Plain English Manual

Chapter 1 - Introduction

Background

What this Manual is about

1. This isn’t a manual on the whole subject of drafting. The subject covers a very wide field and there are already books and courses on it. This is about only one aspect of drafting: making drafts easier to understand.

2. This Manual doesn’t deal with questions of format or with methods of numbering. Both these matters are still being considered by this Office.

3. Nor does it deal with traditional practices that this Office abandoned many years ago, eg: the expressions “section 5 of this Act”, “subsection (3) of this section”, etc; or provisos; or expressions like “hereinbefore”, “hereinafter”, etc. These were removed from our statute book many years ago.

Why draft simply?

4. Our first duty is to draft laws that do all the things the policy instructors want, and don’t do anything else. This means our laws must be precise, except when we deliberately use “general principles” statements (see further below).

5. We also have a very important duty to do what we can to make laws easy to understand. If laws are hard to understand, they lead to administrative and legal costs, contempt of the law and criticism of our Office. Users of our laws are becoming increasingly impatient with their complexity. Further, if we put unnecessary difficulties in the way of our readers, we do them a gross discourtesy. Finally, it’s hard to take pride in our work if many people can’t understand it.

6. Complex policy, lack of time, changes of policy and other factors will always make it hard for us to draft simple laws. However, we can usually do a lot to reduce their complexity, and we can always avoid creating unnecessary difficulties caused by bad drafting habits.

Commonwealth precedents

7. Australia inherited the traditional style of drafting used in the United Kingdom in the 19th century. It has many examples of bad writing long, badly constructed sentences, archaic words and phrases and strings of unnecessary words. The Commonwealth added to these faults in the 1960s and 1970s by putting too much emphasis on precision and not enough on simplicity.

8. Since 1986 this Office has been moving away from the traditional style. We look for ways to make laws easier to understand, and drop conventions that have led to bad writing in the past. In this Office, the ability to draft simply is now regarded as one of the essential qualities of a good drafter.

9. This historical background means that you have to use your discretion with precedents from Commonwealth Acts. Since 1986 there have been many developments, but they have happened in stages, and more in some Acts than in others. When using a precedent, you have to be alert to the fact that it may not use all the techniques mentioned in this Manual. Even if it does, you may be able to improve it further. We must always be open to ways of improving our style.

What is plain English drafting?

10. The expression “plain English” has been adopted by movements in the USA, the UK, Canada and Australia. In Canada they call it “plain language” because their laws are bilingual. There are different approaches, but the aim is the same: to simplify all official writing by removing unnecessary obscurity and complexity.

11. The Office policy is to draft in plain English, but to do more than that. It is to develop a whole art of making laws easy to understand. However, to avoid confusion, it’s convenient to call this policy “plain English” drafting.

HOW TO DRAFT SIMPLY

Skills, habits and determination

12. To draft simply you need the skills, the right habits and a lot of determination. Complex policy, lack of time and the need for precision conspire against you. If you’re to succeed, you must:

Know how to draft simply.
Cultivate good habits in all your writing, not just Bills.
Always try to draft simply, even when the difficulties mentioned above are working against you.
Always ask yourself “How will this look to my readers?”.
Always remember that your readers don’t know your thought processes. Your draft is easy for you to understand because you wrote it, but it might be a complete mystery to someone else.

Techniques of simple drafting

13. The most important rule of simple drafting is that no rule is absolute, so this Manual uses the word “technique”. You should know all the techniques, but you will judge which to use in each case. If you use them too rigidly, you can make your drafts less easy to understand.

14. The techniques can be divided into 4 broad classes:

Planning your draft properly. This is dealt with in Chapter 2.
Developing good writing habits by following rules that have been developed by good writers of all kinds of documents, including literature, textbooks and technical manuals. This is dealt with in Chapter 3.
Avoiding bad writing habits by rejecting traditional forms of legal expression that are unnecessarily obscure or long winded. This is dealt with in Chapter 4.
Using various aids to understanding the text. They’re not based on language, but on the way you present your material, eg graphics, examples, document design, etc. These are dealt with in Chapter

GENERAL PRINCIPLES DRAFTING OR “FUZZY LAW”

Background

15. This is the style used when you deliberately state the law in general principles and leave the details to be filled in by the courts, by delegated legislation or in some other way. It has one big advantage: it’s very easy to read, and the general purpose of the law is easy to understand. But it has a big disadvantage: the precise meaning is uncertain.

16. Drafters trained in common law countries have traditionally avoided this style on principle, assuming that the users of the legislation don’t like it (or wouldn’t like it if they knew about it). However, if you use this style properly, it can be an important technique to simplify the law.

When to use this style

17. The most obvious time to consider using it is when you have to cover a wide range of alternatives in minute detail, or when your instructors can’t be sure of covering every possible alternative. If you can use a simple general statement that will certainly cover most of the alternatives, but might not cover all of them, your Bill will be a lot simpler.

18. However, the policy instructors must decide whether you use the simple form or the detailed one. They have to weigh up the political and practical results of having a law that might not cover some of the alternatives.

The drafter’s role

19. You need to be on the lookout for cases where this style might be used, because you, to a greater extent than your instructors, have the expertise to recognise them. Then explain the options to your instructors and get them to decide.

20. Before using this style in a provision, follow these principles:

Tell the instructors how complex the detailed form is likely to be and how you could draft it in a simpler form.
Tell them about the areas of uncertainty with the simpler form.
Make sure they fully understand the likely effect of the uncertainty.
Discuss with them the degree of generality to be used. There is a huge range of levels of generality. For example, the whole of the liability provisions of the Income Tax Assessment Act could be reduced to 2 subsections, but the result would be enormous uncertainty as to their effect.
Discuss with them whether the details should be filled in by delegated legislation or administrative rulings, or whether the provision should just be left to be interpreted by the courts.
Remind them that just relying on the courts may be unacceptable in some cases. For example, people should not have to go to court to find out their pension entitlements.

Example section 69 of the Income Tax Assessment Act, as amended in 1990, in essence, allows a deduction for expenditure in respect of “the management or administration of the income tax affairs of the taxpayer”

section 25 of that Act uses the expression “gross income” (without definition)

section 52 of the Trade Practices Act 1974 says:

“A corporation shall not ... engage in conduct that is misleading or deceptive ...”.