Plain English Manual

Chapter 4 - Language: traditional practices to avoid

WORDS AND PHRASES

Lists of traditional words and simpler equivalents

68. Appendix 3 sets out some traditional words and phrases with suggested simpler equivalents. Use your discretion with these: some of the equivalents may not be appropriate in every case.
“And/or”: why not use it?

69. The traditional style avoids “and/or”. The usual argument is that it’s ambiguous and/or inelegant. However, it can be useful at times. Don’t use it at the ends of paragraphs, subparagraphs or sub subparagraphs. Make sure it’s not ambiguous.
Example say “horses and/or sheep”
don’t say “horses and/or sheep or goats”.
“Anything to the contrary contained in”

70. When the traditional style makes a provision override another provision of the same Act, or override another Act, it uses the form “notwithstanding anything to the contrary contained in this Act/the XYZ Act”. This is unnecessarily elaborate, because if a provision isn’t to the contrary, there’s no need to deal with it.
Example say “despite anything else in this Act”, or “despite the XYZ Act”.
“Called in question”

71. A standard provision in traditional legislation says that an appointment, etc, “shall not be called in question on the ground that ...”. This is silly, because we can’t prevent a point from being argued in court. However, we can ensure that the argument fails.
Example say “is not invalid because ...”.
“Cases”

72. When a provision is broken into paragraphs that refer to a series of alternatives, the traditional style often refers to “cases” unnecessarily or in a cumbersome way.
Example don’t say:
“(a) in a case to which section 5 applies ...”
say:
“(a) if section 5 applies ...”
or say:
“(a) in a section 5 case ...”.
You can do this even if the last paragraph starts with “in any other case ...”. Each situation is a case even if you don’t call it a case. Another way of dealing with the last paragraph is to start it with “otherwise ...”.

73. A legitimate use of the word “case” is to show that one paragraph applies, whether or not one or more others do too.
Example “(a) if ... ABC;
(b) if ... CDE;
(c) in any case XYZ.”.
“Contravene or fail to comply”

74. In the traditional style, “contravene” is treated as not covering omissions. This was probably never right (see R v Commonwealth Court of Conciliation and Arbitration 89 C.L.R. 636 at 649), but the position has been put beyond doubt by paragraph 22(1)(j) of the Acts Interpretation Act.
Example don’t say “contravene or fail to comply with”
say “contravene”.

75. Some traditional provisions say “fails to comply with a condition with which it is (his) duty to comply”. However, you can’t fail to comply with something if it doesn’t apply to you.
Example say “fails to comply with a condition”.
“He, she or it”, “who” and “that”

76. It’s Office policy to use gender inclusive language. However, this can sometimes lead to cumbersome expressions like “he, she or it”, “him, her or it” and “his, her or its”. Try to avoid these by rearranging the sentence so as to do without the pronouns altogether.

If you can’t solve the problem any other way, consider just saying “it” and “its”, and adding a note at the end of the definitions section setting out paragraph 23(a) of the Acts Interpretation Act.

Whether or not you do this, remember you can use “that” instead of “who” even when referring to individuals (Fowler, 2nd ed., p.625). Try at all costs to avoid saying “who or that”.

Ordinal numbers (1st, 2nd, etc)

77. The traditional style used to express all numbers in words. Even after cardinal numbers were expressed in figures, ordinal numbers (1st, 2nd, etc) were not, because it was thought that abbreviations were improper.

Express these numbers as follows:
—up to and including “tenth” spell them out
—above “tenth” say “11th”, “12th”, etc.

“Period”

78. The traditional style often unnecessarily adds the word “period” when the period is specified.
Example don’t say “within the period of 12 months beginning on 1 July 1999”
say “within 12 months beginning on 1 July 1999”.

If you have to refer back to the 12 months later in the section, you can still say “that period”. 12 months is a period of time, whether or not you call it a period.

Possessives

79. The traditional style always uses the long form of possessive, but the contracted form is shorter.
Example don’t say “of the Minister”, “of the Commissioner”, “of the Corporation”
say “the Minister’s”, “the Commissioner’s”, “the Corporation’s”.

