In this article the ALRC considers how principles of ‘human-centred design’ could be used to improve the ‘user experience’ of Australia’s legislation — and increase the likelihood that it is understood and complied with.
In his popular book, The Design of Everyday Things, the cognitive scientist Don Norman observes that ‘[a]ll artificial things are designed’. Some person, or group of persons, have made decisions about ‘the layout, operations, and mechanisms’ — whether it be of a piece of furniture, the latest and greatest tech gadget, or for that matter, law.
The design of law is a topic that should concern us all. We now live in an ‘age of statutes’, and ignorance of the law is considered by our legal system to be no excuse. We face potentially severe consequences for failing to abide by increasingly voluminous legislation. But rather than enlightening or successfully guiding conduct, many statutes are liable to confuse or mislead. There are very real, and negative, consequences to poor law design — including the increased costs we all pay for products and services, and in publicly funding courts and regulators who are required to decipher poorly designed laws.
In this article we make the case for a greater focus on law design, to reduce complexity and increase the likelihood of compliance. In particular, we explore a number of features of good design, borrowed from the field of ‘human-centred design’. Human-centred design aims to ensure that the things we design are ‘understandable and useable’, that they accomplish the ‘desired tasks’, and that the ‘experience of use is positive’.
In summary, the design of law should be improved through a greater focus on:
- discoverability (improving the ability to know the law, including by enhancing accessibility and navigability);
- signifiers (measures to improve the communicative power of the law, to more clearly indicate what the law is intending to achieve);
- conceptual models (improving the coherence and rationality of the law, particularly in its structure, to make the law more intuitive and consistent, and easier to know where to find things);
- drafting style and quality (removing undue prescription, and reducing unnecessary linguistic complexity that impedes understanding); and
- the law design process (improving the structures and supports that help law designers do their job, and implementing processes of review to improve the quality of law and keep it up to date).
Discoverability (how to find the law)
We’ve all had the experience of pushing on the wrong side of a door, when it’s not clear how it opens; or having to turn on and off a bank of switches, simply to discover how to control the correct light. These are failures of discoverability, and symptoms of bad design.
Unfortunately, failures of discoverability are common in Australia’s statute books. For example, the ALRC is particularly concerned by the use of ‘dark law’ in corporations and financial services legislation. Dark law consists of ‘notional amendments’ to legislation made by legislative instruments. These instruments are effective at changing the law, but the changes made are not apparent on the face of a statute. For example, the text of s 1012G of the Corporations Act has remained unchanged for over 18 years, but its content was replaced by a notional amendment in 2004. Such amendments make the primary law the tip of a proverbial iceberg — rendering the law deeply inaccessible, and likely to lead users into error.
To improve the law’s discoverability, the ALRC has suggested an end to notional amendments as a method of law-making — something it accommodates in its recently suggested model for corporations and financial services legislation (a model that may also be applied elsewhere). However, there are also other measures that would meaningfully improve discoverability. For example, in its Background Paper on Improving the Navigability of Legislation, the ALRC suggests the use of technological aids, including:
- hyperlinks within statutes (to cross-referenced provisions and definitions); and
- the use of Extensible Markup Language in legislative drafting, which would facilitate greater customisability for users to engage with legislation (for example, to only display provisions containing criminal offences, or applying to certain entities).
The ALRC also supports the provision of other materials designed to improve the discoverability of the law — such as annotated versions of legislation, which flag relevant legislative instruments and other detail not apparent on the face of the law. Users of legislation should not need to purchase commercially produced compilations (often at significant cost), simply to work out what the law requires of them. Just as most products come with a user guide or manual, so too should some statutes.
Signifiers (how to know what the law intends)
When confronted with a complex product, Norman notes that ‘[p]eople search for clues, any sign that might help them cope and understand’. Good designers make things easy for users by providing ‘signifiers’, which help communicate the ‘purpose, structure, and operation of the device to the people who use it’. Good law design requires the same.
