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ClarityNumber 52 November 2004

Journal of theinternational associationpromoting plain legal language

Editor in chief:Michèle Asprey

Guest editors for this issue:Dr Jacquie Harrison andDr Nittaya Campbell

In this issueProgress in New Zealand

John BurrowsPlain English and New Zealand statutes 4

George Tanner QCImperatives in drafting legislation:a brief New Zealand perspective 7

The Rt Hon Sir Kenneth KeithPlain language in New Zealand:the drafting of legislation 12

Peter SpillerWriting decisions in theNew Zealand Disputes Tribunal 15

Gerard KilpatrickThe power of language—the lawyer’s dilemma 17

Margaret NixonRewriting the Income Tax Act 22

Writing training in New Zealand

The Hon Justice Patrick KeaneDecisions that convince 26

Janet WainscottPlain language and law graduatesin New Zealand 29

Mechanics

Richard CastleDefinitions and capitals: where are we? 31

Richard LauchmanO ate 2 of Jill’r pairs 34

Robert EaglesonThe doleful grip of convention 37

Plain language around the world

Salome Flores SierraPlain language in Mexico 40

Christine MowatExploring meanings of plain language 42

Clarity and general news

How to contact Clarity 2-3Conference announcements & reports 47-51Clarity No 53 & Call for articles 51From the President 52Letters to the editor 53New members 54Clarity makeover 55How to join Clarity 56

2 Clarity 52 November 2004

Country representatives

Australia: Christopher BalmfordWords and Beyond Pty Ltd1 Barrack St, Sydney NSW 200002 8235 2337 (fax 9290 2280)[email protected]

Brazil: Dominic Charles MinettLex English Language Services LtdaAv Luiz Carlos Berrini 1461, 3rd FloorVila OlympiaSao Paulo, SP 04571-903011 5507 2508 (phone & fax)[email protected]

Canada: Philip Knight1074 Fulton AvenueW. Vancouver, BC V7T 1N2604 925 9041 (fax 925 0912)[email protected]

France: Anne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, BP 77462327 Boulogne sur Mer Cédex03 21 99 41 22 (fax 21 99 41 57)[email protected]

Hong Kong: Wai-chung SuenDepartment of Justice9/F Queensway Govt Offices66 Queensway, Admiralty2867 4171 (fax 2845 2215)[email protected]

India: Sandeep Dave4 Kanch, Plot No 191, 11th RoadWest of Khar, Mumbai 40005222 2600 [email protected]

Israel: Myla KaplanPOB 56357, 34987 Haifa054 3132010 (fax 04 8110020)[email protected]

Japan: Kyal HillApartment 706 Presle Tamaishi4-15-28 Toshima, Kita-kuTokyo 114-0003080 3415 2082 (fax 03 5390 1700)[email protected]

Malaysia: Juprin Wong-AdamalState Attorney-General’s Chambers, 8th FloorMenara Tun Mustapha88990 Kota Kinabalu, Sabah88 440 736 (fax 439 604)[email protected]

New Zealand: Richard Castle148A Tinakori RoadThorndon, Wellington 600204 938 0711 (fax 934 0712)[email protected]

Singapore: Lei-Theng LimFaculty of LawNational University of Singapore13 Law Link, 1175906874 6464 (fax 6779 0979)[email protected]

South Africa: Adv Annelize NienaberLaw Faculty, University of PretoriaPretoria, 0002012 420 2634 (fax 420 4524)[email protected]

Sweden: Barbro Ehrenberg-SundinJustitiedepartementetSE-103 33 Stockholm08 405 48 23 (fax 20 27 34)[email protected]

UK: Paul ClarkCripps Harries HallWallside House12 Mt Ephraim RoadTunbridge WellsKent TN1 1EG01892 515121 (fax 01892 544878)[email protected]

USA: Prof Joseph KimbleThomas Cooley Law SchoolPO Box 13038Lansing, Michigan 48901-30381 517 371 5140 (fax 334 5781)[email protected]

Other European countries:Catherine Rawson32 2 736 8032 (fax 248 2132)[email protected]

All other countries:Please contact the USA representative

Patrons The Rt Hon Sir Christopher Staughton and The Hon Justice Michael KirbyFounder John WaltonCommittee

President: Professor Joseph Kimble ([email protected])Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,

Sir Edward Caldwell, Robert Eagleson, Nicole Fernbach, Robert Lowe, John Pare,John Walton, Richard Woof.

Clarity 52 November 2004 3

An international associationpromoting plain legal language

www.clarity-international.net

Clarity … the journalPublished in May and November

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Michèle AspreyPO Box 379 Milsons PointNSW Australia 1565Fax: 61 2 9252 [email protected]

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Authors retain copyright in their articles.

Anyone wanting to reproduce an article in wholeor in part should first obtain the permission of theauthor, and should acknowledge Clarity as thesource of the original.

This issueAs usual, this issue of Clarity contains contributionsfrom many countries, but it focuses on the progressof plain language in New Zealand. It includes articlesfrom judges, lawyers, law professors and plainlanguage consultants on topics ranging from thetraining of judges and graduates to the use of plainlanguage in the drafting of statutes and legal docu-ments to a government agency’s correspondencewith clients.

Some contributors continue the debate about the useof numbers that started a couple of issues ago. Onelegislative drafter provides some striking examplesof current policy in New Zealand by using numer-als instead of words for all numbers except wherethe number starts a sentence or paragraph (seeMargaret Nixon’s article on page 22). Clarity policyis not to alter an author’s style, except where theeditors think the usage is inconsistent within thearticle itself. So readers will find different styleswithin a particular issue of Clarity.

As novice guest editors, we are grateful to all ourcontributors for their cooperation and patience as webumbled into holes and out again. Our editor in chief,Michèle Asprey, has been an inspiration and amodel—but please don’t ask us to do this again untilwe have had time for a cup of tea and a lie down!

And, from this outpost of plain language enthusi-asm in Middle Earth, your guest editors hope youenjoy reading Clarity No 52.

Dr Jacquie Harrison Dr Nittaya [email protected] [email protected]

Nittaya Campbell teachesbusiness communication andpublic relations writing at theUniversity of Waikato, NewZealand. Her doctoral thesisexamined how consumer-oriented bank contracts inNew Zealand were written,and compared the comprehensi-bility of these contracts withthat of the re-written, plainEnglish versions.

Jacquie Harrison is Head ofSchool of Communication atUnitec New Zealand. Herresearch interests have focusedon plain language in publicdocuments and readabilitytesting, and she consults inher area of interest, mainly withprofessional accounting firms.Recently elected as SecondVice-President of the Associationfor Business Communication,Jacquie will serve as ABCPresident in 2007.

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Clarity


John Burrows

Professor of Law, University of Canterbury,Christchurch, New Zealand

In this article, John Burrows highlights some of the majorchanges that have occurred in statutory drafting in NewZealand during the last century. He comments on the roleof plain language in legal drafting and questions whetherlegislation is leading linguistic change in some instances.He also notes that not too much should be expected ofplain English drafting.

New Zealand inherited all the negative featuresof British statutory drafting. Many older statutesexhibiting those deficiencies are still in force. Someare used every day. They contain unnaturally longsentences, archaic language and excessive cross-references, and some are poorly ordered.

However, in more recent times there has been a sea-change in legal drafting in this country. It begangradually, but has gathered momentum in the lastdecade. The Law Commission, one of whose statu-tory missions is to advise on ways in which the law“can be made as understandable and accessible aspracticable”, contributed to the change. But most ofit is due to the determination of ParliamentaryCounsel Office to communicate the law effectively,rather than just to get it down on paper.

The results are striking, and can be seen at a glance.A page of the 2004 statute book looks different from apage of a statute book ten years ago. It is now rareto find an unbroken block of text more than fivelines long and most are much shorter than that.Here are some of the things that have happened.

The new style

First, there are no superfluous words. Compare theold and new versions of New Zealand’s cardinalrule of statutory interpretation.

Section 5(j) of the Acts Interpretation Act 1924provided:

Every Act, and every provision or enactmentthereof, shall be deemed remedial, whether itsimmediate purport is to direct the doing of any-thing Parliament deems to be for the publicgood, or to prevent or punish the doing of any-thing it deems contrary to the public good, andshall accordingly receive such fair, large, and

liberal construction and interpretation as willbest ensure the attainment of the object of theAct and of such provision or enactment accord-ing to its true intent, meaning, and spirit.

Section 5(1) of the Interpretation Act 1999 provides:

The meaning of an enactment must be ascer-tained from its text and in the light of itspurpose.

Secondly, separate ideas which might once havebeen contained in a single passage of text are teasedout either into separate paragraphs within a subsec-tion, or into separate subsections. Take this exampleof the latter (from the Sale of Liquor Amendment Act2004, s 8):

219J (1) A community trust must have a name.

(2) A community trust may, from time totime, change its name, subject to sub-section (3) and its trust deed.

(3) The name of a community trust mustinclude the words ‘Community Trust’.

It could hardly be simpler.

Thirdly, the archaic language has gone. Most sig-nificantly, the old stalwart “shall” is no longer used.It used to appear in the majority of sections in nearlyall statutes. No word ever so clearly marked off adocument as “legal”. Even non-lawyers draftingconstitutions or rules for their clubs and organi-sations used it, almost as if any document lacking itwould fail in its purpose. Since 1997 it has entirelygone from our statutes. Statutes are drafted in thepresent tense, and, if an imperative is required,“must” is used.

Fourthly, many devices are resorted to to aid under-standing. The Personal Property Securities Act 1999gives examples to illustrate some of its provisions.It is not the only statute to do this, but the stratagemhas not yet achieved wide currency. Tables arebeing used more extensively. Thus, the rules for thedistribution of intestate estates appear in tabularform in the 2001 amendment to the AdministrationAct (s 77 of the Administration Act 1969):

Person or people How estate to beintestate leaves distributed

4 Issue but no husband All of the estate is heldor wife or surviving on the statutory trustsde facto partner. for the issue of the

intestate.

5 No husband or wife All of the estate is heldor surviving de facto in trust in equal sharespartner, and no issue, for the parents, but if thebut 1 or both parents. intestate leaves only 1

parent, for that parent.

Plain English andNew Zealand statutes


Flow charts are becoming common: a good exampleis at the start of Part 3 of the Trade Marks Act 2002.Section headings (or marginal notes as they used tobe called) sometimes ask questions as if to excite thereader’s interest: for example, in the Education Act1989, amended in 2002, the heading to s 159W asks:“What is a profile?” About half the sections in theIncome Tax Act 2004 have a heading for each sub-section. Most substantial new statutes have at theirbeginning purpose, principle and (sometimes) “out-line” sections which serve not just as aids tointerpretation but as an introduction to the reader asto what the act is about. Indeed some statutes in theperiod 1999-2001 had a section of which the head-ing read “What this act is about”: for example, s 4 ofthe Personal Property Securities Act 1999.

Some notes of caution

Things are so much better than they were. Much ofthis modern legislation is (almost) a pleasure toread. However, there are a few notes of caution.

Colloquialisms

First, some of the expression in modern statutes isso unstuffy as to be almost colloquial. Thus:

If the social worker has only provisional or tem-porary registration, the certificate must say so.(Social Workers Registration Act 2003, s 20(3).)

A member is not interested in a transaction towhich the Board is a party just because he or sheis a registered social worker. (Social WorkersRegistration Act 2003, s 24(2).)

Language like this almost entirely closes the gapbetween legal documents and other types of com-munication. It must influence the lay reader’simpression of the law. Some may believe that itlacks a degree of formality, or dignity, appropriateto the law, but that is to take tradition too far. Non-lawyers do read statutes, and anything whichbrings the law closer to them is to be welcomed, pro-vided that the language is clear and unambiguous.

More controversial, however, is language which isahead of the play, in that a significant group of read-ers might think it breaks current conventions andrules. Should legislation be leading linguisticchange?

Section 78CA(1) of the Education Act 1989, addedin 2001, provides:

(1) The Board of every state school, and themanagement of every school registeredunder section 35A, must apply to the NewZealand Teachers Council for a police vet ofevery contractor who regularly works at theschool during school hours—

The word “vet” in this sense does not yet appear as anoun in the current editions of leading dictionaries.

There is also the occasional example of a preposi-tion at the end of a sentence:

The permission may state conditions that themember or the Commission must comply with.(Families Commission Act 2003, Schedule 1, cl16(3).)

To object to that may be regarded as pedantic, butthe Income Tax Act 2004 consistently uses “they”as a singular. Thus:

This section applies when a person sells patentrights that they acquired before 1 April 1993.(Income Tax Act 2004, s DB 30(1).)

Such usage will probably eventually become wide-spread, but has it yet advanced quite to the pointwhere it is generally acceptable? A significant num-ber of readers probably still think of it as a breach ofthe rules, and one may question whether an act ofparliament should sanction that—yet. However, itis a very difficult call for a drafter to know just whenthe time is right.

Incidentally, some also have a few questions aboutthe regular use in statutes of “that”, rather than“which”, in defined relative clauses. Sometimes itjust does not sound right. It also makes the terminalpreposition more likely, because “that” has noequivalent to “with which” or “to which”.

Do not expect too much from plain English

The second comment is that we should not expecttoo much from plain English. Legal language, plainor otherwise, has a unique function: it is not just tobe understood, it is also to be applied to find answersto real-life problems. Facts are always arising thatno-one anticipated. Sometimes statutory languagewhich seemed as plain as day when read in theabstract dissolves into uncertainty when it isapplied to an unusual set of facts. Regulationsmade under the Fair Trading Act 1986 provide thattoys must comply with prescribed safety standards.Is a sweet container shaped to resemble a baby’sbottle a “toy”? That question was considered inCommerce Commission v Myriad Marketing Ltd (2001)7 NZBLC 103404. The Traffic Regulations providethat a person who has been disqualified from driv-ing must not drive a motor vehicle. Is a person“driving” if he is in the passenger seat but with ahand on the steering wheel helping to steer the car?That was the question in R v Clayton [1973] 2 NZLR211.

The inherent imprecision of language and theunpredictability of human conduct are a potentcombination. As Professor Sim wrote in his 1968Guest Memorial Lecture, 2 Otago LR 1 at 13, “… thesubject matter of legal discourse, human behaviour,


cannot be pinned entirely within a framework ofverbal description or regulation.” Much litigationarises from this truism. Plain language does muchto assist understanding but it cannot be expected tosolve all, or even many, problems of interpretationand application.

Thirdly, there will always be an ambiguity aboutaudience. Drafters are now obviously drafting stat-utes (or some statutes at least) with a non-legalaudience in mind. Parliamentary Counsel Office inNew Zealand maintains a “best-seller” list whichshows that some statutes are in high public demand.High on the list are employment-related statutes.Plain drafting makes statutes much more accessibleto those people.

The way lawyers read statutes

However, statutes will always be directed to lawyersas well. When difficulties arise lawyers get involvedand take charge of what the language of the statutemeans, and how it applies to the case in question.However, lawyers read statutes differently fromnon-lawyers. They read them in the context of thelaw as a whole, both past and present. When calledon to interpret a new plain English statute, a lawyerwill usually be tempted to compare it with its “non-plain” predecessor in earlier, now repealed, legis-lation. There is likely to be argument as to whetherthe changes in language reflect changes in sub-stance or whether they are purely cosmetic. Thelatter answer is the more likely: lawyers like conti-nuity, and in Sir Rupert Cross’s words, there is apresumption against “unclear change” (see Bell &Engle (eds) Cross on Statutory Interpretation 3rd ed1995, 167). The argument has already taken placewith regard to the relationship between section 5(j)of the Acts Interpretation Act 1924 and section 5(1)of the Interpretation Act 1999, and has beenresolved in favour of continuity (see for exampleJack v Manukau City Council HC Auckland M1698/99, 14 Dec 1999).

Lawyers also view statutes as parts of the contem-porary legal landscape. Well-established definitionsof words, particularly those contained in theInterpretation Act, are important. Thus “person”includes a body corporate, and “land” usuallyincludes the air-space above the surface. The Billof Rights Act 1990 may require, in the case of ambi-guity, an interpretation favouring individual rightsand freedoms. Moreover, in New Zealand morethan some other jurisdictions, lawyers interpreting astatute feel obliged to consult a wide range of prepa-ratory materials such as reports of reform committees,explanatory notes to bills, reports of parliamentarydebates, and commentaries of parliamentary selectcommittees.

The point is that non-lawyers may know little, ifanything, about these extraneous materials. Theyare more likely to read a statute as a stand-aloneentity, and to rely solely on the resources of lan-guage to solve the problem. The non-lawyer maythus sometimes be a little surprised at the “legal”interpretation accorded to a statutory provision,“plain” though its drafting may be. All we canreasonably hope is that lawyers, and courts, do notdepart from a meaning which any intelligent layreader would regard as clear beyond a doubt. Other-wise that reader’s reliance will be disappointed,and his or her confidence in the law damaged.

The value of plain English drafting

None of this is in any way to doubt the value ofplain English drafting. Not only does it bring thelaw closer to the ordinary citizen, it makes life easierfor the lawyer as well. It can save much time, andeven expense. It is self-evidently undesirable, andindeed harmful, to obscure one’s message, and torender an already difficult legal subject more diffi-cult, through bad expression. To assert that plaindrafting will not solve all our problems, and that itwill not always lead to uniform interpretations, isnot to deny that it is a very welcome development.

© J Burrows [email protected]

John Burrows is aProfessor of Law at theUniversity of Canterbury.Statute law is one of hismajor interests. He haslectured a course inlegislation for many years,and is the author of thebook Statute Law in NewZealand, now in its 3rdedition. He is a member ofNew Zealand’s LegislationAdvisory Committee.

Plain English and New Zealand statutes(continued)

CorrectionIn Clarity No 51, page 23, there was an errorin the description of Sue Stableford. Sue is theDirector of the Health Literacy Center at theUniversity of New England and also a foundingmember of the Clear Language Group. TheCenter and the Group are two different entities.


George Tanner QC

Chief Parliamentary Counsel, Wellington, New Zealand

This article provides an insider’s view of the environmentfor legislative drafters in New Zealand. It describes some ofthe complex matters they have to address, and approachesto maintaining consistency. It outlines the drafter’s role asa Bill progresses through the parliamentary processes,and discusses some of the moves towards more accessiblelegislation in recent years. It concludes with positivestatements about the need for international cooperationbetween those who are responsible for drafting legisla-tion, and consultation with plain language researcherswho are not necessarily lawyers.

Factors affecting the drafting of legislation

Drafting good quality legislation presents manychallenges. Clarity of expression is one of a range ofcomponents essential for good quality legislation. Itis not, however, an end in itself. At its heart, the taskof the legislative drafter is to translate policy decisionsinto effective, principled, and clear law. Drafting leg-islation is not, as some people perceive it, a simpleprocess where a particular unit of input is matchedby a corresponding unit of output. Legislation hasto be consistent with the rest of the statute book andthe common law. As Lord Steyn has observed,“[u]ltimately, common law and statute coalesce inone legal system” (Pierson v Secretary of State [1997]3 All ER 577, 605). The courts interpret legislationconsistently with international obligations. In NewZealand, the courts also interpret legislation consis-tently with the Treaty of Waitangi. [See box below.]

Legislative history is also relevant to interpretation.

In modern democracies, there is the further impera-tive that legislation complies with fundamentallegal principles. Some jurisdictions have enshrinedfundamental rights and freedoms in their constitu-tions or other legislation. Different jurisdictionshave different approaches to incompatibility. Thejudicial power to strike down is at one end of thespectrum. At the other, the New Zealand approach,is a requirement to prefer an interpretation of legis-lation that is consistent with protected rights andfreedoms. In between the two is the power to makedeclarations of incompatibility.

In the development of legislative policy and in thedrafting of legislation, other mechanisms operate toensure consistency with legal principle. They differfrom jurisdiction to jurisdiction, but the objective isthe same. For example, in Queensland, Australia,the Legislative Standards Act 1992 imposes a statu-tory obligation on the Office of the QueenslandParliamentary Counsel to advise Ministers, govern-ment entities, and members of the QueenslandLegislative Assembly on the application of funda-mental legislative principles, which the Act defines.In New Zealand, it is a Cabinet requirement that inaddition to consistency with the rights and freedomsprotected by the New Zealand Bill of Rights Act1990, all legislation must comply with the Legisla-tion Advisory Committee’s Guidelines on Processand Content of Legislation <www.justice.govt.nz/lac/index.html>. Specially constituted committeesof many legislatures scrutinise Bills for consistencywith basic legal principles.

Imperatives in drafting legislation:Imperatives in drafting legislation:Imperatives in drafting legislation:Imperatives in drafting legislation:Imperatives in drafting legislation: a brief New Zealand perspective a brief New Zealand perspective a brief New Zealand perspective a brief New Zealand perspective a brief New Zealand perspective

The Treaty of Waitangi was signed initially at Waitangi in the Bay of Islands in February 1840 byLieutenant-Governor Hobson and about 50 Maori Chiefs and later that year by other Chiefs so that byOctober over 500 Chiefs had signed. Under the Treaty, the Maori Chiefs ceded sovereignty to the BritishCrown and yielded to the Crown exclusive right of pre-emption of their lands in return for the Crown’sguarantee of the “full exclusive and undisturbed possession of their Lands and Estates Forests Fisher-ies”. The Treaty accorded the Maori people the rights and privileges of British subjects. In interpretinglegislation, New Zealand courts presume that Parliament intends to legislate in accordance with theprinciples of the Treaty. The principles of the Treaty derive from the concept of partnership and theunderlying obligation of good faith between the Crown and Maori. The principle of consultation isimportant in ensuring that Maori values and interests are identified and adequately considered in thedevelopment and drafting of legislation. Policy makers and drafters need to consider whether proposedlegislation will affect identifiable Maori rights and interests and whether the legislation should recognisethese generally or specifically. Consideration must also be given to the impact of legislation on rightsand interests recognised under the common law, such as customary rights.


Under section 7 of the New Zealand Bill of RightsAct 1990, the Attorney-General must draw to theattention of the House any provision of a Bill that isinconsistent with the rights and freedoms protectedby the Act. Advice to the Attorney-General about Billof Rights compliance is published and so is avail-able to Parliament and its select committees in theconsideration of proposed legislation. The duty toreport inconsistency to the legislature combinedwith the ability to scrutinise Bill of Rights adviceand the requirement for a judicial interpretation thatprefers consistency are powerful sanctions on NewZealand governments to ensure legislation broughtto Parliament is consistent with core civil and politi-cal rights.

