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• Plain Language
• The Users Of Legislation
• The Principles Of Plain Language
• Drafting In Plain Language
• Organisation Of Material
• Sentence Structure
• Word Choice
• Paragraphing
• Gender-Neutral Expression
• The Use Of Te Reo Mäori
• Table Of Provisions
• Headings
• Definitions
• Punctuation
• Spelling
• Capitals
• Symbols, Formulas, Abbreviations And Acronyms
• Numbering And Lettering Practice And Terminology
• References To Legislative Provisions
• References To Age And Periods Of Time

MATTERS OF STYLE

PLAIN LANGUAGE

The users of legislation

131 The users of legislation obviously vary, ranging from members of Parliament, officials, judges, and lawyers to interest groups and individual members of the public affected by the legislation. This variation may require corresponding adjustments in drafting style.

132 On the one hand, legislation may be directed towards a narrow range of specialists and may, in part, be highly technical: an example is the Explosives Act 1957. On the other, it may be aimed at a broader group (even if members of that group will resort to it infrequently): an example is the Consumer Guarantees Act 1993.

133 It is important for drafters to be aware of different kinds of users. When writing for specialists, they do not need to avoid detail and technical terms, particularly if these are important for precision and for eliminating ambiguity. But when writing for the public at large, they should endeavour to draft in more general and commonly understood terms.

134 Furthermore, as Burrows points out, the style of drafting may also depend on the aim of the legislation; that is, whether it is coercive or not:

Detailed drafting is particularly appropriate to, indeed often necessary for, statutes regulating the criminal law, revenue law, business and commerce. It is also necessary where broad powers, such for example as powers of entry onto private premises, could infringe basic human rights. Such powers require careful delimitation. On the other hand statements of general principle are suitable where it is desirable simply to chart directions and leave the Courts to work out their detailed application on a case by case basis, as for instance in the New Zealand legislation on contract . . . (Statute Law in New Zealand (Butterworths, Wellington, 1992), 63)

135 But whoever the audience and whatever the context, there is never any justification for poor organisation, prolixity or unnecessary obscurity.

The principles of plain language

136 There is no mystery to plain language. Plain language is ordinary language, expressed directly and clearly. It is intended to simplify (to the extent possible), but not be simplistic; to enhance style, rather than be stylistically bland. In legislation its use is intended to remove the barriers to communication, and in this way make the law more accessible.

The barriers to communication

137 The barriers to communication are caused in the main by the following factors:

• the absence of underlying principle;
• poor organisation, with the result that the import of a section or even of the whole Act is difficult to discern;
• long, convoluted sentences;
• unnecessarily arcane and archaic language;
• excessive internal reference and qualification; and
• unnecessarily repetitive wording.

138 All of these factors have become habits in legal writing of all kinds, to the extent that some people have even considered them necessary to the effective functioning of the law. But they can (and should) be rectified or removed. This Manual gives advice on how to avoid them and find more acceptable substitutes.

139 The elimination of traditional legal writing habits will not have the effect of making the law less certain, as some lawyers fear. Indeed, the traditional drafting style itself frequently gives rise to uncertainty, and the "translation" of already existing legal documents into plain language has been known to uncover anomalies which had been overlooked. It has also been shown that there are relatively few legal terms of art which survive plain language scrutiny. It may be difficult to find a more succinct phrase for the term fee simple, for example, but the phrase bequeath and devise can be replaced with give, and agree and covenant reduced to agree.

The advantages of plain language drafting

140 Pursuing a plain language policy in legislative drafting is not easy. Some kinds of legislation are not as amenable to plain language as others, and, initially at least, drafting in it may be more time-consuming. But the advantages of plain language drafting are many, and they outweigh the disadvantages. For not only will plain language legislation make the law more accessible to those unversed in it, and less tortuous to those who are legally trained, but it will ultimately be more cost-effective—since all users will require less time and less assistance in interpreting and applying it.

DRAFTING IN PLAIN LANGUAGE

141 Drafters should always try to write with the users in mind. This means drafting as simply and directly as possible. The search for simplicity and directness should not, however, be at the expense of precision. Three factors which contribute greatly towards effective communication are

• good organisation of material,
• simple sentence structure, and
• careful word choice.

Organisation of material

142 Good organisation of material improves understanding by setting up a structure which the user can readily follow, whether across the Act as a whole or within a section. Take time to plan, therefore.

143 Ideally, planning should be a co-operative process between instructing officials and drafters, which begins with establishing the main goals and principles and deciding, for instance, the distribution of material within the Act, the schedules and subordinate legislation. It may be helpful to plan with the assistance of visual aids, such as tables, diagrams and flowcharts. Indeed, the Act itself might be improved by the inclusion of such aids.

144 Sequence should be logical:

• substantive matter should precede procedural matter;
• the general should precede the particular;
• provisions of universal or wide application should precede provisions of limited application;
• that which is basic or fundamental should be presented prominently and not be obscured by minor provisions; and
• the procedural or administrative provisions should be removed where possible to a schedule so as to give prominence to important material.

See para 16 on the order of arrangement of enactments.

Sentence structure

145 A long sentence forces the reader to hold a number of ideas in suspense and tends to have a less transparent structure. It therefore places greater demands on a reader's comprehension and memory skills. Generally, but not invariably, a sentence should not exceed 30 words in length. There are a number of ways of achieving shorter sentences, and they are set out in paras 148_156.

146 A sentence should have one central message; it should not be overburdened with multiple messages. It is important, therefore, that the core structure of a sentence can be easily recognised by a reader. The core structure should not be obscured by multiple or complex modifying elements, particularly those positioned before the subject. A special case or an exception to a general principle or statement should follow that general principle or statement. So should modifiers like unless or until.