At its heart, legislation is an act of communication. However, the complexity of some legislation means that its message isn’t being understood. For example, in the Financial Services Royal Commission’s Final Report, it was observed that legislative complexity may ‘cause the regulated community to lose sight of what the law is trying to achieve’. In the context of penalties and offences, the ALRC has observed that over-particularisation and a large number of overlapping provisions may serve to obscure the underlying norms — the ‘essence of the obligation or prohibition’. This is inimical to the law’s communicative function, and reduces the likelihood of compliance.
The use of legislative signifiers can improve the likelihood that users will understand what the law is intending to achieve. For example, the ALRC has suggested the increased use of legislative examples as aids to understanding, the use of simplified outlines (showing the structure of a statute or component parts) or visuals (such as helpful flow-charts), the use of clear headings, and notes designed to communicate intent and other important information. Objects clauses may be another way in which legislation can more clearly signify what is intended, and thereby help users to work out what is expected.
We all know the frustration that comes from purchasing a product with seemingly inexplicable features that leave us wondering — ‘what is that for?’. Legislation shouldn’t leave us in a similar state of confusion. Good law should be a user manual, not a mystery novel.
Conceptual models (how to know where to find things / use the law)
Through our use of the designed products and systems around us, we build up a conceptual model of how they work, and how we should interact with them. When products or systems provide a good conceptual model, they are intuitive and easy to use. When they don’t, they cause untold frustration, or worse. As Norman writes, a good conceptual model gives users a ‘structure to the apparent randomness’ — enabling them to figure things out.
Regrettably, much of our legislation does not equip users with a good conceptual model. To the contrary, it contains a great deal that is unintuitive and inconsistent. For example, the ALRC has observed that in corporations and financial services legislation there is no consistent approach to the identification of defined terms, and in some circumstances the same term is defined to mean different things in different parts of the same Act. For instance, the term ‘property’ is defined 17 times in the Corporations Act, and the term ‘financial product’ is defined differently between the Corporations Act and ASIC Act, despite the complementary nature of those statutes. It is hard to imagine a less intuitive use of language, or a use more likely to result in error.
The location of the law may also fail to afford a clear conceptual model. This makes it difficult for users of legislation to know where to go to locate what they need. For example, corporations and financial services law currently lacks a clear legislative hierarchy — or a rationale for ‘what goes where’, and why. As the Department of the Treasury observed in the context of the Financial Services Royal Commission:
Decisions taken on legislative design — what material is included in primary legislation, regulations, class orders and what should be left to firms and industry to grapple with — has varied over time, resulting in inconsistencies in design and a lack of a clearly discernible legislative design philosophy across the law.
In the ALRC’s view, a better conceptual model could be provided in a number of ways. This would include the ordering of material within legislation, so as to provide a logical flow of ideas and concepts. Further, the clustering of provisions containing related obligations, or concerning similar themes or topics — as opposed to the diffuse scattering that is common at present. Perhaps most importantly, a good conceptual model should be provided through the use of a clear and consistent legislative hierarchy, governing what is contained in the principal Act and supporting legislative instruments.
At the end of the day, law should be as simple to comprehend and comply with as possible. Law should be a guide to conduct, not an intelligence test.
Drafting style and quality
Good design doesn’t end with a clever schematic. The actual embodiment of a product or system in practice really matters. However whiz-bang a product may first appear, its reception is unlikely to be positive if it isn’t durable or built with quality materials. So too with law.
Words are the timbers from which we build our legislation, and it’s important to use the right ones. Unfortunately, too much of our legislation is poorly expressed, rendering it as short-lived as a cheap plastic trinket. For example, prescriptive rather than principles-based legislation makes it necessary to amend the law more frequently to tailor or update. It may be more quickly superseded by technological developments, or gamed and avoided by regulated entities looking for loopholes. In comparison, a more principles-based approach to drafting would likely reduce the length and complexity of the law, and help achieve the rule of law ideal of accessibility.