In addition, some jurisdictions have legislation thatestablishes processes for, and principles applyingto, the scrutiny of delegated legislation. In others,scrutiny may take place under the standing ordersor other rules of the legislature. Invariably, there willbe criteria against which delegated legislation isevaluated. The courts can also strike down del-egated legislation. Legislative drafters engaged indrafting delegated legislation have to ensure thatthe instruments they draft will not come unstuck inthe process of parliamentary or judicial scrutiny.

There is a host of other complex issues legislativedrafters deal with all the time. They include assess-ing whether legislation is necessary at all, thedesign of legislative schemes and the relationshipbetween primary and delegated legislation, theappropriateness of enforcement mechanisms,administrative processes, procedures for appeal andreview, cross-border issues, transitional arrange-ments, and changes to other relevant legislation.There is also the added challenge of accommodatingsudden and sometimes major changes of policywithin a Bill or instrument that has already beencarefully structured. Writing in the May 2004 editionof Clarity the Chief Justice of the Supreme Court ofCanada said—

Yet too often the complexity of the subject matterand the law, coupled with the pressures of time,overwhelm the judge’s good intentions to writeclearly, simply, and concisely.

—Rt Hon Beverley McLachlin P.C.,“Legal writing: some tools”.

That applies equally to the legislative drafter.

In federations, legislative drafters who work innational, provincial, state, or territory draftingoffices have the added challenges of dealing withdomestic conflict of laws issues, implementing uni-form national legislative schemes, and sometimes

bi-lingual or bi-jural drafting. Then there are theconsiderations that arise in legislation having topass through 2 legislative bodies.

In New Zealand, with very few exceptions, Billsintroduced into Parliament are referred for consider-ation to subject specific select committees. Publicsubmissions are called for and considered. Witnessesappear to give evidence and make submissions.Bills remain in select committees for months, some-times years. New Zealand legislators are “handson” and Bills usually emerge with extensive amend-ments. Sometimes they are unrecognisable from howthey started out. New Zealand drafters attend mostof the select committee meetings, advise on and draftthe required amendments. This is not a tranquilenvironment. The legislative drafter does not havethe luxury of relaxing and taking his or her time qui-etly reflecting on how best to achieve the desiredchanges. I suspect the dynamics may be similar else-where.

Legislation reflects the different influences involvedin political decision making, including negotiationand compromise. Legislative drafters need to under-stand political, government, and legislative processes,including procedural rules and conventions. Theymust be able to identify the flaws in legislative pro-posals, suggest alternatives, and sometimes mediatebetween competing points of view. In New Zealandand in many other comparable jurisdictions, a legis-lative drafter is really counsel to Parliament and theexecutive in their law-making roles.

Accessible legislation

Ensuring legislation is clear and accessible is also acritical component of their work. It is no use to read-ers that a piece of legislation is both effective andconsistent with legal principle if it is not also clear.Neither is it satisfactory if it is clear, but falls shortin some other important component. As Lord Oliverof Aylmerton has observed—

For every legislative enactment constitutes adiktat by the state to the citizen which he is notonly expected but obliged to observe in the regu-lation of his daily life and it is the judge and thejudge alone who stands between the citizen andthe state’s own interpretation of its own rules.That is why it is so vitally important that legis-lation should be expressed in language that canbe clearly understood and why it should be in aform that makes it readily accessible. EdmundBurke observed that bad laws are the worst formof tyranny. But equally, well-intentioned lawsthat are badly drafted or not readily accessibleare also a form of tyranny.

—Rt Hon Lord Oliver of Aylmerton,“A Judicial View of Modern Legislation”

(1993) 10 Stat LR 2.

Imperatives in drafting legislation(continued)


Significant progress has been made in many juris-dictions over recent years to improve the way inwhich legislation is drafted. That progress owesmuch to the plain language movement, to the workof law reform agencies, and to an appreciation bydrafting offices themselves that making legislationas understandable as possible really does matter.

Recent developments in New Zealand

Significant change in the language and format ofNew Zealand legislation began with the work of theNew Zealand Law Commission. The Commissionpublished 3 reports in the 1990s dealing with inter-related aspects of legislation: A New InterpretationAct: To Avoid Prolixity and Tautology, The Format ofLegislation, and Legislation Manual Structure and Style.These were a tripod of measures directed at makinglegislation more accessible. They reflect the workof the President of the Commission, Rt Hon SirKenneth Keith, now a Judge of the New ZealandSupreme Court, and his successor Hon JusticeDavid Baragwanath.

New Interpretation Act

In 1999 the New Zealand Parliament enacted a newInterpretation Act incorporating many of theCommission’s recommendations. The drafting andpassage of the Act was the result of close co-opera-tion between the Commission, the New ZealandMinistry of Justice, and the Parliamentary CounselOffice. The Interpretation Act 1999 replaced with aclean and up-to-date statute an earlier 1924 statutethat was complex, inconsistent in terminology, andwhich committed one of the cardinal sins of legisla-tive drafting: obscuring important provisions inlong sections dealing with multiple topics. Becauseinterpretation legislation contains the legislature’sown directions to readers of legislation and to thecourts as to how legislation is to be interpreted, itought to be one of the most accessible of all the stat-utes.

New format of New Zealand legislation

On 1 January 2000, all statutes and regulations wereprinted and published in a new format again reflect-ing many of the recommendations in the second ofthe Commission’s reports. The principal changesincluded—

• a new and larger typeface (Times New Roman12pt in place of Baskerville)

• section headings appearing above the text insteadof embedded

• a running head at the top of each page with thenumber of the Part and either the first or last sec-tion appearing on the page

• simplified punctuation

• simplified layout of provisions with differentlevels indented progressively

• Long Titles and Short Titles replaced with a singleTitle

• a legislative history

• more white space.

Implementing the new format involved consultingwith lawyers, judges, community groups, and otherusers, and engaging specialist document designers.It also necessitated statutory changes and changesto Parliament’s standing orders. A Bill to authorisechanges in reprints of statutes to ensure consistencywith the new format and current drafting practicewas, on its introduction, described by one memberof Parliament as the most underwhelming Bill everto come before the New Zealand Parliament. And itis amusing now to recall that a proposal to dispensewith the em rule could have caused one of the keypeople involved in the project to contemplate resig-nation. (Em rules look like this—and are used in textto precede paragraphs or subparagraphs. If a para-graph or subparagraph breaks back to the text, emrules are also used after the final paragraph or sub-paragraph.)

Changes in drafting style

In early 1997, the New Zealand ParliamentaryCounsel Office also made a number of modestchanges in its drafting style. They included—

• avoiding archaic language (“hereby”, “notwith-standing”)

• omitting referential words when the meaning isperfectly plain (“of this Act”, “of this section”)

• arabic in place of roman numerals

• use of the active voice

• use of “must” instead of “shall” (“An applicationmust contain...” not “An application shallcontain...”)

• omitting qualifying words when the meaning ofan Act or provision read as a whole is perfectlyplain (“subject to”, “except as provided in”).

Surprisingly, these changes were debated in Parlia-ment and endorsed without reservation ((1997) 559NZPD 869-879). Otherwise, they have never beenthe subject of comment.

The New Zealand Parliamentary Counsel Officealso incorporated into a chapter of its draftingmanual many of the suggestions contained in thethird of the Law Commission’s reports about struc-ture and style. The chapter contains comprehensiveguidelines for plain language drafting. It stressesthe importance of drafting legislation in plain lan-guage and the structure and organisation ofmaterial. These guidelines can easily be lost sight of


by drafters of legislation struggling to meet the chal-lenges of integrating complex policies and massiveamounts of material into an understandable andeffective statute within tight time frames. The guide-lines are built around 3 core concepts: good organ-isation of material, simple sentence structure, andcareful word choice.

Various other techniques have been tried in recentNew Zealand legislation to make it more accessible.They include—

• outline sections or Parts that give an overview ofwhat an Act or Part is about

• flow-charts and tables

• examples both in the text or in separate “exampleboxes” to illustrate the operation of a provision orexplain a complex, technical, or abstract provi-sion. In the Personal Property Securities Act 1999,the term “accessions” is defined in the followingway—

accessions means goods that are installed in,or affixed to, other goods:

ExampleA replacement motor installed in a car.

Does plain language matter?

The approaches to legislative drafting describedabove are a deliberate attempt to make legislationmore accessible to as wide a range of readers aspossible. To some extent, however, accessible legisla-tion will always be illusory. A reader can seldom goto a statute and safely assume that having read andunderstood the words he or she will know what thelaw is on the subject the statute deals with. Themeaning of a statute is affected by interpretationlegislation and common law principles of interpre-tation, like the canons of construction.

The legislation of some jurisdictions expresslyauthorises recourse to extrinsic aids in the readingof statutes. In others, like New Zealand, reference tomaterial outside the statute is permissible withinlimits determined by the courts. All the differentcomponents of context are relevant. For example,statutes that regulate trade practices embody eco-nomic principles readers need to be familiar with tounderstand them fully. For these reasons, the barewords of a statute tell only part of the story.

Does it matter then how the statute is drafted? Aslong as the lawyers and judges can make sense of it,does it matter whether anyone else can? One en-counters all kinds of criticism about the legislativedrafting techniques I have described. For example—

• the use of outline Parts, overviews, purposesections, flow-charts, diagrams, and examples isunnecessary if the statute is clearly drafted: “ifyou were doing your job properly, you wouldn’tneed all this”

• additional material only clutters up the legislationand makes understanding more, rather than less,difficult

• it gives readers a false understanding: “they thinkthey know more than they do”

• provisions of long standing have well-establishedmeanings; they should not be restated in plainlanguage if there is a risk they will be interpretedto mean something different

• the purpose of a statute is to change the law, noth-ing else. Provisions and other material that do notchange the law belong somewhere else

• drafting legislation in plain language only makesit longer and scarce parliamentary time will betaken up in passing it.

There is not much force in these kinds of arguments.Legislation has a far wider readership than theplain language sceptics realise. Statutes and regula-tions that regularly show up on the list of “bestsellers” deal with topics like early childcare centres,local government, holidays, employment law, healthand safety in employment, privacy, fencing, and saleof liquor. None of this is necessarily “lawyers’ law”.

Up-to-date legislation can be accessed in most juris-dictions free on the Internet. The number of visitorsto the New Zealand Government website of legisla-tion points to a substantial readership of legislation.Legislators and legislative drafters are nowadays incloser contact with users than previously. Legisla-tors want to understand the legislation they areasked to enact or make. Clearly drafted legislationcan also expose poorly thought out policy, espe-cially in the development phase. If unpleasantmessages have to be communicated, and not all leg-islative messages are welcome ones, they ought notto be hidden in a mass of words. Eliminating tradi-tional legal writing habits does not have the effect ofmaking the law less certain. Traditional legislativedrafting methods frequently create uncertainty. Fewlegal expressions do not survive plain languagescrutiny. These are all powerful reasons for trying tomake legislation as accessible as possible.

Final thoughts

New Zealand’s efforts in recent years to make itslegislation more accessible have drawn on similarwork in Australia and the willingness of colleaguesin the Australian drafting offices to share their expe-rience. Progress tends to be incremental and requiresa degree of experimentation to find out what works.It also requires a shift in mind set, a willingness to

Imperatives in drafting legislation(continued)


break from the familiar and reassuring practices ofthe past, and a commitment to continuous improve-ment. Drafting legislation is a complex disciplineinvolving many different imperatives. In his cel-ebrated address to the New York Bar Associationover half a century ago and half a world away,Justice Frankfurter said—

Perfection of draftsmanship is as unattainableas demonstrable correctness of judicial readingof legislation. Fit legislation and fair adjudica-tion are attainable. The ultimate reliance ofsociety for the fulfilment of these august func-tions is to entrust them only to those who areequal to their demands.

—“Some Reflections On TheReading Of Statutes”,

Columbia University Law Review,Vol 47, No 4, p 527.

Ensuring legislation is communicated in the clearestand most effective way is critically important. Legis-lative drafters in different jurisdictions have muchto learn from each other. They also have much tolearn from plain language experts who haveresearched and thought and written about theissues.

© G Tanner [email protected]

George Tanner QC joinedthe New Zealand Parlia-mentary Counsel Office in1981 and was appointedChief ParliamentaryCounsel in 1996. Beforejoining the ParliamentaryCounsel Office, he workedin private legal practiceand was a Crown Counselin the Crown Law Office.He has drafted a widerange of statutes, regula-tions, and other legislativeinstruments. He has givenpapers at seminars andpublished articles on legislation related topics. In his currentrole, he has made submissions to parliamentary committeesand inquiries on delegated legislation and other topics. He is amember of the Minister of Justice’s Legislation AdvisoryCommittee and was appointed a Queen’s Counsel in 2002.


Law Commission 1985, No. 151

ANALYSIS

…

1985, No 151

An Act to establish a Law Commission as a central advisory body for thereview, reform, and development of the law of New Zealand [9 December 1985

BE IT ENACTED by the General Assembly of New Zealand in Parliamentassembled, and by the authority of the same, as follows:

1. Short Title and commencement—(1) This Act may be cited as the LawCommission Act 1985.

(2) This Act shall come into force on the 1st day of February 1986.

Children’s Commissioner Act 2003

Public Act 2003 No 121Date of Assent 25 November 2003

Commencement see section 2

Contents

…

The Parliament of New Zealand enacts as follows:

1 TitleThis Act is the Children’s Commissioner Act 2003.

Part 1Preliminary provisions

2 CommencementThis Act comes into force on the day after the date on which it receives theRoyal assent.

Plain language in New Zealand:

the drafting drafting drafting drafting drafting of legislation

The Right Honourable Sir Kenneth Keith

Supreme Court of New Zealand

In this article, Sir Kenneth Keith, a judge of New Zealand’s highest court, highlights some key changes inlegislative drafting styles that have occurred as a result of the concern for increasing accessibility by theLaw Commission and the Parliamentary Counsel Office in New Zealand.


enacted in 1888. In 1999 the new Act, again basedfirmly on work of the Law Commission which hadreported in 1990, was finally passed with these pur-poses:

2 Purposes of this Act—The purposes of thisAct are—

(a) To state principles and rules for the interpre-tation of legislation; and

(b) To shorten legislation; and

(c) To promote consistency in the language andform of legislation.

(The careful reader will notice that the formatchanges were yet to be introduced.)

The 1999 Act is itself an example of the carrying outof the second purpose it states and of the wider pur-poses stated in 1985. It is only about half the lengthof the legislation it replaced, although its coverageis about the same, and basic provisions are statedmuch more directly. Sections 5, 6 and 7 state theseprinciples of interpretation:

Part 2PRINCIPLES OF INTERPRETATION

5. Ascertaining meaning of legislation—(1) The meaning of an enactment must be ascer-tained from its text and in the light of itspurpose.

(2) The matters that may be considered inascertaining the meaning of an enactment in-clude the indications provided in the enactment.

(3) Examples of those indications are pre-ambles, the analysis, a table of contents,headings to Parts and sections, marginal notes,diagrams, graphics, examples and explanatorymaterial, and the organisation and format of theenactment.

6. Enactments apply to circumstances asthey arise—An enactment applies to circum-stances as they arise.

7. Enactments do not have retrospectiveeffect—An enactment does not have retrospec-tive effect.

Those principles appear right at the outset of theAct. By contrast it was only on the ninth and tenthpages of the last reprint of the 1924 Act that thesetwo propositions appeared:

Construction of Acts, etc.

5. General rules of construction—The follow-ing provisions shall have effect in relation toevery Act of the General Assembly [or of the Par-liament of New Zealand], except in cases whereit is otherwise specially provided:

…

The changes in the standard introductory provi-sions of Acts of Parliament, passed fifteen yearsapart [see boxes on page 12], illustrate five changesintroduced over that period to make the law moreaccessible:

• better design, with more white space, the separa-tion of headings, the removal of unnecessarypunctuation, and an improved type face

• the removal of the (long) title (the passage in boldat the top of the 1985 Act) and the substitution ofa single title, often accompanied by a purpose sec-tion (section 3 in each of the two Acts); twostatements are in general adequate to indicatewhat the law is about and its purpose

• the use of active indicative language in thepresent tense instead of subjunctive, permissive,passive and future wording: Parliament … enacts... The Act comes into force …; (“shall” as animperative is replaced by “must”)

• removal of unnecessary words; other examplesare “of this Act”, “of this section”

• clearer statements at the outset about the name ofthe Act, the date of assent and the date of com-mencement.

Those changes in style and drafting result:

• first, from the direction Parliament gave in theLaw Commission Act itself that the Commissionadvise Ministers on ways in which the law ofNew Zealand can be made as understandableand accessible as is practicable and that it haveregard to the desirability of simplifying the ex-pression and content of the law, as far as that ispracticable;

• second, from the work the Commission did on theformat of legislation and its structure and style;and

• third and notably, from the efforts of the Parlia-mentary Counsel Office to introduce thosechanges.

The late Bill Sewell, editor, poet and lawyer, had amajor hand in the Commission’s work and the lead-ership of George Tanner QC, Chief ParliamentaryCounsel, was and continues to be essential in carry-ing those changes through and in meeting the 1985direction. The work of the Legislation AdvisoryCommittee has also given important emphasis to therole of principle in the preparation of legislation.Legislation now also allows the ParliamentaryCounsel Office, when arranging the reprint of earlierstatutes, to make the changes in their format andstyle.

George Tanner has often used the simile of the threelegged stool: in addition to the changes in formatand in structure and style a new Interpretation Actwas needed. The 1924 Act was essentially that


(d) The law shall be considered as alwaysspeaking, and whenever any matter orthing is expressed in the present tense,the same shall be applied to the circum-stances as they arise, so that effect may begiven to each Act and every part thereofaccording to its spirit, true intent, andmeaning:

…

(j) Every Act, and every provision or enactmentthereof, shall be deemed remedial,whether its immediate purport is to directthe doing of anything Parliament deemsto be for the public good, or to prevent orpunish the doing of anything it deemscontrary to the public good, and shallaccordingly receive such fair, large, andliberal construction and interpretationas will best ensure the attainment of theobject of the Act and of such provision orenactment according to its true intent,meaning, and spirit:

That Act did not contain the principle stated in s7 ofthe new Act. Its related detailed provisions regulat-ing the effect of repeals covered three pages whilethe parallel new provisions cover about two pages.As well and again by contrast to the 1924 Act,many of the sentences in the new Act are brief, beingunder twenty words, and, if they go beyond thatlength (as with s2), paragraphing is often added toaid understanding.

Among other changes introduced in the last decadeto promote intelligibility are:

• structural changes which place the importantmatters at the beginning of the Act and adminis-trative matters at the end, often in schedules

• including examples of the operation of a provi-sion

• the use of charts rather than text and flowcharts,for instance to indicate the procedure to be fol-lowed

• the use of formulae, for instance in tax statutes

• the use of overview or outline provisions earlyin the Act.

The questions must of course be asked: Have thechanges helped make the law more accessible? Orhave they introduced confusion and doubt? Mysense is that many users of the statute book havebarely noticed the change, if at all. That is one mea-sure of success. Another is that some parliament-arians dealing with complex employment legisla-tion in 2000, as the new format was being introduced,immediately remarked on how much easier it was to

get an understanding of it and accordingly tocriticise it if that was their political position. Andanother is that within the Courts, according to thelaw reports, the new Interpretation Act appears tohave worked smoothly and effectively in the greatrun of cases, with only two reported exceptions,both relating to the meaning and application oftransitional provisions, an area which regularlythrows up difficulties, however the legislature dealswith them. The positive impact of the new Act wasseen very early in a decision of the Court of Appealwhich considered it appropriate to make use of itafter it had been passed but before it came into effect.

On the broader move to plain English, ProfessorJohn Burrows, the great academic expert on NewZealand legislation, states this conclusion:

The move to plain drafting is very welcome.In the past too much time, and too many words,were spent on making the law comprehensive,pure and accurate. Not enough effort wasexpended on making it comprehensible. Lawthat is difficult to understand wastes time andeven money; it also results in decreased respectfor the law.1

© K J Keith 20041 J. F. Burrows, Statute Law in New Zealand, 3rd ed.

(LexisNexis Wellington 2003) 82.

The Rt Hon Sir Kenneth Keith is a Judge of the newlyestablished Supreme Court of New Zealand. He was a Judgeof the Court of Appeal ofNew Zealand from 1996 to2003. Before 1996 he wasa member and President ofthe New Zealand LawCommission (1986-96);member of the Law Facultyof the Victoria Universityof Wellington (1962-64,1966-91); Director of theNew Zealand Institute ofInternational Affairs(1972-74); member of theUnited Nations Secretariat(1968-70); and member ofthe New Zealand Depart-ment of External Affairs(1960-62). He studied law at the University of Auckland,Victoria University of Wellington and Harvard Law School.

Plain Language in New Zealand(continued)


Peter Spiller

Professor of Law, University of Waikato;Referee, Disputes Tribunals of New Zealand.

In this article Peter Spiller, a judicial officer in the NewZealand Disputes Tribunal, reflects upon the challengesof writing legally binding decisions for a lay audience.He describes how he maintains an awareness of his audi-ence and exercises care in his choice of words, so as tomeet the demands of clarity, humanity and legal precision.

During the past 13 years, I have been a Referee in theDisputes Tribunals in Hamilton and neighbouringcentres. The Disputes Tribunals of New Zealand arebased on the Small Claims Tribunals of Australia,and provide a forum for lay people with small civilclaims. The current financial limit for claims is $7500(unless the consent of the other party is obtained)and claims are normally based on contract or negli-gent damage to property. Referees do not have to belegally trained and lawyers are excluded from theTribunal as representatives. Referees are required tosee if it is appropriate to assist parties to negotiatesettlement of claims, but failing this Referees arerequired to decide the disputes. The resultant settle-ments and decisions of the Referees become bindingcourt orders, which can be appealed against onlyfor procedural irregularities. Decisions have to berecorded in writing, and may be given either in thepresence of the parties or sent out after the hearing.The objective of the Tribunal is to provide an infor-mal, quick, inexpensive and effective means ofaccess to justice.

In this context, there is a strong imperative for Refer-ees to reflect their decisions in plain legal language.The following are some of the lessons that I havelearnt about this challenging process.

Awareness of audience

The primary audience that I write for comprises thedisputants who have presented their argumentsand evidence. These range across a wide field, fromuniversity-educated people, to insurance companyrepresentatives well-versed in Tribunal procedure,to farmers, artisans and others for whom a Tribunalappearance is a first-time and difficult experience,to immigrants who have no grasp of English andwho require an interpreter, through to semi-illiterate

people who are entirely uncomfortable with court-type proceedings. The exact nature of my writinghas to be tailored to the particular people who havepresented their case.

My main consideration when writing out decisionsis to place myself in the shoes of the parties to thedispute and imagine them having to read and makesense of the order. Both sides need to be clear as towhat the result is and how it is to be achieved, forexample, the payment of money within a set periodof time. Particularly the loser in the contest willwant to know why the decision is given against himor her, and so extra efforts have to be made to see theorder through that party’s eyes.

