Are there problems with the written law?

Another recent example of a statute being declared invalid by an appellate court is Cullen v President of Legislative Council of New South Wales [2025] NSWCA 278 (on appeal). Contrastingly, in this case, the relevant provisions that the NSW Court of Appeal declared as invalid, ss 7-9 of the Parliamentary Evidence Act 1901 (NSW), are legacy provisions and the power they conferred had lain unexercised for nearly a century and a half.

Both cases involve powers that restricted individual freedoms. Axiomatically, it is tempting to wonder whether legislatures across Australia are in the habit of overreach. I will, using West Australian examples, explore whether that is the case.

Earlier times, Draco’s code and Magna Carta

West Australian statute is cleverly described as written law. The term is defined as “all Acts for the time being in force and all subsidiary legislation for the time being in force”. This definition perhaps does little to reveal the complex journey through the hallowed pages of legal history that got us to this point. In fact, legislation was not always expressed in the terms we have become familiar with today, nor was legislative drafting as institutionalised as it is today. So, how did we get to this point?

Around 2380 BC in the Mesopotamian city of Lagash, laws were made by the city’s ruler to combat corruption and to offer greater societal freedoms and equality. (Yes, your calculation is right; corruption and inequality have plagued human society for over four millennia.)

Similar laws were introduced by other cities around the time, structured in relatively simple terms – in some instances, enough to be committed to memory. These laws were edicts made by the sovereign without explicit agreement of the populace or their representatives, and they often had religious underpinnings.

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Laws were later inscribed on tablets; perhaps the best-preserved example is the “constitution” of Hammurabi – 282 statutes inscribed circa 1970 BC on a stone pillar 2.5 metres high.

Around the seventh century BC, an Athenian legislator named Draco compiled what is regarded by some as the first legal code. These laws were inscribed on wooden tablets. It was said that most crimes under this code were punishable by death, a penalty considered even in those times as harsh.

Although some uncertainty exists in the literature about how long Draco’s code remained in effect before it was repealed, it is not in dispute that due to the inflexibly punitive nature of Draco’s code, repressive laws are described, even to this day, as draconian.

In 1215, what is regarded by many as the first written law of a constitutional nature in a Western democracy, the Magna Carta was issued. The Magna Carta legislated that the sovereign is subject to the law, provided for the rights of “free men” and cemented the now-well-accepted notion of parliamentary supremacy.

It would be about another half a century before records of statutes passed by Parliament were published. However, until 1490, each session of Parliament published only one act. The advent of the printing press in 1476 allowed each separate piece of legislation to be printed.

Institutionalised drafting

Up until this time, statutes were drafted by lawyers or legislators themselves. It was only in the late 18th century that the first legislative drafter was appointed. For many, the position of a parliamentary drafter was popularised by Baron Thring (appointed in 1860), who advocated for consistency in legislative drafting. About a decade later, on 8 February 1869, the Chancellor of the Exchequer, Robert Lowe, founded the UK Office of the Parliamentary Counsel with Baron Thring as its head.

Thus, the modern standard for legislative drafting was established – ministers or members of the legislature will provide instructions on policy that they wish to be given effect to as statute, and a legislative drafter converts those instructions into a draft that is presented to Parliament for its ultimate approval. This blueprint for legislative drafting, attributable largely to Baron Thring, came to be inherited by the colonies and remains to this day.

The written law now

Although the art of legislative drafting remains relatively unchanged, the language used in expressing the written law continues to evolve. To illustrate the point, here are two sets of West Australian examples.

The Parliamentary Papers Act 1891 has the following admittedly elegant preamble:

Whereas it is essential to the due and effectual exercise and discharge of the functions and duties of the Legislature that no obstructions or impediments should exist to the publication of such of the reports, papers, votes, and proceedings of the Legislative Council and Assembly as the said Council or Assembly may deem fit or necessary to be published; and whereas obstructions or impediments to such publication may hereafter arise by means of civil or criminal proceedings being taken against persons employed by or acting under the authority of the said Council or Assembly in the publication of such reports, papers, votes or proceedings by reason and for remedy whereof it is expedient that protection should be afforded to all persons acting under the authority aforesaid: Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows: —

In a markedly less breathtaking example, the preamble to the Ministers’ Titles Act 1925 reads:

Be it enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows: —

Generally speaking, contemporary drafting practice has dispensed with elegant recited words or preambles in acts of Parliament.

Prolixity in legislative drafting used not to be limited to preambles. For example, s. 9 of the Police Act 1892 provides, dare I observe, rather verbosely:

The Commissioner of Police may, from time to time, with the approval of the Minister, frame rules, orders, and regulations for the general government of the members of the Police Force, police auxiliary officers, police cadets and Aboriginal police liaison officers, as well with respect to their places of residence, their classification, grade, distribution, particular service, and inspection, as to the description of the arms, accoutrements, and other necessaries to be furnished to them and all such other rules, orders, and regulations relative to the Police Force, police auxiliary officers, cadets and Aboriginal police liaison officers, and the control, management, and discipline thereof as may be necessary for rendering the same efficient for the discharge of the several duties thereof, and for the purpose of preventing neglect or abuse; and as the Minister considers necessary or desirable for establishing and conducting a Police Force Canteen.

A comparable but more recent example of the above provision is s. 164(1) of the Heritage Act 2018, which provides:

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to this Act.

Even this somewhat standard provision (regulation-making power, as the nerds will call it) has changed slightly over the past couple of years, with modern drafting practice adopting the use of enhanced paragraphing to improve clarity.

Ultimately, as the above examples demonstrate, legislative drafting is increasingly focused on expressing the law in the least number of words necessary.

A certain uncertainty

Even though legislative drafting has come a long way and arguably continues to improve, the cases cited at the beginning of this piece suggest there remain issues now, as might have been the case before Federation.

Could the reason be the fact that written words are an imprecise means of expression, and if so, how could Parliament achieve certainty using a means of communication that is deficient in doing exactly that? To this end, some have argued that in today’s technologically adept world, perhaps symbols and formulae are better expressive tools, and used correctly, would make the written law more reader-friendly. The scope of this piece bars me from engaging with this proposition.

It is certain, however, that more can be done to enhance statutory expression – even if it takes expensive litigation to remind us of this cold fact every now and again.

Disclaimer: The views expressed in this article are exclusively those of the author.

Gad Coffie is an assistant parliamentary counsel at the WA Parliamentary Counsel’s Office. Before becoming a legislative drafter, Gad worked in-house, focusing on administrative law and commercial litigation. Gad has always been interested in contractual and statutory interpretation and constitutional law.