Tanner, Edwin --- "Communication Strategies: Understanding The Racial And Religious Tolerance Act 2001 (Vic)" [2003] MelbULawRw 5; (2003) 27(1) Melbourne University Law Review 139

[*] BJuris, LLB (Mon), PhD (Melb), Grad Dip Fam Law, Grad Dip Ed, MACE; Senior Lecturer in Law, Law School, Victoria University; Barrister-at-Law (Vic and NSW). The author wishes to thank Michael Bryan, Kate Burridge, Jean Mulder and Rob McQueen for encouraging him to publish his research, and the referees for their valuable comments.

[1] Samuel Johnson, The Idler (1761) vol 2, 39.

[2] An exception can be found in the writing of former Commonwealth Chief Parliamentary Counsel, Ian Turnbull: see Ian Turnbull, ‘Clear Legislative Drafting: New Approaches in Australia’ (1990) 11 Statute Law Review 161.

[3] George Engle, ‘“Bills Are Made to Pass as Razors Are Made to Sell”: Practical Constraints in the Preparation of Legislation’ (1983) 4 Statute Law Review 7, 14.

[4] Ibid.

[5] Edmund Burke, Reflections on the Revolution in France (12th ed, 1793) 247.

[6] Peter Butt, ‘Plain Language in Property Law: Uses and Abuses’ (1999) 73 Australian Law Journal 807, 808.

[7] Ibid.

[8] Edwin Tanner, ‘The Sanctity of the Single Legal Rule/Single Sentence Structure?’ [2000] MonashULawRw 7; (2000) 26 Monash University Law Review 203.

[9] The LRCV — a statutory corporation — was abolished by the Law Reform Commission (Repeal) Act 1992 (Vic).

[10] LRCV, Plain English and the Law, Report No 9 (1987) app 1. While the Office of the Chief Parliamentary Counsel has a plain English drafting policy, the LRCV Guidelines have not been officially adopted: see Office of the Chief Parliamentary Counsel, Department of Premier and Cabinet (Victoria) Plain English Policy (2003) <http://www.ocpc.vic.gov.au/domino/

web_notes/ocpcweb.nsf/pages/AboutFrameSet>. See also Australian Office of Parliamentary Counsel (Commonwealth), Plain Language <http://www.opc.gov.au/plain/index.htm> .

[11] If both clauses were subordinate, their meaning would be incomplete and the result would not constitute a sentence.

[12] See generally Otto Jespersen, Essentials of English Grammar (1933); Kate Burridge and Jean Mulder, English in Australia and New Zealand: An Introduction to Its History, Structure and Use (1998).

[13] LRCV, Legislation, Legal Rights and Plain English, Discussion Paper No 1 (1986).

[14] LRCV, Plain English and the Law, above n 10.

[15] LRCV, Legislation, Legal Rights and Plain English, above n 13, [24].

[16] Ibid.

[17] Edwin Tanner, ‘The Comprehensibility of Legal Language: Is Plain English the Solution?’ [2000] GriffLawRw 4; (2000) 9 Griffith Law Review 52, 72.

[18] See LRCV, Plain English and the Law, above n 10, ch 5.

[19] LRCV, Legislation, Legal Rights and Plain English, above n 13, [52].

[20] Ibid [53].

[21] LRCV, Plain English and the Law, above n 10, [69]. See generally LRCV, Access to the Law: The Structure and Format of Legislation, Report No 33 (1990) [2.1.1]–[2.1.4].

[22] LRCV, Plain English and the Law, above n 10, [46]. See also Michele Asprey, Plain Language for Lawyers (1991) 165.

[23] Tanner, ‘The Sanctity of the Single Legal Rule’, above n 8, 204.

[24] Reed Dickerson, The Fundamentals of Legal Drafting (1965) 5.

[25] See generally Edwin Tanner, The Comprehensibility of Legal Language: Is Plain English the Solution? (PhD Thesis, The University of Melbourne, 1998) ch 5.

[26] Keith Allan and Kate Burridge, Euphemism and Dysphemism: Language Used as Shield and Weapon (1991) 199–200.

[27] Ibid.

[28] Ibid 198–9.

[29] LRCV, Legislation, Legal Rights and Plain English, above n 13, [51].

[30] See H P Grice, ‘Logic and Conversation’ in Peter Cole and Jenny Morgan (eds), Speech Acts (1975) 41, 41–58. See also Allan and Burridge, above n 26, 202.

[31] Allan and Burridge, above n 26, 202.

[32] Section 19(3)(b) provides that (emphasis added): ‘A representative body may complain to the Commission on behalf of a named person or persons if the Commission is satisfied that ... the representative body has a sufficient interest in the complaint’.

[33] LRCV, Plain English and the Law, above n 10, [74].

[34] For example, compare the meanings of ‘Harry hit George’ with ‘George hit Harry’. In the former, it is Harry who does the hitting. In the latter, Harry is hit.