The secondary audience for whom I write comprisesthe court officials who might be called upon toenforce the order and the District Court judge whomight be required to decide an appeal against theproceedings. The enforcement official needs to beclear about the order rather than the reasons behindit, whereas the judge needs to understand both. Ofparticular relevance to appeals is the statutoryresponsibility of Referees to have regard to the law,and in particular legislation, brought to their atten-tion.

It is for this last-named reason that the Refereemight need to indicate that he or she has followedproper legal process by including in the orderappropriate legal terminology. Thus, it is commonfor orders to refer to the burden of proof on theapplicant, to prove his or her case on a balance ofprobabilities, and for orders to refer to legal conceptssuch as negligence and to statutory provisionsraised at the hearing. These references may raiseproblems of understanding for lay disputants whosee these terms in an order without any prior expla-nation of their meaning.

To meet this problem, I make it my practice, when itis clear that the hearing is going to require a deci-sion from me, to have the outline of my decision andits reasons in my mind before the end of the hearing,and to share these with the parties. I believe that nodecision or supporting reasons should be a surpriseto the parties after the hearing. It is also natural jus-tice that parties have the opportunity of respondingto views that the Referee has provisionally formed,and correcting erroneous assumptions. Therefore, ifI can foresee that my order could contain terms such

W W W W Writing decisions in theriting decisions in theriting decisions in theriting decisions in theriting decisions in the New Zealand Disputes T New Zealand Disputes T New Zealand Disputes T New Zealand Disputes T New Zealand Disputes Tribunalribunalribunalribunalribunal


as “burden of proof”, “balance of probabilities”,“negligence”, and statutory provisions, I makeefforts to ensure that parties understand these termsbefore the hearing has concluded.

Care in choice of words

Particularly in view of the lay nature of my primaryaudience, I unashamedly come down on the side ofclarity rather than rounded elegant prose. Thus, Ichoose short sentences each containing only oneessential idea. For example, I might follow the sen-tence “The applicant made an agreement with therespondent” with “The applicant accepts that hedid not complete this agreement”. I try to ensure thatmy sentences do not begin with a pronoun, in casethere is any confusion about who or what “he, sheor it” might refer to in the previous sentence.

In choosing my words, I also bear in mind that mydecision becomes a court order, and that there needsto be a measure of formality about it. I thereforeavoid the use of first names and colloquialisms. Iprefer to write that “The applicant, Mr Smith, hadthe right of way” rather than “Charlie should’ve letPete drive past”.

While maintaining clarity, directness and dignity oflanguage, I consider it important that my ordersshould be as humane as possible. One reason forthis is that for many disputants their Tribunal expe-rience is their first and only experience of a courtsystem, and this experience needs to be as construc-tive as possible. Another reason is that justice is nota precise science and certainly in some disputes Ihave not had absolute confidence that my decisionwas the correct answer to the issue. Decisions some-times have to be made in the light of the apparentcredibility of the parties and conflicting evidence,and especially in a lay forum there is the possibilitythat not all relevant evidence is presented. Further,people sometimes reconstruct events in order tomake better sense of their present reality, and it isnot helpful or accurate to characterise their testi-mony as lying or false. I therefore try to express myorders in terms of “preferring the evidence of” oneside, rather than as a condemnation of the other. Ialso try to express my reasons in terms of levels ofresponsibility for an incident, rather than labellingone side or other as blameworthy. Thus, I may notethat “Primary responsibility for the collision restswith the applicant because …” and that “Secondaryresponsibility rests with the respondent because …”rather than labelling either party as a transgressor.

Conclusion

The challenge of writing decisions in the DisputesTribunal is to balance out the need for decisionswhich are readily accessible for the lay litigants,and the need to produce decisions that reflect thecharacter of binding court orders. This requires theReferee to meld the demands of clarity and human-ity with legal precision. The ultimate hope is thatthe Tribunal process will have an educative andcohesive effect on the members of our community.This can occur only if the decisions that emanatefrom the Tribunal are meaningful for all concerned.

© P Spiller [email protected]

Peter Spiller (BA LLBPhD (Natal), LLM MPhil(Cambridge), PhD(Canterbury), PGCTT(Waikato)) has taught lawfor 28 years, mainly toundergraduate students.Since 1994 he has been aProfessor of Law at theUniversity of Waikato inNew Zealand. He hasproduced a number of legaltexts, including the NewZealand Law Dictionaryand books on the NewZealand courts. For thepast 15 years he has been involved with the New ZealandDisputes Tribunals (formerly Small Claims Tribunals), as atrainer of Referees and since 1991 as a Referee himself.

Writing decisions in theNew Zealand Disputes Tribunal(continued)

Clarity back numbers

You can download recent issues from thewebsite <www.clarity-international.net>.

Mark Adler will supply individual earlierones on request, without charge, as pdf files,if you don’t ask for too many.

Order from: Mark [email protected]


Gerard Kilpatrick

Solicitor, Auckland, New Zealand

The article below is taken from a report that a NewZealand solicitor prepared for a client, an incorporatedsociety. The report accompanied a draft new constitutionfor the society, to replace a previous one prepared in 1979.It entered the public domain when the client published iton its website, where it was discovered by one of Clarity’sguest editors. This edited version is published with theconsent of both the author and the author’s client. Thereport was in-house in nature and was never intended forpublication in an academic journal. It was written partlyto be provocative, to raise awareness and to promotediscussion. In a few instances, sources may not beacknowledged. Materials particular to the society concernedhave been deleted.

The edits in this version are for the most part embellish-ments the author wishes he had thought of first timeround.

When I use a word, Humpty Dumpty said in arather scornful tone, it means just what I chooseit to mean, neither more nor less.

—Lewis Carroll, Through the Looking Glass

The 1979 re-write

It is generally accepted that the life of a document inthe nature of a constitution is about fifteen years. Inthat time, drafting styles change, the law changes,and the institution itself changes. It is now sometwenty-three years since the society adopted its 1979constitution, and although it is time for review, thatreview is not urgent.

The revision this time is far less dramatic than the1979 revision in terms of content. There are a fewchanges that might be contentious, but otherwiseit is primarily a re-ordering and updating of thedrafting. I have made an attempt to bring togetherrelated topics. As an example, the officers of thesociety are dealt with under one heading, whereaspreviously these provisions were scattered throughthe document.

In what follows, references to the Law CommissionReport are to the Law Commission Report onParliamentary Drafting, which may be found at<www.lawcom.govt.nz>.

Drafting styles

There is considerable debate, both public and pro-fessional, about drafting styles. There is also muchfailure to progress—arising in part from the pres-sure under which lawyers work. The legalprofession acknowledges drafting issues as impor-tant, and in fairness many lawyers involved indrafting do the very best they can. Two of the fac-tors which impede progress are the need to producea document quickly, and the need to protect the userof the document against possible unforeseen conse-quences from drafting experimentation. The lawyertends to stick with what has worked before, espe-cially when under pressure. After all, if a lawyerexperiments, it is the client who takes the risk. Forthe lawyer, it is the substantive result that is impor-tant, not the package in which it is presented. Thatis all right, but it tends to perpetuate poor drafting.There is also considerable baggage from the past.For example, many legal precedents today continueto use two or more words with the same meaningwhere one word will do.

Examples are:

• will and testament

• assign and transfer

• named and described

• estate and interest

• each and every

• rest, residue and remainder

• devise and bequeath (instead of give).

There are countless other examples.

This practice goes back centuries to the time whenLatin was the universal language of Europe and theEnglish language as we know it was just develop-ing. The practice developed of using both the Latintestament and English or Norman French will form ofthe legal word, probably to ease the transition intothe use of English—yet centuries after this practiceceased to have any relevance, we are stuck with thispractice today. The original Latin/English/ NormanFrench combination is no longer the influence, butrather an unconscious imperative from centuries ofhabit for drafters to do it this way.

Other drafting considerations include:

Use of the future tense

The 1979 constitution is riddled with the use of theword shall to express an obligation. The difficultywith this is that when shall is used in ordinaryEnglish, the primary use is to express somethingthat is intended to take place in the future. Studentsof English will tell you that when shall is used to ex-press an obligation, it expresses that obligation onlyweakly. (There is a big difference between telling a

The powerpowerpowerpowerpower of language�

the lawyer�s dilemma


child: “You shall tidy your room!” and “You musttidy your room!” Of course, there is also the impera-tive, “Tidy your room, right now!”) Must not shall isnow the normal modal auxiliary to express an obli-gation. Parliamentary drafting now uses this model,and I have mostly followed this in the redraft. TheLaw Commission Report gives the following example:

The text should be:

A person who allows a dog to soil a footpathcommits an offence.

not

A person who shall allow a dog to soil a foot-path shall commit an offence.

In the re-write of the constitution, shall is replacedby must and, more generally, the drafting is broughtinto the present tense.

As an example, in the redraft,

the General Secretary shall . . .

becomes

the General Secretary must . . .

When first encountered, the series of musts maysound a bit harsh and graceless, but that is partlybecause we are not used to it. It has become thestandard.

Use of provisos to express a new concept

Another common drafting fault is the misuse ofprovisos. The proviso is not used as a proviso at all,but is rather clumsily used as a link between twodifferent concepts, which should be in separateparagraphs or subparagraphs.

Use of the word such

The word such is very convenient to drafters, eitheras a linking word or to relate back to a subjectalready expressed. Regrettably, it is not used in thisway in ordinary English. Many drafters have a badcase of such disease. This superabundance producesan ugly and awkward result. Quite often in myoffice, we have to Bowdlerise a precedent by usinga word processing instruction to emphasise theword such on every occasion it is used in a document,and then spend time eliminating each one. Some-times, this is easy; the word can simply be left out.Other times, several sentences may have to be recastbefore the such can be consigned to the delete button.

The 1979 constitution was not too bad in thisregard, but the word such has mostly been elimi-nated from the redraft.

Use of the active and passive voice

Some drafters use the passive voice when the activevoice is appropriate or intended, resulting in clumsyoverall language. English is uncomfortable with thepassive, and it is usually preferable to write in theactive.

The Law Commission Report on Structure and Stylegives the following example:

The Member may appoint up to 9 persons to bemembers of the Advisory Committee.

not

Up to 9 persons may be appointed by the Mem-ber to be members of the Advisory Committee.

The first example is clear and accurate; the secondexample is clumsy.

(As a matter of interest, this is not picked up at theuniversities. Graduates come through to us using:

Here is a transfer for signing by you.

and are mystified when their supervisors ask for amore direct sentence structure. It should be Here is atransfer for you to sign, or Enclosed is a transfer. Pleasearrange signature. In general, we have to spend quitea bit of time teaching graduates to write clear, con-cise English based on a subject/verb/object format.One way my firm has dealt with this is to deprivegraduates of a dictaphone for twelve months or so,and force them to hand draft everything. Thatteaches economy of expression, and enables gradu-ates to review as they go. Of course, in recent yearsalmost universal computer literacy helps, as gradu-ates can check and edit their work on screen. Thishas led to a vast improvement in the quality of com-pleted work.)

Coode’s rules

Another influence on legal drafting comes fromCoode’s rules, which first appeared in the appendixto the Report of the Poor Law Commissioners on LocalGovernment in 1843. Coode’s rule requires that thecircumstances in which a rule is to operate be statedbefore its substance. Generations of lawyers fol-lowed Coode’s rules—for information on Coode’srules, I am indebted to a publication by Law 2000Pty Ltd, attributed to Jude Wallace—and the effectsare still with us today.

The power of language—the lawyer’s dilemma (continued)


Modern drafting rejects Coode’s rules. For example:

Case Where there is anyquestion between anybranches touching theboundaries of suchbranches;

Condition if a majority of not lessthan two-thirds innumber of the membersof such branches makeapplication in writing;

Legal subject the Executive Council;

Legal action may deal with anydispute or questionconcerning suchboundaries.

The normal sentence structure, which should beused, is as follows:

Person who must act: The Executive Council;legal subject

Legal action may deal;

Legal object with any dispute orquestion betweenbranches concerningboundaries;

Conditions if a majority of not lessthan two-thirds innumber of the membersof the branches make anapplication in writing.

The second construction takes us through a logicalsentence structure and makes the sentence mucheasier to read.

Gender neutral drafting

The modern convention requires the use of genderneutral drafting; the convention it replaces andwhich is no longer acceptable was that the mascu-line included the feminine. This latter convention iscenturies old, and was previously widely used in allofficial documents including parliamentary draft-ing. It was undoubtedly a sound convention, andfacilitated easy drafting.

Reliance on this convention is no longer accept-able—many now regard the masculine as excludingthe feminine, which of course it does not. The correctuse of gender neutral language is still developing,and there are many drafting conventions as to howthis may be achieved. Some are simply irritating,such as the practice of using he the first time a per-sonal pronoun is required in a document, and she

the next time a personal pronoun is required, and soon. In the new constitution, I have mostly avoidedusing he or she, and I have not used at all the moremodern affectation of using their preceded by a sin-gular noun. The first is annoying; the second isgrammatically offensive, although many would saythat the latter is simply an example of the evolutionof language. These extremes of practice appear to bebeing driven from the secondary schools and theuniversities and the obsessively politically correctbrigade, and we often see them in graduates’ writtenwork.

Other options are to repeat the noun:

A member of the Council may resign the officeof member . . .

instead of

A member of the Council may resign his office . . .

or connect the noun to the verb

The Commissioner may consent . . .

instead of

The Commissioner may give his consent to . . .

The more extreme styles of gender neutral drafting,such as the repetitive use of he or she and the usealternately of he or she are examples of what mightbe called in your face gender neutral drafting. Asnoted, it appears to be encouraged by the educa-tional institutions. Documents drafted in this waysometimes appear to be more a statement of politicalcorrectness and calculated to annoy rather thanexamples of good drafting, and this extreme style isbest avoided.

In the re-write, I have avoided this more in your facestyle of gender neutral drafting, sometimes havingto present the concept in a different way to achievethis.

The last issue I had to grapple with was the chair-man / chairperson / chair issue. The Law CommissionReport recommends chairperson, but chairman is stillwidely used with few today taking issue. At thevery end of the review, I changed it to chairpersonthroughout the document. As a matter of interest, alegislation search revealed 927 uses of chairperson,1,459 uses of chairman and 26 uses of chair—although I did not check the latter and some mayhave referred to something to be sat upon.

Arabic numbers

The parliamentary drafting team has decided to useArabic numbers instead of writing out the numberin full in plain text. I have not adopted this conven-tion—it may be a purely personal thing, but I havehad difficulty getting used to this format. If the soci-ety feels strongly that we should conform withparliamentary practice and use Arabic numbers, Iam quite happy to change it.


The kindergarten style

Some drafting schools advocate the use of simple,ordinary words, preferably of no more than five let-ters—words that even an uneducated person wouldunderstand. William Wordsworth, the English poet,decided at one stage of his career that he wouldwrite his poetry that way, and for that period wroteonly in extremely simple language. An example ofthis is Lucy Grey. Here are two verses—regrettably,there are many more.

Oft I had heard of Lucy Grey:And, when I cross the wild,I chanced to see at break of dayThe solitary child.

No mate, no comrade Lucy knew;She dwelt on a wide moor;The sweetest thing that ever grewBeside a human door.

The kindergarten style overlooks the fact that mostwriting is not done with kindergarten readers inmind, but usually for a well informed audience whoare well able to cope with a reasonable range ofEnglish vocabulary. Further, confining the drafter tosimplistic language denies the drafter the ability toconvey nuance by selecting the words used from thewide range of synonyms or near synonyms found inEnglish. There are usually a number of words avail-able to express a single concept, each with a subtlydifferent meaning. Not only the ability to conveymeaning is affected, but style as well. As an exampleof kindergarten drafting, review the contract youhave received from your telephone, water or powercompany. It may be clear enough, but it quicklybecomes a yawn because it lacks any elegance orliterary merit.

I would not like to have conveyed the ideas in theforegoing using the kindergarten style.

Adopting the kindergarten style tends to rob a docu-ment of any elegance and cohesion. The writtenexpression becomes bland, often not achieving whatits drafters intended it to achieve. To be fair, it isonly the extreme of this style that is objectionable.Kindergarten language can be a good starting point,but not too many of those attending kindergartenshave an interest in reading the various documentsthat are produced in this style.

Ironically, the English word kindergarten etymologi-cally comes from two German words kinder garten orchildren’s garden.

Think what our literary heritage would be like if ourgreat writers had employed the kindergarten style intheir work. We would not have the Wordsworthclassic:

Dull would he be of soul who could pass byA sight so touching in its majesty.

Instead, we might have,

What a nice view it is from the bridge, Dave.

The immortal Hopkins line:

I caught this morning morning’s minionkingdom of daylight’s dauphin, dapple-dawn-drawn Falcon

becomes

There’s that damn bird again.

Obviously, I could continue on the subject of draft-ing issues. I could tell you that they are not easy.Within most legal offices, effective reform is an im-possibility across a wide front. This arises becauseof time constraints, the pressure that lawyers comeunder to produce a document, the wide range ofintellectual ability and the differing levels of com-mitment. I can tell you from grim experience thatdrafting reform is not easy.

Hallowed usage

Having said all that, there are a limited number ofinstances where it is inappropriate to update lan-guage. Nobody appreciates Shakespeare’s playsbeing re-written in plain English. (Out out, damnedspot would become Beat it, dog.) Regrettably, we haveto edit Chaucer to make the Canterbury Tales makesense to the modern reader. An example of the origi-nal text is as follows:

Anon go gete us faste in-to this inA kneeling trogh, or elles a kimelin,For each of us, but loke that may be large,In which we mowe swimme as in a barge,An han ther-inne vitaille sufficantBut for aday; fy on the remenant!

—The Miller’s Tale

On the other hand, there may even be some merit inhaving the society’s constitution in a non-under-standable form.

In some quarters the King James Bible is regarded asa literary treasure, and many regret the passing ofwhat is seen as its elegant use of language. Someprefer, for example:

Charity suffereth long, and is kind; charityenvieth not; charity vaunteth not itself, is notpuffed up.

The power of language—the lawyer’s dilemma (continued)


There are some who say that this hallowed style hasa dignity of expression that suits the formal occa-sions in which it is used, and regret its passing infavour of the more modern translations. A moderntranslation I have at hand is the Westminster ver-sion, which recites the foregoing verse as follows:

Love is always patient and kind; it is never jeal-ous; love is never boastful or conceited, it doesnot take offence, and it is not resentful.

With respect, preference for the old style appears tobe no more than nostalgia. Clearly, the secondtranslation is better. To prove this, try the two trans-lations out on a young person who is familiar withneither, and see which they prefer.

Of course, it is the very antiquity and vocabulary ofthe King James version that gives rise to this prefer-ence in some quarters.

The society may like to consider the option of retain-ing our existing constitution for four hundred yearsin the hope that in that time it will likewise becomehallowed and acquire an integral dignity along thelines of the King James version. The down side isthat if we then retain it for several hundred moreyears, it may then become Chaucer-like, needingfirst to be modernised to be understood.

Regrettably, the language in our constitution prob-ably lacks the underlying cohesiveness necessary toput it to this test. Further, the author of the presentconstitution makes no claim to divine inspiration,so it is a forlorn expectation anyway and not anoption for the society. (The report to the society endsat this point.)

Credit where due—author’s final note

Finally, and despite some of my comments above, Ipay tribute to the graduates I have worked with overthe years. Nearly always graduates are exciting,responsive, eager to learn, prepared to take correc-tion. If given a stimulating, challenging and non-patronising environment, the uninhibited freshnessthey bring to a legal office, or any office, is some-thing I find exciting. I pay tribute to those tertiaryteachers, too, who really care about their charges.If I have a criticism, it is that teachers could be moredemanding about the quality of the written workthey accept from students, and encourage studentsto demand good standards of written expressionfrom themselves. If students are having difficulty,they need to start with the first principle that oncethey have clarified in their own mind what theywant to say, they simply write it down. It is so obvi-ous. In so doing they must not eschew vocabulary orflair, but as they develop their draft, make full use ofwhat our wonderful language has to offer.

© G Kilpatrick [email protected]

Gerard Kilpatrick haspractised law in Aucklandfor 36 years, many of themas managing partnerresponsible for the employ-ment and training ofgraduates. Until 1978 hepractised in the courts,but since then he hasconcentrated on the morecommercial aspects of hispractice including litiga-tion support. He advised anumber of medium-sizedcorporations with nationalprofiles on all aspects ofbusiness law from taxation to employment and complianceissues. He is an honorary Life Member of The New ZealandAssociation of Radio Transmitters Incorporated, having oncebeen a Vice-President of that association. He is consultingeditor responsible for the accuracy of the legal content ofLawlink magazine.

Non-linear languageThe expert witness was giving evi-dence for the defence in a car crashappeal in an Auckland court.

Expert: Now that certainly does indi-cate that the vehicle was running inwhat’s known as the non-linear regionof its cornering characteristics, andapproaching the point at which incipi-ent control loss would be expected.

Lawyer: Can you clarify what youmean in layman’s terms?

Expert: Er . . . yes. The car was fishtail-ing and completely out of control.

Reprinted with permission from the NewZealand Herald’s “Sideswipe” column 17February 2004


Margaret Nixon

Former Legislative Counsel, Policy Advice Division,Inland Revenue Department, New Zealand

Ten years ago the Inland Revenue Department in NewZealand embarked on a tax rewriting project. MargaretNixon was a member of the rewrite team from 1999 to2004. In this article she outlines the background to theproject and some of the changes that the team made.

New Zealand has been making steady progresson rewriting its income tax legislation in plain lan-guage. A milestone was reached this year when theGovernor-General gave assent to the Income Tax Act2004 (ITA 2004), which rewrites about a third of theIncome Tax Act 1994 (ITA 1994).

This article explains why the rewrite is being done,how it has progressed, and what distinguishes therewritten text assented to on 7 May 2004 from tradi-tionally drafted tax law.

Why is the rewrite being done?

New Zealand’s income tax legislation, like thatof many other countries, was for a long time an un-wieldy structure held together by an impenetrablethicket of words. During the 1990s, various coun-tries considered rewriting their tax legislation inplain language. In New Zealand, this step was rec-ommended by several official reports, including the1994 report of the Organisational Review of theInland Revenue Department. The organisationalreview report also recommended that the drafting oftax bills should be moved from the ParliamentaryCounsel Office to a drafting section to be establishedwithin the Inland Revenue Department.

The Government accepted both recommendations.It acknowledged that it was time for income tax leg-islation to be made more comprehensible and itaccepted that the responsibility for doing that job,and for drafting all tax bills, should lie with special-ist law drafters in the Inland Revenue Department.In 1995, it established a drafting unit within InlandRevenue Department and gave it the tasks of main-taining existing tax legislation and rewriting the ITA1994.