147 Avoid separating the parts of a sentence, clause or phrase, or the parts of a compound verb, by inserting another verb, clause or phrase. Example:

The Minister may issue a licence to the applicant if the Minister is satisfied that the applicant has sufficient funds . . .

is preferable to

The Minister may, if satisfied that the applicant has sufficient funds, issue a licence to the applicant.

Sometimes, however, it is necessary to create such a separation to remove any ambiguity:

If all of the joint tenants do not apply under subsection (1), then, unless the court orders otherwise, the application must be served on every joint tenant who is not already a party.

Eliminate unnecessary words

148 Eliminate all unnecessary words. Two simple methods are to use definitions, if appropriate, and to avoid redundant phrases such as of this section and of this Act. See also paras 157_179, 257 on word choice.

149 Use the rule that if a person or thing is mentioned in a document, the reader is entitled to assume that a later reference in the same terms is a reference to that person or thing, unless the contrary is indicated or there is a possible ambiguity. This rule is sometimes known as the "narrative style rule". For example, the following italicised words are unnecessary:

(1) A person may apply to the Registrar for a licence to . . .
(2) An application under subregulation (1) must be in triplicate.
(3) A person who applies for a licence under subregulation (1) and who is under 16 must lodge a fourth copy of the application with the Court.

If the provision deals with only one type of licence, it is safe for the reader to assume that any reference to an application relates to that type of licence, and any reference to an applicant is to a person applying for that type of licence.

Use verbs whenever possible

150 Another way of eliminating unnecessary words is to use verbs whenever possible, instead of noun phrases. Thus, write

a person may apply

not a person may make application.

Active instead of passive

151 It is usually preferable to write in the active rather than the passive voice. Example:

The Minister may appoint up to 9 persons to be members of the Advisory Committee.

not Up to 9 persons may be appointed by the Minister to be members of the Advisory Committee.

Present tense and indicative mood

152 Use the present tense and the indicative mood wherever possible:

A person who allows a dog to soil a pavement commits an offence . . .

not A person who shall allow a dog to soil a pavement shall commit an offence . . .

Affirmative statements

153 Use affirmative statements. They are usually more direct and straightforward than negative statements. Multiple negatives are confusing, as the following example shows:

In proceedings for defamation in which the defendant relies on a defence of honest opinion, the fact that the matter that is the subject of the proceedings attributes a dishonourable, corrupt, or base motive to the plaintiff does not require the defendant to prove anything that the defendant would not be required to prove if the matter did not attribute any such motive.

Modifying elements

154 To avoid ambiguity, take care in placing modifying elements, whether they are adjectives, participles, adverbs, phrases or clauses. The general rule is to place a modifier as near as possible to the sentence element it modifies. In the following example the position of the modifier creates an ambiguity:

Every owner of gold bullion in New Zealand must . . .

It should be reworded, depending on the sense intended, either as:

Every person in New Zealand who owns gold bullion must . . .

or:

Every person who owns gold bullion held in New Zealand must . . .

Pronouns

155 Use pronouns rather than producing unnatural and stilted sentences. But what they refer to—their antecedents—must be clear. It is preferable that a pronoun follows its antecedent. Note that pronoun equivalents such as that person and such person can produce the same ambiguity as pronouns. Possessive adjectives (eg, her and their) and nouns in the possessive case may also be used in legislation. Use the contracted form 's, but take care with the placing of apostrophes. See paras 186_187 on the use of pronouns in gender-free expression.

156 The drafter may have a choice between constructing a sentence in singular or plural terms. The general rule is to use the singular unless the plural form avoids sexist singular pronouns:

A person who . . . commits an offence and . . .

not All persons who . . . commit an offence and . . .

Word choice

The golden rule is to pick those words that convey to the reader the meaning of the writer and to use them and them only.

(Gowers, The Complete Plain Words (3rd ed, HMSO, London, 1986), 3)

157 The following are some basic rules to follow in choosing words:

• use simple and familiar words unless they do not accurately express the intended meaning;
• use a single word, if possible, rather than a phrase;
• prefer verbs to noun forms;
• do not use different words to express the same meaning, or the same word to express different meanings;
• avoid Latin and French expressions, jargon and archaic words;
• use examples, tables, diagrams, and flowcharts as a supplement to, or in place of words when they assist communication.

Words and phrases to avoid

158 There are a number of words and phrases traditionally associated with legal drafting which drafters should now be wary of:

• Never use said, aforesaid, abovementioned, aforementioned, beforementioned.
• Avoid and/or, foregoing, forthwith, hereafter, hereby, herein, hereinafter, hereinbefore, hereto, hitherto, preceding, pursuant to, save that, succeeding, thereafter, thereby, therefrom, thereof, whatever, whatsoever, whereas, wheresoever, whomsoever.
• Avoid twin phrases (suggested alternatives follow in parentheses):

- all and singular ("all")
- aid and abet ("assist", "encourage", "help")
- as and from (see para 164)
- each and every ("each", "a", "all")
- force and effect ("into force" or "has effect")
- null and void (use "void" only)
- if and when (use one or the other)
- let or hindrance ("obstruction" or "interruption")
- rest, residue and remainder (use one only)
- unless and until (use one or the other)
- will and testament ("will" only).

• Do not use "above" and "below" in references (eg, "subsection (1) above"). They are unnecessary and may become inaccurate once a text is amended.

159 The following table lists some other expressions which are better avoided, with suggested substitutes:

Words and phrases to use with care

160 Certain words and phrases must be used with care, because their meaning is often misunderstood:

• all—each—every
• and—or
• any
• before—after—from
• being / not being
• comprise
• deem
• except—unless
• existing
• less than / more than
• may—must—shall
• notwithstanding—subject to
• such
• where—if

all—each—every

161 These words are often used where they would be better omitted or replaced by a, an, or the. All should be omitted in the following example:

All elected members hold office for 3 years.

