Modern smartphones are some of the most technologically sophisticated pieces of equipment ever invented.
But, for the most part, their operations are intuitive and their functions easily navigable. This reflects a focus by designers on the ‘user experience’ or ‘UX’, which dominates the design processes of many leading companies.
Unfortunately, this humane philosophy is often missing in our statute books. 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 ways this can 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”.1
Unfortunately, as Krongold has observed, “[g]overnments have traditionally valued legal effectiveness over intelligibility”. With limited parliamentary time and 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.
Legislation that is unintelligible, unclear, or difficult to navigate and understand, has significant practical implications. It is less likely to be complied with, and people may be unaware of whatever rights it affords them. Such legislation is also 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.”
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.
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.
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.
Drafting practices that cause particular headache include the custom of ‘nesting’ clauses within clauses, and the extensive use of defined terms and cross-references to other provisions and Acts. As the Australian Law Reform Commission (ALRC) has previously noted, the Corporations Act 2001 alone contains more than 14,500 internal cross-references, and uses more than 1000 defined terms. A user is often required to follow long interconnected ‘chains’ of defined terms, simply to understand a single legislative concept.
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. The downsides of overly prescriptive legislation have been highlighted in pleas from distinguished jurists, including Chief Justice Bathurst, Justice Rares, and Lord Burrows.
Legislative structure and design
The design and structure of legislation is also an important contributor to its user friendliness. As a UK parliamentary committee 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 and mechanical details until later. Further, as far as possible, provisions concerning the same or similar topics should be clustered together, and consolidated where possible.
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, there appears to be no rhyme or reason as to what goes where, or why. The ALRC has proposed fixing this though a model which clearly outlines what should be located in each level of the hierarchy. The use of a clear hierarchy could potentially improve the comprehensibility and navigability of legislation in other areas too.
Knowledge tools, the presentation and accessibility of legislation
In 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.”
‘Pitching block’ equivalents for modern users of legislation could include ‘knowledge tools’ that help users find what they need on legislation registers. 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’ provisions, notes and examples, and to only display those that relate to certain entities, or apply in certain circumstances.
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.
User feedback and legislative review
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.
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 seek to draw out and integrate user feedback.
Similar processes should be undertaken by legislative drafters. As Krongold 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.
Review of legislation
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.
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. At the Commonwealth level, the Office of Parliamentary Counsel has power under s15V of the Legislation Act 2003 (Cth) to fix many such errors, but the power appears under-utilised.
Apart from ‘deep-dive’ reviews that are occasionally undertaken by law reform agencies, there is also a need for more regular, periodic reviews, which include a focus on the user experience.
Such reviews could be more technically, rather than policy, focused – aimed at improving the law within existing policy settings. For example, New Zealand’s Legislation Act 2019 (NZ) establishes an ongoing program of legislative revision, aimed at making “New Zealand statute law more accessible, readable, and easier to understand”.
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.
If implemented, the ideas outlined in this article 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.
Dr William Isdale and Nicholas Simoes da Silva are Senior Legal Officers at the Australian Law Reform Commission.
1 Sir Thomas Henry Bingham (Lord Bingham), The Rule of Law, Allen Lane 2010.