The Government was clear that the ITA 1994 wasjust to be rewritten. The effect of the Act was to

remain the same. The only policy changes allowedwere those that had been the subject of consultationand a decision by the Government to make achange.

How has the rewrite progressed?

The first stage of the project, which was done by theParliamentary Counsel Office, involved reorderingand renumbering the existing income tax legisla-tion, i.e., the Income Tax Act 1976 (ITA 1976). It wascompleted with the enactment of the ITA 1994. Re-ordering meant putting provisions that were similarto one another into the same group—for example,the provisions that stated core income tax rules,which were scattered throughout the ITA 1976, weregathered together and put into Part B (Core Provi-sions). Renumbering meant using a single letteridentifier for Parts, a double letter identifier for sub-parts, and a double letter and number identifier forsections—for example, section BC 1 is the first sec-tion (“1”) in the third subpart (“C”) in the secondPart (“B”).

The second stage involved rewriting Part B (CoreProvisions). It was completed with the enactmentof the Taxation (Core Provisions) Act 1996.

The third stage involved rewriting Parts A to E andY and re-enacting Parts F to O and the schedules. Itwas completed with the enactment of the ITA 2004.Parts A to E and Y are discussed below. Parts F to Oand the schedules have been updated in minor con-sequential ways, but are otherwise the same as theyare in the ITA 1994. The numbering sequence is alsothe same—for example, section OB 3A is followed bysection OB 6 because the ITA 1994 no longer has asection OB 4 or a section OB 5.

The final stage involves rewriting Parts F to O andthe schedules. It will be completed in either 1 or 2amendments to the ITA 2004 that take out andreplace Parts F to O and the schedules. The ITA2004 will also be the subject of “business as usual”amendments to implement policy changes. Forresource reasons, the style of the rewritten Parts A toE and Y will not be maintained in all these amend-ments.

What distinguishes the rewritten textassented to on 7 May 2004 fromtraditionally drafted tax law?

Consistency, orderliness, and precision inform thedrafting of the rewritten Parts. These qualities areachieved by drafting features described below.

Clear structure

Parts A to E of the ITA 2004 do essentially the samejobs as they do in the ITA 1994—Part A states thepurpose of the Act; Part B contains the core provi-sions on income, deductions, and timing; and PartsC, D, and E provide the detail on income, deduc-

RewritingRewritingRewritingRewritingRewritingthe Income Tthe Income Tthe Income Tthe Income Tthe Income Tax Actax Actax Actax Actax Act


tions, and timing respectively. The ITA 2004 differsfrom the ITA 1994, however, in making explicit therelationships between the Parts and, in Part D,within the Part.

Section BD 1 and subpart CA state the connectionbetween Parts B and C. Section BD 2 and subpartDA do the same for Parts B and D. Sections BD 3and BD 4 relate Part B to Part E.

Subpart DA states the connection between Parts Band D by setting out the rules on when deductionsare allowed or denied. The relationships withinPart D are explained in the sections that allow ordeny deductions; they end with a subsection,headed Link with subpart DA, that shows how thesection relates to the rules.

Orderly groupings

The ITA 2004 continues the task, begun in the ITA1994, of organising material in a considered fash-ion, using subparts to group provisions addressingsimilar or related rules.

The process of putting provisions into a more logi-cal sequence revealed misplaced provisions.These have been shifted to a suitable location—forexample, apportionment rules have been moved toPart F, which deals with apportionment andrecharacterised transactions.

The subparts are arranged in 2 distinct groups. InPart C, the subparts run from CA to CH and thenfrom CQ to CX; in Part D, from DA to DF and thenfrom DN to DX; and in Part E, from EA to EJ andthen from EW to EY. In all 3 Parts, the first group ofsubparts applies broadly to all taxpayers and thesecond group applies to specific instances of activ-ity. The purpose of the gap in the numbering is tofacilitate the addition of subparts. A subpart ofbroad application can be added at the end of thefirst group and a subpart of specific application canbe added at the start of the second group.

Redundancies removed

Some provisions of the ITA 1994 were redundantbecause their content was already covered else-where—for example, 6 different provisions expressedthe idea that, if a person is allowed a deduction fora loss and then recovers the amount of the loss, theamount recovered is income up to the amount of thededuction. The ITA 2004 says it in a single provi-sion, section CG 4 (Recovered expenditure or loss).

Other provisions were redundant because they nolonger had effect. Provisions of this kind were omit-ted and their omission noted in schedule 23, whichcontains comparative tables of the provisions of theITA 1994 and the ITA 2004.

Numerous signposts

The rewritten Parts contain many signposts.

Tables of contents. A table of contents appears at thestart of the Act and at the start of each subpart.

Outline provisions. Various kinds of outline provi-sions are used. The definition of a key termprovides an outline in the subpart on dividends—section CD 2 (Meaning of dividend) says “SectionsCD 3 to CD 13 define what is a dividend.” The sub-part on life insurance has a section EY 2 headedMatters to which this subpart relates. In some sub-parts, the first section is headed What this subpartdoes—for example, in subpart EE (Depreciation).

Two levels of cross-heading. A centred, italic, boldheading introduces a group of sections with acommon theme and a centred, italic, roman headingintroduces a collection of sections within thegroup—for example, within subpart CX (Excludedincome), the heading Fringe benefits is followed bythe heading Introductory provisions.

Subsection headings. Subsections whose subjectmatter is the same have the same heading through-out the rewritten sections—for example, eachsubsection on the timing of income is headed Timingof income and each subsection containing an exclu-sion is headed Exclusion.

Directions to related sections. Sections identifyother sections that affect them in a subsectionheaded Relationship with section….

Descriptions of sections. A cross-reference to a sec-tion in another subpart is followed by the section’sheading in brackets—for example, section CD 8(2)says “The amount of the dividend is calculatedunder section ME 33 (Notional distribution deemedto be dividend).” To avoid cumbersome cross-refer-encing, a series of cross-references to sections inother subparts is followed by “(which relate to …)”.

Slimmed-down sections

The messages of the sections of the ITA 1994 havebeen carved out of its dense blocks of text. The ITA2004 conveys the messages in sections that havebeen kept as short as their subject matter allows,while using as many subsections as needed to coverdifferent aspects of the message.

Sections are written in the active voice; they haveclear structures made plain through subsections,paragraphs, and subparagraphs; and they use inter-nal cross-referencing only to prevent confusion.Great care has been taken to ensure that words areused consistently throughout all the sections in therewritten Parts.


Sections covering the same types of situations arearranged in parallel patterns. For example, manysections in Parts C and D start with a subsectionheaded When this section applies. In Part C, a subsec-tion saying that an amount is income is headed Income.In Part D, a subsection allowing or denying adeduction is headed, as appropriate, Deduction,No deduction, or No deduction (with exception).

Ordinary language

The rewritten Parts take a modern approach tolanguage. Examples are—

• “acquire” and “dispose” replace expressionssuch as “acquires or becomes possessed of”,“acquired or created”, “purchase or creation”,“sale or other disposition”, “sale or othertransfer”, and “alienation or transfer”

• “expand on”, “modify”, “override”, and“qualify” replace “subject to”

• “mainly” replaces “primarily”, “principally”,“primarily and principally”, and “principallyand primarily”

• “treat” replaces “deem” when it is essential tomake the point that a thing is legally somethingother than it is factually

• “any”, “every”, “that”, and “those” are used withcare to avoid over-emphasis

• “This section is about”, “The fact that”, “gets anegative result”, and other colloquial expressions,are used.

Newly formatted formulas

The rewritten Parts improve the format of formulasby discontinuing the approach of writing formulasin 1 long sentence.

Formulas appear in a subsection of their own, usu-ally headed Formula, with their items expressed inwords, not letters. The formula is followed by a sub-section headed Definition of items in formula. Thesubsection contains paragraphs defining the items,if the definitions are short, or a statement that theitems are defined in subsequent subsections, if thedefinitions are long.

Familiar cross-referencing

There are 2 helpful changes in cross-referencing.The first is that cross-references are written colloqui-ally—for example, “subpart CA” instead of “PartCA” and “column 1” instead of “First Column”.The second is that cross-references are simplerbecause the numbering in Parts F to O has beenstandardised. In the ITA 1994, the first insertedsubpart, section, paragraph, or subparagraph islabelled “A” in some cases and “B” in others. The

ITA 2004 uses “A” consistently as the identifier forthe first insertion—for example, the subpart aftersubpart NB is now numbered subpart NBA instead ofsubpart NBB and the section after section ME 1 is nownumbered section ME 1A instead of section ME 1B.

Easy-to-find definitions

While Part O (Definitions and related matters) is notrewritten, the ITA 2004 updates section OB 1 (Defini-tions). The section is now a comprehensivecollection of defined terms, containing either thecontent of the definition or a reference to the sectionor subsection in which the content can be found.The section has been reformatted to give each defini-tion a regular legislative shape.

In the rewritten Parts, the definition of a term in asection or subsection is identified by the heading“Meaning of [term]”. Subsections that define termsare placed at the end of their sections wheneverpossible.

Each section in a rewritten Part is followed by a listwith the lead-in words “Defined in this Act”. Thelist contains the terms used in the section that havean entry in section OB 1.

Fewer initial capitals

Compared with other New Zealand statutes, the ITA2004 gives fewer words initial capital letters. Thisis because of the alphanumeric numbering system.Section numbers and cross-references must appearclearly on the page, without the distraction ofunnecessary capital letters. The ITA 2004 does notcapitalise most of its technical drafting terms, i.e.,“paragraph”, “schedule”, “schedule 1, part A”,“section”, “subpart”, and “subsection” have initiallower case letters but “Act” and “Part” are alwayscapitalised because a lower case letter could changetheir meanings. For other words, a lower case initialis preferred whenever possible—for example, “department or ministry”, “government”, and “insti-tute” (referring to a Crown Research Institute).

Repeal revisited

The ITA 1994 is unclear in its approach to its prede-cessor. Section A 1 (Short title, commencement, etc.)says that the ITA 1994 applies to tax on incomederived in the 1995-96 year, which indicates that theITA 1976 continues to exist. However, section YB 3repeals it. Sections YB 4 and YB 5 then provide sav-ings and transitional rules that deem it not to berepealed for the purpose of dealing with tax onincome derived before the 1995-96 year.

The ITA 2004 is clear in its approach. Section YA1(1) (Repeals) repeals the ITA 1994, but section YA1(2) specifically states that the repeal applies only tothe tax on income derived in the 2005-06 year andlater years. The ITA 1994 continues to exist and canbe amended in the same way as any other existingstatute.

Rewriting the Income Tax Act(continued)


Practical drafting matters raised in Clarity

The 2003 and 2004 issues of Clarity discuss a num-ber of practical drafting matters. This is what therewritten Parts do about them:

• as specifically requested by users, they use “;and” or “; or” at the end of paragraphs and sub-paragraphs and reserve colons for use at the endof paragraphs or subparagraphs defining items informulas

• as required by standard New Zealand legislativepunctuation, they use a comma after the second-to-last item in a list of words or cross-referencesand after a modifying phrase introducing a seriesof paragraphs or subparagraphs

• they use paragraphs and subparagraphs carefullyso as not to make sandwiches of them or shred thetext

• they use numerals instead of words (except tostart a sentence, paragraph, or subparagraph)

• they use “that” as the introductory word to rela-tive clauses

• they use “they” and “their” as singular pronouns

• they do not use “provided”.

© M. Nixon [email protected]

Margaret Nixon was amember of the draftingunit at the Inland RevenueDepartment from 1999 to2004. She was the unit’sfull-time rewrite drafter,and worked on the ITA2004 with a tax law expertas a consultant rewritedrafter. She is currently aParliamentary Counsel, asshe was before her timewith the rewrite team, andhas also been a senior legaladviser in the Departmentof Justice.

Face the front, pleaseA reader named Ray wants one more go at the duplicitous Englishlanguage—or is it just the Land Transport Safety Authority? He writes:‘Poor Maurice, but consider and ponder the little item from the illustri-ous LTSA in its new Road User Rule. “Left side, in relation to a vehicle,means its side to the left of the vehicle when the vehicle is facing forward”.Right side is similarly defined. I have just about ruptured myself tryingto get my vehicle to face some other way.’

Reprinted with permission from the New Zealand Herald’s “Sideswipe” column29 January 2003

English as she isn’t spokeThe Immigration Service could do with an English-language test itself,judging by the many cringe-worthy errors on its site spotted by readerRichard England: For example: “If you require application forms andguides, please refer to our website to which you can download thesefiles online.”

Reprinted with permission from the New Zealand Herald’s “Sideswipe” column21 May 2003


The Honourable Justice Patrick Keane

High Court of New Zealand

Justice Patrick Keane has been involved in teachingjudgment writing for many years. In this article, hedescribes a specialist writing course for New Zealandjudges that was based on a Canadian model andemphasises judgment writing as a craft.

For the past five years the New Zealand Institute ofJudicial Studies has offered judges a three and a halfday course on judgment writing as a skill. By theend of this year, 110 judges will have attended,amongst them a number from Australia, from Fijiand Hong Kong.

For the past two years the Family Court of Australiahas offered a course. Shorter sessions for specialistgroups have featured both in New Zealand andAustralia. The Judicial College of Victoria begins ina full way this year.

The idea is far from new. The technique is carefullyrefined. The model is Canadian. That coursehas been running since 1980. Up to 55 federallyappointed judges attend each year. Alumni includethe present Chief Justice of Canada and three othermembers of the Supreme Court of Canada.

Members of the Canadian faculty taught at the firstNew Zealand course. Members of the New Zealandfaculty have taught in Australia. So the momentumin this part of the world has begun to gather.

These courses have proved popular. Most whoattend rate them highly. Many say that they are themost useful and enjoyable they have attended.Three reasons are immediate.

Attractions

The intent, to begin with, is to assist the judgesattending, recognising and respecting their independ-ence; not to subject them to any rigid orthodoxy. Theyare encouraged to consider for themselves, perhapsfor the first time consciously and systematically,these essentials: ‘Why do I give decisions? Forwhom? How should I set them out? How should Isound?’

The intent, secondly, is to be practical. The empha-sis is on writing as a craft. Judges bring one or two

decisions they have given in actual cases. After thefirst lecture, when the ideals the course promotes areexplained, they review with the leaders of their syn-dicates, one to one, one decision, just as they gave it.After that, they re-write the decision and face peerreview within their syndicates.

The syndicate leaders are not judges, though judgesoften share the teaching task. They are experiencedand well respected writers—academics whose disci-pline is literature, novelists, short story writers,poets, journalists, and editors. In their syndicateleaders, judges face, perhaps for the first time, anactively questioning reader, whose knowledge andunderstanding of law, and of the case, cannot beassumed.

The workshops do not stand alone. Generalsessions return constantly to the essentials, if moretheoretically and coloured by examples from litera-ture and journalism, as well as by examples ofjudgments good or bad. But the work in syndicate isdecisive.

Finally, though these courses are intensive, they arequite simply enjoyable. Judges are invited to look attheir daily work in new ways that they find stimu-lating. They are intrigued by their teachers, andstimulated by their often strongly contrasting framesof reference. They share with their peers, as may notoften happen, the difficulty and the interest of theircases.

Need

The need for this form of course has long beenaccepted in Canada, and is now well accepted inNew Zealand. It springs from the role judges exer-cise in society. Writing clearly and persuasively isimportant to us all. For judges it is indispensable.

Society entrusts judges with great power. Judgesstand between the individual and the State. Judgessupervise the administration of the criminal law.They have the power to safeguard the liberty of theindividual and the power to take it away. Judgesdecide disputes between individuals who cannotagree. To the individuals concerned the issues couldnot be more important. The decisions judges makemust enjoy public confidence.

There are of course safeguards. Judges take an oathto do right under the law ‘without fear or favour,affection or ill will.’ Mostly, judges hear cases andgive their decisions publicly. There are rights ofappeal to higher courts. But, ultimately, public con-fidence can only rest securely on understanding—not just as to what the judge has decided, but why.

What a judge decides must be supported by reasons.There must not merely be reasons, they need to beexpressed completely and clearly. Ideally, they needto make sense to anyone who has an interest. Other-wise, however fair and sensible the decision may

DecisionsDecisionsDecisionsDecisionsDecisionsthat conthat conthat conthat conthat convincevincevincevincevince


actually be, there can be misgivings. The judge mayseem to have been arbitrary.

On these courses, therefore, judges are invited tomake their own three simple but demanding insights:‘Be aware that you have an audience and how wideand diverse it can be. Engage your audience fromthe first sentence. Speak accurately and neutrally,yes, but as actively, simply and clearly as you can.’

Audience

Those interested in a decision can range as widelyas one can imagine. How a judge decides is of vitalinterest, obviously, to the parties to the case and theirlawyers. They know the case intimately. Why ajudge decides as he or she has, will be of interest toany court hearing an appeal, which will also havethe court record. But others, by contrast, perhaps noless interested, the public, the media, other lawyers,academics, the legislature, will know nothing aboutthe case except what the judge says about it.

To a hard-pressed judge the notion of an audiencecan seem remote. A case comes to a judge as a prob-lem to be resolved. There is an issue on which thecontestants cannot agree. The contestants define theissue. They advance by evidence and submissionsthe disputed facts or law on which it turns. Thecontradictions can be significant. A swift decisionmay be needed.

The first thing the judge needs to do, the indispens-able thing, is to resolve their problem. He or shemay, not unnaturally, especially when time is short,focus more on what decision to make, than on set-ting out for the widest audience the reasons why.

But judges do need to think carefully about theiraudience. A judge who thinks only about what theanswer is to be, or only of the parties and their law-yers, may speak in shorthand. Others, who do notknow the case, even an appeal court with the record,may not find what he or she says understandable.The reasons the judge gives ought desirably to gothat further distance.

Conversely, sometimes, judges can stray in theopposite direction. A judge, conscious of the right ofappeal, and anxious to give a convincing decision,may record everything that happened in the case,relevant or irrelevant. A judge, intrigued by a pointof law of interest to lawyers and the commentators,or the legislature, may write what is really an articlefor a law review.

As in everything, what counts eventually is balance;and the balance essential begins with good architec-ture.

Architecture

In one sense, that ought not to be a problem. Inessence, a judgment is very simple. It can be thought

of as an extended syllogism. The judge decideswhat facts are relevant and reliable, and what lawapplies, and synthesises the two. That is the essen-tial task, and it never changes.

But cases vary enormously. In simple cases judg-ments can be simple, in complex and subtle casesboth complex and subtle; and decisions involvemore than logic. Judges have often to choosebetween competing values. There can be ethicalissues, and issues of good practice.

Judges are very familiar with the basic architecture,if only intuitively. Judgments, like statutes, are thelawyer’s tools of trade. But lawyers look to judg-ments for what they decide, and whether they helpor hinder. Few spend time thinking about how theyare organised and expressed. They may know thatthey find some judgments clear and even enjoyable.They may find others hard work. They are unlikelyto have analysed why.

The most convincing and enjoyable judgments arethose that make sense, from the first sentence to thelast. Those that state right at the outset what theissues in the case are and, perhaps, something tooof their interest and significance. A good beginningis critical to all that follows.

But that is not how many judgments begin. Theystart instead by stating first how, as a matter of pro-cedure, the case came into the hands of the judge.That is the easiest way to begin a decision, espe-cially when time is short, and it has enjoyed theforce of convention. But the result can be that whatis distinctive about the case remains buried. Theissues the decision resolves, and what is of interest,may not emerge until pages later. The reader can beleft adrift. Interest can rapidly flag.

The first thing that judges are invited to try to do,therefore, is to crystallise in the first paragraph ortwo what is in issue and is of interest. They areencouraged, then, to order their decisions to thelogic of the issues they identify; and to concludesymmetrically: to resolve at the end the issues theyidentify at the beginning.

The result should be rather like a row of books on abookshelf. The beginning and the end of the deci-sion are like bookends. In between, like books, liethe issues of fact and law the case is about, identi-fied and sorted out, divided by clear headings.

Style

Architecture is the first thing; it is not, of course, thelast. A judgment for all audiences calls for writingthat is active and clear. Better yet, writing thatspeaks naturally in the voice of the judge.

Most judges do not begin to imagine that they havetheir own distinctive voice. They think that theywrite plain prose, just like everybody else. They do


not recognise that what they write is influenced bytheir personalities, their experience and tastes; andby the choices they have made, mostly uncon-sciously, as to how to write, why and for whom.They can be inhibited. But when they cut loose, thedifference can be dramatic.

Judges sometimes, too, equate editing with polish-ing, a luxury for which they do not have the time,an indulgence of the ego. But that is a fundamentalmisunderstanding, of course, as the judges soondiscover.

Writing is a discipline. Hard work is called for. Theapparently simple piece is often the result of carefulhoning. At a first attempt the judge speaks prima-rily to himself or herself. Thoughts can be cluttered,sentences unordered, meanings obscure. But, as heor she reworks the decision, conscious of audience,order appears and clarity.

Ideal

The model that these courses promote is attainable.It is not high literature. It is the writing found in thebest magazines. The gift of the best feature writers isto say simply things that are often complex; and todo so lucidly, often elegantly, without striving obvi-ously for effect.

The best judges are known for that gift too. So thatis the ideal, which these courses hope to offer. Manywho attend find to their surprise, and pleasure, thatthis is an ideal not wholly beyond their grasp. Allthat they have to do is work at it.

© P Keane 2004

The Hon Justice Patrick Keane was a District Court Judgefrom 1987 to 2003 and a member of the New Zealand LawCommission for severalyears during this period.Last year, he was appointedto the High Court. He haslectured in judgment writ-ing at the annual JudgesOrientation Course since1991. After attending ajudgment writing coursein Montreal, Canada, heand another judge, JusticeRanderson, worked withthe staff of the Institute ofJudicial Studies to make asimilar course for NewZealand judges a realityand has been teaching inthis course each year since. He has until recently been amember of the Board of the New Zealand Book Council.

Decisions that convince(continued)

Weird thingsserious people writeMicrosoft—the ever so earnest folk whobrought the world Encarta, and whocause your computer to red underlineevery word they imagine to be misspelt—has placed the following notice on aloose slip of paper inside the plasticpackaging of Office 2004:

This label indicates that the packagecontains genuine Microsoft product.If the label is missing, please emailMicrosoft at piracy.com, or call yourlocal Microsoft sales office.

Some questions occur to me:

1. Can’t people who counterfeitsoftware also counterfeit fiddlybits of paper stuck in the pack-aging?

2. If the fiddly bit of paper is, asthey say, “missing”, how wouldI know?

3. Even if I suspected that the fiddlybit of paper was missing, howwould I read the (missing) mes-sage asking me to alert them?

