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With all due respect?

Every Issue

Cite as: (2007) 81(6) LIJ, p. 96


A bit of gibberish on legalese

More often than not the legislation that governs our country is somewhat, shall we say, convoluted.

The wording weaves its way around a complex jungle of jargon, often leaving the reader in a state of puzzlement.

Sometimes the text seems so deliberately abstruse you just have to laugh, and that’s what lawyer Bruce McNab does. He sees the funny side of life and has previously performed around Melbourne as a comedian.

His performing alter ego was let loose again recently when he moderated the Legal Comedy Debate.

Mr McNab said it occurred to him a while ago while reading some Victorian legislation that he should be a comedian: “That way I’d only have to read the legislation out instead of having to interpret it ... and I’d have 132 experienced and highly-paid clowns writing my material, and that’s just the Victorian Parliament”.

During his turn as moderator, Mr McNab shared one of his favourite pieces of legislation, the Prostitution Control Amendment Act, which amended the Prostitution Control Act so as to make the practice of lap dancing a sexual service.

Suffice to say the definition of a sexual service, which will not be repeated here in the interests of good taste, was in line with the theme of the debate, “Rude and Crude: Do lawyers need to go there?”.

But the best marks for pure nonsensicalness, to which he also referred, go to the Commonwealth for s166.55 of the New Tax System (Goods and Services Tax) Act 1999 which states:

“The Commissioner may:

(a) treat a particular event that actually happened as not having happened; and

(b) treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as:

(i) having happened at a particular time; and

(ii) having involved particular action by a particular entity; and

(c) treat a particular event that actually happened as:

(i) having happened at a time different from the time it actually happened; or

(ii) having involved particular action by a particular entity (whether or not the event actually involved any action by that entity)”.

No, the above section is not a joke and has previously achieved some notoriety by winning a “Golden Bull” award from the UK-based Plain English Campaign in 2005 as one of the year’s worst examples of gobbledegook.

The Campaign fights excessive jargon and claims that due to its lobbying in Europe, it is now impossible to enforce consumer contracts that are not in “plain, intelligible language”.

A frightful thought, we recognise, for many lawyers.

A recent survey by the Plain English Campaign asked which sector was the worst at communicating clearly, and the legal profession came in the highest, with just over a third of respondents claiming it was the worst. Sadly, even higher than national or local government at 21 per cent.

Thanks to the Plain English Campaign we can share with you further examples of frustrating, but ultimately amusing, text.

Among the latest Golden Bull winners is an order by Bury County Court that reads: “It is ordered that the claim be adjourned generally with permission to the claimant to restore to the list without formal application not later than 16:00 hours on the 12th September 2006 whereupon the claim do stand struck out if not so restored”.

And our last offering from Eastleigh Borough Council for a notice given under the Building Act 1984: “Hereby in accordance with the provision of the Building Act 1984, s32 declares that the said plans shall be of no effect and accordingly the said Act and the said Building Regulations shall as respects the proposed work have effect as if no plan had been deposited”.

Miss Demeanour’s guide to life, love, law – and disorder

Dear Miss Demeanour,

Last night when I was at my local, self-medicating with a bottle of shiraz after a long day in the windowless sarcophagus my firm likes to call an office, I was handed a large envelope. On opening its contents, I realised I’d been served with a summons by my liver, which is applying for an injunction against my continued drinking! Apparently the ungrateful-but-necessary organ wants me to stop “overworking” it so it has a good chance of avoiding premature failure. I’m not saying that Christmas drinks haven’t extended long past the end of summer, but surely there is no need for this drastic move. How can I beat this application?

Regards, Lush Lawyer

Dear Lush Lawyer,

Your liver doesn’t have a leg to stand on, for three good reasons. First, there is no cause of action on foot. Second, your liver might argue that damages cannot remedy the harm you are doing to it by soaking it in booze every night, but it would be wrong. Money can’t buy happiness, but it can buy organs.* Moreover, you as the defendant can render the need for an injunction null and void by switching from vino to H2O at least a few nights a week. Third, your liver must show there is a serious question to be tried, at which point you can raise the knockout argument that a liver with time and energy to issue legal proceedings is a liver with time and energy to function properly. And finally, your liver will have to show that the balance of convenience favours you becoming a teetotaller. If you can explain how a radical lifestyle change, not to mention the physical shock of detoxing, is “inconvenient” without laughing, the victory is yours. All you need to do now is celebrate ... with a nice magnum or three.

* Miss Demeanour does not advocate body-part tourism, or the illegal organ trade. You should probably put yourself on the donor list now.

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