PointsOfOrder/miscellanea.rst

Miscellanea
===========

Interpretation and drafting of resolutions
------------------------------------------

.. index:: motion; interpretation

Interpretation
^^^^^^^^^^^^^^

The interpretation of formal documents is a complex area, and many hefty legal textbooks have been written on the topic.\ [#fn1]_ Just as with the law of meetings, we do not seek to present a comprehensive treatment of all aspects of the law of interpretation, but a brief summary of some key points.

Courts recognise that formal documents, such as resolutions, are to be interpreted according ‘to the common sense principles by which any serious utterance would be interpreted in ordinary life’.\ [#fn2]_

The correct meaning of a resolution is ‘the meaning which [it] would convey to a reasonable person’. This is distinct to whatever may be the dictionary definition of its words, as it may in fact be possible for the reasonable person to conclude the wrong words were used.\ [#fn2]_

There are a number of principles and *canons* of constructions which aid courts in determining meaning. These canons are not strict rules to be applied uncritically, but are mere guides.\ [#fn4]_ Some examples commonly applicable to the interpretation of resolutions are:

* Words should be given their plain, ordinary meaning, unless this would be absurd, inconsistent or repugnant.\ [#fn3]_

..

* A part of the resolution should not be interpreted in isolation, but read as part of the resolution as a whole.\ [#fn5]_

.. index:: presumption against surplusage

* If possible, a resolution should be constructed to give effect to all parts, and not to render any part inoperative or surplus (the *presumption against surplusage*).\ [#fn6]_

.. index:: generalia specialibus non derogant

* When there are both general provisions and more specific provisions, the specific provisions overrule the general provisions on matters which fall into the scope of the specific provisions (*generalia specialibus non derogant*).\ [#fn7]_

.. index:: expressio unius est exclusio alterius

* When certain things are explicitly mentioned, it is assumed that other things of the same category which were not explicitly mentioned were deliberately omitted (*expressio unius est exclusio alterius*).\ [#fn8]_

.. index:: ejusdem generis

* When specific words are followed by general words, the general words are confined to things of the same kind as those specified (*ejusdem generis*).\ [#fn9]_ For example, in the phrase ‘X, Y or any other Z’, the term Z would be limited to items of the same ‘genus’ as X and Y.

..

* When a plural subject is followed by a plural predicate, the plurals may be *distributively construed*.\ [#fn10]_ For example, the phrase ‘the committee members' views’ would probably mean ‘each view held by any committee member’, rather than ‘only the views held in common by all committee members’.

Some rules of interpretation have also been expressly introduced by statute. For example, section 181(1) of the |ConveyancingAct|_ provides that:

    In all … instruments (whether relating to property or not) … unless the contrary intention appears—
    
    \(a) The masculine includes the feminine and vice versa.
    
    \(b) The singular includes the plural and vice versa.
    
    \(c) *Person* includes a corporation.
    
    \(d) *Month* means calendar month.

.. |ConveyancingAct| replace:: *Conveyancing Act 1919* (NSW)
.. _ConveyancingAct: https://www.legislation.nsw.gov.au/view/html/inforce/current/act-1919-006#sec.181

Similar legislation exists in other states and territories.\ [#fn11]_

Applying, or determining when not to apply, these rules, principles and canons is a rather more complicated topic than we have outlined here, and we reserve those details for legal textbooks such as :ref:`Lewison et al. (2012) <lewison>`.

Gender-neutral language
^^^^^^^^^^^^^^^^^^^^^^^

For some time now, society has recognised a need to write gender-neutral documents in a gender-neutral way. The historical practice of simply using only male nouns and pronouns, and extending them to include all genders, has now been unacceptable for a considerable time.

In this book, we have adopted gender-neutral nouns, such as ‘Chair’ rather than ‘Chairman’, and we encourage this practice.

Historically, there have been 2 primary approaches to gender-neutral pronouns: either using ‘he or she’ (‘he/she’, ‘(s)he’, etc.), or omitting pronouns entirely and repeating the noun wherever necessary. Neither of these approaches seems entirely satisfactory,\ [#fn19]_ so we have adopted the use of the *singular ‘they’*.

