Dr William Isdale and Nicholas Simoes da Silva
Modern smartphones are some of the most technologically sophisticated pieces of equipment ever invented. And yet, to operate one, you don’t need a PhD in computer science or years of experience. For the most part, their operations are intuitive and their functions easily navigable. If only the same could be said for all modern legislation.
The usability of smartphones reflects the efforts of designers to ensure they are user-friendly. In the world of technology, this focus is called ‘user-experience’ or ‘UX’, and it dominates the design processes of many leading companies. As observed in the book ‘User Friendly’, ‘[t]oday, we take it for granted that the most advanced technologies ever created should never need any explaining whatsoever’.
Unfortunately, this humane philosophy is often missing in the Commonwealth statute book. In our view, the design, drafting, and publication of legislation in Australia needs a fundamental re-think based on ‘user-experience’. This would promote legislation that is more coherent, navigable, and which communicates its message as simply and clearly as possible.
After discussing the need for user-friendly legislation, this article outlines three potential means by which this could be achieved:
- first, by drafting legislation that is simpler and more intuitive in its expression and structure;
- second, by helping users of legislation navigate and comprehend it by providing ‘knowledge tools’; and
- third, by improving the law-making process generally, including by soliciting and integrating user feedback, and through undertaking more regular reviews.
Why we need user-friendly legislation
The things we make should reflect the things we value. And while there are many values that legislation should reflect, among the most important are those related to the ‘rule of law’ — including that the law be ‘accessible and so far as possible intelligible, clear and predictable’ (as Lord Bingham has written).
Unfortunately, as Krongold has observed, ‘[g]overnments have traditionally valued legal effectiveness over intelligibility’. With limited Parliamentary time and sometimes perceived political urgency, the emphasis is often on getting legislation drafted and passed quickly. The result is legislation that is too often not user-friendly. And once legislation is on the books, it is rarely reviewed to consider better ways of achieving the same ends. In short, our current statutory law-making processes do not sufficiently ensure user-friendly outcomes.
Legislation that is unintelligible, unclear, or difficult to navigate and understand, has significant practical implications. For one thing, such legislation is less likely to be complied with, and people may be unaware of whatever rights it affords them. Such legislation may even cause injustice, by requiring the observance of standards which are unreasonably difficult to know or comply with. More generally, such legislation is costly and burdensome to those who must use it. As the Victorian Law Reform Commission has observed:
‘A document that is not readily comprehensible takes longer to understand, is more likely to need a “translator” and is more likely to be misunderstood. … Poorly drafted Acts and regulations consume the time of those who must administer or comply with them. They reduce the efficiency of administration and of business activity. … They waste the time of lawyers and judges.’
While some legislation may never be as intuitive as a smart-phone, it should never be more complex — or less comprehensible — than it absolutely needs to be. It is precisely because the topics with which legislation deals are often so complex that, as Krongold writes, ‘words, syntactic structures and format … should not add to the complexity’.
In putting the user at the centre of the design process, a ‘user-experience’ focus could transform the way that legislation is conceived, created and implemented — for the benefit of us all. In the remainder of this article we outline how this could be achieved.
Drafting simpler legislation
The simplest place to start is with drafting simpler law. This includes a focus on clear and simple expression, but also the adoption of good legislative design — including a navigable structure. Sensible guidance on legislative drafting and structure is provided by the Commonwealth Office of Parliamentary Counsel’s Plain English Manual and its Guide to Reducing Complexity in Legislation. However, the wisdom embodied within these documents is not fully reflected in Australia’s statutes, and it’s worth revisiting some of the basics.
The use of clear language is perhaps the most uncontroversial of all the ways in which legislation can be made more ‘user-friendly’ — a topic on which the Victorian Law Reform Commission has outlined an extensive set of recommendations and principles.
Drafting practices that cause particular headache include the custom of ‘nesting’ clauses within clauses, which force a reader to ‘keep track of the initial part of the construction until the nested item has been absorbed and the balance of the construction is revealed’ (as Krongold observes). Also, the extensive use of defined terms and cross-references to other provisions and Acts. As the ALRC has previously noted, the Corporations Act 2001 alone contains more than 14,500 internal cross-references, and uses more than 1,000 defined terms. A user is often required to follow long interconnected ‘chains’ of defined terms, simply to understand a single legislative concept. This can, and should, be minimised.