4. What theory of communicationsgives rise to Microsoft’s practice?

Phil [email protected]


Janet Wainscott

WorkWrite, Wellington, New Zealand

For some years, Janet Wainscott instructed New Zealandlegal graduates in plain writing techniques. In thisarticle she describes what was involved in this work.

The transition from writing for academic purposesto writing in the workplace is difficult for mostgraduates, and law graduates are no exception.They face the often-painful transition from writingto impress an academic audience to communicatinginformation to non-academic audiences. Lawgraduates in New Zealand have some help in mak-ing this transition in the form of the professionallegal studies course, which law graduates whowish to practise in New Zealand must completebefore admission. The Council of Legal Education, astatutory body, prescribes the skills to be taught andrequires providers of the course to teach the skillswithin the context of transactions met in the earlyyears of practice. Until this year, only the Institute ofProfessional Legal Studies offered the course. Fromthe beginning of 2004, the College of Law NewZealand has been accredited as a provider of thecourse.

For several years during the 1990s, I worked for theInstitute of Professional Legal Studies as an instruc-tor on the professional legal studies course. Thefollowing observations are based on this experienceand on work that I have done for the Institute morerecently.

A bridge between university and work

Most trainees on the course have completed a legalwriting course at university with a focus on researchand academic writing. Some trainees will haveworked for a law firm for a few months, but manyhave no workplace experience. Trainees show arefreshing acceptance of the need for plain lan-guage, but some are not convinced that this meansthey may need to adapt their own writing style,especially if they believe they already have goodwriting skills.

The course includes seminars on writing and draft-ing, which have the goal of enabling trainees towrite and draft in clear and precise language. Plain

language underpins the seminars and is addressedspecifically in the context of letters and documentsencountered in general practice.

Trainees are introduced to plain language tech-niques— prefer the active voice, keep sentencesshort, use strong verbs, use everyday words, useheadings and lists to organise material. Thesetechniques are explained in assigned reading andreinforced by short exercises. Some of these exerciseshelp trainees to build a vocabulary of plain lan-guage expressions by finding plain languagesubstitutes for common wordy expressions. Themore difficult exercises require trainees to look atwriting samples and identify the faults and suggestimprovements. This prepares them for editing theirown work later.

Teaching these techniques and nothing more wouldbe just a token nod towards plain language, givingtrainees a few handy tips on what to do. The coursegoes further than this and incorporates the tech-niques into a writing process that follows thesequence of planning, drafting, revising.

Planning

The first step is planning. This involves analysingthe audience and understanding the purpose of theletter or document. In my experience, trainees enjoythis. For example, they are quick to recognise thatthe purpose of a letter of advice is to inform theclient of his or her legal position and options, andthat the purpose of a will is to make sure the client’swishes are carried out after the client’s death. Theyare also quick to make an assessment of the natureand needs of their audience, based on informationin the fact scenario for an exercise.

Planning includes identifying the content. In aclassroom setting, the factual content has to be pro-vided in the form of a scenario for an exercise, buttrainees still need to identify the content needed inspecific documents. For example, they may need toidentify the legal issues and options for a letter ofadvice, or they may need to work out the timing andprocedural details of, say, terminating an arrange-ment or exercising an option.

For many trainees, the most difficult part of plan-ning is thinking through the structure of adocument. Some documents necessarily follow awell-established pattern for that type of document.Within the usual patterns, however, there are alwaysdecisions to be made about the order of material andabout mechanical details such as numbering, andthe sensible and consistent use of definitions.

I found trainees reluctant to plan their structure inany detail before drafting. They told me that they areused to writing with a computer. They put downtheir thoughts quickly and then cut and paste to

Plain languageand law graduates

in New Zealand


shuffle the order until they get it right. The usualadvice to plan the structure before drafting worksfor people who learnt to write in pre-computertimes, but it might not be consistent with the waymany people write nowadays and might not reflectthat writing is often iterative, rather than a sequen-tial process.

Drafting

Trainees approach drafting exercises with someknowledge and experience of plain languagebecause they have already completed the exerciseson plain language techniques. They can now seehow their analysis of audience and purpose feedsinto their decisions about content and tone, espe-cially in the letter writing exercises where thescenarios contain clues about the knowledge andattitude of the client as well as the client’s instruc-tions. When they finish their first draft of adocument, they can see (sometimes with a littlehelp) that if their draft is incomplete or the structureflawed, then they probably hadn’t identified thecontent or planned the structure in enough depth.

Revising

The final step in the process is revising. Trainees areencouraged to make at least three editing passesthrough their work—one for content, one for struc-

ture and one for style. During the pass for style,trainees can concentrate on plain language issuesand draw on their experience in recognising andsolving problems gained in the earlier plain lan-guage exercises.

Challenges ahead

Newly qualified lawyers in New Zealand do at leasthave an awareness of plain language and someexperience of plain language drafting. Further chal-lenges lie ahead for them. They have to adapt to theculture of a law firm, which may or may not encour-age plain language. They have to get used todrafting projects that involve many more iterationsthan were possible in a classroom setting. On theother hand, they will often use precedents wheredrafting can seem like little more than adding vari-ables, but where danger lurks for the unwary.Newly qualified lawyers must negotiate these chal-lenges and still remember that their purpose alwaysinvolves communicating with their readers.

© J Wainscott [email protected]

Janet Wainscott runs a business providing writing,document development services and plain English editing fora range of clients including education providers and publicsector organisations.

A new service for law firmsA new service for law firmsA new service for law firmsA new service for law firmsA new service for law firms

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a solicitor now retiring from general practice after 25 yearsand a former chair of Clarity

is launching

clearclearclearclearclear-legal-writing courses by email-legal-writing courses by email-legal-writing courses by email-legal-writing courses by email-legal-writing courses by emailand will also draft documents as your agent, or in consultation with you.

Details, and terms of business, are available [email protected] and www.adler.demon.co.uk

April Cottage, Logmore Green, Dorking, Surrey RH4 2HD, UKPhone: +44 (0)1306 74 1055 Fax: 74 1066

Plain languageand law graduates in New Zealand(continued)


Richard Castle

Lawyer; legal drafter

In this article, Richard Castle examines definitions andcapitals, and advocates less of both. He also urges alldrafters to follow the English parliamentary style.

The three over-indulgences

There are three over-indulgences in legal drafting:“shall”, capitals and definitions. Of these, “shall”has virtually gone from many private documents tobe replaced by “must”, “is to”, “will” or the presenttense. A similar trend is seen in a lot of public draft-ing, both in England and Wales and elsewhere. Thebattle against over-use of capitals is largely thoughnot entirely won in many areas. The problem of defi-nitions is proving the most intractable of the three.

Over-capitalising

As for over-capitalising, there is still a distinct split.In public drafting the over-use of capital letters hasvirtually disappeared: capitalisation is retainedonly at the beginning of sentences and for propernouns. Private drafters, in contrast, cling to theircapitals for dear life as though to abandon themwould be to lose some vital element. Every itemperceived to have some importance has to be flaggedby a capital, even when the result is disjointed. Seefor example:

Where in this Schedule a right of the TrainOperator is expressed as “the Train Operatormay bid”, “the Train Operator is entitled to bid”or any cognate expression, a Bid made in exer-cise of such right is, for the purposes of Part D ofthe Network Code, not a Non-Compliant Bid,but does not give rise to any Firm ContractualRight on the part of the Train Operator.

No public drafter in England would nowadaysdream of writing in this uneven way. In many cases,private drafters use a capital for a non-defined wordwhere the word has some significance for them.Thus every parliamentary bill is a Bill, every testa-mentary document a Will and every chief executivea Chief Executive. So the notion that only definedwords or items are indicated by a capital flies out

the window. Moreover even the most enthusiasticcapitaliser does not capitalise every defined term. Inmodel clauses for railway track access agreements(UK), the definitions of 19 words or expressions inan alphabetical list have “day”, “flex”, “period of60 minutes” and “xx20” all in lower case, and therest in upper case. The distinction (if any) betweenupper case and lower case defined terms is unclear.

Many if not most capitalised items are capitalisedunnecessarily anyway. Who could possibly misun-derstand “the lease period” (inevitably a variablefrom lease to lease) and what is gained by callingit “The Lease Period”? If the juxtaposition of (say)“the tenant” with “a tenant” becomes confusing, itcan quite easily be sorted out in the text rather thanby insisting on “the Tenant”. There is a natural con-cern that a word or expression used in a special orunusual way in a particular document will be over-looked. But to capitalise, italicise or embold everydefined term leads to inconsistency and lack ofreadability. The drafter has to remember not only tocapitalise where he or she is using a defined term,but also not to use a capital for undefined terms.Where a word is used both as a defined term and ina general sense, confusion may result. For example,it is all too easy to have “the Guarantor” as a partybut to forget that not every guarantor in the body ofthe document will have the rights and responsibili-ties of “the Guarantor”.

If the path of non-capitalisation is taken, the draftermust be careful to choose expressions for definitionand to adopt an order and layout which will guideand not mislead the intended reader. That is noteasy—in fact it is one of the higher drafting skillswhich takes effort and practice to acquire.

In short:

• capitalisation of defined terms in privatedocuments is inconsistent and confusing

• it leads to more problems than it solves, and

• it should be abandoned in favour of the Englishparliamentary style, where definitions are kept to aminimum, there is no capitalisation and the logi-cal flow of the document helps its interpretation.

Definitions and CAPITDefinitions and CAPITDefinitions and CAPITDefinitions and CAPITDefinitions and CAPITALSALSALSALSALS: : : : : where are we?where are we?where are we?where are we?where are we?


Use of definitions

In a more general sense definitions continue to be aproblem in many quarters. Many parliamentarydrafters over-define, producing great long alphabeti-cal lists. Private drafters seem to vie with each otherover the length, complexity and redundancy of theirdefinitions (“My definitions are bigger than yours,so there!”). As in many (if not all) aspects of draft-ing, parliamentary counsel in Whitehall are theleaders—as one would hope them to be. They usetechniques which private practitioners could copywith advantage. Among these are:

• defining only when necessary

• splitting the defining so that related groups aredealt with together

• putting one-off definitions near the place wherethey occur

• using one-off definitions with care

• keeping alphabetical lists as short as possible

• adopting indexes of defined expressions

• employing devices other than dictionary-styledefinitions.

Define only when necessary

Too many drafters always resort to a definitionwhen they use a term more than once. But a planattached to a document might first be referred to as“the attached plan” for example, and then referredto in nearby text as “the plan”. There is no need todefine “the plan” or (even worse) “the Plan” as“the plan attached to the document” or the “planattached hereto” or anything else.

Most lay people will not read a document rightthrough. They will refer to it only to check somepoint or see what they must do. Definitions as tradi-tionally used can hinder this process. For instance“the Director” might be defined as “the Director ofMaritime Safety”. The writer and the experiencedreader will appreciate who “the Director” is whenlooking at blocks of text. But will the inexperiencedreader, the new entrant to a regulated activity, thevery person at whom the regulations are aimed?Better to refer in the text to “the Director of MaritimeSafety” and then refer nearby to “the Director”. Like-wise basic concepts like “property” and “equity”neither need definitions nor should they be defined.Some flexibility and generality (as opposed to ambi-guity) is necessary for all legal instruments.Similarly lawyers love coining abbreviations (“adisc operating system (‘DOS’) …”) and then usingthem come what may. This habit is catching. Non-lawyers now use the device in official writing and

often justify it by reference to legal use. Like manypotentially useful short cuts, it is often overdone.

Consider also this notorious passage:

For the purpose of this Part of this Schedulea person over pensionable age, not being aninsured person, shall be treated as an employedperson if he would be an insured person werehe under pensionable age and would be anemployed person were he an insured person.

This passage contains a number of defined terms,and its compression and incomprehensibility comeabout because the drafter felt compelled to use thosedefined terms. Depending upon what the drafterreally meant to say, and the contents of the rest ofthe instrument, a better shot at it might be along thefollowing lines.

(1) A person who is over pensionable age is tobe treated as employed if the following twoconditions are fulfilled.

(2) The first condition is that he is not insured.

(3) The second condition is that he would beboth insured and employed if he was underpensionable age.

Naturally, it might still be necessary to define ordescribe “pensionable age” and “insured” and“employed”. But that would be preferable to gettingstuck in the tramlines with “insured person” and“employed person”.

Deal with related definitions together

Instead of creating one alphabetical list, think aboutcreating a separate clause for important inter-relateditems. Consider a document dealing with the busi-ness of jet boats. It proves necessary to state (ordefine) what is meant by “boat”, “jet boat”, “adven-ture jet boat” and “non-adventure jet boat”. If theseare dealt with alphabetically, the reader does notknow what is meant by a “boat” when he or shereads the interpretation of “adventure jet boat”. Theproblem is compounded if all definitions in thedocuments are lumped together in one alphabeticallist. The solution is to separate related definitionsinto a subgroup and then move from the generalto the particular or the more particular. So in ourexample, the heading might be “Meaning of ‘boat’and related expressions” and the order in which theitems are dealt with would be (1) boat (2) jet boat (3)adventure jet-boat (4) non-adventure jet boat. Similarexamples are legion, for instance “substance”, “nox-ious substance” and “non-noxious substance”.

Put one-off or localised definitionswhere they arise

Many definitions are used only once, or only withina particular part of a document. These are best placed

Definitions and CAPITALS: where are we?(continued)


near where they occur rather than included in a listof general definitions. Otherwise, there may be noeasy way of pointing the reader to the place of defi-nition or even of reminding the reader that the wordor phrase is used in a special sense.

Use one-off definitions with care

One-off definitions (sometimes disparaginglyreferred to as “one-shot” definitions) have theirplace, though they should be used only where theyhelp the reader. Take this simple rule, for example:

(1) Adventure jet boats that operate on braidedrivers must be fitted with a structure whichallows emergency exit for all persons whenthe boat is inverted on solid level ground.

(2) A braided river is a river flowing in anumber of channels separated by stable orunstable bars or shoals.

Conventional wisdom would have the one-off use of“braided river” combined with the main rule, pro-ducing something like:

Adventure jet boats that operate on rivers flow-ing in a number of channels separated by stableor unstable bars or shoals must be fitted with astructure which allows emergency exit for allpersons when the boat is inverted on solid levelground.

That is just about acceptable, unless “braided river”has a particular resonance for a large proportion ofthe intended audience. The technique would not beacceptable if the necessary definition of the chosenterm was much longer.

Avoid alphabetical lists

Long alphabetical lists are to be avoided, for the rea-sons indicated earlier. The longer they are, the moremuddling they can become. Do not force your readerto go to a long dictionary of your own devisingwhenever a term might be defined. If you choose touse an alphabetical list, do your best to show (subtlyand so as not to disturb the sense of the sentence)that a word or phrase is used specially.

Use an index of defined expressions

One technique for collecting together definitions orterms explained or used in a special way is to collectthem all into an index of defined expressions. Thisindex will usually come at or towards the end of themain body of a document, but before the schedules.It can prove a neat way of gathering together one-offor localised definitions with general definitions. Infact, why not go further in long instruments andincorporate a general index for the whole document?The index might be made a clause or left indepen-dent. If it is a good index, that should not mattereither way.

Give explanations or descriptionsrather than definitions

The private drafter almost always resorts to dictio-nary-type definitions. The public drafter is oftenmore astute, relying where appropriate more onexplanations or descriptions than on pure defin-ing—even if that defining is sometimes preceded by“includes” rather than “means” (the standard lead-in word) or “is” (a non-standard but often usefulvariant). A good example of the explanation isfound in the admirably well drafted UK ArbitrationAct 1996 s 5(2):

There is an agreement in writing—

(a) if the agreement is made in writing (whetheror not it is signed by the parties),

(b) if the agreement is made by exchange ofcommunications in writing, or

(c) if the agreement is evidenced in writing.

“If the context so admits”

This qualification and similar phrases have beencondemned in no uncertain terms by DavidMellinkoff and others. A good drafter will alwaystry to ensure clarity and avoid ambiguity. If this isnot achieved, context comes into play. Though adrafter is always free to disapply a definition, he orshe should try to do so knowingly and expresslyrather than by leaving it to implication. It followsthat “if the context so admits” and related expres-sions are best left out.

© R Castle [email protected]

Richard Castle is a freelance drafter based in New Zealand.He is co-author of Modern Legal Drafting (CambridgeUniversity Press, 2001).

Clarity: electronic or paper?

We publish Clarity in both electronic (.pdf)and paper forms, in May and November.The electronic version reaches you sooner,because the paper version has to be postedfrom the US all around the world. You canask for Clarity to be delivered to you eitheror both ways.

Just let your country representative knowif you want to change the way you receiveClarity.


Richard Lauchman

Lauchman Group Consulting, Maryland

For 21 years, Dr Lauchman has fought the battle in thetrenches. He presents writing workshops, remodelsdocuments, and provides plain-language consulting fornearly 100 organizations, half of them in the US Govern-ment. In this article, he continues the Clarity debate onthe use of numbers.

If I know anything about readers, the title of this es-say is more mystifying than edifying. As a structureof language directed toward speakers of English, itfails to convey anything in particular because it vio-lates several conventions. When I recast it to read“I ate 2 of Jill’s pears,” I clarify meaning, but some-thing still isn’t quite right. The use of the numeralis unconventional here. At first glance, that doesn’tseem like a big deal; after all, the reader is capable ofgrasping the writer’s intent. Isn’t he? And that’swhat we want, isn’t it?

The answer to the first question is Yes. The readerunderstands the meaning of “2”. The answer to thesecond question is a resounding No. What weshould want is an outcome profoundly differentfrom the reader’s managing, through various ath-letic maneuvers, to snatch our meaning. What weshould want is an outcome where the meaning iseasily plucked. That’s what I’m writing about here:the degree of labor we impose on readers. Regard-less of our motives, we increase that burden whenwe are guided by principles that have little to dowith how writing communicates.

What provoked me to think about the matter isClarity’s recent editorial decision (in Clarity No 49)to use numerals in all cases where a cardinal num-ber is expressed. Dr Eagleson’s article in Clarity No50, “Numbers: figures or words” argues eloquentlyfor expanding the use of the numeral, and I agreewith much of what he says. Where I cannot agree, Ifind that my objections have to do with my sense ofexactly how immutable, in the opinion of readers,the various conventions of number use currentlyare. I suppose I’d better say that my purpose inwriting this is not to rebut Dr Eagleson. Nor is it toaddress the conventions of number use. My purposein writing this is to make a broader point about thedanger in tinkering with what works.

The importance of “invisible” style

First, do no harm. This is the Hippocratic Oath andthe guiding principle of the medical profession.Writers and editors should also be guided by thisprinciple, along with another one, usually expressedin crackerbarrel vernacular as If it ain’t broke, don’tfix it. We do more harm than good when weabruptly change language conventions that arecausing no great inefficiency.

When we start from the premise that language isa medium for conveying ideas, it follows that themedium itself should not attract the reader’s scru-tiny; style should be invisible, a non-issue, so thatthe reader has unobstructed access to ideas. Whenstyle calls attention to itself, readers abruptly stopseeing the ideas and focus instead on the medium.And here it may be more accurate to say that intrud-ing style actually prevents readers from concentratingon the ideas and forces them to focus on the medium.

When the medium distracts, readers begin askingquestions that have nothing to do with what thewriter is trying to convey. Suppose I decide that“nud” would be an excellent addition to English.After all, we have “nod” to capture the affirmativeshake, but we have nothing simple to convey thenegative shake. And sooner or later someone hasto introduce the word. And so I write, “WhenGreenspan asked whether he had made himselfclear, the reporters nudded.” What I’ve done isambushed the reader, and my reward goes some-thing like this: Nudded? Is “nudded” a word? Am Isupposed to be familiar with it? What does it mean?Does it mean shaking your head in disagreement? Ifthat’s what it means, why didn’t the writer say it thatway? Did he invent the word? If so, then who does hethink he is? These are a few of the questions thatwill occur, and there are plenty of others. Somereaders, for example, might wonder whether thewriter has a shadowy agenda.

It seems to me that we don’t want this outcome.What we do want is invisible style, and in order toachieve it, we need to honor convention when itcomes to the innocent things. Without doubt, manyconventions of the English language appear non-sensical in the harsh light of logical scrutiny.Spelling springs to mind. In English, the spelling ofmany words might justifiably be called arbitraryand capricious. And certainly it would be morelogical to behave as the Germans do, and spell everyword the way it sounds. But insisting on a purelymathematical logic (the logic of consistency) is im-practical in instances where a different kind of logicholds sway. In the enterprise of communicating,there is a different logic at work—the logic of expec-tation—and it is only by employing this logic that awriter succeeds. The logic of consistency yearns for“nud”; the logic of expectation is baffled by it.

O ate 2 of JO ate 2 of JO ate 2 of JO ate 2 of JO ate 2 of Jill�r paill�r paill�r paill�r paill�r paiririririrsssss


Evolution works; mutation doesn’t

We would do well to remember the chilly receptiongiven those who have advocated a phoneticallyuniform spelling of English words. The same recep-tion has greeted those who, wishing to stamp outthe gender bias they find inherent in the promiscu-ous use of “he,” “him,” and “his,” have suggestedgender-neutral pronouns. Tey (he or she), tem (himor her), ter (his or her), and ters (hers) flashed acrossthe lexicon in the 1950s. And since then, peoplehave seriously put forth a number of variations onthe theme. (These variations include ve, ver, vis andco, co, cos and even—with politics peeking out—she,herim, and heris.) The motive may be laudable fromthe standpoint of achieving precision, but we do notsee these structures in the language. The reason wedo not see them is that there is a conspiracy againsttheir use—against their being anointed as “words”—the irrefutable and utterly democratic conspiracy wemight call the will of the users of language. Experi-enced writers know a number of ways to avoidwriting If the applicant passes his physical exam, he willbe scheduled for a polygraph. For less experiencedwriters, faced with the possibility of sounding sex-ist, being indicted as sexist seems the lesser of twoevils when compared to If the applicant passes terphysical exam, tey will be scheduled for a polygraph.

Language users are an intractable lot. We balk atchanging our conventions, and our reluctance ispractical even if it isn’t entirely logical. Why is itpractical? Because it enables us to get on with com-municating. So far I haven’t heard anyone arguingthat our conventional way of forming possessives isbiased. We write “Jack’s hat” and we write “Jill’shat,” and in both cases we are contracting “his.”Buried under centuries of subtle etymological meta-morphosis are the bald phrases “Jack his hat” and“Jill his hat.” Certainly such phrasing isn’t logicalif Jill is female. More than illogical, it could be yetanother example of gender bias. So, if we shrug offthe mandate of what readers expect, we might claimthat it is logical to leave “Jack’s hat” alone but tosubstitute Jill’r hat (“Jill her hat”) when we are talk-ing about Jill, and to do the same for all femalereferents. But to arrive at such a conclusion, wewould have to be looking at speech acts in a wayour readers never do.