The use of the singular ‘they’ to refer to an unknown or arbitrary person is grammatically correct, has been attested to since 1375, and was used by Shakespeare himself.\ [#fn20]_ Revisionist grammatical objections to the use of the singular ‘they’ should be rejected in the strongest terms.\ [#fn21]_

.. _plain-english:

Plain English
^^^^^^^^^^^^^

The practice of the procedure at meetings is liable to produce in observers of the same a certain ambience of formality and proximity to the law, in the presence whereof a person (or persons) who hitherto might not have been legally trained is (are) wont to engage in one (1) or more courses of conduct, which conduct includes (but is not limited to) conduct which is inexplicable, verbose and occasionally wholly semantically incorrect, the aforedescribed undertaking ostensibly being made to emulate the *lingua legisperitorum*.\ [#fn13]_

In other words, people sometimes, with good but misguided intentions, introduce ‘legalese’ into meeting procedure, in an attempt to sound ‘more correct’. Ironically, the legal field itself has been moving away from ‘legalese’ towards using plainer English since the 20th century.\ [#fn14]_

Perhaps the most widespread example of inexplicable ‘legalese’ is when a number is written out in words, then followed in figures with brackets; for example, ‘one (1)’. One wonders what kind of disdain the drafter must have for their readers' intelligence if the meaning of the number ‘1’ needs clarifying.\ [#fn15]_ Most style manuals now provide that numbers over 10 or 100 should be written in figures – in this book, we have gone even further and expressed almost all numbers exclusively in figures.

Another common example of redundant legalese is the expression ‘includes, but is not limited to’ or ‘includes without limitation’: surely the word ‘includes’ inherently indicates the list is not exhaustive.

The traditional style of legal drafting prefers to avoid the possessive apostrophe, writing, for example, ‘the rules of the association’. It would be plainer English to simply write ‘the association's rules’.\ [#fn16]_

The legalese expression ‘not less than X’ is not as vehemently targeted by authorities on plain English, but :ref:`Cutts (2013) <cutts>` recommends,\ [#fn12]_ and the author agrees, considering the even simpler ‘at least X’ or ‘X or more’. The same goes for ‘not more than X’ (‘at most X’ or ‘X or less/fewer’).

Other legalese words to consider avoiding include:

* ‘shall’ (consider ‘must’ or ‘will’)
* pronominal adverbs like ‘hereby’,\ [#fn18]_ ‘thereafter’, ‘wherein’, etc.
* ‘notwithstanding’ (consider ‘despite’ or ‘in spite of’)
* ‘where’ (when, in plain English, we would write ‘if’ or ‘when’)
* and many others!

For more information on plain English writing, see the Office of Parliamentary Counsel's *Plain English Manual*.\ [#fn17]_

.. rubric:: Footnotes

.. _lewison:

