Plain English and Administrative Law

The ‘plain English’ or ‘plain language’ movement has been the pre-eminent influence on legislative drafting over the last 30 years. The movement has promoted the rules of simple writing, the avoidance of traditional forms of expression where they can be expressed more simply, and the use of various aids to understanding. Some participants wish to bring certainty to the law, plain English techniques being seen as a ‘guarantee of communication’. Others simply wish to make legislation easier to understand. How has the movement fared?

Statutory Duties and Discretions

Dr Jeffrey Barnes of La Trobe Law School has examined its effects in a case study concerning the expression of statutory duties and discretions [1]. In relation to the imposition of duties, drafters have used ‘must’ and other ‘plainer’ alternatives to ‘shall’. In relation to the conferral of discretions, two innovations have been taken. Drafters have attempted to impose absolute meanings through amendment of the Interpretation of Legislation Act 1984 (Vic) and the Acts Interpretation Act 1954 (Qld). And they have used more explicit drafting structures to confer a discretion, such as ‘at his or her discretion’ and ‘has a discretion’.

The author considers the extent to which the suggestions have been adopted, how drafters have employed the techniques, and their interpretation. The effects of the changes are not uniform. The study demonstrates the inevitable effect of statutory interpretation. A plain or ordinary English element, once it is inserted in a law, instantly becomes ‘legal English’. The author concludes with the general observation that ‘while plain English elements are not in themselves the guarantee of communication that some advocates have claimed, neither are the innovations the mere window-dressing that some sceptics had opined’.

Biography

Jeffrey Barnes is a graduate of the University of New South Wales, the Australian National University, and La Trobe University. He is a Senior Lecturer, School of Law, La Trobe University.

He is a former co-editor of Legal Education Review and was the inaugural Director of Teaching and Learning in La Trobe Law School.  His teaching and research interests generally lie in the areas of public law, the legislative process, and statutory interpretation. He regularly teaches the subject Principles of Administrative Law and the subject Statutory Interpretation. He also occasionally teaches an elective, Legal Change, Legislation and Law Reform. His research interests currently focus on legislative drafting, statutory interpretation and administrative law. In 2013 he successfully completed a PhD on the plain language movement and legislation.

Apart from his academic work, Dr Barnes has practised law extensively —  as a Legal Officer (legislative drafter) with the Parliamentary Counsel’s Office of NSW; a law reporter for the Australian Law Reports; Associate to Justice Michael Kirby (Chairman of the Australian Law Reform Commission); Law Reform Officer, Australian Law Reform Commission;* solicitor, Stephen Jaques Stone James; Project Officer for the Administrative Review Council; Legal Member, Social Security Appeals Tribunal;* and Consultant for the Australian Capital Territory Parliamentary Counsel’s Office, the Office of Parliamentary Counsel (Cth), and the Council of Australian Law Deans.

[1] Jeffrey Barnes, ‘Duties and Discretions: How Have “Plain English” Legislative Drafting Techniques Fared in Administrative Law?’ (2016) 83 AIAL Forum 36

 

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