Making legislation more accessible: legislation users survey and complexity flags Louise Finucane First Assistant Parliamentary Counsel Office of Parliamentary Counsel

Legislation users survey: feedback on drafting innovations Complexity flags: new strategy to combat complexity in Commonwealth legislation Overview

Survey of legislation users

Background 1980s: plain English movement 1990s: OPC experimented with a range of innovations to our drafting style, intended to improve usability of legislation March 2010: a survey of Commonwealth legislation users commissioned by OPC Aim: to see how different innovations are viewed by a range of legislation users

Groups of users surveyed “Judges, Magistrates and Lawyers” “Commonwealth Government Employees” Federal Court and Family Court judges, Federal Magistrates and Administrative Appeals Tribunal (AAT) members Commonwealth Public Servants (involved in the legislative process or advising on legislation) Associates and research staff for Federal Court and Family Court judges, Federal Magistrates and AAT members Australian Government Solicitor and Commonwealth Director of Public Prosecution employees Barristers and solicitors in the private sector Parliamentary Table Office staff

Drafting features tested Commencement provisions Overviews Guides Decentralised tables of contents Objects provisions Examples Notes Using asterisks to identify defined words Use of tagging of concepts Section headings in the form of questions Subsection headings Using tables to organise information Diagrams Method statements Use of the second person New format for legislation

Overview of survey results Generally, the features tested received very favourable feedback Those that rated particularly well: –new format for legislation –new form of commencement provisions –use of notes –use of tables –use of subsection headings

Survey results cont. 3 features that did not rate as well: –the use of asterisks to identify defined terms –the use of diagrams –the use of method statements Only one feature rated very poorly: the use of the second person (i.e. drafting in the form “You are liable for tax if...”) –described in numerous comments from respondents as “patronising”

Conclusions and future action Survey results provide strong support for OPC to continue to use most of the features tested Drafting in the second person and the use of asterisks not likely to be used in any new principal legislation High quality responses from respondents surveyed—potential for future research into drafting techniques

Complexity Flags

Background The Attorney and AGD Secretary are concerned with complexity The Attorney requested drafters to be proactive in reducing complexity The Attorney asked for an Action Plan for Clearer Commonwealth Law

The Action Plan Developed by a task force consisting of OPC, AGD, PM&C and Finance Chaired by FPC and AGD Deputy Secretary Plan was put to Secretaries of all Commonwealth departments Plan is quite brief and much of it is a restatement of existing requirements Introduced complexity flag system

Objectives To reduce complexity in individual Bills To reduce complexity in a systemic way To highlight OPC’s contribution to the reduction of complexity

The trial A one year trial was conducted on all AGD Bills AGD seemed happy with the trial AGD reported that it changed attitudes Since May this year the complexity flags system applies to Bills drafted for any Commonwealth department

The complexity flag system Basic idea is that drafters flag complexity with instructors OPC’s database contains information about the flag Instructors decide whether to retain, reduce or remove the complexity Involvement of the instructing department’s complexity contact officer

When to raise a flag A flag should be added where something will add complexity to the statute book Many (perhaps most) Bills will do this as they are adding to the statute book Flags should be given even if it is the underlying policy that causes the complexity Warnings should not be given – the flag is the warning

The 3 basic flags The basic policy will add complexity to the statute book (macro policy flag) The way the instructor wants to implement the policy will add complexity to the statute book (policy implementation flag) The provision the instructor has asked for will add complexity to the statute book (provision level flag)

Macro policy flag This flag will be raised on a lot of Bills Expanding the statute book to deal with new matters adds complexity A flag should be raised even though there is a clear Government decision

Policy implementation flag There are often multiple ways to implement a policy Sometimes the approach chosen would require complicated legislation A flag should be raised if the drafter can propose a simpler approach than that requested

Provision level flag This sort of flag should be raised if the instructor asks to add things to provisions or draft provisions in a complicated way

Results so far Reduction in complexity Concern about the flags has been raised by both drafters and instructors More consideration is being given to the complexity issue at a number of levels