.. [#fn1] See e.g. Lewison K, Hughes D. *The interpretation of contracts in Australia*. Sydney: Thomson Reuters; 2012. 
.. [#fn2] :ref:`Lewison et al. 2012 <lewison>`, pp. 10–11, 17–18; *Investors Compensation Scheme Ltd v West Bromwich Building Society* [1998] 1 WLR 896; *Maggbury Pty Ltd v Hafele Australia Pty Ltd* (2001) 210 CLR 181; *Pacific Carriers Ltd v BNP Paribas* (2004) 218 CLR 471; *Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd* (2004) 219 CLR 165. 
.. [#fn4] :ref:`Lewison et al. 2012 <lewison>`, p. 281.
.. [#fn3] :ref:`Lewison et al. 2012 <lewison>`, pp. 161, 164.
.. [#fn5] :ref:`Lewison et al. 2012 <lewison>`, p. 283.
.. [#fn6] :ref:`Lewison et al. 2012 <lewison>`, p. 291.
.. [#fn7] :ref:`Lewison et al. 2012 <lewison>`, p. 297.
.. [#fn8] :ref:`Lewison et al. 2012 <lewison>`, p. 298.
.. [#fn9] :ref:`Lewison et al. 2012 <lewison>`, p. 325.
.. [#fn10] :ref:`Lewison et al. 2012 <lewison>`, p. 334.
.. [#fn11] :ref:`Lewison et al. 2012 <lewison>`, p. 213; |PropertyVic|_ s. 61; |PropertyQld|_ s. 48; |PropertyWA|_ s. 8; |ConveyancingTas|_ s. 64; |PropertyNT|_ s. 50.
.. [#fn19] The second approach eliminates a useful feature of the English language, and frequently makes sentences seem repetitive, while the first seems verbose and uninclusive of people who use pronouns other than ‘he’ or ‘she’.
.. [#fn20] Baron D. ‘A brief history of singular “they”’. *Oxford English Dictionary*. Oxford: Oxford University Press; 2018 [cited 2021 Feb 27]. https://public.oed.com/blog/a-brief-history-of-singular-they/; ‘Using “they” and “them” in the singular’. *Lexico*. Oxford: Oxford University Press; c2021 [cited 2021 Feb 27]. https://www.lexico.com/grammar/using-they-and-them-in-the-singular.
.. [#fn21] We acknowledge there is some controversy surrounding the singular ‘they’ when used with a view of erasing a person's specific pronouns, particularly in the case of transgender people. We emphasise that, when referring to a particular person, that person's specific pronouns should identified and used.
.. [#fn13] Hopefully it was clear this paragraph is satire! The author acknowledges he is not always the writer of the world's plainest English, but he hopes it is not this bad!
	
	.. _plain-english-manual:
.. [#fn14] *Plain English manual*. Canberra: Office of Parliamentary Counsel; 2016. https://www.opc.gov.au/publications/plain-english-manual. p. 5.
.. [#fn15] And what happens if the words and figures disagree? The traditional wisdom is that the words will prevail: :ref:`Lewison et al. 2012 <lewison>`, p. 440; *Saunderson v Piper* `(1839) 132 ER 1163 <http://www.commonlii.org/uk/cases/EngR/1839/645.pdf>`_; somewhat paradoxical, given one would generally think that the figures should be more attention-grabbing to the casual eye.
.. [#fn16] :subref:`PEM <plain-english-manual>`, p. 20.
	
	.. _cutts:
.. [#fn12] Cutts M. *Oxford guide to plain English*. 4th edition. Oxford: Oxford University Press; 2013. p. 30.
.. [#fn18] What is ‘hereby’ even supposed to mean? A motion ‘*That Charlie be appointed Secretary*’ means exactly what it means. To clarify that Charlie is ‘*hereby* appointed’ says nothing more than ‘This motion does what it does’.
.. [#fn17] :subref:`PEM <plain-english-manual>`, *op. cit.*

.. |PropertyVic| replace:: *Property Law Act 1958* (Vic)
.. _PropertyVic: https://www.legislation.vic.gov.au/in-force/acts/property-law-act-1958/138

.. |PropertyQld| replace:: *Property Law Act 1974* (Qld)
.. _PropertyQld: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1974-076

.. |PropertyWA| replace:: *Property Law Act 1969* (WA)
.. _PropertyWA: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_756_homepage.html

.. |ConveyancingTas| replace:: *Conveyancing and Law of Property Act 1884* (Tas)
.. _ConveyancingTas: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1884-019

.. |PropertyNT| replace:: *Law of Property Act 2000* (NT)
.. _PropertyNT: https://legislation.nt.gov.au/en/Legislation/LAW-OF-PROPERTY-ACT-2000

.. |PEM| replace:: *Plain English manual*

.. |AIRRegVic| replace:: *Associations Incorporation Reform Regulations 2012* (Vic)
.. _AIRRegVic: https://www.legislation.vic.gov.au/in-force/statutory-rules/associations-incorporation-reform-regulations-2012