The use of all, each, and every should be restricted to contexts in which their core meaning is needed. All may be appropriate where the emphasis is on the collective, and each or every where the emphasis is more on the individual (but avoid each and every).

and—or

162 And should be used only in a conjunctive sense (ie, to join matters), and or should be used only in a disjunctive sense (ie, to express alternatives). But drafters must remember that and has been judicially construed in a disjunctive sense and or in a conjunctive sense. The conjunctive sense of and may be made more certain by the use of both . . . and; for example, buyers who are both wholesaler and retailer. The disjunctive sense of or may be highlighted by using either . . . or . . . but not both; for example, buyers who are either wholesalers or retailers but not both. Consider the context carefully, and if the chance of ambiguity exists, eliminate it. If necessary, restructure the sentence. See para 183 for usage of and—or in a series of paragraphs.

any

163 A or an is usually just as effective as any and free from ambiguity. Any may be ambiguous because it is capable in some contexts of carrying the same meaning as every. In the following example, it is not clear whether the Minister must consult one organisation or every organisation:

The Minister must consult any organisation which appears to the Minister to represent a substantial number of citrus growers.

before—after—from

164 Subsections (1) and (2) of s 24 of the draft Interpretation Act set out rules for interpreting these words in connection with time. A period described as beginning from or after a given date, event or act does not include that date, or the day the event or act occurred. A period described as ending before a given date, event or act does not include that date, or the day of the event or act. Use after instead of from, since it is less ambiguous.

being / not being

165 Do not use being and not being to join relative clauses:

a person who is 70 or over, being a person who has a driver's licence.

Join the two clauses with and instead:

a person who is 70 or over and has a driver's licence.

comprise

166 A whole comprises the parts of which it is constituted but the parts do not comprise a whole. Thus New Zealand comprises two large islands and a number of smaller ones. It is not correct to say that two large islands and a number of smaller ones comprise New Zealand.

deem

167 The purpose of this word is to create a legal fiction: it has a defining function. It should be used only if something is to be what it is not, or if something is not to be what it is:

A person who has received an offer of compensation is deemed to have accepted the offer unless the person registers an objection within 30 days of receiving the offer.

Avoid using deem if it bears the meaning of think or consider. In the following example the use of deem is not appropriate:

Nothing in this Act shall be deemed to affect a right to compensation under any other law.

The provision would be better expressed as Nothing in this Act affects . . ., or more directly, This Act does not affect . . . . Deem can often be replaced by regarded, taken or treated as.

except—unless

168 If a provision is expressed to apply except in specified circumstances or unless something happens, consider whether there is provision for the consequences if that circumstance does occur, or that something does happen; that is, when the provision no longer applies. A complementary provision may be necessary, as supplied in the following example:

A mortgagee who exercises a power to sell mortgaged property may not become the purchaser of the mortgaged property except,
(a) in accordance with section 166, at a sale of land or goods through the Registrar, or
(b) in accordance with an order of a court made under section 168.

existing

169 This word requires an unambiguous reference to a fixed point in time. A definition may be desirable.

less than/more than

170 To provide for less than X and more than X has the effect of excluding X itself and leaving it unprovided for. Use not exceeding/exceeding or less than/at least instead. Above/below and over/under should be similarly avoided. Less means "a smaller amount of" and is applied only to things measured by amount. When things are measured in number, the correct adjective is fewer: less tonnage; fewer ships.

may—must—shall

171 May should be used where a power, permission, benefit or privilege given to some person may but need not be exercised: exercise is discretionary.

The District Court Judge may impose any other conditions on the person's release that the Judge considers necessary.

Must should be used where a duty is imposed which must be performed:

Before questioning a person who is entitled to the questioning safeguards, a police officer must enquire whether the person wishes to consult a lawyer.

172 Although shall is used to impose a duty or a prohibition, it is also used to indicate the future tense. This can lead to confusion. Shall is less and less in common usage, partly because it is difficult to use correctly. Use must in preference to shall: it is clear and definite, and commonly understood.

173 Shall and must are often used unnecessarily in declarative expressions, in an attempt to capture a sense of authority and obligation. In this situation, the present tense is often more appropriate:

not A parent shall be entitled to appear . . . butA parent is entitled to appear . . .

not It shall be lawful . . . butIt is lawful.

not A person must be a resident to be eligible . . . butA person is eligible only if resident . . .

See also para 152.

notwithstanding—subject to

174 If provisions in one or more enactments are or may be inconsistent with each other, the drafter must clarify which provision is to prevail. It is not incorrect to use both notwithstanding and subject to to connect the provisions. But, used excessively, they impair readability and indicate that each provision should be more carefully drafted. Problems arise when either phrase is used without a specific reference. If there is no inconsistency, the phrases should not be used.

175 The phrase subject to this section is generally unnecessary because a section will be construed as a whole unit. Subject to should not be used when the intended meaning is in accordance with; these phrases do not have the same meaning: the first denotes a conditional relationship, and the second compliance.

176 Notwithstanding anything in this Act (or variations) and subject to any enactment to the contrary are formulas frequently found in New Zealand statutes:

Notwithstanding anything in any other enactment . . .
Notwithstanding the provisions of subsections (1) and (2) of this section or section 60(2) of this Act, but subject to subsection (2a) of this section and section 60(3) of this Act . . .
Subject to any enactment to the contrary . . . .

Similar formulas are:

Except as provided in this Part . . .
This Part of the Act shall apply notwithstanding anything in any other Part of this Act . . .

Although these formulas may indicate that the provision containing it is intended to prevail, they often do not indicate which provisions are to be overridden. The difficulties which such formulas create are

• uncertainty or even impossibility of application,
• incomplete communication of the legal effect of the provisions,
• the probability that users will be misled,
• the possibility of implied or express repeal by a subsequent provision, and
• the possibility of a broader application than that intended.