80. In the traditional style, the word “whose” is not used with inanimate objects, so “of which” is used instead. This often leads to the cumbersome structure called the “delayed relative”.
Example don’t say “a body corporate the assets, rights, liabilities and obligations of which ...”
say “a body corporate whose assets, rights, liabilities and obligations ...”.

Pronouns (it, them, they, etc)

81. The traditional style doesn’t use these words often enough. Possibly for fear of ambiguity, it repeats the noun instead of using the appropriate pronoun. However, this has become habitual even when there’s no risk of ambiguity. The result is longer sentences, especially when the noun consists of two or more words.
Say “it”, “them”, “they”, etc whenever there’s no ambiguity.

“Provisions of”

82. The traditional style commonly uses expressions like “under the provisions of section 5”, etc. The expression “the provisions of” is usually unnecessary unless it is used as a convenient “label” to describe a list of different provisions, so that it can be used again later when referring back to the same list of provisions.
Example don’t say “Subject to the provisions of section 5 ...”
say “Subject to section 5 ...”.
“Shall”, “must” and “is to”

83. The traditional style uses “shall” for the imperative. However, the word is ambiguous, as it can also be used to make a statement about the future. Moreover, in common usage it’s not understood as imposing an obligation.
Say “must” or “must not” when imposing an obligation, not “shall” or “shall not”.

If you feel the need to use a gentler form, say “is to” or “is not to”, but these are less direct and use more words.

We shouldn’t feel any compunction in using “must” and “must not” when imposing obligations on the Governor General or Ministers, because “shall” and “shall not” were acceptable in the past.

84. The traditional style sometimes uses “shall” in declaratory provisions.
Example “This Act shall cease to have effect ...”
“An authority shall be established ...”
“The Authority shall consist of 10 members.”.

These are neither imperatives nor statements about the future, they are declarations of the law.
Example say:
“This Act ceases to have effect ...”
“An authority is established ...”
“The Authority consists of 10 members.”.

Even if the event is yet to happen, the law speaks in the present because an Act is “always speaking”.

“Subject to this Act” and “subject to this section”

85. These expressions are very unhelpful to readers. Try to avoid them if possible. It’s far better to specify the provisions you have in mind.
“Where”, “if” and “when”

86. The traditional style uses “where” to introduce a set of facts, but in common usage the word conveys the idea of place. Say “if” to introduce a set of facts. But if the event is so certain that “if” is inappropriate, use “when”.
Example don’t say “Where a person is granted a licence”
say “If a person is granted a licence”.

If the Act provides that it ceases to have effect on 1 July 1999, don’t say “Where this Act ceases to have effect”
say “When this Act ceases to have effect”.

SENTENCE STRUCTURES

Age 65 limit on appointments

87. The standard provision limiting statutory appointments to age 65 is cumbersome, because it spells out the cases of a person who is 65 before appointment and a person who becomes 65 after appointment. It can be shortened without changing its effect.
Example say “A person who is 65 or over cannot hold office as Chairperson of the XYZ Authority.”.

Back references in associated provisions

88. In a section with several subsections, the traditional style binds the later subsections to the earlier ones by back references. This is often unnecessary.
Example don’t say:
“(1) A person may apply to the Minister under this section for a licence.
“(2) An application under subsection (1) must be accompanied by the prescribed fee.
“(3) On receiving an application made by a person under subsection (1), the Minister may issue a licence to the person.
“(4) A licence issued under subsection (3) must be in the prescribed form.
“(5) A licence issued under this section authorises the holder to ...”
say:
“(1) A person may apply to the Minister for a licence.
“(2) The application must be accompanied by the prescribed fee.
“(3) The Minister may issue a licence to the applicant.
“(4) The licence must be in the prescribed form.
“(5) The licence authorises the holder to ...”
or say:
“(1) A person may apply to the Minister for a licence.
“(2) An application must be accompanied by the prescribed fee.
“(3) The Minister may issue a licence to an applicant.
“(4) A licence must be in the prescribed form.
“(5) A licence authorises the holder to ...”.

