Communication Strategies: Understanding the Racial and Religious Tolerance Act 2001 (Vic)
Tanner, Edwin, Melbourne University Law Review
[The former Law Reform Commission of Victoria provided plain English guidelines for enhancing comprehensibility in legislation. The Racial and Religious Tolerance Act 2001 (Vic) is analysed using those guidelines. The results of the analysis reveal that comprehension difficulties generally arise from rigid adherence to the single provision/single sentence structure. Future improvements will depend on this structure being abandoned.]
CONTENTS I Introduction II Research Method III The Work of the Law Reform Commission of Victoria IV The Law Reform Commission of Victoria Guidelines A Avoid Long and Complicated Sentences B Keep Essential Sentence Components Together 1 Subject/Verb Nexus Disruption 2 Deontic Modal/Verb Nexus Disruption C Prefer the Active Voice D Avoid Nominalisations E Prefer the Positive to the Negative F Use Parallel Structure where Suitable G Eliminate Superfluous Words and Phrases V Application of Guidelines to the Racial and Religious Tolerance Act 2001 (Vic) A The Preamble B The RRT Act without the Preamble VI Conclusion
'Criticism is a study by which men grow important and formidable at very small expense', wrote Dr Johnson. (1) Critics of legislative drafting rarely come from the ranks of those who draft legislation. (2) For the drafters, difficulties include time constraints and instructions based on unsettled policy. (3) They may seldom have the 'luxury of a period of calm [reflection] in which to consider how the drafting could be improved'. (4) However, this should not preclude criticism. As Edmund Burke observed, '[h]e that wrestles with us strengthens our nerves, and sharpens our skill. Our antagonist is our helper.' (5) In this article, the criticism of the drafting of the Racial and Religious Tolerance Act 2001 (Vic) ('RRT Act') is designed to help 'sharpen the skill', while acknowledging the difficulties facing legislative drafters.
Until the beginning of the consumer movement in the mid-1970s, statutes were drafted in conventional legal English. This style has been described as verbose, overtechnical and full of archaic language. (6) Sentences in conventional legal English are excessively long and exhibit complicated syntax and illogical word order. (7) These sentences often result from the practice of incorporating into a single sentence all the information considered necessary for a section or a subsection. This practice arises from the belief that the semantic links within a sentence are clearer than those between sentences. The contrary has been shown to be the case. (8)
Coinciding with the consumer movement were developments in psycholinguistics and sociolinguistics. With respect to the former, extensive studies were undertaken of the way that people interpret difficult sentence structures, while the latter focused on the way demographics affect language. As a consequence of this favourable intellectual climate, guidelines for plain English drafting were developed. For example, in the 1980s, the Law Reform Commission of Victoria ('LRCV') (9) produced a set of guidelines for that purpose. (10)
This article seeks to determine to what extent the LRCV Guidelines have been used in the drafting of the RRT Act. It confirms that the LRCV Guidelines are incompatible with the legal drafting convention of formulating each provision as a single sentence in an Act, and that this practice has led to comprehension problems in the RRT Act. The article also offers a means by which drafters can recognise and eliminate clausal complexity.
II RESEARCH METHOD
Sentences crafted in conventional legal English are often of extended length. To understand them, it is necessary to trace out their referencing systems. This has been done by unravelling the clausal structure of the sentences and identifying the function of the clauses. …