177 A more straightforward way of clarifying the relationship between different elements of an Act must be found. The use of affirmative rather than negative statements, and specific identification of the affected provisions is one possibility. Example:

Payment must be made within 21 days, except in the circumstances described in subsection (1).
Part 3 of the Land Transfer Act 1952 prevails over sections 10-15 of this Act when . . .

such

178 Such can be ambiguous in its point of reference. It can also produce a starchy effect when over-used. Example:

Printed books purporting to contain statutes, Ordinances, or other written laws in force in any country although not purporting to have been printed or published by authority as aforesaid, books purporting to contain reports of decisions of Courts or Judges in such country, and textbooks treating of the laws of such country, may be referred to by all Courts and persons acting judicially for the purpose of ascertaining the laws in force in such country; but such Courts or persons shall not be bound to accept or act on the statements in any such books as evidence of such laws.

Such can be simply omitted or replaced with the, a, that or a variant. Thus the last clause of the example would become:

. . . but a court or a person is not bound to accept or act on the statements in those books as evidence.

where—if

179 Where is commonly used to suggest place (eg, "the street where you live"). It also refers to situations or sets of circumstances, which may be actual or hypothetical. Example:

The complainant is not required to state his or her address or occupation in court, except where leave is given under paragraph (c).

Where has also been traditionally used to introduce a conditional clause, but in that case if is preferable:

This section applies if the conviction subsisted when the statement in question was made.

PARAGRAPHING

Paragraphing provides a visual aid to comprehension by breaking up solid blocks of type; it delivers the sentence in packages, so to speak, making it easier for the mind to grasp the whole.

(Driedger, The Composition of Legislation (2nd ed, Department of Justice, Ottawa, 1976), 53)

180 To facilitate communication, a sentence may be presented in a "paragraphed" form. That is, its structure may be exposed by using numbered or lettered paragraphs. But restraint should be shown in such "sculpting" of paragraphs. This technique, while very useful, can produce artificially complex sentences, which may in fact impair communication. And, unless there is a specific need to present a list, do not divide a sentence into paragraphs of one- or two-word elements.

181 Each paragraph must follow grammatically from the words introducing the series and must perform an equivalent function in the sentence. That is, the paragraphs must constitute a genuine series, and they must be parallel. For numbering and lettering practice, see paras 243_253.

182 A series of paragraphs may be followed by words which apply to all the paragraphs, but only if the result is not too unwieldy:

A person who satisfies the Board that the person
(a) is of good character, and
(b) holds a prescribed qualification in forestry, and
(c) has not less than 3 years practical experience in forestry in a Commonwealth country,
is entitled to be registered as a forester.

However, stating the essence of the provision at the outset would make the sentence more readable:

A person is entitled to be registered as a forester if the Board is satisfied that the person
(a) is of good character, and
(b) holds a prescribed qualification in forestry, and
(c) has not less than 3 years practical experience in forestry in a Commonwealth country.
(Indentation of lettered or numbered paragraphs, as in the examples, is important because it helps to expose the sentence structure.)

183 The linking words and and or show whether paragraphs are cumulative or alternative. They should be inserted after every paragraph, unless there is good reason not to. If they appear only after penultimate paragraphs, users might be prompted to apply the linking word only to the last two paragraphs.

184 Paragraphs may be divided further into subparagraphs. If a sentence needs to be divided beyond subparagraphs, review the structure of the sentence. Break it up into shorter sentences, for example, since two or more sentences which involve some repetition of opening words are easier to follow than one very lengthy sentence which has to be divided into subsubparagraphs.

Form of proviso

185 The traditional form of legal proviso beginning Provided that should not be used. It is an archaic, grammatically dubious form not used in ordinary communication. Ambiguity may result if it is uncertain whether the proviso is intended to be a true proviso derogating from a general provision or a parallel supplementary provision. There is no one general form with which to replace the proviso. A simple but or except that may be adequate, or the use of a separate subsection. Example:

GENDER-NEUTRAL EXPRESSION

186 Always use gender-neutral language. Some of the more common methods of avoiding the traditional use of male pronouns include the following (the first four approaches are adaptations of the sentence A member of the Tribunal may resign his office).

• Omit the pronoun:

A member of the Tribunal may resign office.

• Use masculine and feminine pronouns:

A member of the Tribunal may resign his or her office.

• Repeat the noun:

A member of the Tribunal may resign the office of member.

• Use the plural:

Members of the Tribunal may resign their offices.

• Convert a noun to a verb form:

The Commissioner may consent . . .

not The Commissioner may give his consent to . . .

• Use a relative clause:

A mortgagee who exercises a power to sell mortgaged property may not . . .

not Where a mortgagee exercises a power of sale, he may not . . .

187 These techniques are not all suitable in all contexts. The repetition of nouns in place of pronouns, for instance, may produce a clumsy sentence, and using both the masculine and feminine pronouns can sound awkward. Choose the technique that communicates the message as effectively and as elegantly as possible. It may be necessary to rework the sentence altogether.

188 Avoid terms for occupations or activities that are sex-specific:

189 As a general rule, chairman should no longer be used. Chairperson is an acceptable alternative but chair is not. Other alternatives are the following:

• president
• presiding person, officer, member
• convenor
• co-ordinator
• moderator.

THE USE OF TE REO MÄORI

190 Section 3 of the Mäori Language Act 1987/Te Ture o te Reo Mäori 1987 declares the Mäori language to be an official language of New Zealand. Mäori is used increasingly in New Zealand statutes. Its use ranges from the inclusion of isolated Mäori terms, such as whänau, kaumätua, or taiäpure, to whole passages of the text, as in the preamble to Te Ture Whenua Mäori Act 1993. However, only one current statute appears in a bilingual form, namely the Mäori Language Act itself, and in that case the Mäori text was not actually enacted.

