In his novel The Trial, the great Czech writer Franz Kafka wrote of a man who is prevented from gaining admission to the Law by a gate-keeper. The man waits his entire life for admission, believing the law should be accessible to everyone, but he is never allowed in. There are still various ‘gate-keepers’ preventing people from gaining access to the law, one of which is obstructive language.
Plain English and the Law was first published in 1987 by the Law Reform Commission of Victoria, the predecessor organisation of today’s Victorian Law Reform Commission. The plain English inquiry was initiated by the then Attorney-General, Jim Kennan, who gave the Commission the task of recommending how plain English could be adopted into drafting legislation, legal agreements and government forms. Chaired by Professor David St L Kelly, with Professor Robert Eagleson (on secondment from the University of Sydney) as Commissioner-in-charge, the Commission published this report.
Thirty years later, the report and its associated publications are recognised as an important achievement in the plain English movement. According to Clarity, an international association promoting plain legal language, “The Commission’s work caused general acceptance of plain language principles throughout governments, the courts and business.”
Of course, over-complex legal language, and concern about it, had existed long before the 1980s. In 16th century England, as this report notes, an unfortunate plaintiff whose documents were too lengthy was paraded around the courts with his head stuck through a hole in the middle of the papers. However, history does not record whether he or his lawyer received any practical advice on how to do better.
The Commission’s aim in 1987—as it remains today—was not simply to reiterate an age-old problem, but to present solutions. Alongside its report, the Commission published a practical manual for legislative drafters together with examples of plain English. A further publication, Access to the Law: the Structure and Format of Legislation, followed in 1990. The aim was to assist legal writers to achieve “accuracy of content combined with plainness of expression.”
Over the last 30 years, due to the concerted efforts of many people and organisations, plain English has moved from the margins to the centre, and the plain language movement is active worldwide. Victoria led the way in stipulating that legislation should be drafted in plain English, and other Australian states followed. Since then, legislation has demonstrated the effectiveness of plain English. Some techniques have become standard practice for all legal writers, such as writing short-to-medium length sentences, preferring the active to the passive voice, and dispensing with unnecessary words. Most writers today understand the importance of beginning with a summary of the whole and using layout to assist with communication. In Victoria, organisations such as the Victoria Law Foundation have played a major role in promoting plain English, as has the international body Clarity, and the Commission commends their work.
It is a matter of social justice that the legal profession communicates effectively with the community, as it is fundamentally important that everyone affected by the law should be able to understand it. Unintelligible language not only confuses and alienates people, it causes them to become cynical about institutions.
It is pleasing to have a continuing connection with plain English and the law. I played a small part as a consultant to the 1987 report, and was President of the Victoria Law Foundation years later, which successfully developed plain English under the hand of its Executive Director, Joh Kirby, who was also President of Clarity.
The Victorian Law Reform Commission is republishing this seminal 1987 report, and the accompanying manual, in order to make them more readily available to a new generation of readers, particularly online. The world has moved on to digital technology, but the principles and practices outlined in this report remain as valuable today as when they were first published. I commend this report to you and hope it once again finds a wide audience.
The Hon. P. D. Cummins AM
Victorian Law Reform Commission