A Way To Keep Lawyers At Bay
Sydney Morning Herald
Friday October 23, 1992
I HAVE nothing against lawyers, but I am not constantly looking for reasons to call them in. They are expensive. You never know when you will want an undertaker, but you don't keep one on stand-by.
An old principle of mine, that I should be able to understand without translation the laws I have to obey, has gained influential support. A barrister friend sent me encouraging news of an inquiry by the House of Representatives Legal and Constitutional Affairs Committee into ways of making laws easier to understand and cheaper to use.
The August issue of Australian Law News quoted the committee's chairman, Michael Lavarch: "It is unacceptable that, to understand the laws of the land, people have to be able to afford smart lawyers and accountants.
"Despite some moves towards plain English styles of drafting, it seems that our laws are still unnecessarily complex. We will be assessing whether there are ways of drafting legislation which would produce more simple but no less precise laws."
Mr Lavarch said tax laws had often been criticised as "impenetrable even for tax specialists". Indeed so. Another journal, Taxation in Australia, reported last November on a computer test by the Law Reform Commission of Victoria. It found that to understand some sections of the Income Tax Assessment Act would require 12 years at school and 15 at university. An identical test indicated that a Year 11 school student could understand a rewording by the commission of one division of that act.
In August last year I invited readers of this column to try to decipher the then subsection 6 of section 160M of the Assessment Act. It concerns the puzzling matter of "disposal of an asset that did not previously exist". This subsection has drawn sharp comments from judges.
Justice Hill, of the Federal Court, said: "While both subsections (6 and 7)present difficulties of construction, the former is drafted with such obscurity that even those used to interpreting the utterances of the Delphic oracle might falter in seeking to elicit a sensible meaning from its terms."
The Chief Justice of the High Court, Justice Mason, said subsections 5, 6 and 7 and provisions to which they were related "must be obscure, if not bewildering", both to the taxpayer and the lawyer who was called upon to interpret them.
Mr Justice Deane, of the High Court, used a long but clear sentence:
"In circumstances where the heavy burden of legal costs is likely to constitute an insurmountable obstacle to the challenge by the average taxpayer of an assessment in the courts, and where successive administrations have allowed the Act to become a legislative jungle in which even the non-specialist lawyer and accountant are likely to lose their way in the search to identify the provisions relevant to a particular case, the least that such a taxpayer is entitled to demand of government is that, once the relevant provisions are finally identified, a legislative intent to impose a tax upon him or her in respect of a commonplace transaction will be expressed in clear words."
In the obfuscation business (Latin, ob in the direction of, fuscare to darken) specks of light appear. Subsections 6 and 7 have had technical repairs, but I am told that the Assessment Act still contains a lot that few except expensive lawyers can understand. As previously noted in this column, new uniform credit laws are to provide that all documents must be in language debtors can understand.
There are, however, people who spray words around from choice. On the radio an unidentified voice told me there had been "a considerable level of exodus"from teaching.
© 1992 Sydney Morning Herald