191 There are two major questions to consider in connection with the use of te reo Mäori in legislation:

• whether the use of Mäori is appropriate and, if so, when; and
• if it is appropriate, whether an English translation should be provided.

There is also the question of whether a macron should be used to indicate long vowels.

192 The guidance given in these paragraphs is based on the practice as discerned in current New Zealand legislative drafting. Two principles should be followed in using te reo Mäori:

• consult in the appropriate quarters—for example, with the Mäori Language Commission/Te Taura Whiri i te Reo Mäori if there is a need to create new terms in Mäori; and
• be consistent throughout the statute, and in any amendments or subordinate legislation deriving from it.

193 Mäori terms are not always given English equivalents in legislation. This may be because they are commonly understood (eg, iwi, kaumätua) or because they do not lend themselves to brief explanation (eg, mauri, tikanga). Include Mäori terms in the definitions section only if they are to be given a specific meaning for the purposes of that Act; otherwise their meaning may be narrowed (or widened) unintentionally. Example:

kaitiakitanga means the exercise of guardianship; and, in relation to a resource, includes the ethic of stewardship based on the nature of the resource itself . . . .

194 When using a Mäori term which is not commonly understood and which does not require definition for the purposes of the Act, it may be better not to provide any English equivalent or explanation in the text, but to leave it for judicial interpretation according to tikanga and with the assistance of expert evidence.

Macrons

195 Current statutory practice is to indicate a lengthened vowel in Mäori by doubling it. However, the convention agreed on by most authorities for indicating a lengthened vowel is the macron. Use macrons where they are appropriate, therefore, and not a double vowel. Thus write wähi and not waahi. Be aware, however, that tribal preferences can determine the pronunciation of certain words, and therefore whether or not a vowel is lengthened.

TABLE OF PROVISIONS

196 A list of contents, headed TABLE OF PROVISIONS, should be prepared and placed immediately before the first provision of every enactment longer than four sections. In general, regulations should follow the same practice. The table of provisions offers the user a quick means of access to the enactment.

197 The list should set out in sequence all headings, including section headings. Include part, subpart and section numbers. If schedules contain headings and numbered provisions, these should also be included in the table of provisions or at the beginning of the schedule: see para 115.

198 If an amending Act inserts a new section in a principal Act, the table of provisions of the amending Act should also include the section heading of the inserted section. When the principal Act is consolidated, the list of contents will need to be annotated to include the inserted section heading.

199 The table of provisions of a large and complex Bill is likely itself to be large and complex. It may be helpful to present a summary of the contents, perhaps showing part and subpart headings only. Prepare a table of provisions early in the drafting process. It provides a means of keeping the structure of a Bill under continuing review and may indicate as the draft develops that

• the structure is capable of improvement,
• provisions are misplaced,
• necessary provisions have been omitted, or
• headings have become inaccurate.

If changes are made to the Bill after its introduction, the table of provisions of the Bill as reported back should reflect those changes.

HEADINGS

200 Headings are intended to save users' time by helping them to find their way about the legislation. Headings should be descriptive, and they should be brief; but not so brief that they sacrifice clarity. Their language must be consistent with that of the enactment to which they relate.

201 Parts, subparts, sections, and schedules should have a unity of purpose. The discipline of drafting descriptive headings accurately can reveal a lack of unity and indicate the need to restructure. Review headings at a late stage in drafting. It is easy to overlook keeping headings consistent with changes in the draft.

Section headings

202 The primary purpose of section headings is to provide a descriptive label. Individually, they indicate the contents of the section; collectively (in the table of provisions), they indicate the contents of the Act.

203 But a heading can also provide a summary of the section. A summarising heading can be particularly helpful with a complex section, but it is important to ensure that such a heading is not misleading. Avoid ambiguous headings such as Application, or uncertain headings such as Proof of permission, etc, or headings which do not relate directly to the text of the section:

Corrupt use of official information
Every person to whom section 96 applies is deemed for the purposes of sections 105 and 105a of the Crimes Act 1961 to be an official.

204 Sometimes it may be appropriate to draft headings in the form of questions. The reason is that users of legislation frequently approach it with specific questions in mind, and it is helpful to attempt to anticipate these. In complex sections, it may also be helpful to provide subsection headings, which should be raised (like section headings) above the text but appear in italics.

205 If a schedule is designed in numbered clause form, include clause headings drafted according to the same principles as section headings. See also paras 109_117.

Other headings

206 Apart from being gathered under part and subpart headings, groups of provisions may be gathered under italicised headings known as cross headings. Such provisions should be closely related. Cross headings do not themselves create distinct divisions and are not numbered, but may be helpful within a part or subpart with many provisions.

207 Drafters must ensure:

• that part, subpart and cross headings are accurate in the description of their contents and broad enough to include all material presented within them; and
• that all material relevant to the heading is actually presented under it.

DEFINITIONS

208 In drafting definitions, use means if the complete meaning is stipulated. Includes is appropriate if the stipulated meaning is incomplete. Do not use the phrase means and includes. It is impossible to stipulate a complete and an incomplete meaning at the same time. In an unusual case it may be appropriate to use the formula means . . . and includes . . . if the function of the second part of the definition is to clarify or remove doubt about the intended scope of the first part of the definition:

conduit means any pipe, tunnel, or artificial channel which lies above, on or under any land and is used or intended to be used for the conveyance of waste water and includes associated fittings, pits and supports.

209 The point of application of a definition may be restricted:

year, for the purposes of Part 3, means the period from 1 July to the next following 30 June.

