What is the 'it'?

At the end of January we had a couple of days in Sydney. The purpose of the trip was so that I could speak to the new intake of judges’ associates at the Federal Court about proofing judgments. But we packed in a decent amount of fun before that. A train journey! Art! Food! Ferries! More art! More food!

But as the World’s Worst Public Speaker (TM), I kept sensing my impending date with the Federal Court hovering annoyingly in my peripheral vision. I had been running this talk through my head for literally months beforehand. And I had recently road-tested it for the incoming associates at the High Court. I couldn’t have been more prepared.

Nevertheless, my customary nerves came at me, as expected. Things started off pretty well, until at one point I developed a horrible feeling that I had no idea what I was meant to be talking about next – or what I had just been saying. I could feel myself plunging into a void. My brain was telling me that it was about to commence a full system shutdown. That is the part of my brain I usually listen to. But a different part, one that I hadn’t known existed, piped up to remind me that in fact I knew the structure of this talk backwards and that the reason I had been running it through my head for so long was so that I could deal with this very situation, and that of course I knew what was coming next, dickhead, I just had to reach in and grab it. Which I did. It’s possible that nobody even noticed.

At the end of the talk I invited questions. Questions can be fun. Sometimes I can even answer them. One question, though, invited me to think about something I have never had occasion to turn my mind to. It related to shortened forms of things – definitions and acronyms – and how they should be treated when they appear after a heading in a judgment: whether the thing should then be set out in full again, to ensure that the reader knows what is being referred to.

My answer was along the lines of that I didn’t think I had ever seen it done, that it couldn’t think of a situation where it should be necessary, and that from a proofing perspective it might not be an easy thing to monitor.

But the question got me thinking.

Over the many decades since I was at law school, I seem to have lost sight of how people read judgments. A judgment isn’t approached as a linear narrative – a story – with a start, a middle and an end; the reader locates the passage they are looking for (ie, the part where the judge is talking about the point of law they are interested in either researching or applying to a case they are involved in) and start reading from there, stopping at the point where the judge moves on to another topic.

That is not how I “read” when I am proofing a judgment. My approach in proofing (I suspect it is the only workable approach) is to start at the first word of the judgment and work my way through it until I get to the final full stop.

This means that I am experiencing the judgment as a story; I will know when the judge is using a definition, because I would have taken note of the definition when it was first set up. On the other hand, many readers – most, even – are going to land on a shortened form or an acronym without ever having seen the place in the judgment where it was first adopted by the judge.

Is that a problem?

For most things, it shouldn’t be. A shortened case name or a shortened Act name will be perceived by most readers of judgments as being a shortened form of something. It isn’t going to be that hard for the reader to flick back through the judgment (ctrl + f is your friend) to find the thing that is being shortened. The same should be true of acronyms. It must be an acronym of something, and the judge will most likely have set it out in full the first time it appeared in the judgment – unless, perhaps, it is something that only really exists as an acronym, like ATM or HTML (or ROFL, which I am very much looking forward to finding in a judgment one day – ideally as the judge’s response to a particularly unlikely argument from counsel).

Irrespective of the way a reader might approach it, though, a judgment is a single, integral document. It does have a start, a middle and an end. What this means is that lengthening a previously shortened form of something, or an acronym, after a heading is going to suggest to a reader who has read the part of the judgment where the definition was first set up that the judge has somehow forgotten what they had done, or that it is a vestigial consequence of things having been moved around during the writing process – both of which might, unfairly, be seen to reflect badly on the judge.

In other words, for the most part reintroducing, after a heading, the long form of something that has previously been shortened shouldn’t be necessary, and may even be unhelpful. And, as I said, it would be a nightmare to keep track of in proofing, and I already have enough of those. I don’t need new ones.

That should probably be all I have to say on the subject. But – head for the hills! – I would seem to be climbing up onto a soapbox.

Ahem.