Another means by which legislation can be expressed more simply is through the use of principles-based drafting techniques, which emphasise statutory objectives and eschew overly prescriptive detail. At present, much modern legislation is full of unnecessary minutiae, which can serve to cloud the fundamental objectives. As Kuang and Fabricant have written in the context of user-friendly design more generally, ‘too much information and too little meaning can overwhelm the humans who are supposed to be in control’. The downsides of overly prescriptive legislation have been highlighted in pleas from distinguished jurists, including Chief Justice Bathurst, Justice Rares, and Lord Burrows, but seemingly to little avail.
Legislative structure and design
The design and structure of legislation is also an important contributor to its user-friendliness (or lack thereof). In short, good structure makes it possible for a user to find their way around. As a UK Parliamentary Committee chaired by Lord Renton observed in 1975:
‘A draftsman can contribute a great deal to comprehensibility by arranging the provisions of a statute logically and orderly, dividing it into parts in some cases and inserting headings, sub-headings and marginal notes … as guide-posts.’
The placement of law ‘horizontally’ within legislation should observe some basic principles. These include that the most significant material should come first, leaving the ‘more technical areas of the law, such as regulation-making powers, schedules and temporary provisions at the end’ (as Krongold has argued). Furthermore, as far as possible, provisions concerning the same or similar topics should be clustered together, and consolidated where possible. The current scattering and proliferation of conduct obligations throughout financial services legislation (including across different Acts), is only one of the many areas where this could be achieved. Finally, having settled on a rational legislative structure, it’s important to be consistent, so users have a helpful mental model they can rely on in the future.
The placement of law within a legislative hierarchy — in other words, ‘vertically’ — is also important. As the ALRC has observed in relation to financial services legislation, ‘core obligations are currently scattered across different layers of the legislative hierarchy’ (the Act, regulations, and other legislative instruments). There appears to be no rhyme or reason as to what goes where, or why. The ALRC has proposed fixing this through a more coherent legislative model, comprised of an Act (which sets the core policy direction), a Scoping Order (providing a single home for exclusions and exemptions), and thematically consolidated ‘rulebooks’ (containing necessary prescriptive detail). The adoption of such a hierarchy could potentially improve the comprehensibility and navigability of legislation in other areas too.
As long ago as 1843, Bentham lamented the tortuous nature of some legislation, remarking that:
‘Pitching blocks are erected in the streets of London, for porters with their loads: when will English legislators take equal care for the relief of the minds of those who study their labours’.
There are limits to how much more ‘user-friendly’ we can make legislation by only improving its expression and structure. However, to the extent legislation must remain complex, users can be additionally assisted by tools that help them navigate and comprehend it.
A ‘pitching block’ equivalent for modern users of legislation could include ‘knowledge tools’ that help users find what they need on legislation registers. Assistance may be as much about removing what people don’t need to know, as much as highlighting what they do. At present, users of legislation are often overwhelmed with peripheral and irrelevant provisions, making it hard to see the forest from the trees. A useful ‘knowledge tool’ would be the ability to switch ‘on’ or ‘off’ notes and examples, and to only display provisions that apply to certain entities, or in certain circumstances.
Greater ‘interactivity’ of legislation, in the ways described above (and beyond), could be facilitated by drafting in Extensible Markup-Language (or XML), as the ALRC has discussed in a Background Paper on Improving the Navigability of Legislation. New drafting technologies, such as the Lawmaker software now in use in the United Kingdom, make drafting in XML easier to achieve. But while numerous State and Territory jurisdictions in Australia now draft using XML, the Commonwealth has not yet made this transition.
There are numerous other ‘knowledge tools’ and improvements that could be incorporated into the way that legislation is presented. For example, an improved Federal Register of Legislation would ideally include hyperlinking of cross-referenced provisions, ‘pop up’ boxes for defined terms, greater ease of access to Explanatory Memorandums and other secondary materials (including Second Reading speeches), and the ability to more easily review the amendment history of provisions (without needing to navigate the endnotes). Legislation websites in other jurisdictions reveal a wealth of other potential improvements.
In short, the presentation and accessibility of legislation is in need of an overhaul, with a greater focus on the user-experience. While a redeveloped Federal Register of Legislation is expected to go live in 2023, the extent of any new functionalities remains unclear. The redevelopment at least indicates a welcome desire to improve the current state of affairs.