If necessary, a definition may contain two or more parts, each applying to different circumstances or different provisions:

In this section, court means
(a) if the defendant is to be tried on indictment, the court before which the defendant is to be tried; and
(b) in every other case, a District Court.

210 A definition may also be expressed in negative terms:

aircraft does not include a hovercraft.

Highlighting of definitions

211 Each section that contains a defined term should alert the user to its presence by means of a note as follows:

30 Misconduct of plaintiff in mitigation of damages
In proceedings for defamation, the defendant may prove, in mitigation of damages, specific instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose reputation is generally bad in the aspect to which the proceedings relate.
_________________
Definitions: defamation, s 2; person, Interpretation Act 199_ s 19(1)

However, if the term is fundamental to the legislation or is used frequently, it may be noted only on the first occasion it appears. Defined terms which are used in schedules—for instance in explanatory material such as tables—should be similarly noted.

See also paras 94_106.

PUNCTUATION

212 Punctuation provides a signpost to sentence structure. It makes it easier for the user to comprehend the structure of the sentence and therefore to understand the message. But a sentence that is ambiguous without punctuation probably needs recasting.

213 Use punctuation only if it serves a demonstrable purpose. Gowers writes: "Taste and common sense are more important than any rules; you put in stops to help your readers to understand you, not to please grammarians" (The Complete Plain Words, 152). However, a consistent approach is also helpful.

214 For example, a series of lettered paragraphs might correctly be introduced by a colon or without punctuation marks, and these practices should be followed consistently, unless the meaning clearly requires a departure. Similarly, each paragraph in a series might end with a semi-colon or a comma; and, again, a consistent practice should be adopted.

215 Which practice to follow depends on the content. If a sentence contains a series of propositions in paragraph form, use a colon to introduce and semicolons to separate the paragraphs (see, eg, para 225). If a sentence contains a series of short items which flow naturally into one another, then no mark of punctuation is required to introduce the paragraphs, and commas should separate them (see, eg, para 224). Use a comma to introduce only if it completes a qualification of the preceding words, as in the following example:

2 Definitions
(1) In this Act
. . .
judge means,
(a) in the case of any proceedings before the High Court, a judge of that court, and
(b) in the case of any proceedings before a District Court, a judge of that court . . .

See also paras 180_184.

Full stop

216 Every sentence should end with a full stop. There should be no full stop after an abbreviation or a contraction, a heading, title, number, table or symbol of currency or measurement.

Comma

217 Drafters should use commas with care, since their insertion or omission can greatly alter the meaning of a sentence. An understanding of the syntactic relationships of the words and word groupings in a sentence is necessary to the correct use of commas.

218 Commas serve two distinct purposes: to separate and to enclose. A comma may separate

• an introductory modifying clause,
• items in a series (whether words, phrases or clauses) (see paras 181_182),
• words or numbers where misunderstanding might otherwise result, or
• long independent clauses joined by conjunctions such as but, and, nor.

Commas inserted before and after the relevant phrase or clause may enclose

• commenting or non-restrictive modifying phrases or clauses, or
• modifying phrases or clauses if enclosure helps to illuminate the sentence structure.

219 Commas should never enclose a restrictive relative clause. A restrictive relative clause is a clause without which the substance of the sentence would be incomplete. The italicised relative clause in the following sentence, for example, should not be enclosed in commas, because it is essential to what the drafter needs to communicate:

The Authority may recover as a debt due from the owner of the licensed works costs and expenses that are reasonably incurred in taking measures for remedying pollution damage . . .

In the following sentence a non-restrictive clause is correctly enclosed with commas because it could be omitted without changing the essential meaning of the sentence:

The members of the Board, who are appointed under section 9, hold office for a maximum term of 4 years.

220 Except for commas enclosing material of a parenthetic nature, a comma should not separate a subject from its verb nor a verb from its object: see para 226.

221 A comma cannot perform the task of a co-ordinating conjunction like and. Two sentences cannot properly run on without a co-ordinating conjunction or a semi-colon or a full stop between them. The mistaken use of a comma in such circumstances is referred to as a "comma splice". Thus

Subsection (2) does not apply to an order under section 74, it does apply to an order under section 75.

should be punctuated as follows:

Subsection (2) does not apply to an order under section 74; it does apply to an order under section 75.

Colon

222 The principal use of the colon in legislation is to introduce a series of paragraphs, subparagraphs or a list or tabulation. Do not use it to separate a series of paragraphs or definitions. See para 225.

Semi-colon

223 A semi-colon is a mark of co-ordination, not termination:

• It may join in one sentence two independent clauses which are closely enough related to make it desirable to show their coherence in one sentence: see para 221.
• It may co-ordinate a series of paragraphs, subparagraphs or items listed: see para 225.

224 If a series of paragraphs is followed by words applying to all the paragraphs, the paragraphs should be separated by commas:

A person aggrieved by the action of a local government authority
(a) in rejecting plans, or
(b) in fixing or refusing to extend any period, or
(c) in imposing or refusing to vary any building condition,
may appeal to a District Court within the time and in the manner prescribed in the regulations.

No punctuation mark is required to introduce the series.

225 If a series of paragraphs is a collection of propositions, independent but connected, they should be separated by semi-colons and introduced by a colon:

(1) The following are declared to have been abolished:
(a) estates tail and estates by wrong;
(b) the making of a forfeiture by any conveyance;
(c) the passing of the legal estate in any land by any of the following means:
(i) a covenant to stand seized;
(ii) livery of seisin;
(iii) a contract for the sale and purchase of land;
(d) the rule of law known as the rule in Shelley's case.

Parentheses

226 Parentheses or brackets enclose explanations, illustrations or digressions that are loosely connected with the message of the sentence. Use them with caution because an interruption to the flow of the sentence may impede understanding, particularly if the parenthetic insertion is longer than a few words. In legislation, it is conventional practice also to enclose within brackets the numbers and letters denoting subsections and lesser elements.