This is an important point. In the ordinary course ofevents, the reader does not ponder every least aspectof a writer’s style. What the reader wants to do,what he tries to do, is simply get the point. If thewriter is of sound mind, he understands this, andhe clears a path for the reader to get the point. Whathe should not do is plant little land mines in thatpath. Regardless of how aesthetically pleasing“enuff” may seem to the logic of consistency, spell-ing “enough” that way is planting a little landmine. The outraged cry of users of language mightbe, “Enough is enough! Enough is not enuff!”

In time, “enough” may become “enuff.” Howlanguage conventions change—I did not say dete-riorate, but change—is not the issue here. The pointis that conventions change gradually. They evolve;they do not mutate. Mutations of all sorts, not justin language, are abrupt and unexpected, and becausethey are unexpected, they deserve and receive astare. I could suddenly decide, for example, to use“O” as the first-person pronoun. My reasons mightrange from the metaphysical to the symbolic, andthey might even make sense. But O would have tohave a screw loose if O believed that the resultwouldn’t halt the reader in his tracks.

Distinguishing convention from idiom

What should matter to us is the practical result ofour choices. To me it’s reasonable, and highly com-mendable from the perspective of pragmatism, toargue for simplifying words and phrases that areunnecessarily complex. It is undeniably an act ofgood faith to eliminate Further affiant sayeth not andits shaggy, inbred cousins, especially when writingto non-attorneys. But there is an important distinc-tion between the idiom of a profession and theconventions of a language. And I think it’s unrea-sonable to argue for tinkering with conventions thatcause no harm.

For precisely the same reasons that the practicalwriter uses “I” as his first-person pronoun, he spellsthe number when it starts the sentence.

Three of the speakers were excellent, but theother two were mediocre. One actually seemedhalf-asleep at the podium.

3 of the speakers were excellent, but the other 2were mediocre. 1 actually seemed half-asleep atthe podium.

The first example conforms to convention. Inthis analysis, what’s far more important is that itexpresses its meaning in a way linguists call“prereflective”—in plain language, neither writernor reader has to think about it. It’s conventional.It’s expected. What all of this means is that the stylesucceeds in becoming transparent. The transfer ofideas from page to reader is immediate and effort-less.

The second example expresses the same meaning,but the transfer is not immediate. Looming betweenwords and meaning is the necessity of performingan analytical effort not required by the first example:puzzling over the presence of numerals. And ofcourse, what ensues is the series of questions unre-lated to the writer’s intent, as the reader wonders,Why did he use “3” instead of “Three”? Have the ruleschanged? Is the writer an iconoclast? And so on. Andthat’s quite a bit of distraction packed into a singlekeystroke—distraction that would not have occurredhad the writer left well enough alone and simplyused the convention.


Now in discussing matters of this sort, each of us isat the mercy of experience: I’ve developed my senseof language convention from what I’ve read, you’vedeveloped yours from what you’ve read, andIchabod, over there in the corner, has developedhis from what he’s read. As an American, I put myperiod inside quotation marks. If you were a Cana-dian, you would put yours outside quotation marks.Ichabod will use whichever placement conforms tohis experience. But one thing is certain: as readers,when we see a number at the beginning of a sentence,all three of us expect that number to be spelled.

Let’s remember exactly what it is about a usage thatmakes it a “convention.” First of all, it is an agree-ment, among users of language, to behave in aparticular way: to capitalize the first letter of asentence, generally use “s” to form plurals, and soon. As an agreement, it can be honored or it can bebreached. When the convention is honored, it con-tributes to invisible style; when it is breached,readers notice, and style is yanked into the klieglights. If we want to minimize the burden on thereader, we must honor the innocent conventions.

Reform has to start somewhere, surely, but we hadbetter be judicious in what we choose to reform.Everyone benefits when we simplify the complexidiom of a profession, but everyone suffers when weviolate the conventions of language itself. The roughroad needs repair. Smooth pavement does not.

© R Lauchman [email protected]

Richard Lauchmanattended the University ofMaryland, CambridgeUniversity, and AmericanUniversity. He has a PhDin Literary Studies (litera-ture and linguistics) fromthe last. He is the authorof six published plays, twoof which have won signifi-cant awards. He haspublished two books onwriting in the workplace—Plain Style (1993) andWrite for Results (1998).He lives with his wife,daughter, son, dog, and catin the suburbs of Washington, DC.

O ate 2 of Jill’r pairs(continued)

Freudian slip

While editing this issue, the editorin chief came across the expression“pain legislative dafting” in one ofthe items (we won’t say which).

Yes, indeed. Some days it feels justlike that, doesn’t it?

Clarity seminars

on clear legal writing

Mark Adler uses many before-and-afterexamples to teach the theory and prac-tice of clear, modern legal writing,covering style, layout, typography, andstructure. One handout gives an outlineof the lecture, which is interspersed withexercises and discussion; the other givesmodel answers to the exercises.

The seminars are held on your premises,and you may include as many delegatesas you wish, including guests from out-side your organisation. The normal sizeranges between 4 and 25 delegates.

The full version lasts 5 hours (apart frombreaks) and costs £750 + travelling ex-penses + VAT. But the arrangements areflexible, with shorter versions available.

Contact Mark Adler on+44 (0)1306 [email protected]


Christine to feel in dishabille but a sentence begin-ning with a single letter word (even I) leaves herdemurely clad!

All we have from the objectors are assertions anddenigrations. Mysteriously, they are reticent to sub-stantiate why they consider words better thanfigures. It would be especially good to have evidencefrom them that less-able readers find words morecomprehensible and more effective in some contextsin helping them reach the right message. It is theirneeds that should be our uppermost concern.

But then, they cannot even agree about the scopeof the convention: Ken wants words for numbers‘under 100’; Christine, for numbers ‘under 10’;and Nick for ‘low numbers’ (sic).

Some substance to explore

To his credit, Don Revell offers a concrete reason. Hefinds the typographical similarity between I and 1together with the lack of context creates difficulty forhim when 1 occurs at the beginning of a sentence. Itmay be that the figure and the letter are not differen-tiated clearly enough in the typeface we used andthat we need to select faces that are stronger in thisregard. Don’s factual observation opens the way forus to test this.

On the other hand it may be more a question offamiliarity, as we discovered once when we wereconverting the text of a contract into plain Englishand introducing a new layout, including shorterlines, as part of the process. At the first draftingsession 1 lawyer announced that he much preferredthe more traditional line length (about 170mm). Atthe next session 2 weeks later he declared that hehad come to find the shorter line was much better.He needed a little time to adjust.

It is at this stage that some hesitation creeps in overthe thrust of Don’s objection. There is a revealingcomment in his letter: ‘Virtually all your audiencehas been taught since grade school that where anumber appears at the beginning of a sentence itshould appear in words’. Could his then be an in-stantaneous, knee-jerk reaction? Certainly, there isno reflection on change in language in his observa-tions. Yet in recent decades we have seenpunctuation in addresses abandoned and rules on

Dr Robert Eagleson

Plain English consultant; formerly Associate Professorof English Language, University of Sydney

In recent issues of Clarity there have been 4 letters and1 article reacting negatively to the use of figures in allcontexts. But have the critics touched on substantiveissues and real weaknesses or have their responses beensparked by sentimental attachment to a convention famil-iar to them? Do we need instead more generous consider-ation of the practices and needs of all readers, not just ourown, and more rigorous thinking on the development oflanguage and on the standing of conventions?

Webster’s Third New International Dictionary of theEnglish Language Unabridged was published in1961. A magnificent contribution to the developmentof English lexicography, it recorded that infer andimply now overlapped in meaning, that transpire hadacquired as 1 of its senses ‘come to pass, happen’,and that due to now operated as a preposition withthe sense of ‘because of’, objectively without con-demnation because the practice of the communityhad developed along these lines. Prescriptivistscondemned this approach as “accelerating the dete-rioration of the language” and “renouncing theduty to defend the niceties of the language againstthe erosion of vulgar usage”.

I was reminded of this episode when 4 letters on theuse of figures for numbers were published in Clarity50 and 51. For Christine Mowat ‘starting a sentencewith a number is like going to a party bare-chested’.Ken Bulgin holds that using figures for numbersunder 100 is ‘slipping into the stunted vulgarity oftextspeak’. And Nick Lear dismisses the universaluse of figures as ‘silly’.

Protestation without proof

For all their emotive force these protests comestrangely without proof. Ken makes no attempt toexplain why by 5 August preserves the fineness ofthe language but within 5 days hurtles us into taste-lessness. Nick does not explain how The companyhas 5 directors is ‘silly’ but somehow The company has5 directors and 612 shareholders (as required by theconvention on numbers set out in Clarity 29) returnsus to soundness. Nor do we learn why a sentencebeginning with a single digit figure can cause

The doleful grip of convention


The doleful grip of convention(continued)

the indentation of paragraphs in letters modified.The old conventions on these matters were alsotaught tediously at school and admittedly some hadtrouble converting to the new procedures, but changewe all did over time. Those who are currently havingdifficulty with sentences beginning with a figure—and many do not—may find with more exposure tothe practice that their difficulty disappears.

We should still investigate Don’s objection becauseit is a genuine one. But our testing procedures mustencompass all angles.

Fact or theory

Failure to take account of the processes of changein language also undermines Richard Lauchman’sarguments on pages 34-36 in this issue. We cannotinvent examples in the privacy of our studies andextrapolate from them: instead we must see whatactually happens in the real world. Then we dis-cover that people cope with both new and hitherto-unknown existing words without feeling “ambushed”as Richard portrays. It is not reasonable to expectreaders to know every word they come across andnot valid to always confine the compass of a writer’svocabulary. This is why we have dictionaries andinsert explanations in plain language documents.

In other areas of language, variations arriveunsystematically and piecemeal, not changing awhole domain at once. The history of numbers testi-fies to this gradual process. The territory for the useof words has been progressively whittled away.Today there are newspapers in the UK, Canada,USA, New Zealand, Singapore and Australia thatrestrict words to 1-9, and have handed over 10-99to figures, no doubt to the chagrin of Ken Bulginbut unremarked by the general population. Using afigure for every number within a sentence is only asmall extension of this development. On this point itis illuminating that Don Revell does not report fig-ures as a stumbling block when they are within asentence. Placing a figure at the beginning of a sen-tence is only the next small step, not requiring thecommunity to adopt a new sign but simply to use amuch-used sign in yet another position. Some havealready taken this step, logically standardising thesystem. Whether others follow them is their choice.We have managed to live with linguistic variationsamong English speaking communities for centuries.

Again, our grammatical structure has witnessedchange. Thou has vanished from general use; mean-while they is expanding into the singular. Than isclassified as a preposition nowadays and taller thanme is winning out. Some of these changes comeabout as a result of the innocent actions of membersof the community who are oblivious to existing

“rules” or have forgotten them. We may regret theloss of useful distinctions, but we have also learntto work our way around any problems without anervous breakdown. Otherwise how did we manageto move from Old English to Middle English, letalone to Modern English?

Insular speculations

At the beginning of his letter of protest, Nick Learopined that the use of figures in Clarity 49 was anexperiment and went on to quote Joe Kimble’s dic-tum ‘wherever possible, test consumer documentson a small group of typical users’.

The use of figures for all numbers in Clarity 49 wasno experiment but only the continuation of a wellestablished practice. For example, the SingaporeLand Authority, which has extensive contacts withall sections of the community, has been using fig-ures in correspondence, circulars, reports and formssince at least 2001, and possibly earlier. The Author-ity has never received any protests from members ofthe community. The reasons are obvious. Most read-ers are concerned with the message. Few haveendured the scourges of doctrinaire editors to makethem conscious of alternatives. Moreover, figures arelikely to be their natural response. Say a numberaloud, and most people will conjure up a figure intheir mind’s eye, not a word.

To cite 1 other example from another country. Parlia-mentary counsel in Australia have used figures forwords for some 30 years. Section 52 of the Compa-nies (Acquisition of Shares) (Victoria) Code 1986contains ‘not exceeding 5 years’ and ‘within 2months’, to quote 2 of a continuous stream of occur-rences.

From 1993 to 1997 the Australian Governmentappointed a task force to supervise the rewriting ofthe Corporations Law in plain English. During thatperiod 2 Acts containing rewritten portions of theLaw were prepared and passed by parliament. Drafttexts of each Act were tested in every capital city,with over 40 test groups and some 500 participants.As well, we met every Law Society and Bar Councilin the country. Although other points of language,such as the use of they as a singular pronoun, werequeried, at none of the tests or meetings was the useof figures challenged. Nor is it the case that their usecould have been overlooked. In section 169 there are3 figures in 13 consecutive lines of text; and thenumber 1 occurs in the headings of consecutive sec-tions 248A and B, and a further 2 more times in the 3lines immediately following the second heading. Itcan be fairly claimed that in the extent of our testingwe had out-Kimbled Kimble!

Insularity also bedevils the speculations in RichardLauchman’s article. At 1 point he writes:


As an American, I put my period inside quota-tion marks. If you were a Canadian, you wouldput yours outside quotation marks. Ichabodwill use whichever placement conforms to hisexperience. But one thing is certain: as readers,when we see a number at the beginning of a sen-tence, all three of us expect that number to bespelled.

In addition to the information just discussed, con-trary facts were to hand in Clarity 49 and 50 toindicate a more complex linguistic setting. More-over, why does Richard tolerate a Canadian placingperiods in a different position but not Singaporeansplacing figures in new positions? Why does heassume that everyone will react negatively ratherthan see the advantages in another option andadopt it? There is the evidence from practitionersof plain legal language and members of the publicthat many welcome enthusiastically change fromlegalese. And an American should not doubt theadaptability of a community given the readiness ofso many in his own to adopt Noah Webster’s inno-vations.

We need to step outside our own group if we are tomake reliable and realistic observations on thecommunity’s usage and conduct.

Blind spots

We are all likely to have blind spots on language.We usually acquire them as students or young writ-ers. A teacher requires different from, a law lecturerinsists on the spelling judgment, a publisher holdsthat a sentence cannot end with a preposition orthat some numbers must be presented as words ina certain context. We conform out of respect, or toavoid penalties, or to have our articles published.Over time we lose sight of the fact that as languagethese items are only arbitrary, and therefore mutable,signs. They take on the status of unbreakable lawsand unthinkingly we come to accept them as marksof the literate person. We then feel the need to resistany proposed change as a lowering of standardsand as a threat to what we have (wrongly) come tohold as cultured.

A classic example is program. This was the acceptedspelling from the time the word was introduced intothe language until the early 19th century when theBritish adopted programme from the French. In recentdecades there has been a trend to return to the his-toric spelling, which has been resisted by some“educated” people ironically in the belief that theyare preserving the pure spelling.

Another example is the presentation of dates. Begin-ning with words, the fourth of May, we abbreviated tohalf-and-half ordinals, 4th May, and then reducedfurther to the stark 4 May. That we can also haveMay 4 further reflects the mutability of the convention.

None of this implies that we must rush to embraceany change that appears on the scene but it doesmean that in the environment of change we mustexercise rigorous thinking and suppress falsenotions of what is correct and what it means to beliterate. It is always well to remember that many ofthe forms that we use today without qualms, suchas it’s me and ice cream, were heavily criticised by the“purists” of yesteryear.

Convention or principle

We reach its true objective when we have used lan-guage to enlighten others. There is always a dangerin seeking to maintain a convention that we losesight of our audience and ignore the more criticalprinciple that language was made for man, not manfor language, to adapt a saying of Jesus Christ. It isthis principle that moved us in plain language tobring the audience back into the centre of the stage,insisting that its rights to understand were para-mount and that clarity was as important as precision.This principle constrained us to reject the time-honoured convention of lawyers that exceptionshad to be expressed with the main proposition, thusproducing inordinately long sentences. It impelledus to challenge the notion of settled terms. It is thisprinciple that guides us in striving to produce docu-ments that readers can comprehend—and with thegreatest ease to them.

© R Eagleson [email protected]

Dr Robert Eagleson is aplain language consultantin Sydney, Australia.While Professor of EnglishLanguage at the Univer-sity of Sydney he pursuedresearch in usage,sociolinguistics, grammar,lexicology, plain languageand writing


Salome Flores Sierra

Plain Language project leader

Since President Vicente Fox took office in December2000, the Mexican Government has actively encouragedreinvention and implemented innovative practices ineach of its institutions. These efforts have demanded notonly a radical transformation of traditional schemesof public management but the establishment of a newculture where public servants face their government workwith a renewed positive attitude.

As part of the Better Regulated Government mandate,one of the six strategies of Mexico’s Good GovernmentAgenda, the Government of Mexico launched theLenguaje Ciudadano initiative (Citizen’s Language) onOctober 4th, 2004.

This interview with the Deputy Secretary of PublicAdministration, Jesús Mesta (JM), and GeneralDirector for Better Regulation, Carlos Valdovinos(CV)—leaders of the Plain Language initiative inMexico—will explain this project as part of the gov-ernment-wide strategy to transform it into a citizen-driven institution which will help Mexicans get agovernment that operates the way they want it to work.

Mr. Mesta, could you explain the overallstrategy in which Plain Language insertsitself?

JM: With President Vicente Fox’s election in 2000,Mexico joined more than 40 countries world-widewho are focusing on public sector reform based onthe following principles:

• improve competitiveness,

• enhance accountability,

• restore citizen trust in government, and

• reduce deficits.

This reform is being institutionalized by the Minis-try of Public Administration and is orchestratedaround the Good Government Agenda. The Agendais based on successful performance managementstrategies and international best practices.

The President’s Agenda for Good Government isthis administration’s commitment to create a gov-ernment that is responsive to citizens and focusedon results. Its six strategies are:

• Government that costs less: Direct spending toprograms that benefit citizens like health andeducation while reducing program overheadexpenditures.

• Quality government: Satisfy or exceed citizenexpectations of the services delivered to them.

• Professional government: Attract, develop andretain the best women and men in civil service;we passed the first ever Civil Service Law.

• Digital government: Enable citizens to accessgovernment information and services from thecomfort of their homes or offices.

• Better regulated government: Guarantee thatcitizens and public servants can complete theirbusiness easily, securely and quickly.

• Honest and transparent government: Restoresociety’s trust in government; we have now aFreedom of information Law which ensures thatsociety and media access government records.

The Agenda for Good Government is being imple-mented by teams in every federal agency through aseries of management networks led by the AssistantSecretaries for Management and Budget in eachCabinet Department. The Office of Innovation in thePresidency is responsible for coordinating andtracking the networks’ results. In addition, eachCabinet Secretary has incorporated performancetargets for the Agenda in their Performance Agree-ments with the President.

Since Government Innovation refers to a cultural

Citizen’s LanguagePlain Language in Mexico

Jesús Mesta (front) and Carlos Valdovinos (rear),leaders of the Plain Language initiative in Mexico


and structural movement that aims to improve theorientation, the capacity, and the strategic responseof public administration, restructuring everythingfrom multiple perspectives, Plain Language is anideal tool to help public servants embrace the cul-tural shift that is needed to change governmentservices into citizen-oriented services.

What kind of steps has the Government ofMexico taken to improve communicationwith the citizens?

CV: Our final objective is to improve productivityand competitiveness by ensuring that citizens andcivil servants carry out transactions easily, securelyand quickly. Plain Language as part of the BetterRegulated Government strategy is one of the mostimportant initiatives we have to accomplish this.Other tools the Government of Mexico has developed:

• Developed <www.normateca.gob.mx> the one-stop portal for government regulations. So far,25% of regulations have been eliminated and theportal receives 20,000 visits monthly.

• Established a moratorium on regulations until 2005.

• Created the Rapid Business Opening System(SARE); with it small businesses can startoperations within 72 hours.

• Eliminated conflicting requirements betweenagencies by standardizing regulations.

The next step is to rewrite all instructions and regu-lations affecting citizens in Citizen Language. Itsprime directive is to redesign all communications tomeet the reader’s needs. This does not mean to maketechnical language simple, but to adapt the lan-guage to the reader and so, elevate the level ofcompetitiveness.

How do you plan to get the Plain Languageinitiative implemented?

CV: We have discovered that bringing internationalexperts, who have been involved in developing suc-cessful Plain Language strategies in their owncountries before, to explain their model to Mexicansis the first step towards awareness and change.That’s the reason for the October 4th internationalconference that will launch this initiative. A Span-ish language expert, Daniel Cassany, will come andexplain the cost of written language in public orga-nizations. Barbro Ehrenberg-Sundin from Sweden;Maggie St. John from Plain Language Commission,UK; Annetta Cheek from the US; and RobertEagleson from Australia will participate in a panelto present the model they have used in each of theircountries and discuss their successes and chal-lenges. We expect that by the end of that weekMexican public servants will know what CitizenLanguage is and the important cultural changeneeded to improve government’s written communi-cation will begin.

This is the most recent step in a three-year strategyto reform internal regulations and the first one inchanging government—citizen communication.

What are the next steps in the CitizenLanguage strategy?

CV: As we mentioned before, the first step is to getpublic servants to grasp the importance of languagein government communication to citizens. Weunderstand Plain Language as a tool for elevatingMexico’s competitiveness, as it has been proven inevery country where a Plain Language initiative hasbeen implemented. Better-written communicationsmeans that citizens invest less time trying to under-stand what the government requires from them toprovide services; administrative costs go down, effi-ciency comes up and in the end we have aGovernment that serves the citizen better.

Our second objective is to train the people in chargeof developing communication materials and writingregulations on how to write Plain Spanish docu-ments. For this reason we have come up with aseries of materials they will be able to take home onthe day of the launch. We are developing a manual,based on international guides and Mexican needs;a one-stop website with international best practices,and a series of workshops.

JM: In November, the Presidency holds its annualNational Week of Innovation and Quality and aspart of it there will be a Citizen Language Workshopfor 100 high-level public servants. We will also holda “train the trainers” workshop to institutionalizethe cultural change.

Where can we get more information?

CV: By October 4th, we will launch the Citizen Lan-guage web site <www.lenguajeciudadano.gob.mx>,which will include all material developed for thestrategy and references to international Plain Lan-guage web sites. You can also get more informationfrom us at [email protected].

© S Flores Sierra [email protected]

Salome Flores Sierra isproject leader of the PlainLanguage Initiative inMexico. She has a Mastersin Public Administrationfrom the University ofCanberra and has beeninvolved in differentprojects for better regula-tion in her currentposition at the Ministry ofPublic Administration.


