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
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”
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.
