Australia: A plea for clarity in legal writing

Last Updated: 19 March 2014
Article by Marcus Priest

As a law student, I thought I was ill-equipped to enter the legal profession. It wasn't because of any vocational concerns I had. It was just that my eyes watered badly when I spent long hours in the library reading and re-reading law reports and texts to try and comprehend the wisdom hidden within. Those learned writings were—frankly—a slog.

I blamed myself at the time. I also got a new pair of glasses and stocked up on caffeine tablets. But now that I've spent nearly 20 years working as both a lawyer and a journalist, I'm more inclined to blame the authors.

When you read normally, your eye skips across the page and your brain fills in the gaps. When you read as a lawyer, you have to focus on every word because so much can depend on the detail. But that's not enough reason to let lawyers get away with making reading their work hard work.

The legal profession understands the importance of writing clearly. Well, in principle at least. But after re-acquainting myself with legal writing and research recently, I think that reality is a long way off. From the case reading I've been doing, I can see that the use of double negatives, sub-clauses, redundant phrases and qualifiers still pollutes legal writing.

Take this sentence: "If the Crown is always to act in the public interest as it perceives it from time to time so that it cannot fetter its future actions by contract, there is no obvious reason why it should not be free to do so whether the contract is commercial or non-commercial, whatever that distinction is."

This isn't a particularly bad example of legal writing. There is much, much worse out there. But it is typical and a good example of how hard it can be for the reader to understand the author's meaning. Now, it's possible lawyers more experienced than I will immediately grasp the meaning of this sentence. And good for them. But why does it have to be so hard for the rest of us? Most people would struggle with the redundant subclause "time to time" before being completely bamboozled by the end of the sentence: "whatever that distinction is". Language complexity is an avoidable feature of the law. In many cases, I'd argue, it also amounts to a restrictive trade practice created by the legal profession.

Increasingly, a lack of clarity harms the profession's standing and clients are unwilling to put up with it. I understand their frustration. Many years ago I received a 10-page letter from my lawyer about a simple legal issue involving a car crash. Because that diligent, red-eyed law student still lurked inside me at the time, I read and re-read the letter trying to understand the advice. In the end I gave up and changed lawyers. I decided that a lawyer who was unable to tell me what I needed to know, had no hope of convincing anyone else of the merits of my argument.

A failure of clarity also has consequences for the administration of the law. Key attributes of the rule of law are predictability and certainty in the rules governing society. Unpredictable outcomes are a logical consequence of poorly worded laws.

To be fair, there are excellent legal drafters who understand this point. As the Office of Parliamentary Counsel says in its excellent publication "Reducing Complexity in Legislation":

"Fundamental to drafting in plain language is striking a balance between precision and simplicity. This means that each sentence should be constructed carefully, simply and logically. Sentences should be short so that the beginning, middle and end are all clear in the reader's mind and only a small number of ideas are being thrust at the reader at once."

Despite this guidance, some legalese terms keep popping up in statutes. These should be executed. To be clear, by that I mean knocked off, topped, scrubbed out, eradicated... For good (pun intended).

My pet hate is the term "not inconsistent". It is littered throughout Commonwealth statutes, particularly regarding rule-making powers. For example, regulations should be "not inconsistent" with the Act. Now I would argue that "not inconsistent" is exactly the same as "consistent". But others would say where something is "not inconsistent" it is not necessarily consistent with something else but it is also not directly inconsistent either. It turns out there's a vast limbo world between "consistent" and "inconsistent". Who knew? As a consequence, in a rule-making power this term provides a broad discretion to the executive.

The High Court has tried to give some clarity to this expression in the case of M47 and the Migration Act. Justice Hayne said the type of inconsistency conveyed by the term "not inconsistent" went further than its ordinary meaning.

"The question is whether the regulation in question varies or departs from (in other words alters, impairs or detracts from) the provisions of the Act," he said. However, he went on to say this requires that the Act be construed as a whole rather than looking to particular provisions of it, leaving ample room for disagreement. In a particularly telling statement, Justice Hayne said once this analysis was done the grammatical meaning of the provision in issue "was not its legal meaning".

It's likely my plea for clarity will be indulgently entertained and quickly forgotten. That would be not inconsistent with general practice. See? I actually am a quick learner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Marcus Priest
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