User feedback and legislative review
Otto von Bismark is reputed to have once quipped that, ‘[l]aws are like sausages. It is better not to see them being made’. However, improving the user-experience will require us to look closely at the processes and methods by which we develop, review and revise our legislation. Evidence-based policy needs to be accompanied by evidence-based law design and review, to highlight what works and what doesn’t.
To design for humans, it helps to get to know them. As Kuang and Fabricant have written, good design should ‘start by understanding the needs of … users and then work backward’. Unfortunately, the legislative development process often involves little or no input from the ultimate end-users. While stakeholders might be consulted initially about the need for legislation of some kind, consultation on exposure drafts of legislation is often perfunctory (when it occurs at all).
This is a problem, because user-friendly outcomes are best achieved through a process of iteration that involves input from users. In other fields, this is done through prototyping and user-testing, which seeks to draw out and integrate user feedback. As Stanford Design School’s legendary Professor Bob McKim taught (quoting from Kuang and Fabricant):
‘To create a design that worked, you had to build it, watch it fail while people tried to use it, fix it, then watch it fail again until you finally had something’.
Similar processes should be undertaken by legislative drafters. As Krongold (herself a legislative drafter) has written, the best way to tell if people are going to be able to ‘find what they need and understand what they find’ would be to ‘have people try to use and read the statute while it is being drafted’. In overseeing and implementing user feedback, legislative drafters could serve as guardians of user-friendly legislation. But they will need to be resourced appropriately to do so.
Good legislation isn’t a set and forget exercise. The world changes, and legislation must change with it. To keep legislation in good order, it is necessary to have systems of periodic review. Unfortunately, such systems are currently lacking, and the result is that badly designed legislation often remains on the books for decades. As Krongold has observed, the unfortunate reality is that
‘after a law is drafted, no one gets formal feedback about the provisions that cause administrators and the public difficulty. No one keeps track of how much time the public service spends in explaining particular provisions over and over.’
There needs to be a greater focus on the care and maintenance of the statute book, and not just on introducing new law. A good place to start would be reviewing for and fixing errors. As the ALRC has found, even simple errors in corporations and financial services legislation — like incorrect cross-references, redundant definitions, and duplicated provision numbers — have remained there for years.
A simple means for users to point out basic errors could go part of the way to ensuring more user-friendly legislation. Such a functionality could potentially be built into legislation websites, such as the Federal Register of Legislation. At the Commonwealth level, the Office of Parliamentary Counsel has power under s 15V of the Legislation Act 2003 (Cth) to fix many such errors, but the power appears under-utilised. Again, government needs to ensure that our legislative drafting agencies, who are well placed to undertake such maintenance, are appropriately resourced to do so
Other problems are likely to be more substantive. At present, reviews of specific aspects of legislation are undertaken by the Australian Law Reform Commission and by other bodies and experts. Unfortunately, such reviews are usually ad hoc and conducted only in response to a crisis. The ALRC, for example, can only review legislation pursuant to terms of reference given to it by government, and it lacks the resources to undertake more than a small number of reviews at any one time.
Deep-dive reviews should also be complemented by more regular, periodic reviews, which include a focus on the user-experience. Such reviews could be more technically, rather than policy, focussed — aimed at improving the law within existing policy settings. For example, New Zealand’s Legislation Act 2019 (NZ) establishes an ongoing programme of legislative revision, aimed at making ‘New Zealand statute law more accessible, readable, and easier to understand’. Systems of ‘post-legislative review’ are also found in some European countries.
From our smartphones to our sneakers, we take it for granted that the objects we use will serve our needs, and that the user-experience has been taken into account. Unfortunately, a focus on user-experience is not adequately reflected in modern legislation — the usability of which has failed to keep pace with its sheer volume.
To ensure legislation reflects rule of law values, and does not impose an undue burden on its users and society, this article has outlined three key ways in which legislation could be made more ‘user-friendly’ by:
- drafting in a way that is simpler and more intuitive, in both expression and structure;
- providing ‘knowledge tools’ that help users of legislation navigate and comprehend it; and
- improving law-making processes, including by better soliciting and integrating user feedback, and by undertaking more regular legislative reviews.
If implemented, these ideas could substantially improve the user-experience of legislation for the benefit of all. Achieving this, however, will require a demand from stakeholders for more user-friendly legislation, and a commitment from government to achieving it.