TAX DRAFTING CONFERENCE
TOOLS FOR
SIMPLIFYING COMPLEX LEGISLATION
Prepared by
David C Elliott
27-29 November 1996
Auckland, New Zealand
Contents
Page #
The crystal set
An obsession for clarity
Information anxiety
Document organization .................................................................................................... 2
How will the document be used?
Organizing for readers
Overall organization
Using questions .................................................................................................................. 3
Using diagrams .................................................................................................................. 4
Using examples .................................................................................................................. 5
Using formula .................................................................................................................... 5
Identifying defined words .................................................................................................. 7
Drafting in the second person ........................................................................................... 8
Using algorithms ................................................................................................................ 9
Conclusion........................................................................................................................ 11
TAX DRAFTING CONFERENCE
TOOLS FOR SIMPLIFYING COMPLEX LEGISLATION
The crystal set
There is always the complaint that legislation is complicated. Of course it is, because life
is complicated. The bulk of the legislation enacted nowadays is social, economic or
financial; the laws they must express and the life situations they must regulate are in
themselves complicated, and these laws cannot in any language or in any style be reduced
to kindergarten level, any more than can the theory of relativity. One might as well ask
why television sets are so complicated. Why do they not make television sets so everyone
can understand them? Well, you can't expect to put a colour image on a screen in your
living-room with a crystal set. And you can't have crystal set legislation in a television
age.
Dr Elmer Driedger
An obsession for clarity
If, as Garth Thornton suggests(1), legislative drafters must be obsessed with the desire to
have their work readily understood, we cannot be satisfied with Dr Driedger’s response to
complaints about the complexity of statute law, even though as policy makers and
drafters ourselves, we might sympathize with what he says.
Ever since reading Dr Driedger's remark, I have wondered if it needs to be true –
whether, despite the complexity, drafters can simplify complex ideas. It is an endless
task, but this paper outlines some of the more innovative approaches being taken, or on
the verge of being taken, to expressing complex ideas as simply and clearly as possible.
In a modification of Einstein’s words to
Make things as simple as possible but no simpler.
Information anxiety
People read legislation looking for answers to questions. More often than not they find
what Richard Saul Wurman calls "information anxiety"(2); the black hole between data
and knowledge. It happens when "information" doesn't tell us what we want or need to
know.
The starting point to fill that black hole for legislative drafters is to accept that what we
write is not for ourselves but for others.
The moment we accept that fact our minds start to reorient themselves. We start to think
not only of getting what we write technically correct – but of getting the message across
to the audience for whom we write. It means we become interested in clarity as well as
precision. That leads us to ask

what helps people understand texts (and then to use those things in our writing);
and

what impedes understanding (and so avoid those things in our writing).
Writing for others means we are constantly on the look-out for ideas. Ideas that help
communication. Ideas we can then use for particular drafting jobs. What we should be
about is to reverse the extraordinarily strange situation that free societies have arrived at
where their members enter binding obligations they do not understand and are governed
from cradle to grave by legislative texts they cannot comprehend.(3) (4)
Document organization
Documents should be organised to help the most likely readers. Legislation is not read for
pleasure but to get information. So, from a reader's point of view, good writing is writing
that structures information in a way that enables readers to get the information they seek
as easily as possible.
How will the document be used?
Organizing a document well means that we must know who the most likely readers of it
will be. The writer is often not the best person to make organizational decisions. Clients
can help here because they should know who the likely readers are and the questions they
commonly ask and mistakes most often made by the readers they serve.
Research into how people read and react to documents can be a guide to internal
organization. If we can foresee how readers are likely to use a particular document we
can organize it so that it is as efficient as possible for their use. For legislation we have
barely entertained the notion that testing, or reader considerations, should affect our
writing.
Organizing for readers
The usual drafting practice is to impose the writer's thinking process and organization on
readers. A process and organization that is entirely logical to the writer but not
necessarily helpful for the reader.