Exploring meaningsExploring meaningsExploring meaningsExploring meaningsExploring meanings

of plain languageof plain languageof plain languageof plain languageof plain language

Christine Mowat

Plain language philosopher, Edmonton, Canada

In spring 2004, members of Plain Language AssociationInternational (PLAIN) listserv vigorously discussedDouglas Aoki’s Harvard Educational Review article1.Aoki sharply criticized the idea that the teacher’s roleis to translate complex materials into plain language.The PLAIN discussion, in its defence of plain language,mocked postmodernist theory in general and Aoki’sarticle in particular.

Intrigued by the seemingly outrageous contention that“a love of clear writing turns out to be a hatred of lan-guage”, I began my intellectual dance with Aoki andLacan’s theory. I wrote the paper below for the listserv,as it describes that dance.

Reactions to the paper varied dramatically. One personargued that, no matter how atrocious Aoki’s writing, Iwas determined to find some justification for it. Anotherwrote that a reasoned attempt to find value in difficultacademic discourse was the gentler and more reflectiveresponse to it.

This response to a request that we look at the Aokiarticle is both late and long. Don’t read it if you arenot interested in thinking about the philosophyunderlying plain language.

Despite its complexity—even density—and oftenseemingly purposeful obfuscation, Aoki’s articleraises a number of theoretical questions for those ofus who call ourselves plain language specialists.Better the enemy you know than the one you don’tknow, I say. And, I’m not even sure Aoki is anenemy. Astonishingly, I found parts of his articlewell written, some engaging because of image-evoking comparisons, and some, dramatic and pas-sionate. I found other parts head-achingly difficult.

I should tell you something about my own back-ground, and the way I read the article, because I amclearly at odds with the responses to Aoki on thelistserv so far.

I often work in plain language at the level of white-collar literacy, that is, I am not usually trying towrite at a grade 5 or 6 reading level. Years ago, Ispent four undergraduate years studying philoso-phy. Perhaps that’s why I have more tolerance for

Aoki’s writing. There were 12 of us in honours phi-losophy, and we devoted a whole year to Kant’s Critiqueof Pure Reason. For me, that year invoked a fear ofmisunderstanding, the hardest and most passionatethinking I’ve ever done, and intellectual delight.

So when Aoki writes (on page 9):

I am not arguing against clear writing, norchampioning a ludicrous ejection of plain lan-guage from sociology, education or the academyin general. Rather, I am contending that claritycannot escape difficulty, that the thing neverspeaks for itself, and that texts [such as]Lacan’s, which do not disguise that immanentdifficulty . . . but confront the reader directly [as]crucial to thinking . . .

I felt relieved. But let me go back to the beginning.

Creating context—is it part of the plain language process?

Aoki opens with a story of a family who would playa parlour game reading academic sentences out ofcontext and then bursting into laughter. Aoki callsthis radical decontextualization. His point, I believe,is that without a broader knowledge of the scholar-ship (or context) from which the sentence wasgenerated, we may judge too quickly, facilely, and soinappropriately. (And that is why a subject special-ist is so important to a plain language rewritingteam, for example, one tackling the rewrite of a mort-gage or securities legislation.)

Ways of reading unfamiliar text

Let me add another two of my reading biases. Thefirst is that I do not always consider jargon as pejo-rative. (Indeed, Aoki uses Lacan’s jargon often.) Mynewest Oxford English Dictionary (1998) definition ofjargon is “(a) special words or expressions used by aparticular profession or group that are difficult forothers to understand and (b) a strange, outlandish,or barbarous language”. The first meaning may bewhat Aoki suggests though he quotes critics ofLacan as denoting (b).

I understand that Aoki (and Lacan) enjoy respectfrom within a restricted postmodernist linguisticcommunity. Even a reader outside the deconstruct-ionist camp, however, can appreciate some of Aoki’sarguments. The writing, with its insider jargon, isclearly not aimed at the public. To mock it, espe-cially by extracting isolated sentences, does no goodfor our plain language cause. (Having said that, Ithink Aoki misrepresents the complexity of plainlanguage and certainly produces more than hisshare of impenetrable prose.)

The second bias, or perhaps perspective is a betterword here, comes from a background in teachingreading to professionals—for those in universityexecutive development programs, for example. I try


to read in stages. In the first stage, I am a friendof the writer. I try to understand the content andwelcome the challenge of new ideas and language.

With Aoki, that was a real struggle.

I admit I found myself marching through paragraphs,underlining and bolding furiously; scribbling notes,premature rebuttals and retorts; expostulating, pos-ing questions and drawing arrows to indicate whatI thought were contradictions. I read and reread. Ijumped paragraphs that were nonsensical andturned to read the conclusion before finishing therest. Then I went back and stroked out what I feltwas extraneous to what mattered to me as a plainlanguage specialist. That included the long sectionon safety and the analysis of fraudulent scholars,fascinating though those were.

I read all the notes in order as I re-read, and thoughthey were not all clear to a non-sociologist outsider,they often gave me a helpful context. Then I wentback and critically analysed what interested me.

We know readers choose to read materials with thepolitical and values biases that support what theybelieve. This article of Aoki’s seemed initially to beantithetical to everything I believe.

Surprises—treasures as well asoutcasts among the verbiage

But I was surprised at the results of my reading.Here is what I found:

1. I agree that dense intertextual referencesdemand a familiarity (Aoki calls it fluency)with theory and that theorists in a disciplinesuch as sociology live, work, and think inwhat he calls a “certain social-theoretical sub-culture”. Does that mean we cannot use plainlanguage to make this knowledge accessible toothers? Aoki thinks not because of his restric-tive meaning of plain language and its relationto what he calls “the art of teaching” (simplify-ing and making meaning accessible to all) asopposed to “teaching” (more ethical in hisview).

The ethical form of teaching Aoki prescribesforces the reader-learner (and presumably theprofessor) to face the “thing in itself”, the origi-nal verbal formulation of complex ideas. I’mnot sure that opposing these two ways ofteaching is helpful. Aoki never does explainhow he actually teaches. (Surely he does notjust parrot-like quote Lacan? Since he seems topassively box himself into a corner confronting“the thing in itself”, plain language seems tooffer a commonsense way out, both for learnerand lecturer.) And the type of clarity, facilita-tion, and precision involved in the quality of

plain language translation we plain languagespecialists espouse rebuts Aoki’s narrow viewof translation.

I discovered that both Aoki’s notes, and differ-ent ways of saying the same thing withexamples, helped give me context for his com-plex arguments. Though Aoki restricts hisdefinition of putting complexity into plain lan-guage to translating, I believe that contextual-izing is another aspect of the plain languageprocess. I had not thought specifically of thattheoretical level to our work.

2. I agree with Aoki that plain language is itselfultimately not plain. We know when we havewritten or rewritten something well in plainlanguage. But, define and explain as we might,we cannot exactly describe just what we havedone. The whole process is greater than theanalysis into steps, and we know it. But wecan come pretty darn close. And maybe thatideal is happily beyond us. We do know, how-ever, that we need to think more aboutclarifying, and publicizing, our multi-disci-plinary field of plain language.

3. I agree with Aoki that “a child learning a newword is an archetype—perhaps the archetype—for education . . . For parents, an infant’s firstword is nothing short of miraculous”. It is mar-velous to learn a new term, even now. (Whilereading Aoki, I learned several new words.)He says Lacan believes the entry into language“is the very accession to being human”. (Plainlanguage translation: Language is what makesus human.)

But his next jump is to suggest that repudiatingjargon is the opposite, what he passionatelycalls “the outraged refusal of the word”! Well,if eliminating jargon means missing the pointof the complexity and originality of its author,means that the essential meaning is violated,means that the richness of ideas is watereddown, and strained to a skeletal representationof its full-bodied self, then that is not what I orother plain language specialists mean bytranslating into plain language. And to set upthis kind of straw figure and knock it down isunhelpful.

4. I agree that a large part of plain language re-writing is translating. But not if we acceptAoki’s meaning of translation. If I have it right,he argues that translation implies a loss ofmeaning, complexity and rhetorical style. Hisdiscussion rests on a bipolar view of teachingand language. Below I show the polarities hesuggests:


Aoki has given his own “plain language” definitionof plain language. And it does not match my view ofwhat plain language rewriting entails. But hisanalysis reminds us of what we don’t want!

To plain language specialists, translating into plainlanguage means, among other things:

• Replacing abstraction with examples andconcrete language.

• Augmenting material that is too skeletal.

• Removing ambiguity.

• Tightening and making more graceful syntacticalstructures.

• Producing sentence architecture, lengths, andfonts that are easier and quicker to read.

• Reorganizing so readers can easily find keyinformation, and designing documents to makekey content or emphasis obvious.

• Writing for our readers.

• Replacing vocabulary with words that mean thesame as the original but “saying it better”.

• Eliminating verbosity, tautologies, redundancies,repetitions.

• Mirroring the meaning as much as is necessarygiven our writing purposes and audiences. Thisincludes recasting complex ideas in similar forms(given the immense flexibility of English and arecognition that we never say exactly the samething with two different sets of words, nor dowe claim that any two putative synonyms mean

Aoki , Lacan, and others believe in:

The rigour of technical vocabulary andthe danger of an easy and readable style.

Sheer inaccessibility: Lacan prefers to“be difficult” and the only way in or outof his text “will be anything but plain”.

Clarity that is too frequently a name forfantasy. Clarity is not innocent, but violent.

Plain language as seductive because of“instantaneous (though implied superficial)uptake”. Yet that very “velocity” is suspectbecause it minimizes.

Plain language as an activity that simplifies,abandons, displaces and extracts from com-plexity. Language is reduced to instrumentalcommunication.

Plain language translation as a materialreductive activity. (I think he means makingabstract instead of maintaining thecomplexity’s concreteness. Or he could meansignificant reduction?)

The phrase, “given enough time” makingthe statement irrefutable and creating anabsolutist statement.

The more one faces difficult terms, the morethey slip into “ever-increasing complexityand elusiveness” (p.4).

Plain language makes everyone think alikebecause everyone uses reductionist common-place language. “If everyone is thinkingalike, only one person is thinking.”

Plain language sociologists believe in(from Aoki’s perspective):

Clear, simple language.

Meeting the consumer demand for languagethat is accessible. Aoki says the result is a“reconfiguring” of the university as a businesswith students as clients.

The “art of teaching”, a diminished role thatonly encompasses translating complex ideasinto plain language.

Materialistic professional standards(knowledge is objectified).

Refusing jargon for the sake of clarity andaccessibility.

Championing plain language for its populism.But Aoki sees this as a radical change—complexity fades to sketchy and commonplace.

Given enough time, translating even the mostcomplex ideas into plain language.

Teaching difficult terms in “other” language.

A refusal to teach.

Exploring meanings of plain language(continued)


exactly the same thing—or we wouldn’t have twowords!).

• Choosing analogies and image-evoking wordsand phrases for interest, for persuasion, and fortheir mnemonic effects.

• Improving grammar, spelling, punctuation,layout, and design.

Aoki himself uses most of these strategies to articu-late his own arguments. He frequently usesexamples and selective quotations to help glue hisarguments together. (If fellow sociologists are notinveigled into reading Lacanian materials as henotes, he could consider trying translating intoplain language in the sense in which we plainlanguage specialists mean it!)

Some disagreements withAoki’s approach to plain language

He oversimplifies the concept of teaching and circum-scribes it in an unnatural manner. The assumption thatteaching is only translation is absurd. If the “art ofteaching” is translating complex ideas into plainlanguage, plain language teachers do far, far more,as illustrated above. Such a view postulates a mug-and-jug theory of teaching with the teacher beingthe jug full of knowledge and the student the mug tobe filled up. That view was upended 35 years ago.(But the view that Aoki purportedly aspires to inhis teaching, focusing on developing thinkers, notstudents who mimic easily digestible content, is oneI’m sure most of us agree with.)

The view Aoki ascribes to Lacan, that learning neverstops, that the process of learning, retranslating,constant rereading, reinterpreting, and rewriting,is not at odds with using plain language to discusscomplex ideas. It is as if Aoki thinks of complexideas holistically, as if they were so bound-aboutand integrated and like Platonic ideals, that tryingto participate in unfolding them were a childish andhopeless activity.

He says complex ideas can only be understood in theirown form as things in themselves. This line of reason-ing leads us to a reductio ad absurdum (I can’t helpmyself!). How can we ever know the other then? Itlands us in the swamps of solipsism, the theory thatwe can only know anything subjectively, and thatthere is no objectivity in the act of knowing.

Forgive me: I’m back to Kant and his architectonic(theoretical model). Kant developed a model forknowledge that posited both an objective and a sub-jective element for every act of knowing. He set thestage for emphasizing the learning as much as theteaching, and the learner as much as the lecturer. Sodoes plain language. The “slippage” that Aoki andLacan refer to from language and learning, fromrefining and clarifying and, to extrapolate, between

plain language drafts, focus groups, and collabora-tive writers, is the same for us plain language folksas for Aoki, I believe.

Yet we differ here, too. We do not demand a correspon-dence between complex language and complex ideas as hedoes. Or if we do, we decide to retain words such assecurities in securities commission documents, orarchitectonic as above, or selected terms of art in legaldocuments, by adding explanations, examples,analogies, or visuals. This is not arrogance or toshow we are more intelligent: it is the appropriateuse of specialized language.

When Aoki says the teaching of sociology is notabout the immaculate transmission of objects ofknowledge, I clap loudly. But using plain languageto clarify is not to objectify knowledge of disciplines.The teaching of any academic discipline is about theprocess of thinking within a new linguistic culture.So, too, with plain language. Perhaps Aoki woulddo well to learn more about what our plain lan-guage socio-linguistic culture entails. Perhaps wewill one day have our own academy?

Plain language requires an intellectual effort thatopens worlds to others. Sometimes plain languageis complex or sophisticated. But readers bring theirown experience and background to each plain lan-guage reading task. Plain language means we trynot to exclude even the most complex of disciplinesor texts for those who want to work at understand-ing them. It does not mean we squeeze out theiressence, complexity, or individuality.

By focusing on one misleading category of plainlanguage, Aoki distorts and mocks what I think hedoes not understand—ironically the complexity ofthe plain language process.

How can summarizing be a part ofgood plain language writing?

Another part of plain language writing is the abilityto summarize a document. There is a differencebetween an academic abstract and an executivesummary. In business writing literature, the latteracts as a bouillon cube, sucking up the essence fromthe whole document and giving essential specifics.

An abstract, however, as in Aoki’s article, remainsat the level it suggests—abstract. The editor at theHarvard Educational Review who wrote this one forAoki’s article did not step down from that abstractlevel. The abstract did not explain why in his tech-nical language, Aoki said that clear writingthreatens both teaching and the university as aninstitution. Documents written for business, govern-ment, or the public, however, demand informativesummaries, not abstracts.


Some objections and appreciation

I object to the way Aoki makes Lacan into a Godwhose writing is complexly inaccessible, yet perfect;full of elitist jargon that he either doesn’t define orfor which he gives contradictory definitions, yet ad-mirably profound; and so desirable as a thing-in-itself that, once mastered, a scholar overcomes her orhis insecurities about being an academic impostor.

And I object to, and okay, in a way admire, Aoki’splaying with language and so playing with thereader’s sense of expectation of how words willbe used to make sense. Examples include:

• “the exclusions and treacheries of clearlanguage”,

• “terribly ugly, seemingly clear texts, and terriblybeautiful, manifestly difficult ones”, and

• “the problem with Lacan’s texts: they are full oflanguage that refuses to disappear into its ownmeaning, full of language that refuses to annihi-late itself”.

Such paradoxes obviously frustrate rather thanamuse most outside, or even fellow sociologist,readers. But viewed as ways to imaginatively andinterestingly make his points, Aoki’s intellectualword puzzles may entertain as well as instruct.

Writers such as Aoki write complex, abstract, ana-lytic arguments. I have read economists’ papers orpolicy tomes that exact the same kind of time-and-energy-consuming effort to read. Sometimeslearning is translating—or putting into familiarwords or our own words (personal plain language)what another has written—to make sense of it. Yes,something may be lost in the translation, but that isbetter than not getting it at all. I’m guilty of a lot ofthat in this response.

Aoki’s paper is not written for the public, or even forplain language specialists. So his claim that the loveof clear writing turns out to be a hatred of languagemay sound comical and contradictory to us. Butwhen inserte into a certain sociological community’sacademic stream, a stream whose historical contextis fed by years of dialogue and intellectual analysison related topics, Aoki’s thesis is provocative.

Some conclusions

Even with the discipline-specific language that Aokiuses, an outsider like me can be appalled at thethought of “dumbing down” curriculum to meet thefactory-like conditions in a university environmentthat Aoki fears. His deliberations alert me to theneed for constant vigilance in defining and describ-ing our plain language practices and in explainingand illustrating excellent plain language documents.

Reading Aoki reminds me of the chameleon-likenature of the term, plain language. On this listserv,I believe we sometimes give too much time to read-ability and grade-level research discussions. Plainlanguage is an adventurous traveler with eclecticinterests. It draws on research in linguistics andpsycholinguistics, the composing process, reading,literacy, design, typology and layout, client testing,grammar, punctuation, rhetoric, words—to name afew. It travels internationally and pokes a head intolearning centres from universities to public schools,from hospitals to petroleum companies, from securi-ties to human rights commissions.

Though still banging insistently and unsuccessfullyat the doors of some law firms, plain language has,I believe, been more consistently welcomed by gov-ernment justice departments. It finds both comfort-able and uneasy places at various levels of govern-ment. Plain language wedges its way into bureau-cratic, legal, and institutional contexts and gathersaround it social language protesters. Plain languageconsistently confronts the inequities that result fromclosed and elitist language. We know that plain lan-guage is a human rights issue.

Aoki’s paper is academic. Some may argue that hiswriting is inexcusably badly written from a plainlanguage perspective. The paper makes me wonderif some writing is inappropriate for us to barge in to.But barge I have. And so enjoyed the walk . . .

© C Mowat [email protected]

1 “The Thing Never Speaks for Itself: Lacan and thePedagogical Politics of Clarity”, Vol. 7, No 3. Fall2000, ISNOO10-8055. Also see<www.quasar.ualberta.ca/cpin/cpinfolder/papers/Dougpaper.htm>.

A former English teacherin England and Kenya,Christine Mowat, B.A.(Hons.), M.A., has runWordsmith AssociatesCommunications Consult-ants Ltd., a plain languageconsultancy, for 24 years.She has 10 instructors inthree Canadian cities, andwrites, researches, trainsinstructors and teaches,and creates plain languagecurricula. Her passion isto bring the gentle butdetermined plain languagerevolution into law.Carswell published her book, A Plain Language Handbookfor Legal Writers in 1999. Christine’s work encompassesgovernment; executive management programs and universi-ties; securities commissions; law firms; insurance, health,environment, engineering, petroleum, and technical contexts;and auditors and accountants.

Exploring meanings of plain language(continued)


LegislativLegislativLegislativLegislativLegislative drafe drafe drafe drafe draftingtingtingtingtingin perspectivein perspectivein perspectivein perspectivein perspectiveA report from the CIAJ conferenceA report from the CIAJ conferenceA report from the CIAJ conferenceA report from the CIAJ conferenceA report from the CIAJ conferencein Ottawa, September 9-10, 2004in Ottawa, September 9-10, 2004in Ottawa, September 9-10, 2004in Ottawa, September 9-10, 2004in Ottawa, September 9-10, 2004

The Canadian Institute for the Administration ofJustice aims to improve and advance the adminis-tration of justice by working with the legal draftingcommunity. Its legal drafting conferences are asource of continuing legal education for the legisla-tive drafting community across Canada. Its latestconference on the topic was held in Ottawa(Canada), from September 9-10, 2004. It welcomedover 100 particpants.

Ethics and drafting

As in previous conferences, this Ottawa meetingcombined the theoretical aspects of legislative draft-ing and its related issues with a more hands-onpractical approach. This year’s event opened withthe topical session: “Ethics and drafting”. The par-ticipants studied the ethical rules and values legis-lative drafters must now follow as members of a pro-fession, as well as their pitfalls. Case studiesallowed the drafters to see the importance of recog-nizing an ethical problem when it arises, and takingthe appropriate steps to solve it.

How do drafters learn?

Professional development was among the relatedissues presented to academics and governmentcounsel at the conference. Recent studies haveexamined how professionals learn within a commu-nity of practice, moving from novice to expert. Apanel dealt with the current trends in educatingprofessionals and discussed some of the implica-tions for legislative drafting offices.

The role of the interpreters of law

Apart from the ethical and professional aspects, theCIAJ conference usually highlights the role of the var-ious other participants in the legal process, includingthe interpreters of the law. One conference sessionasked: how do those responsible for interpreting thelaw see the role of the legislative counsel? Perspec-tives from a judge, a politician and a regulator werepresented as to the necessary qualities of a good‘drafter’, and the importance of these qualities for thewritten law and legislative interpretation.

Is the medium still the message?

As part of the technical training offered for the legis-lative drafter, the conference featured the importance

of information design and questioned whether “Themedium is still the message”. Expert panellists illus-trated in a very persuasive way how informationdesign matters, and how it could—and should—apply to legislative texts. Through a series of goodand not-so-good examples, as well as rewrites andpractical tips for better structuring ideas in a legisla-tive text, the experts demonstrated how down-to-earthinformation design can be, and how relevant MarshallMcLuhan’s statement is nowadays, after nearly 40 years.

Master class & comparative exercise

A master class showcased expert drafting in theCanadian legislative context. A comparative exercisethen demonstrated the bilingual and bijural natureof the Canadian legal system. What elements arecommon to all good legislation? How much room isthere for individuality in drafting? Four expert draft-ers answered these and other questions by presentingtheir revisions to a base text definitely in need ofimprovement. One English common law drafter andone French civil law drafter drafted independently,while one English and one French drafter worked asa team.

Best practices workshop

This session ended with a workshop on draftingtechniques and the best practices to communicatethe law. Participants had been assigned to threegroups: two English-speaking and one French-speaking. Based on examples given earlier toparticipants, each group analysed the drafting tech-niques used to better communicate the law. Theexpert drafters who led the groups offered a theoreti-cal context in both languages and legal systems.They dealt with stylistic choices, including generalvs. specific, text structure and organization and ref-erence techniques. The audience was invited to reactand make suggestions—and justify them. As acomplement to the workshops, there was a writingtools exhibitors showcase. As in previous confer-ences, this provided the opportunity to discoversome of the leading edge software and linguisticproducts that are used in the modern technology-oriented drafting environment.

