In The Design of Everyday Things, Don Norman observes that “[a]ll artificial things are designed”.
Some person/s have made decisions about “the layout, operations, and mechanisms”, whether it be a piece of furniture, a tech gadget, or law.
The design of law should concern us all. We face potentially severe consequences for failing to abide by voluminous legislation. But rather than enlightening, many statutes can confuse or mislead.
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’.
Discoverability (how to find the law)
We’ve all had the experience of turning on and off a bank of switches, simply to discover how to control the correct light. This is a failure of discoverability, and a symptom of bad design.
Unfortunately, failures of discoverability are common in Australia’s statute books. For example, the Australian Law Reform Commission (ALRC) is particularly concerned by the use of ‘dark law’ in corporations and financial services legislation.
Dark law consists of ‘notional amendments’ made by legislative instruments. These instruments are effective at changing the law, but these changes are not apparent on the face of a statute. To improve the law’s discoverability, the ALRC has suggested an end to notional amendments as a method of law-making.
In a paper on ‘Improving the Navigability of Legislation’, the ALRC also suggests better use of technology, including:
- hyperlinks within statutes (to cross-referenced provisions and definitions), and
- the use of Extensible Markup Language (XML) in legislative drafting, which would facilitate greater customisability for users to engage with legislation (for example, to only display provisions applying to certain entities).
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’. 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, the Financial Services Royal Commission observed that legislative complexity can “cause the regulated community to lose sight of what the law is trying to achieve”.
The use of legislative signifiers can help users understand the law. For example, the ALRC has suggested the increased use of legislative examples, simplified outlines (showing the structure of a statute or component parts) or visuals (such as helpful flow-charts), clear headings, and notes designed to communicate intent or other important information.
Conceptual models (how to know where to find things/use the law)
When using products and systems, we build up a conceptual model of how they work. When products or systems provide a good conceptual model, they are intuitive and easy to use.
Regrettably, much legislation does not equip users with a good conceptual model. To the contrary, it is often unintuitive and inconsistent. For example, the ALRC has observed that in corporations and financial services legislation there is no consistent approach to the use or identification of defined terms. In the Corporations Act, the term ‘property’ is defined 17 times. 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 make it difficult for users to know where to go for 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.
In the ALRC’s view, a better conceptual model could be provided through the use of a clear and consistent legislative hierarchy, governing what is contained in the principal Act and supporting legislative instruments.
Other improvements would include better ordering of material within legislation, so as to provide a logical flow of ideas, and the clustering of provisions concerning similar themes or topics – as opposed to the diffuse scattering that is common at present.
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
Words are the timbers from which we build our legislation, and it is important to use the right ones. Unfortunately, much legislation is poorly expressed.
For example, prescriptive rather than principles-based legislation makes it necessary to amend the law more frequently to tailor or update. In comparison, a principles-based approach to drafting would produce more durable, shorter, and less complex legislation, helping to achieve the rule of law ideal of accessibility.
A number of other measures could help improve drafting style and quality. For example, in a paper on ‘Complexity and Legislative Design‘, the ALRC suggests that complexity 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. Measures of linguistic complexity, such as the Flesch Reading Ease score, could be used by drafters to identify provisions that are likely to be difficult to comprehend – and deserving of simpler expression.
Law design systems and processes
While this article has been critical of some current legislation and law design practices, this is not a critique of legislative drafters. Often working under severe time pressure, it is clear that the job of a legislative drafter is not an easy one.
It is critical to help improve law design processes, and assist drafters to do their job. For example, the ALRC has proposed compulsory consultation with an expert advisory committee before the making of delegated corporations or financial services legislation.
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. 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.
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.
Dr William Isdale and Christopher Ash are Senior Legal Officers at the Australian Law Reform Commission.