89. If you have to identify a number of concepts and then refer to them repeatedly in later subsections, use an introductory subsection to set the scene.
Example “(1) This section applies to an applicant who, under an agreement under section 5, is granted an amount to be spent on erecting a building.”

Later subsections can then refer simply to “the agreement”, “the amount”, “the applicant”, etc.

90. Sometimes you can use the same approach to link successive clauses, but this requires more caution because there is a greater risk of misunderstanding.

“Body, etc to which this section applies”

91. If a section states that it applies to an entity, etc and there are later references to the entity, the traditional style often uses clumsy definitions for the references.
Example “A body is a body to which this section applies where ...”,
or:
“body to which this section applies’ means ...”.

Later references are to the phrase “a body to which this section applies”. This is unnecessarily elaborate.
Example say “This section applies if ...”
or say: “This section applies to a body if ...”,
or say: “In this section, `body’ means ...”
then in later references, you can just say “the body”.

Classes

92. Traditional (Commonwealth) style takes great pains to distinguish between a class and its members. Let’s hope this piece of pedantry has been finally laid to rest by subsection 46(2) of the Acts Interpretation Act.
Example don’t say “a specified person or a person included in a specified class of persons”
say “a specified person”.

Duplicated adjectives

93. In the traditional style, adjectives are repeated unnecessarily when the noun is expressed in the singular and the plural.
Example don’t say “another application or other applications”, or “a prescribed company or prescribed companies”.
say “any other application or applications”, or “any prescribed company or companies ...”.

Duplicated nouns

94. In the traditional style words are sometimes repeated unnecessarily, perhaps through a desire to repeat the exact words of a phrase set out in another section of the Act.
Example if section 5 states “This section applies to a person who ...”,
don’t say “a person who is a person to whom section 5 applies”
say “a person to whom section 5 applies”.

Duplicated verbs

95. If a sentence has singular and plural subjects, the traditional style uses the verb in both the singular and the plural. Fowler states that we can make the verb agree with the nearer of its subjects (2nd ed., p. 402, para 3).
Example don’t say “the corporation has, or corporations have, entered into an agreement”
say “the corporation or corporations have entered into an agreement”, or
use the passive and say “an agreement has been entered into by the corporation or corporations”.

Participles and relative clauses

96. Relative clauses (that has, that was issued, etc) are longer than participles (having, issued, etc).
Example don’t say: “a corporation that has been prescribed for the purposes of this section”
say: “a corporation prescribed for the purposes of this section”.

97. The participle also avoids difficulties when both the present and past tenses are used in the same sentence.
Example don’t say “a licence that is or was issued”
say “a licence issued”.

98. When a provision refers to the beginning (or end) of a period, the traditional style doesn’t use the present participle if the period began (or ended) before the commencement of the provision.
Example don’t say “the grant year that began/ended on 1 July 1930”
say “the grant year beginning/ending on 1 July 1930”.

Proportions

99. The traditional form “an amount that bears to ... the same proportion as ... bears to ...” is often very cumbersome, especially when the factors themselves are long. Don’t use it. Use a formula instead.
Example an amount worked out using the formula:

Unnecessary repetition negatives

100. The traditional style sometimes repeats too much when expressing the negative. In the following example, subsection (2) has to negate the effect of subsection (1).
Example “(1) A tertiary education institution that has complied with section 5 must do X.”
don’t say:
“(2) A tertiary education institution that has complied with section 5 is not required to do X, if ...”
or:
“(2) Subsection (1) does not apply to a tertiary education institution that has complied with section 5, if ...”
say:
“(2) Subsection (1) does not apply if ...”.
Subsection (1) has spelt out the whole case, so you don’t need to spell it out again when expressing the negative.

Unnecessary repetition noun phrases

101. In the traditional style, if a provision introduces an entity described by several words, it repeats the whole phrase every time the entity is later referred to in the provision.
Example if the section introduces the concept “tertiary education institution”, just say “the institution” in later references (in the same section).