What is the 'it'?

Look, there is nothing I like more than a complex piece of legislation. A well-drafted provision can be very satisfying; sometimes even the most elaborate piece of statute law just works. But then, occasionally I see a provision like this one, from the Victorian Evidence Act 2008, and my heart sinks:

“‘Disclosure order’ means an order made by a Victorian court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order under the Rules of the Supreme Court but does not include an order made by a court under the Proceeds of Crime Act 2002 of the Commonwealth or the Confiscation Act 1997.”

Legislative drafting is a dark art. I guess it must have its own particular rules, but what those rules are and how they might interact with orthodox ideas of sentence construction I couldn’t say.

Even with those caveats, though, I find this provision distressing: it is literally impossible to navigate.

The troubles begin with the word “requiring”. What is it that is “requiring a person to disclose information”: the “order” or the “civil proceeding”? Given that the defined term is “disclosure order”, it should be safe to conclude that it is the order. But there are a lot of words between the word “order” and the word “requiring” – enough to allow the shadow of a doubt to fall.

Assuming we can ignore that shadow, the next problem arrives with the first comma. It might, I suppose, have been included as a comfort break for the reader, given that the sentence still has some way to go. That’s fine, I guess, though probably unnecessary. And in order for it to work in that way there would have to be a corresponding comma before the words “but does not include”. There isn’t.

Any conclusion – even tentative – as to the purpose of the first comma is immediately thrown into doubt with the arrival of the second comma. This comma doesn’t resolve: “as part of” what? Presumably it was meant to say “as part of a freezing or search order under the Rules”. For it to work in that way, though, would require a matching comma after the words “or in connection with”: ie, “as part of, or in connection with, a freezing or search order”. Again, there isn’t one. The words “as part of” have been left stranded.

And the absence of clarity as to the purpose of each of those commas separately is compounded by the consequent absence of clarity as to whether the commas are intended to work in combination in some way, or whether each of them is simply doing its own thing. In other words, the purpose of each comma is uncertain, and any possible connection between them is also uncertain.

Ambiguity. I hate that.

My best guess is that the definition is intended to cover two kinds of order. The first of them – ignoring the “but does not include” part of the definition, which, mercifully, seems to be able to look after itself – is an order made by a Victorian court in a civil proceeding requiring a person to disclose information as part of a freezing or search order under the Rules of the Supreme Court. That is somewhat convoluted but I think can only mean what it says. To be covered by the definition, the order has to be made by a Victorian court in a civil proceeding. It has to be an order requiring a person to disclose information. And it has to be part of a freezing or search order under the Rules.

The second is an order made by a Victorian court in a civil proceeding requiring a person to disclose information in connection with a freezing or search order under the Rules of the Supreme Court. Can this part of the definition be unpacked in the same way? First, it has to be an order made by a Victorian court in a civil proceeding. Secondly, it has to be an order requiring a person to disclose information. Thirdly, something has to be “in connection with” a freezing or search order under the Rules. But what is that something?

It might be the “order made by a Victorian court in a civil proceeding requiring a person to disclose information”. Can you make an order “in connection with” an order? I guess so. That could simply be a reference to two separate orders made within the one set of orders. If that is the correct reading, though, I am not sure how that could be any different from an order that is “part of” a freezing or search order.

Grammatically at least, however, the thing that has to be “in connection with” a freezing or search order might also be the “civil proceeding”. It might also be the “information”. That’s too many possibilities. And I don’t think it is possible to instinctively rule any of them out as flatly ridiculous. (But that might just be me. I’m not the lawyer around here.)

In other words, the precise nature of the second kind of order covered by the definition remains unclear, at least on the face of the provision.

And there is one further element of potential uncertainty in the definition: what, exactly, is the thing that is required to be “under” the Rules of the Supreme Court? My working assumption is that it would be the freezing or search order. But it could be the proceeding. It could even be the “disclosure order” itself.

All of this uncertainty ultimately derives from those two commas. Had neither comma been there, I feel like the meaning of the provision would have been much clearer: I would have read it as an order (being an order requiring a person to disclose information) made “as part of or in connection with” a freezing or search order.

