Dictionary should be used if a word has an alternative spelling. If a word cannot be found in that dictionary, then the Shorter Oxford English Dictionary should be used. The Style Manual is also a useful source of information, for example, on matters of capitalisation and the position of breaks in words.


139 The use of such is often redundant, as for example, in such regulations and such officer. It should generally be replaced with a, the or these. For example, such persons as should read the persons that.

Subjunctive mood

140 The subjunctive mood occurs more frequently in American English than in Australian or British English. It occurs in subordinate that clauses and conditional clauses, for example, The Board may require that the company secretary retire and If any person be found guilty. The subjunctive is apparent only if the subject is singular. It disappears with the plural. Compare: ·

On condition that he retire (subjunctive)

On condition that he retires (indicative)

On condition that they retire (both subjunctive and indicative)

The indicative mood is far more frequent in everyday speech and can be safely used in most constructions.


141 As a relative pronoun, that is not wrong, in fact, in most contexts that and which are interchangeable. In some structures, however, which alone can be used, for example, The company, which was acquired only last year; That was the meeting during which I kept falling asleep.

Because that may refer to both personal and non-personal referents, for example the member that the Government appointed and the building that the company erected, it is useful when there is both a personal and non-personal referent in the same sentence, for example, A person or body that is given power. This is better than A person who or a body that is given power. The relative pronoun whose may be used with a non-personal referent, for example the building whose roof collapsed. This saves the awkwardness of the roof of which.


142 With some expressions of time it is certain that they include the reference point, for example, on, not later than, not earlier than, after beginning with, and ending with.

As a result, ending with 31 December includes 31 December. Other terms are doubtful, for example, between … and, from, to, before and until. To be certain of including the reference point, writers must strengthen these terms. For example, to should read to and including. Between … and … should be supported with inclusive, for example, between
1 January and 28 January inclusive
. To include a date, before is often associated with on, for example, on or before 31 December. To save readers from having to cope with the two prepositions, the expression could be rendered more simply as before 1 January. Similarly, after 31 December is clearer than from and including 1 January or on and
after 1 January
. Although on would seem to include the day, section 44 (1) of the Interpretation of Legislation Act 1984 has the effect that beginning on 1 January, would not include 1 January. Somewhat inconsistently section 44 (2) provides that

ending on 1 January includes that day.

143 Avoid superfluous words in expressions of times. For example, not less than and at least are unnecessary in not less than 90 days notice and at least 90 days notice. The person subject to this provision must give 90 days notice with or without these introductory words. Also, try to specify time requirements precisely and accurately. Instead of words such as within a reasonable time, which is imprecise, and immediately, which is rarely what is meant, say within fourteen days or within twelve hours.


144 These archaic expressions can be safely abandoned. They usually contribute nothing to the meaning. For example, I hereby revoke all wills and testamentary dispositions of every nature or kind whatsoever. Whatsoever adds needless emphasis to all. Current forms are whatever, wherever and whoever but a person who is preferable to whoever in most contexts in Acts.

  1. R Dickerson, Materials on Legal Drafting, West Publishing, St Paul, Minn, 1981, 28.

  2. Law Reform Commission of Victoria, Plain English and the Law, Paragraph 52.

  3. Parliamentary procedures still require Bills to retain a long title but there is no need for it to be reprinted in an Act since the purpose section covers the same ground.

  4. The current commencement sections are rarely helpful in any event as they frequently say This Act comes into operation on a day or days to be proclaimed. This leaves readers to find out the critical information elsewhere. The commencement provision should appear at the end of the document as the expiry provision generally does..

  5. See paragraph 118.

  6. J.C. Redish, A.M. Battison, E.S. Gold, ‘Making Information Accessible to Readers’, Writing in Nonacademic Settings, Guildford, New York, 1985, 129, 131.

  7. See section 74 of the Planning and Environment Act 1987:

    Objections to applications for permits

    74 (1) Any person who may be affected by the grant of the permit may object to the grant of a permit. (2) An objection must be made to the responsible authority in writing stating the reasons for the objection. (3) If a number of persons make one objection, they must give the responsible authority the name and address of the person to whom the responsible authority is to give notice of the decision.

  8. [1914] VLR 455.

  9. [1911] VLR 293.

  10. This example of different judicial interpretations of the section is cited by E L Piesse, The Elements of Drafting, 7th ed, Law Book Co, Sydney 1987, 23, 24.

  11. For a supporting comment see G.C. Thornton, Legal Drafting, 2nd ed, Butterworths, London, 1979, 81-82. The discussion is omitted in the 3rd ed (1987).

  12. See, for example, Schedule 1 and 2 to the Guardianship and Administrative Board Act 1986 which contains routine details of the members and procedures of the Board.

  13. The use of computers in preparing an index is discussed in paragraph 117.

  14. This is no longer necessary, see paragraph 46.

  15. G.C. Thornton, Legal Drafting, 3rd ed, Butterworths, London, 1987, 62.

  16. Inserted by section 5(zy) of the Superannuation Schemes Amendment Act 1985.

  17. It might be argued that this wording is narrower in import than power, duty or function under this Act of the original. The argument does not affect the point being made here, but if the original (2) is wider in scope, it should not be part of sll2, but should form a separate section.

  18. J. Davis, ‘Protecting Consumers from Overdisclosure and Gobbledygook: An Empirical Look at the Simplicity of Consumer Credit Contracts’ (1977) 63 Virginia Law Review 878, 879.

  19. s35 Interpretation of Legislation Act 1984 (Vic) and s15AA Acts Interpretation Act 1901 (Cth).

  20. This treatment is more satisfactory from the readers’ viewpoint, see paragraph 38.

  21. It is not necessary to use two devices, for example, bold type and quotation marks, as in section 5 of the Professional Boxing Control Act 1985: ‘Adult means a person’. One device is sufficient.

  22. Style Manual for Authors, 3rd ed. Editors and Printers, AGPS, Canberra, 1978.

  23. For the treatment of and and or in a series of paragraphs, see paragraph 52.

  24. Ministerial Statement by the.Attorney-General, the Hon J H Kennan, MLC, Plain English, 7 May 1985. 61