The last word

The conference ended quite aptly on the followingissue: “Who has the last word on legislative inter-pretation?” Courts accord varying levels of defer-ence to administrative agencies and governmentdepartments that interpret or apply legislation. Howshould drafters take into account their interpretiveroles and the potential for multiple interpretations?This session challenged the assumption that judgesare the most important interpreters of legislativetexts. Over the past 25 years, Canadian courts have

(continued on page 50)


Official languages:French and EnglishOrganised under the auspices of CERCLE, équipeVolTer (Vocabulaire, Lexique et Terminologie) and ofLARJ (Laboratoire de Recherches Juridiques)—Université du Littoral Côte d’Opale, in collaborationwith Clarity.

Organising committee

Co-chairs

Anne WagnerMaître de Conférences,Université du Littoral Côte d’OpaleFrance

Professor Joseph KimblePresident and Membership Secretary of ClarityThomas M. Cooley Law SchoolUSA

Members

Nicole FernbachJurilinguistJuricom, Inc® andCentre International de Lisibilité, Inc®Canada

Francesca QuintBarrister, Statute Law Society and 11 Old SquareUnited Kingdom

Prof. Pierre-André LecocqUniversité de Lille IIFrance

Conference secretariatCatherine Wadoux and Monique Random17, rue du Puits d’AmourB.P. 75162321 Boulogne-sur-Mer CédexTel: +33 (0) 3 21 99 43 00Fax: +33 (0) 3 21 99 43 91Email: [email protected]

Webmaster

Samuel Adam

Conference website<www.univ-littoral.fr/confinter2.htm>

Program committee

Co-chairs

Anne WagnerMaître de ConférencesFrance

and

Nicole FernbachJurilinguist, Centre International de Lisibilité® Canada

Members

• Olivier CartonUniversité du Littoral Côte d’OpaleFrance

• Ross CharnockUniversité Paris 9 DauphineFrance

• Jan EngbergAarhus School of BusinessDenmark

• Sophie CacciaguidiUniversity of GalwayIreland

• Lawrence SolanBrooklyn Law SchoolUSA

• Maurizio GottiUniversity of Bergamo and CERLISItaly

• Vijay K. BhatiaCity University of Hong Kong and GILD MMCHong Kong

International Conference

Clarity and Obscurity in Legal Language

5 - 9 July, 2005Boulogne-sur-Mer (France)

Université du Littoral Côte d’Opale


• Master classes in English and French

• Writing the law in plain language

For the USA, the Commonwealth, and otherEnglish-speaking jurisdictions (common law)

This will be an extended hands-on session. Apanel of 4 or 5 experts will present some docu-ments and explain their approach to drafting.Some of the documents will be available on theconference website before the conference, so every-one can review and rewrite them.

º Writing the law in plain French

º Bilingual or multilingual law andthe search for clarity

Again, this will be a hands-on workshop.Legislative drafters from France, Canada,Switzerland, Belgium, etc will work on exer-cises and examples.

Thursday, July 7• Keynote speech

• Fuzziness in legal language

• Readability in European institutions

• The clarity tool box: technologyand access to law

• Plain language in the judicial context

• Plain language in civil law jurisdictions(French-speaking and other)

• Professional development of legal writers &drafters

Friday, July 8• Keynote speech

• From plain English to plain languages:a multilingual effort

• Plain language in the multidisciplinarycontext

• The past and future of plain language, or plainlanguages

An extended session in which panelists fromaround the world will discuss activities in theircountries

• How to make clarity mainstream: overcomingthe obstacles to plain language

• Wrap-up by English-speaking andFrench-speaking speakers

Gala dinnerTo be held on Thursday evening. Cost included inregistration.

• Danièle BourcierCNRS Paris IIFrance

• Lionel LevertDepartment of JusticeCanada

• Stefania Dragone-BirocchiEuropean CommissionBelgium

• William LutzRutgers UniversityUSA

• Christopher BalmfordCleardocsAustralia

Boulogne 2005 programThis draft program is subject to changesas the arrangements firm up.

Tuesday, July 5

Registration and opening of the conference

Official introduction by French officials and aca-demics, with the participation of Clarity President,Professor Joseph Kimble, and the HonourableJustice Michael Kirby, High Court of Australia.

Wednesday, July 6Devoted to plain legislative drafting, in Englishand French and in the two major legal systems,common law and civil law.

• Keynote speech

• Writing the law

(one common session for all cultures and lan-guages)

• Writing the law in plain French

For French-speaking jurisdictions (mostly civillaw but also in French common law)


Clarity and Obscurity in Legal Language(continued)

Saturday tourA visit of the surroundings of Boulogne is organisedwith a lunch for all participants. You may see howattractive the region of Côte d’Opale is by visitingthe Website and links:<www.tourisme-boulognesurmer.com>

ProceedingsSpeakers will have submitted their abstracts inEnglish. Papers will be reviewed by a committee forpublication in the conference proceedings. The finaledition should contain a mix of English and Frenchpapers to reflect the bilingual and bijuridical natureof the conference.

In each session, the audience will have a chance toask questions; all debates will be recorded on audiotapes, and a summary will be made and translatedin both languages for the final wrap-up session.

Registration terms• Standard registration fee 250 Euros

Includes luncheons, reception, coffee breaks, galadinner, Saturday tour and lunch, conference pro-ceedings, and a Clarity membership.

• Reduced fee (conference speakers) 180 Euros

Includes luncheons, reception, coffee breaks, galadinner, Saturday tour and lunch, conference pro-ceedings, and a Clarity membership.

• Single-day registration fee 150 Euros

Includes one luncheon, coffee breaks, gala dinner,conference proceedings, and a Clarity member-ship.

• Student fee 100 Euros

Includes conference proceedings and a Claritymembership. Confirmation of student status isrequired.

• Student single-day fee 30 Euros

Includes book of abstracts. Confirmation ofstudent status is required.

• Accompanying person 100 Euros

Includes gala dinner, Saturday tour and lunch.

carved out a role for administrative tribunals andgovernment officials to determine what legislationmeans. They have established standards for review-ing their interpretations. The standards varydepending on the expertise of the interpreter and thesubject matter of the legislation. For example, in thefields of labour law and securities law, the courtswill generally defer to the interpretations of tribu-nals and arbitrators, unless they are “patentlyunreasonable”. This trend challenges the notionthat courts must always arrive at a single “correct”interpretation. It recognizes that, at least in somecircumstances, others may be in a better position todecide what a legislative text means.

For a more complete account of the event, pleasevisit the following site: <www.ciaj-icaj.ca/english/legaldrafters/LegDraftNational04ENG.pdf>.

© N Fernbach [email protected]

Legislative drafting in perspective(continued from page 47)

Conference contact details

Anne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, B.P. 77462327 Boulogne-sur-Mer-CédexFrance

Tel: +33 (0) 3 21 99 41 22Fax: +33 (0) 3 21 99 41 57

Email:

Inquiries, registration andaccommodation forms:

[email protected]

Abstract submission:[email protected]

Website:

<www.univ-littoral.fr/confinter2.htm>


November 3-6, 2005Loews L’Enfant PlazaWashington, DC, USA

Susan Milne, Chair of Plain Language AssociationInternational (PLAIN) reports that plans for theNovember 2005 plain language conference arefirming up.

To quote Joanne Locke, a Washington conferenceorganizer, “The location couldn’t be better. It’s righton the Mall across from the Smithsonian, and rightabove a Metro stop and a large indoor shippingplaza.” A sightseer’s delight.

A call for papers will go out in January 2005, andpaper acceptance will be finalized by the end ofMarch, 2005.

In fact, this conference involves two organizationsthat share the acronym PLAIN. Plain LanguageAssociation International is the sponsor of the con-ference, and the Plain Language Action &Information Network, a volunteer group of U.S.government employees, is the host.

The conference theme is “Adding Up the Benefits.”Presentations will focus on tangible (cash savings,time saved ... ) and intangible (happy customers,informed patients ... ) benefits of plain language.Both PLAIN organizations are keen to have asmany international members attend as possible.We’re working on early-bird rates and we may(I repeat, may...) be able to offer small travel subsidies.

The format will be similar to the 2002 TorontoPLAIN conference. Thursday evening is registra-tion and reception. Friday and Saturday are themain conference workshops and presentations.Friday evening is the banquet night with a keynotespeaker. Sunday morning is the general meeting ofPLAIN (International).

So far no speakers have been confirmed, but wehave big ideas! Al Gore is one.

For more conference information, please go to<plainlanguagenetwork.org/conferences/>,or contact Amy Bunk, Program Chair, [email protected]

Our next guest editoris Catherine Rawson,an Australian lawyerwho has lived andworked on 5 conti-nents, and gets by inas many languages.Her experience incross-cultural commu-nication has shownher that many users ofEnglish as a foreignlanguage can writeclear, readable Englishfree of predictable translation errors with just1-day’s training supported by tailored editing soft-ware. And once confident of the benefits of writingin plain English, many opt to write plainly in theirnative language. They do this because they findwriting plainly isefficient and clients prefer this style.

Clarity No 53 will review plain language usagearound the globe.

Fifth InternationalPLAIN Conference

Next guest editor—Clarity No 53

on the penetration of plain languageprinciples into countries whereEnglish is a foreign language

Clarity No 53 will focus on how users of English asa foreign language are faring. Do they aspire towrite in plain English or are they constrained toadopt an opaque style by tradition, ignorance, habitor translation conventions?

If you are a legal writing consultant, trainer, lawyeror person involved in producing and revising mate-rials for government departments and agencies,businesses and organisations, we’d like to hear ofyour experience in a short article.

Please email the guest editor now with questionsor the topic you plan to write on.

Guest editor: Catherine RawsonEmail: [email protected] deadline: 24 January 2005Article lengths: Either 1,500 or 3,000 words.

Call for articles


From the President

To begin, let me welcome a new member of theClarity Committee—Nicole Fernbach. Nicole is thefounder and owner of Juricom, Inc. a legal-transla-tion agency headquartered in Montreal. She is alsoan accomplished teacher, speaker, and author whohas actively supported and promoted Clarity formany years. She and Anne Wagner have been themain organizers of our conference next July inFrance (more below).

I’d also like to welcome two new country represen-tatives who are replacing the current representativesin South Africa and Singapore. In South Africa,Annelize Nienaber is taking over for Frans Viljoen.Annelize teaches in the Department of LegalHistory, Comparative Law, and Jurisprudence onthe Faculty of Law at the University of Pretoria. Sheand Frans were co-editors of Clarity No 46 and ofthe fine book Plain legal language for a new democracy.In Singapore, Lei-Theng Lim is taking over forHwee-Ying Yeo. Lei-Theng is an experienced practi-tioner, writer, and teacher with a long list ofaccomplishments and awards. Currently, she is onthe Faculty of Law at the National University ofSingapore, where she serves as the deputy directorof the Legal Writing Programme.

On behalf of Clarity, my sincere thanks to FransViljoen and Hwee-Ying Yeo. They are amongClarity’s longest serving representatives, and theyhave helped build our membership in those twocountries. We are grateful for their efforts.

And now for the con-ference in France—thebiggest thing thatClarity has ever done.The Statute Law Soci-ety is also involved inthe planning and pro-motion, as it was forour first conference. Inthis issue, you’ll finda draft program. Ithink you can alreadysee how extraordinarythe conference will be.

We are trying hard for a mix of old and new, practi-cal and academic, different countries, differentdisciplines, and different languages. Anne Wagnerand Nicole Fernbach have already lined up manyleading practitioners, drafters, academics, and gov-ernment officials from around the world—withmany more to come. Clarity’s two patrons, theHonourable Justice Michael Kirby and the RightHonourable Sir Christopher Staughton, have kindlyagreed to participate. And most members of theCommittee, including most of the country represen-tatives, have confirmed that they will attend. Youcan get all the latest information (including a moredetailed draft program) and also register for theconference at the conference website— <www.univ-littoral.fr/confinter2.htm>. You’ll not want to missthese three or four days in the beautiful, seaside cityof Boulogne.

Joe KimbleLansing, MichiganUSA

Australia 118Austria 1Bahamas 2Belgium 4Bermuda 1Brazil 1British Virgin Islands 1British West Indies 4Canada 52Denmark 4England 393France 1Germany 5

Members by countryGran Canaria 1Hong Kong 9India 6Ireland 1Isle of Man 1Israel 2Italy 1Jamaica 1Japan 4Jersey 3Luxembourg 1Malaysia 1Malta 2

Netherlands 4New Zealand 16Scotland 8Singapore 12South Africa 34Spain 2Sweden 12Switzerland 2Thailand 1Trinidad and Tobago 1USA 260Wales 9West Indies 2

Total 983


Elliott on Municipalities

Peter Butt, Sydney, Australia

Do drafters draft with judges in mind? For the“plain language” drafter, the answer is “no”: youdraft for your immediate audience. And so, if youare drafting an agreement, you draft for the partiesto the agreement; if you are drafting a statute, youdraft for those most likely to need to read and applythe statute. But in neither case do you draft prima-rily for the judge before whom (perish the thought)the agreement or statute may come.

Nevertheless, drafters are always relieved to findthat, if the document or statute comes before a judge,then even the judge can understand it! And so itproved in the recent Canadian Supreme Court caseof City of Calgary v United Taxi Drivers’ Fellowship ofSouthern Alberta 2004 SCC 19 (25 March 2004). Atissue was whether the Alberta Municipal Govern-ment Act 1994 authorised municipalities to limit thenumber of taxi plate licences. The Supreme Courtheld unanimously that it did.

Of interest to Clarity members is the Court’s assess-ment of the statute. In the words of the Court, thestatute “follows the modern method of draftingmunicipal legislation”; it was “in broad and generalterms”, and was to be read with a “broad and pur-posive approach”. The Court also cited otherCanadian municipalities legislation that took thesame approach.

In fact, the first draft of the Alberta statute was doneby one of Clarity’s leading Canadian members,David Elliott. Legend has it that his draft wasrather too radical in its “plainness”, and waswatered down somewhat before enactment.Whether or not that is correct, the draft formed thebasis of local government legislation in New SouthWales. The New South Wales Local GovernmentAct adopted many of Mr Elliott’s drafting innova-tions. One of Clarity’s two judicial patrons, JusticeMichael Kirby, has described the drafting style of theNew South Wales statute as a “paragon in ourmidst”. And the New South Wales style has nowbeen followed in municipality legislation in a num-ber of other Australian jurisdictions.

So let the story be told: the work of a Clarity memberhas helped to radically change the face of key legis-lation in two countries at opposite ends of theworld. David Elliott himself is too self-effacing topublicise the fact—so let me do so in this letter.

Numbers as figures or words?

Alan King, Hertfordshire, England

As an O.A.P. who tends to be a pedantic traditionalistabout English, I agree with those Clarity readerswho dislike the indiscriminate use of figures insteadof words when writing numbers. (N42n8ly, s%n itwll B txt splg 4 all.)* The regular use of figures evi-dences laziness, and an unwillingness to bother toremember the correct spellings of eighth and twelfth,etc. The extra time used by typing numbers as wordsis infinitesimal in relation to the size of the wholedocument.

Often large numbers have to be read aloud, forexample, in Bible reading—see Nehemiah ch.7—orwhen announcing election results. Some people areunable to render ‘105,017’ audibly as ‘one hundredand five thousand and seventeen’, and will just callout the digits—‘one o five o one seven’.

The main argument against using figures is the like-lihood of error. A mistake of one digit in figures ismuch more serious than a typing error of one letterof a word expressing a number. The sum of ‘£1000’typed as ‘£100’ could easily be missed by a personsigning a Will, letter or contract, but ‘one thousand’typed as ‘one hundred’ would be noticed.

Obviously there should be exceptions to every rule,for the sake of clarity, appearance, and commonsense, but I find the trend towards figures quitedisturbing.

* The sentence in the third line is: ‘Unfortunately, soon itwill be text spelling for all.’—Eds

Letters to the editor

Saturday 5 February 2005

At New Square Chambers,12 New Square, Lincoln’s Inn, London,WC2A 3SW

1030 Coffee1100 Meeting1300 End1330 Lunch in local restaurant

(optional—at own cost)

Please let Paul Clark know if you are coming,indicating if you would like to reserve a placefor lunch

Tel: +44 1892 506059Email: [email protected]

A map showing how to get there is availableat <www.newsquarechambers.co.uk/maps.htm>

Clarity annual general meeting


New Members

Australia

Australian Securities &Investments Commission[Ms. Isobel Wilks]New South Wales

Victoria Legal Aid (Library)[Ms. Justine Hyde]Melbourne

Plain English Foundation[Ms. Nicola Robinson]New South Wales

Lindsay ReidMallesons Stephen JaquesSydney

Helen ThompsonSolicitor, MLCNew South Wales

Justine WoodfordAllens Arthur RobinsonMelbourne

Bahamas

Patrick MacKey, AttorneyNassau

Bermuda

Lorraine WelchChief Parliamentary CounselSandys

British Virgin Islands

Benedicta PT SamuelsSamuels Richardson & Co.Tortola

Canada

Legislative Counsel Office[Ms. Linda Petit]Winnipeg

Monique Lacroix, LibrarianDepartment of Justice CanadaOttawa

Diane Pettie, Vice PresidentSempra Energy TradingCalgary

John E.S. PoyserInkster Christie HughesWinnipeg

Ruth Sullivan, Professor of LawUniversity of OttawaOttawa

Sarah ThomsonInformation OfficerPeterborough

England

Derrick Balsom, PartnerOnions & DaviesShropshire

Jamaica

Marlene Nembhard-ParkerSenior Legal CounselLegislation and Treaty ServicesKingston

Japan

Bill Lafferty, TranslatorTokyo

Jersey

David HullLaw Draftsman’s OfficeSaint Helier

New Zealand

James SchererHoffman LawAuckland

South Africa

Annelize NienaberFaculty of LawUniversity of PretoriaPretoria

Sweden

Bengt-Ake Nilsson, JusticeSupreme Administrative CourtStockholm

Trinidad and Tobago

Justice Rolston NelsonHall of JusticePort-of-Spain

United States

Jan Blue, DirectorThe Florida SenateSenate Bill DraftingTallahassee, Florida

Norman Lambert, WriterSt. Louis, Missouri

Dr. Richard LauchmanConsultantLauchman GroupRockville, Maryland

Rebecca LeeWeather TAC CommunicationsWashington, D.C.

Donna LermanUniversity of Southern MaineAugusta, Maine

Jennifer Minkowitz, AttorneyLegal Services for the ElderlyAugusta, Maine

Vickie RainwaterDirector of Legal WritingTexas Wesleyan University School of LawFort Worth, Texas

Jane Siegel, Professor of LawThomas M. Cooley Law SchoolLansing, Michigan

Bill ThimmeschDamascus, Maryland

Marcia WaltersSeattle, Washington

West Indies

Lydia Elliott, Senior DraftspersonCaricom Legislative Drafting FacilitySt. Lucia

Allison IsaacAttorney-General’s ChambersSt. Lucia

Vasunthera NadarajahSenior Legal DraftspersonAttorney-General’s ChambersAnguilla

New members

Country reps wanted

If you are in a country without aClarity country representative andyou would consider taking on the job,please contact Joe Kimble [email protected].


I hope you’ve noticed that this issue of Clarity looksa little different.

In May 2003, Clarity had its first makeover for sometime. Afterwards, we listened to what you had tosay about it, and we were pleased that most reac-tions were positive. But we knew there was stillroom for improvement. So when I took over as edi-tor in chief in July 2003, I did what I tell my clientsto do when it comes to information and documentdesign: I took some professional design advice.

The Clarity you see now is the result of designadvice from Montague Leong Design Pty Limited,a Sydney firm. They helped us to streamline theexisting look, but without changing it so much thatyou wouldn’t recognise it. Among the things theysuggested were:

• changing the way we use white space: adjustingmargins and indents and the like

• slightly adjusting the font size and, more impor-tantly, the leading

• using fewer fonts overall, but making sure ourarticle titles were still distinctive

• using a two-column format for articles, instead ofa combination of two and three columns

• spreading over two pages the contact informationthat used to be crammed onto page 2

• beginning most articles on a new page, preferablya left-hand page

• specifying two new article lengths (1500 and 3000words) that will allow articles to span either twoor four pages

• having more subheadings in articles

• bringing back the photos: we had photos inClarity Nos 42 and 43, but there have not beenany since then

• updating the venerable old Clarity logo—themagnifying glass—by making it a little moreabstract. We erased the handle, and blurred thewords and the border. Instead of magnifying as itdid before, the glass now actually clarifies. Andwe changed the word “Clarity” within the glassfrom all caps, so that it is now the same as it is onthe front page.

There are many other subtle changes that you mayor may not notice. But I hope you’ll agree that we’vetaken the next step towards a more professional-looking publication.

Now we want to dosomething else that I rec-ommend to my clients: totest. We are testing thenew Clarity look on you,the readers. That meanswe want to hear fromyou. What do you think?Can we improve any-thing else? Is thereanything about the newdesign that doesn’t workfor you? Email and tellus. Email me [email protected] and please send acopy to our next guest editor, Catherine Rawson, [email protected].

Finally, I’d like to thank all at Montague LeongDesign Pty Limited for their practical approach togood design on a small budget, and Trish Schuelkein Michigan, who works with me on the technicalside of the production and layout of Clarity. She hasenthusiastically embraced the changes, and reactedto all of my requests and deadlines with patience,grace and good spirits.

While I’m thanking people, I also want to thank allthe guest editors I have worked with as editor inchief so far: Peter Butt, David Elliott, and nowJacquie Harrison and Nittaya Campbell. Therewould be no Clarity without them. They all do aprofessional job, in their “spare” time, simply tosupport the cause of Clarity. And thanks in advanceto Catherine Rawson for what she is about to dowith Clarity No 53.

Michèle M Asprey

Clarity editor in chiefSydney, Australia

Clarity makeover

Patricia Schuelke, whohandles the technical produc-tion and layout of Clarity.


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Complete the application form andsend it with your subscription toyour country representative listedon page 2. If you are in Europeand there is no representative foryour country, send it to theEuropean representative. Other-wise, if there is no representativefor your country, send it to theUSA representative.

Please make all amounts payableto Clarity. (Exception: our Euro-pean representative prefers to bepaid electronically. Please sendher an email for details.) If you aresending your subscription to theUSA representative from outsidethe USA, please send a bankdraft payable in US dollars anddrawn on a US bank; otherwisewe have to pay a conversioncharge that is larger than yoursubscription.

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Your details are kept on a com-puter. By completing this form,you consent to your details beinggiven to other members orinterested non-members but onlyfor purposes connected withClarity’s aims. If you object toeither of these policies, please tellyour country representative. Wedo not give or sell your details toorganisations for their mailinglists.

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Clarity , no. 52, p. 7 - Clarity · PDF file03 21 99 41 22 (fax 21 99 41 57) ......

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