A number of other measures could help improve the drafting style and quality of legislation, some of which are outlined by the ALRC in its Background Paper on Complexity and Legislative Design. For example, the ALRC suggests that the current complexity of legislation is contributed to by extensive cross-referencing, the complex use of conditional statements (‘if’, ‘where’, etc), the proliferation of exclusions and exemptions, and a failure to prioritise core concepts or follow a logical structure.
Most importantly, good law design should take account of human limitations. If you’ve ever forgotten a person’s name right after meeting them, then you know something of the limits to human memory. Similarly, as the Office of Parliamentary Counsel has observed, ‘overly long sections’ can mean that the ‘reader struggles to maintain a clear understanding of what a particular section is trying to achieve’. There is only so much we can keep in our working memory, and as Norman writes, ‘[e]ven minor distractions can wipe out the stuff we are trying to hold on to’. Technological tools, such as the Flesch Reading Ease score, could be used by drafters to identify provisions that are likely to be particularly difficult to comprehend — and deserving of simpler expression.
Law design systems and processes
In a poem entitled ‘The Parliamentary Draftsman’ published in 1947, the author (identified only as ‘J.P.C’) provides a humorous take on the travails of legislative drafting. The poem concludes:
I’m the Parliamentary Draftsman,
And they tell me it’s a fact
That I often make a muddle
Of a simple little Act.
I’m a target for the critics,
And they take me in their stride —
Oh, how nice to be a critic
Of a job you’ve never tried!
While this article has been critical of some current legislation and law design practices, this is not a critique of legislative drafters. As J.P.C. noted, it’s easy to be a critic of a job you’ve never tried — and it’s clear that the job of a legislative drafter is a challenging one. In particular, legislation often needs to be drafted under severe time pressures. An aversion to principles-based drafting may also come from other organs of government, or from external stakeholders. Further, there may be insufficient resources to review or improve the existing stock of law — so great is the pressure to simply attend to the latest legislative initiatives.
The ALRC considers that it is critical to provide processes that help to improve law design, and assist drafters to do their job. There is a need to improve the institutional framework that supports the legislative process. For example, the ALRC has proposed compulsory consultation with an expert Advisory Committee before the making of delegated corporations or financial services legislation, and periodic sunsetting, to help ensure its quality and fitness for purpose. The ALRC has also suggested improved guidance to help law-makers use a principled legislative hierarchy, and to guide them in the design of powers that enable delegated law-making.
There is also much to be said for periodic reviews, and other structured mechanisms, to ensure that the law remains in good shape. For example, some inspiration may be drawn from New Zealand’s approach to legislative stewardship. This includes a Legislation Design and Advisory Committee, which advises departments in the initial stages of developing legislation, and scrutinises Bills that come before Parliament. The Legislation Act 2019 (NZ) also requires the Attorney-General to prepare a 3-yearly revision programme for each new Parliament. The purpose of this programme is to ‘make New Zealand statute law more accessible, readable, and easier to understand’. Some European countries also have formal systems of ‘post-legislative review’.
As with any product, there are always improvements that can be made, to fix errors and keep pace in a rapidly changing world. Processes should be in place to ensure the law does the same.
This article has made the case for a greater focus on law design, to reduce complexity in legislation and increase the likelihood of compliance. Borrowing from the field of human-centred design, legislation could be improved by focusing on discoverability, signifiers of meaning, conceptual models, drafting style and quality, and on law design systems and processes.
Ultimately, the principles of design are just as relevant to law as to anything else. As Norman writes, the principles are the same ‘across all domains’, because ‘[p]eople are the same, and so the design principles are the same’. Better law design, founded on the principles of human-centred design, would make the ‘user experience’ of legislation more pleasant for everyone — and increase the likelihood that it is understood and complied with.