We can look at organization of statutes on several levels:
(a)
overall organization(5)
(b)
organization within Parts and divisions
2
(c)
sentence word order.
Overall organization
In particularly long Acts it is helpful to divide them up into more manageable chunks and
to start off each chunk with an explanation of what the chunk contains. This could be
done in the form of a mini table of contents, a diagram or flow chart, or explanatory text.
Here is how the UK Tax Law Rewrite project has proposed to outline one of its
chapters:(6)
New Zealand's Taxation (Core Provisions) Act contains this illustration of the structure
of Part B of the Act:
The following example outlines a complaint and appeal process in a recommended
Property Assessment Act.
Using questions
Most readers come to legislation with questions: can I do this? what happens if I do that?
how can I get this or that?(7)
How helpful it would be if readers coming to a document with a question not only found
the same question in the document – but the answer. It is a simple matter for documents
to be given appropriate headings stated as questions; and suddenly the document becomes
alive, meaningful, useful – it becomes functional.
The Local Government Act (NSW) used this approach in several of its Parts. For
example,
CHAPTER 10 – HOW ARE PEOPLE ELECTED TO CIVIC OFFICE?
PART 1- WHO MAY VOTE?
PART 2- WHO MAY BE ELECTED?
3
PART 3PART 4PART 5PART 6-
WHAT IS THE SYSTEM OF ELECTION?
WHEN ARE ELECTIONS HELD?
HOW ARE CASUAL VACANCIES FILLED?
HOW ARE ELECTIONS CONDUCTED?
Division 1-The role of the Electoral Commissioner
Division 2-Electoral rolls
Division 3-Nominations and election
Division 4-Where residents fail to vote
Division 5-Miscellaneous
Using diagrams
It is easy to get lost in a series of complex provisions. An explanatory line diagram can
help paint the big picture so that readers can find a road map out of the confusion. A line
diagram was included in Alberta's 1973 Labour Relations Bill (although not enacted as
part of the legislation) to explain how parties in collective bargaining could move to a
strike or lock out position through a complex process.
New Zealand included the following flow chart in its Taxation (Core Provisions) Act:
And Australian drafters have made particular use of diagrams:
Local Government Act (NSW)
4
Using examples
Occasionally examples are used in legislation.(8) They have been welcomed by a wide
variety of readers and more use should be made of them.
Examples illustrate ideas. The texts we write have ideas behind them – our ideas. If those
ideas are not, or are inadequately, conveyed to the readers of the text there is a lack of
communication. One way of making sure the ideas we have get across to readers is to
help readers with examples.
For additional thoughts on the use of examples, and illustrations of when examples have
been used, see Using Examples in Legislation.(9)
Using formula
Although formula are now commonly used in legislation, I have been surprised at the
number of people who have a "math attack" at the very mention of the word "formula".
Dr Driedger has explained the reasons for using formula well(10)
I would like to see more legislation in mathematical form. A provision of the Income Tax
Act reads as follows:
(6) Where a corporation is or has been a personal corporation, notwithstanding
paragraph (b) of subsection (1), its tax-paid undistributed income at a specified
time is the amount that it would be according to the terms of paragraph (b) of
subsection (1) plus the amount by which
(a)
the aggregate of the incomes deemed under section 67 to have
been distributed to its shareholders while it was a personal
corporation prior to that time, exceeds
(b)
the aggregate of dividends received from the corporation prior to
that time and not included, by virtue of section 67, in computing
the incomes of the shareholders by whom they were received.
Re-written in symbols it would be much easier to read and understand. Thus:
(6) Where a corporation is or has been a personal corporation, notwithstanding
paragraph (b) of subsection (1), its tax-paid undistributed income at a specified
time is
A = (B - C)
5
Where
A = the amount it would be accorded under paragraph (1)(b)
B = the aggregate of the incomes deemed under section 67 to have been
distributed to its shareholders while it was a personal corporation prior to
that time,
C = the aggregate of dividends received from the corporation prior to that
time and not included, by virtue of section 67, in computing the incomes
of the shareholders by whom they were received.
