Page 3836 - Week 13 - Wednesday, 16 October 1991
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ACT laws contain a great deal of repetitious material. For example, enforcement powers of the Auditor-General under the Audit Act 1989 are spread over almost a dozen sections of that Act. The report suggests a methodology to systematically identify such material and consolidate our legislation.
Unnecessary costs are imposed on the community or government because of inefficient or outdated legislation. For example, the passage of time often means that measures which were suitable at the time of making legislation are inappropriate today. The report examines different approaches to the construction of cost-effective laws.
The implications of these shortcomings are numerous. Legislation is examined not only by members of the legal fraternity or people with years of experience in the particular field to which the legislation applies; often, people without any legal training will also be placed in a situation where it is necessary for them to examine legislation and attempt to interpret it and to apply it to a particular set of facts. This can lead to problems if the law is not accessible.
Proponents of the plain English approach to drafting, and I am certainly one of those, acknowledge this and repeatedly call for a new approach to the drafting of legislation - one which recognises the need for simple user-friendly legislation. There is a view that simplicity of language and style does not always lead to ease of interpretation. The dilemma is that the ideas are often complex and that simple language cannot always get across complex issues. This has led to a refreshing debate within the community, which has given rise to discussion of many of the issues highlighted by this review in relation to access and justice under the law.
True access can be achieved only if the meaning of legislation is clear to all of those who use it, not just to highly trained lawyers. However, justice can be achieved only if laws are applied similarly to like fact situations. This means that scope for different interpretations must be kept to a minimum and the wishes of the legislature must be made clear. Our draftspeople are left with the difficult job of encompassing complex concepts in the simplest terms possible, whilst excluding potential doubt about particular meanings. The difficult solution for which they strive but which they sometimes fail to reach is a delicate balance between the simplicity of style and language and a comprehensive coverage of the complex subject matter.
The drafting style that is currently used by the ACT Parliamentary Counsel adopts a straightforward approach to achieving this balance and must be encouraged and assisted wherever possible. This review of legislation will go some way in assisting the drafters of ACT legislation to identify where the relationship has become unbalanced.
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