227 A reference to a legislative provision may be made clearer by a parenthetic explanation of the content of that provision, especially when that reference is to another Act:

No person may subdivide land, unless the subdivision is . . . effected by a transfer, exchange, or other disposition of land made by an order under section 129b of the Property Law Act 1952 (which relates to the granting of access to land-locked land).

SPELLING

228 Although modern English spelling is often wayward, rules do exist. In legislation, the one important spelling rule is to be consistent. This rule applies not only within a particular instrument but also across all legislative instruments. For example, in New Zealand legislation the preferred spelling of organise or organisation uses the -s rather than the -z variant.

229 If a preferred spelling is not established, follow the spelling preferred in The New Shorter Oxford English Dictionary (Clarendon Press, Oxford, 1993) or, where no preference is stated, follow the spelling first used. Refer to the Heinemann New Zealand Dictionary (2nd ed, Heinemann, Auckland, 1989) if a specifically New Zealand variant is sought.

230 Names and titles must be spelt accurately even though the correct spelling conflicts with the usage adopted for legislation in New Zealand. For example, even if New Zealand practice is to prefer -ise to -ize, reference should still be made to the World Health Organization.

CAPITALS

They should be used sparingly—though not so sparingly as the American poet e.e. cummings used them, contending that only God merited a capital.

(Fieldhouse, Everyman's Good English Guide (Dent, London, 1982), 159)

231 There is a trend against unnecessary use of capitals to begin words. When in doubt, reject the capital. Take care, however, to be consistent.

232 Capitals should not be used

• to begin each paragraph of a series of paragraphs within a sentence, or
• to begin each word defined in a series of definitions.

233 Words used in a general sense do not take a capital letter even though the same word used in a particular sense does:

Every schedule, other than Schedule 3, comes into force on 2 January 1997.
The Disciplinary Tribunal is a tribunal for the purposes of the Tribunals Act 1988.

234 Use a capital for

• Act,
• Crown,
• names and titles of persons of considerable eminence (Governor-General, Chief Justice), and
• words of general signification used in a special or technical sense (the Fund, the Planning Authority, the Disputes Tribunal).

Do not use a capital for words such as court, judge, government, unless they have a singular, specific sense:

the New Zealand Government; the Court of Appeal.

SYMBOLS, FORMULAS, ABBREVIATIONS AND ACRONYMS

Shortened forms are used in order to save space and make reading easier by eliminating needless repetition.
(Australian Government Publishing Service, Style Manual for Authors, Editors and Printers (5th ed, AGPS Press, Canberra, 1994), 107)

235 A symbol, abbreviation or acronym may be used in legislation if it is generally recognised. For example, the use of symbols such as $ and % is beyond question.

236 Do not abbreviate or contract the first word of a sentence; and do not use abbreviations and contractions which are appropriate only in less formal writing. In this category are forms such as

Govt, Dept, Mon, Feb, GP, TV, s or ss (section or sections), isn't, it's, won't

However, abbreviations such as s or ss may be used in notes which are attached to but not part of the text of legislation.

237 If legislation has a technical content, experts may readily understand abbreviations and contractions, but the use of definitions to explain such abbreviations and contractions will help legislators, administrators, lawyers and judges.

238 The tendency nowadays is to abandon the use of full stops after shortened forms or between the letters of acronyms.

239 Algebraic formulas assist in calculating amounts if explaining the calculation in words becomes lengthy and involved. If possible, express the variables of the formula in words rather than symbols. Example:

(Provide definitions of the variables immediately below the formula, if they are required.)

240 If it is not possible to express the formula in words, then express it using symbols represented by the initial letters of the variables. This makes the formula easier to remember and apply. For example, the following formula, which is used for calculating net specified income, is adapted from s OB 1 of the Income Tax Act 1994:

In this example, a represents assessable income, n the number of weeks during which the taxpayer was a full-time earner, and t the amount of tax payable.

241 In legislation referring to a particular body, office or individual, it is accepted practice to shorten names and titles to their generic form (eg, the Commission for the New Zealand Fire Service Commission). If shortening names and titles in this way, however, it is important to ensure that there is no ambiguity: this can be achieved by listing the contraction in the definitions section.

242 If a distinctive shortened form seems desirable, an acronym may be created. Acronyms must be clearly explained either in the definitions section or in the specific part or section in which they are used. A reference in the definitions section is preferable unless the acronym is used in only a limited number of sections which will be read together. In that case, it may be introduced in parentheses after the name or title appears for the first time in full.

NUMBERING AND LETTERING PRACTICE AND TERMINOLOGY

Acts and regulations

243 Acts are numbered as follows:

Use Arabic and not Roman numerals to number parts, subparts, sections and subsections. The numbering pattern for regulations is the same as for Acts, although the terminology is different:

Do not use bullet or dot points, since they create difficulties in making cross-references and subsequent amendments.

244 A consistent practice should be adopted in the lettering of two series of paragraphs in one section or subsection. Begin the second series as if it were a continuation of the first series:

food means food for human consumption, including
(a) drink, other than water; and
(b) chewing gum and similar products;
but does not include
(c) milk and cream; or
(d) live animals or birds.

245 However, it is often possible to avoid such a paragraph format altogether. In the example, the provision could be redrafted simply as follows:

food means food for human consumption, including drink (other than water), and chewing gum and similar products, but not including milk or cream, or live animals or birds.

Schedules

246 Schedules are numbered consecutively in Arabic numerals; for example, Schedule 1, Schedule 2 and so on. If there is only one schedule to an Act, it should nevertheless be numbered Schedule 1. This makes it easier to add further schedules at a later stage. Include a list of contents if it is helpful: see paras 196_199.