Put that way, it does seem pretty simple. The commas have sent up an unnecessary cloud of confusion that has obscured any clarity the definition might otherwise have had. But can we just ignore them? After all, they are commas given to us by the Parliament. Isn’t there a rule that they must be given work to do?

After spending (literally) hours staring at and thinking about this provision – “SAD!” – it dawned on me that there might be another reading of it: as an attempted three-part list. That would at least give the commas some work to do. But it would be a radically different, and wider, definition than seems likely.

The definition of “disclosure order”, on that hypothesis, would include three kinds of order. A disclosure order would be an order made by a court (1) requiring a person to disclose information, or (2)(a) as part of or (2)(b) in connection with a freezing or search order. (I should probably say, before somebody says it for me, that this reading requires the invention (or “hallucination”) of an “or” which isn’t in the original. A court would be reluctant to do that. But given the opacity of the provision as drafted, some kind of judicial inference or strained interpretation is going to be required whichever way the judge decides to cut it.)

On that reading, “an order requiring a person to disclose information” would amount to its own category of “disclosure order”. There would not need to be any connection to a freezing or search order. The definition would apply to any order to disclose information in any proceeding. That might be a broad reading of the scope of the provision, but at least it would seem to fit with the notion of a “disclosure order”.

The second category of order, on this hypothesis, would be an order (ie, any order) made by a Victorian court in a civil proceeding as part of a freezing or search order under the Rules. I’m not entirely sure what would be included in this category, but it could potentially cover a lot of orders that wouldn’t usually fall under the rubric of “disclosure orders”.

And the third category of order, on this reading, would be an order (ie, any order) made by a Victorian court in a civil proceeding in connection with a freezing or search order under the Rules. This would seem to be even more expansive in its scope. It might cover, say, a costs order made in connection with a freezing or search order. Would it make any sense to call that a “disclosure order”?

Of course, the magic of a statutory definition is that it allows the Parliament to call anything anything: a cow could be defined as a chicken. Even so, given that this reading of the provision would draw in a lot of orders that wouldn’t sensibly be thought of as “disclosure orders”, and given the inherent ambiguity in the provision, I am probably more inclined to assume that the drafter suffered a rush of blood to the head over a couple of well-intended but misguided commas. Still, who can say for sure?

If you were a judge or counsel working regularly in the field of disclosure orders, or freezing or search orders, you might have some broader context to draw from, which might allow you to make practical sense of the provision. But not all of us are in that privileged position, and if, as I was taught at school – not, I hasten to add, “the hard way” – ignorance of the law is no excuse, then the rest of us are at something of a disadvantage here.

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Coincidentally, I recently found myself looking at the following provision:

“Without limiting the generality of the foregoing provisions of this section when determining such value there shall, where it is relevant, be taken into account:

(a) the use to which such land is being put at the relevant time, the highest and best use to which the land might reasonably be expected to be put at the relevant time and to any potential use”.

(This one, too, I am sorry to say, is from a Victorian Act.)

I have two comments. The first concerns – surprise! – commas: shouldn’t there be a comma in the first part of the provision, after the words “the foregoing provisions of this section”? I don’t know about you, but I had to read the words twice in order to make sense of how they are meant to work together. It seems at least arguable that a comma there would have been more helpful than the two commas we have been given.

Secondly, and more importantly, towards the end of para (a) you will see the words “and to any potential use”. How did that “to” get there? It may be doing no harm, but neither is it doing any work. At all. It is (with apologies to the person who did the drafting) just wrong. For the words “and to” to be doing anything, there would have to be an earlier “to” for them to latch onto. There isn’t. The relevant part of the provision, as written, reads as, and can only be read as:

“… there shall … be taken into account … to any potential use”.

That makes no sense. I can only assume that at some point the provision was going to take a form which included the words “regard shall be had”, and that this “to” was left in after that idea had been abandoned, without anybody noticing.

At least this time, unlike with the “disclosure order” definition, there is no ambiguity. Anyone working with this definition has no option but to ignore the “to”. Fortunately, that can comfortably be done. It’s a just a shame that it ended up in the legislation in the first place.

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The thing these provisions have in common is that they both draw attention to the importance of precision in writing. And precision is as important in judgment writing as it is in legislative drafting. Questions of meaning always come back to what the actual words on the actual page actually say. The meaning of a sentence can’t just be about the vibe. Can it?