I am on record as saying that judges tend to overdefine things. (This, I am sorry to observe, doesn’t seem to have had much of an influence on judicial practice.) Judgments are different from legislation or legal documents. I fully understand why definitions form an integral part of those kinds of documents; particular clauses or provisions have to stand on their own. But judgments don’t have to work like that. Judgments are, in their own way, literary works. And literary works – or at least the ones I like to read – don’t tend to be burdened by defined terms.

Maybe I just don’t like them aesthetically. They are visually unappealing. But they are also an unnecessary constraint on how the judge writes the rest of their judgment (unless the judge sees themself as being at liberty to ignore their own definition when it suits them, which can have problems of its own).

A judge – says me – should be able to frame a judgment so that most of the kinds of things they might be in the habit of defining don’t actually need a definition at all. The judge can still adopt some kind of truncation in later references. That’s just good writing. But not defining a thing allows the judge to be flexible in their description of that thing across the judgment. They can shorten it after it first appears while also, whenever they see fit, expanding on the wording in the interests of clarity or emphasis without cutting across a definition they had so carefully set up at the start of the judgment.

There is, for example, no reason that I can see for defining the Northern Territory as “the Territory” in order to be able to refer to it later in the judgment as “the Territory”. If another “Territory” happens to appear in the judgment, that could be dealt with in such a way that the question “which Territory” is easily answered in the particular context. And I fail to see why a judge can’t make later references to a particular Minister or Department simply by saying “the Department” or “the Minister” without first setting it up as a defined term. Similarly, if a later reference to the Civil and Administrative Tribunal is just to “the Tribunal”, setting up “the Tribunal” as a defined term isn’t really adding much to the sum of human knowledge.

At the other end of the definitional spectrum, judges sometimes define a longer string of words – a complex legal concept, perhaps, or something particular to the facts of the case in front of them – as a shorter string of words: “the principle”, say, or “the exception”, “the freedom”, “the proposition”, “the privilege”, “the immunity”, “the Tribunal decision”. Even “the trust” or “the partnership”. Appearing later in the judgment merely as words in a sentence, any of these might not be readily identifiable as a defined term; a reader who starts reading the judgment after the point where such a definition has been set up may have no idea that what they are looking at isn’t just words bearing their ordinary meanings. That could lead to genuine misunderstanding – not necessarily catastrophic, but I have never yet witnessed a beneficial misunderstanding.

The possibility of a misunderstanding might be especially problematic if this kind of defined term appears in a passage where the judge is stating a proposition of law: the narrower in scope is the thing that the judge is using a shortened form to define, the more likely it is that a reader, oblivious to the use of it as a defined term, is going to misunderstand the proposition the judge is stating as broader – perhaps much broader – than the proposition the judge was intending to state.

Even here, though, I don’t think the solution is to revert to the full expression at certain points in the judgment (such as when it appears after a heading). If the judge is going to define something, they should have enough confidence in the definition to be able to use it whenever it can be used. (Generations of High Court associates have heard me say this.) The better solution might be to not use definitions at all for this type of thing. At the expense of a bit of repetition here and there, much clarity might be gained.

This is not to say that judges should never use definitions. If the judge wants to refer to New South Wales v The Commonwealth (1975) as “the Seas and Submerged Lands Act Case” (which has the distinct advantage of making it clear which of the many cases called “New South Wales v The Commonwealth” the judge is referring to), that is going to require a definition, because otherwise only those in the know are going to draw the connection between what are two very different-looking case names. And there is no reason why a judge should have to repeat a very long Act name every time they refer to it. (What I will say here, though, is this: if the court’s style is to italicise Act names, then any shortened forms should not be italicised, lest they be misunderstood as being an actual Act name rather than a shortened form. In other words, define “the Administrative Decisions (Judicial Review) Act 1977” as “the Review Act”, not “the Review Act“.)

And of course there are many situations where setting up a definition for something is going to be the best way forward. All I’m saying is that, unlike climbing Mount Everest, it shouldn’t be necessary to define something just because it is there.

At the end of the day, though, I am simply expressing a view. Judges gotta do what judges gotta do.