Duties and Discretions: How Have 'Plain English' Legislative Drafting Techniques Fared in Administrative Law?

The ‘plain English’ or ‘plain language’ movement has been the pre-eminent influence on legislative drafting over the last 30 years. The movement has promoted the rules of simple writing, the avoidance of traditional forms of expression where they can be expressed more simply, and the use of various aids to understanding. Some participants wish to bring certainty to the law, plain English techniques being seen as a ‘guarantee of communication’. Others simply wish to make legislation easier to understand. How has the movement fared?This article examines the effects of the movement in a case study concerning the expression of statutory duties and discretions. In attempting to impose duties, drafters have employed ‘must’ and other ‘plainer’ alternatives to ‘shall’. In relation to the conferral of discretions, two innovations have been attempted. Drafters have purported to impose absolute meanings through amendments of the Interpretation of Legislation Act 1984 (Vic) and the Acts Interpretation Act 1954 (Qld). And they have employed more explicit drafting structures such as ‘at his or her discretion’ and ‘has a discretion’.The author considers the extent to which the suggestions have been adopted in legislation, how drafters have employed the techniques, and their interpretation. He finds that the effects of the changes are not uniform. The study demonstrates the inevitable effect of statutory interpretation, for, once inserted in a law, a plain or ordinary English element instantly becomes ‘legal English’. At a more general level the study indicates that, while plain English elements are not in themselves the guarantee of communication that some advocates have claimed, neither are the innovations the mere window-dressing that some sceptics had opined.