247 Text in a schedule is presented in accordance with the same numbering and lettering conventions which otherwise apply in the statute. However, there may be variations on these conventions with lists or when the text of treaties is reproduced.

Amendments

248 A section inserted between ss 2 and 3 is distinguished as s 2a; further sections would be ss 2b, 2c and so on. A section inserted between 2a and 2b would be s 2aa. Very infrequently, a complication can arise. Suppose an Act has ss 2, 2a, 2b, and 3. An additional section inserted between 2 and 2a would be identified as s 2aa, but a section inserted between 2a and 2b would also be s 2aa. Obviously, to identify two sections as s 2aa is unacceptable; and the best solution is to use 2aa in the first case and 2ab in the second.

249 An additional subsection inserted between subss (2) and (3) is distinguished as subs (2a). Similarly, a subsection inserted between (2a) and (3) is identified as subs (2aa). The practice for paragraphs and subparagraphs is similar. Paragraphs inserted after para (b) are lettered (ba), (bb), (bc). Subparagraphs inserted after subpara (ii) are designated (iia) and so on.

250 A part inserted by an amendment to an existing Act would be identified similarly; for example, Part 1a, Part 1b. If an additional schedule is to be inserted later within a series of schedules, it should also be designated by letter; for example, Schedule 3a.

251 If a consecutive number or letter is available for an inserted provision, there is no need for complicated rules of practice. These rules are only for insertions within an existing series. If a section contains four subsections and a fifth is added after subs (4), the fifth one is numbered (5).

252 Do not renumber or reletter provisions as a result of amendment. If s 5 is repealed, s 6 and later sections should not be renumbered in consequence, as this might create problems with cross-references.

Alphanumeric system

253 For lengthy and complex Acts, consider using the alphanumeric referencing system. The system was adopted in the Income Tax Act 1994. The new system does not number the whole Act consecutively from 1; instead parts and subparts are lettered in separate series, but each beginning with A. Thus a reference to each section of the Act begins with an alphabetical reference, first to the part, and secondly to the subpart, followed by a number. So a reference to a specific section could take the form CB 3. Such a system allows new subparts and provisions to be inserted over time, without resulting in complex section identifiers; it also gives a better sense of structure.

REFERENCES TO LEGISLATIVE PROVISIONS

254 Use figures rather than words:

• section 27 not section twenty-seven;
• Part 3 not Part Three;
• Schedule 2 not Schedule two.

255 Complex references should generally be made in a short form and not spelt out in full:

section 14(4)(a)(i)

not subparagraph (i) of paragraph (a) of subsection (4) of section 14

(Note that they are referred to in descending order of generality: section, subsection, paragraph, subparagraph.)

256 References to other provisions of an enactment should be specific and identify the provision by its designated number or letter. Do not use vague references such as preceding, above and following. Avoid also the apparent but deceptive precision of references such as next following or immediately preceding. These can very easily become incorrect as a result of later amendments.

257 A reference in one section of an Act to another provision of the same Act should not include the words of this Act or hereof. Unless there is a specific reference to some other Act, the context makes it clear beyond doubt that the reference is to a provision in the same Act. No other unspecified Act could be intended.

Subject to section 14, an aggrieved person may appeal . . .

not Subject to section 14 of this Act, an aggrieved person may appeal . . .

258 The same rule applies within all elements of the Act: parts, subparts, sections, subsections, paragraphs, schedules. See also para 148.

259 However, the need to avoid ambiguity remains. If an internal reference and an external reference are in the same provision, it is necessary to make the import of the references immediately clear. A reference to of this Act or a similar reference may then be desirable:

A person aggrieved by a decision of the Authority under section 14 of the Citrus Marketing Act 1997 or a decision of the Commissioner under section 15 of this Act may appeal . . .
A person aggrieved by a decision of the Authority under section 4(3) or under subsection (3) of this section may appeal . . .

REFERENCES TO NUMBERS AND DATES

260 Style books give conflicting advice on the way to express numbers. The trend in legislation is to use figures in place of words as long as the meaning is clear and a consistent practice is followed.

261 Figures should be used instead of words except

• at the beginning of a sentence,
• where the position of one number in relation to another could be confusing, and
• with the number one.

Examples:

The Council comprises 7 members all of whom must be podiatrists.
Seven members may require the president to summon a general meeting.
After the financial year ending on 30 June 1991, four members representing apple growers are to be elected one of whom must reside in the Bay of Plenty.

262 If the number exceeds 4 digits, use commas to separate groups of numbers:

4,000,000 $2,340.78

263 Figures should be used for sums of money and also when the number relates to a symbol or unit of measurement:

$47 12% 1.34m 17kg

But in legislation, fractions are usually expressed in words:

one-quarter, seven-eighths

264 Express ordinal numbers in words up to and including tenth, but from then on in the form 11th, 20th etc.

265 The recommended form for referring to dates is 4 September 1990. If a short form is needed (eg, in columns of a schedule in tabular form), the recommended form is 4.9.1990.

REFERENCES TO AGE AND PERIODS OF TIME

266 Note that a reference to age can be read inclusively (as in 18 and under) or exclusively (as in under 18). Formulations such as has reached (or attained) the age of 18 or 18 years of age are unnecessary. Simply state the age, as in the following examples:

The president cannot be reappointed after reaching 67.
A person who is under 18 may not hold a firearms licence.
A person who is 20 or over at polling day is entitled to vote.

267 It is unnecessary to use period when the period of time is specified. For example, write

within 12 months beginning on 1 July 1999

instead of

within the period of 12 months beginning on 1 July 1999.

See also para 164 on the use of before, after, and from. Note that the draft Interpretation Act s 24 contains standard interpretations of most words used to indicate periods of time.