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To be even-handed
here, some Australian judges have also been less than enthusiastic about plain
language in law. For example, an appeal court judge from Victoria recently
described certain provisions of the Corporations Law as being drafted "in the
language of the pop songs"25. In this judge's view, the quest for
simplicity "pays the price of vulgarity and ends in obscurity"26. (A
prime, but somewhat puzzling, concern of this judge seemed to be the drafting
technique of starting a section with "However,".) Another Australian appellate
judge decried as "grotesque" the use of "must" in statutes, especially the
phrase "must not"27. Yet another appellate judge, when criticizing a
clause in a plain language insurance policy, caricatured "plain English" as
meaning "confused thought and split infinitives"28, as if it served
no useful purpose at all. And another described a plain language insurance
policy as "one of those new fangled plain English policies which is,
accordingly, a little hard to construe"29. But these are isolated
voices and the tide of time will pass them by. I suspect that most judges would
accept that modern Australian statutes and documents, which are now
increasingly being drafted in a plainer style, are far easier to read and apply
than their traditionally drafted forebears. Other appellate judges - more
farsightedly - have made constructive comments, accepting change as inevitable
and moving on to wrestle with the very real issue of the extent to which
settled case law can be applied in interpreting plain English revisions of
statutes and standard documents.30
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25.
|
GM &
AM Pearce and Co Pty Ltd v RGM Australia Pty Ltd (1998) 116 ACLC 429 at 432
(Callaway JA). |
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26.
|
Ibid. |
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27.
|
Hallwood
Corporation Ltd v Roads Corporation [1998] 2 VR 439 at 445-446 (Tadgell
JA). For criticisms of the judge's comments, see Eagleson, "Plain English:
Changing the lawyer's image and goals", a paper delivered to Literature and the
Law Seminar, Perth, Australia, 16 May 1998; extracts published in (1998)
Clarity 42, p 34. |
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28.
|
NRMA
Insurance Ltd v Collier (1996) 9 ANZ Insurance Cases 76,717 at 76,721
(Meagher JA). |
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29.
|
Re Network
Welding Pty Ltd (in liquidation) (No 2) [2001] NSWSC 809 at para 3
(unreported, 28 August 2001). |
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30.
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See, for
example, Justice G Hill, "A Judicial Perspective on Tax Law Reform" (1998) 72
Australian Law Journal 685; Justice K Lindgren, "Interpretation of the
Income Tax Assessment Act 1997" (1999) 73 Australian Law Journal 425;
Justice D Mahoney, "A Judge's Attitude to Plain Language" [1996] New South
Wales Law Society Journal (September) 52. |
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