[35] In the statement form of a sentence it does not make sense to use the noun ‘the dog’ by itself. Nor does the use of ‘was running’ make sense by itself. However, the sentence ‘the dog was running’ does make sense.

[36] In the verb phrase ‘was running’, ‘was’ is the auxiliary and ‘running’ is the lexical verb. In the verb phrase, ‘could have been accepted’, ‘could have been’ forms the auxiliary and ‘accepted’ is the lexical verb.

[37] Compare ‘Lachlan tore’ with ‘Lachlan tore his shirt’. The sentence does not make sense without an object (ie, ‘shirt’).

[38] In the sentence ‘the sprinter who won was disqualified’, ‘who won’ is a relative clause disrupting the subject/verb nexus. In the sentence ‘the sprinter, seized by cramp, fell over’, ‘seized by cramp’ is a reduced relative clause disrupting the subject/verb nexus.

[39] In the sentence ‘the man snored loudly’, the adverbial ‘loudly’ can be placed at the end, at the beginning or between the subject and the verb, without altering the meaning; ‘loudly the man snored’, ‘the man loudly snored’ and ‘the man snored loudly’. Conventional usage favours the final example.

[40] See George Miller, ‘The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information’ (1956) 63 Psychological Review 81.

[41] In this reduced relative clause, the words ‘which have been’ have been omitted from before ‘lodged’.

[42] 1995 is counted as one word, as are the section numbers 108 and 110.

[43] These are ‘referred to in Divisions 2 and 4 of Part 7 of the Equal Opportunity Act 1995’ and ‘referred to in sections 108(1)(c) and 110(1) of that Act’. In these reduced relative clauses, the initial relative ‘which’ and the auxiliary ‘are’ have been omitted.

[44] They are ‘on the ground of the religious belief or activity of another person or class of persons’.

[45] See ss 7(1), 8(1), 24(1), 24(2) and 25(1).

[46] For example, in the active sentence ‘Parliament amended the statute’, ‘Parliament’ is the subject and performs the action ‘amended’ and ‘the statute’ is the object.

[47] For example, in the passive sentence ‘the statute was amended by Parliament’, ‘the statute’ is both the subject and the recipient of the action ‘was amended’, while ‘Parliament’ is the agent of the action.

[48] LRCV, Plain English and the Law, above n 10, [81].

[49] Ibid.

[50] See, eg, s 7(2)(a) where ‘conduct may be constituted by a single occasion’ could be written as ‘a single act may constitute conduct’. Other examples of agentless passives include s 14(2), ‘this Act ... has been contravened’, and s 25(4), ‘[a] prosecution ... must not be commenced’.

[51] For example, a nominalisation of the verb ‘apply’ is ‘make an application’.

[52] Veda Charrow and Myra Erhardt, Clear and Effective Legal Writing (1986) 111.

[53] LRCV, Plain English and the Law, above n 10, [83].

[54] See also s 5 where ‘[a] contravention of this Act’ could be expressed as ‘[c]ontravening this Act’; s 4(2) where ‘[i]t is the intention of the Parliament’ could be expressed as ‘Parliament intends’; s 11 where ‘person’s conduct was engaged in’ could be expressed as ‘a person conducted’; s 14(1)(a) where ‘has made a complaint against’ could be expressed as ‘complained about’.

[55] LRCV, Plain English and the Law, above n 10, [84].

[56] They are ‘about the race or religious belief or activity of another person or class of persons’.

[57] The reduced relative is ‘provided by this cultural diversity’ and ‘thus reducing the benefit’. The full clause would have read ‘[which are] provided by this cultural diversity’.

[58] They are ‘that freedom of expression is an essential component of a democratic society’ and ‘that this freedom should be limited only to the extent that can be justified by an open and democratic society’.

[59] They are ‘[t]he people of Victoria come from diverse ethnic and Indigenous backgrounds’ and ‘[the people of Victoria] observe many different religious beliefs and practices’.

[60] They are ‘that can be justified by an open and democratic society’ and ‘[t]he majority of Victorians embrace the benefits provided by this cultural diversity’.

[61] It is ‘some Victorians are vilified on the ground of their race or their religious belief or activity’.

[62] See ss 2(2), 4(1)(c), 22(1), 23(3) and 27(1).

[63] See ss 7(1), 8(1), 24(1), 24(2), 25(1) and 25(2).

[64] See s 23(2).

[65] That is ‘about the race or religious belief or activity of another person or class of persons’.

[66] Supplementary notes follow ss 7(2), 8(1), 24(1)(b), 24(2) and 25(1)(b). Each note is identical, stating that to ‘“engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.’

[67] See, eg, s 14, in which the word ‘person’ is used 17 times to refer to at least three different ‘persons’.

[68] Compare the function of ‘by’ in the sentences ‘the baby was found by the dog’ and ‘the baby was found by the kennel’. In the first sentence, ‘by’ indicates the agent. In the second sentence, it indicates where the baby was found.