Plain Language and Government Contracts

Dealing with a tricky government contract you want to simplify? Government lawyers pushing back on your updates to their agreement?

Whilst the preferred term is Plain Language (because it’s more inclusive)…the Office of Parliamentary Counsel’s Plain English Manual is filled with gems on explaining terms to clients, phrases to avoid with examples on clear writing, and interpretation tips.

“The Office of Parliamentary Counsel is active in encouraging the use of plain language in legislation and in developing and using plain language techniques. In addition to OPC’s participation in major plain language projects such as the Tax Law Improvement Project and the Corporate Law Economic Reform Program, we have incorporated plain language drafting into all of our work. This Manual outlines some of the techniques we use”

One of my favourites is the support for ditching Shall in favour of Must (if you want to impose an obligation)

What do you think? Could this help negotiate with Government (and other) lawyers? Do your contract guides meet these suggestions? Let me know what you think!

Cheers,

Verity

Some extracts from the Manual below or see the full document here:  Plain English Manual

“Contravene or fail to comply”

  1. In the traditional style, “contravene” is treated as not covering omissions.  This was probably never right (see R v Commonwealth Court of Conciliation and Arbitration 89 C.L.R. 636 at 649), but the position has been put beyond doubt by paragraph 22(1)(j) of the Acts Interpretation Act.

Example don’t say “contravene or fail to comply with” say “contravene”.

“Shall”, “must” and “is to”

  1. The traditional style uses “shall” for the imperative. However, the word is ambiguous, as it can also be used to make a statement about the future. Moreover, in common usage it’s not understood as imposing an obligation.

Say “must” or “must not” when imposing an obligation, not “shall” or “shall not”.

If you feel the need to use a gentler form, say “is to” or “is not to”, but these are less direct and use more words.

We shouldn’t feel any compunction in using “must” and “must not” when imposing obligations on the Governor‑General or Ministers, because “shall” and “shall not” were acceptable in the past.

Plain language TipExample of clear way to writeExample of unclear writing
Use the positive rather than the negative.a form is valid only if the taxpayer has signed it”a form is not valid unless the taxpayer has signed it
Use the active voice rather than the passive voice.“the Authority serves a notice”a notice is served by the Authority”.
Put adverbial phrases after the verb when there’s no ambiguity.the Minister may issue the licence within 30 days after receiving the applicationthe Minister may, within 30 days after receiving the application, issue the licence”.
Avoid noun strings (nouns strung together to act as adjectives).“grants for programs for providing child care”child care delivery program grants
Avoid the false subject “there is”, “there are”, etc. It adds extra words, and usually creates an unnecessary relative.if any conditions do not comply with this sectionif there are any conditions that do not comply with this section
Don’t use the “such ... as” form when it’s not necessary.say “take appropriate steps”“take such steps as are appropriate”
“conditions determined by the Minister”“such conditions as are determined by the Minister”
Don’t use demonstrative adjectives if you don’t have to.say “the company” or “the notice”“that company” or “that notice” (but “that time” is usually less ambiguous than “the time”).
Apart from being more logical, this avoids the occasional occurrence of the expression “that that” as in the phrase “has the result that that company ...”.
When you use “other than”, make it clear which words are qualified by the phrase.a person (other than a policeman) who is under 60a person other than a policeman who is under 60
Don’t use “being” and “not being” to join relative clauses.a person who is 70 or over and has a driving licencea person who is 70 or over, being a person who has a driving licence
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