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


25.

GM & AM Pearce and Co Pty Ltd v RGM Australia Pty Ltd (1998) 116 ACLC 429 at 432 (Callaway JA).

26.

Ibid.

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.

28.

NRMA Insurance Ltd v Collier (1996) 9 ANZ Insurance Cases 76,717 at 76,721 (Meagher JA).

29.

Re Network Welding Pty Ltd (in liquidation) (No 2) [2001] NSWSC 809 at para 3 (unreported, 28 August 2001).

30.

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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