A pension act has the following provision:
5.(1) The supplementary retirement benefit payable to a recipient for a month in
any year is an amount equal to the amount obtained by multiplying
(a)
the amount of the pension payable to the recipient for that month
(b)
the ratio that the Benefit Index for that year bears to the Benefit
Index for the retirement year of the person to or in respect of
whom or in respect of whose service the pension is payable
by
and subtracting therefrom
(c)
the amount of the pension payable to the recipient for that
month.
How much simpler it would be to write it as follows: The supplementary retirement
benefit payable to a recipient for a month in any year is
(M x BY) - M
BR
where
M = the amount of the pension payable to the recipient for that month;
BY = the Benefit Index for that year; and
BR = the Benefit Index for the retirement year of the person to or in
respect of whom or in respect of whose service the pension is payable.
6
Identifying defined words
Drafters continue to experiment with techniques to indicate that words used in a text have
defined meanings.
Some drafters italicize defined words:
3 Audit engagements and review engagements
No person may engage in an audit engagement or a review engagement
nor represent or imply an ability to do so, unless that person
(a)
is a public accounting firm or supervised by a public accounting firm,
(b)
practices in accordance with the Certified Management Accountants Act
or the Certified General Accountants Act, or
(c)
is given special permission to do so by the Institute.
[Work in progress draft of a
Chartered Accountants Act (Alberta)]
Some drafters note defined words in an explanation following the section in which the
defined word is used:
Taxation (Core Provisions) Act New Zealand
And a recently proposed model for South African legislation uses an expanded marginal
note to indicate defined words:
Human Rights Commission Act (South Africa) (Proposed model)
7
Drafting in the second person
There are occasions when drafting in the second person is effective:
Complaints about valuations
23 What can you file a complaint about?
You can file a complaint with a board of revision about the assessed value of
your property or about anything else on or omitted from a valuation notice.
24 When can a municipality file a complaint, and about what?
(1) A municipality can file a complaint with a board of revision about the
assessed value of property in the municipality or about anything else on or
omitted from a property valuation roll or valuation notice.
(2) One municipality can also file a complaint with a board of revision about all
or any of the assessed values of property in another municipality.
25 How do you file a complaint?
(1) You can make your complaint by writing to a board of revision within 30
days from the date the valuation notice is mailed to you.
(2) You must
(a)
give details of your complaint and your reasons for it, and
(b)
give the address where you can be contacted and to which
notices can be sent.
(3) You lose your right to file a complaint if you do not do so within the required
period.
Proposed Property Assessment Act (Alberta) 95.425
How do I sign my CB license application?
(a)
If you are an individual, you must sign your own application personally.
8
(b)
If the applicant is not an individual, the signature on an application must be made as follows:
Type of applicant
Who must sign
Partnership
One of the partners
Corporation
Office
r Association
Member who is an officer
Government Unit
Appropriate elected or appointed official
[Federal Communications Commission
Rules for the Citizens' Band Radio Service]
And the proposed rewrite of the Taxes Management Act 1970 includes several sections
drafted in the second person. Here is one of them:
54A. Settling an appeal by agreement
(1) You may reach agreement with the inspector about the assessment or decision under
appeal.
(2) If you do, the effect is that the appeal is treated as decided on the agreed terms at the
time the agreement is made.
(3) If the agreement is not in writing, the terms need to be confirmed in writing, either by
you or by the inspector. The date of confirmation is treated as the date of the agreement.
(4) You have 30 days from the date of the agreement to change your mind. If you do, you
must tell the inspector in writing within the 30 days or the agreement will stand.
(5) "The inspector" includes any officer of the Board authorized to deal with the matter.
Using algorithms
In the context of legislative drafting, an algorithm provides a set of procedures (usually
questions) to work through in order to achieve an answer to a question.
In my view, algorithms may hold many answers to the crystal set dilemma raised by Dr
Driedger at the start of this paper because an algorithm guides the reader through
complexities touching only on those issues the reader needs to know about.
Here are some examples. The first, a preliminary attempt to reduce several pages of text
to a comparatively simple algorithm which might supersede most of the text:
9
3 General holiday pay – self assessment
(1) Whether or not an employee must be paid general holiday pay by their
employer depends on the correct answers to the questions set out in
subsection (2) in which
(a)
“you” means the employee;
(b)
“gh” means the general holiday;
(c)
"ghp" means general holiday pay.
(2) See next page.
Dr DM Wheatley and AW Unwin(11)
Two persons wish to make a joint application to adopt a child.
The authors comment:
Let us suppose that a man aged 24 and his wife aged 22 wish to adopt the wife's niece.
Are they eligible in law to do so? Taking the questions they would answer in order:
1. They are married to each other (Follow the YES-line).
2. They are not parents of the child.
3. They are related to the child.
4. They are both over 21.
They are therefore legally eligible to adopt the child. This we found out in four simple
steps; if we had used conventional legal literature, it would certainly have taken very
much longer.
Algorithms of this non-mathematical type have been described as "a sequence of simple
sentences (or questions) ordered in a logical hierarchy from the most general to the most
specific, in such a way that only those sentences need be read which are relevant to a
particular case".
Algorithms are often used to help us fill in forms (tax forms, passport forms) – some
experimentation might see algorithms incorporated into legislative texts.
10
Conclusion
Sum it all up and it means writing with the reader in mind. It means being open to new
ways of doing and expressing things. Things which at first sight might seem odd and
uncomfortable. It means being open to those expert in communication and being open to
a multi-disciplinary approach to drafting tasks. That is legislative drafting of the future –
and those of you who are involved in tax simplification projects have made the future the
present.
PTO For a smile . . .
11
Endnotes
1. GC Thornton, Legislative Drafting, 1996, Butterworths 4th, p.v.
2. Richard Saul Wurman: Information Anxiety, Doubleday.
3. A modification of Francis Bennion's comment:
It is stange that free societies should thus arrive at a situation where their members are
governed from cradle to grave by texts they cannot comprehend. The democratic origins are
impeccable the result far from satisfactory
F. Bennion: Bennion on Statute Law, Longman (3d) p10.
4. The admirable comment of a witness in the Wandsworth County Court comes to
mind
I know that ignorance is no excuse for the law.
Recorded in a footnote to A Russell: Legislative Drafting and Forms,
Butterworths 4th ed p17.
5. It is entirely correct for a writer to start a drafting project making sure the
foundations are properly established. Creating an administrative agency and
providing for it's operation for example – and then building on that structure. But
when the writer is satisfied that all the pieces are correct he or she should think of
organization from the reader's point of view. Is it helpful for the administrative
agency to come first? Would it be more helpful if the important substance of the
legislation came first – with the administrative agency coming much later?
6. Partial extract published in 1996.
7. Research on the organization of documents draws this conclusion:
Writers should structure information around people performing actions or asking questions in
particular situations.
This principle has been called the scenario principle. See PV Anderson, RJ
Brockmann, CR Miller: New Essays in Technical and Scientific Communications:
Research Theory and Practice (1983), essay by Linda Flower, John Hayes and
Heidi Swarts called Revising Functional Documents: The Scenario Principle,
p41.
8. Section 14AD of the Australian Interpretation Act says how examples are to be
treated if they are used in legislation.
9. Prepared by David C Elliott and available at the Tax Drafting Conference, or from
the author.
10. Elmer A Driedger, A Manual of Instructions for Legislative and Legal Writing,
Department of Justice, Canada, Book 6, p.532.
11. The Algorithm Writer's Guide, Longman.
2