Legislative morass and the rule of law: a warning, and some possible solutions

William Isdale & Christopher Ash

12.05.21

Introduction

Today, legislation is the predominant source of law. Its voluminous production is a central feature of our governance, and shows no signs of slowing. “[E]very day”, Waldron writes, “another demand emerges for new legislation to deal with some difficulty or to reorganize some aspect of social affairs”.

The proliferation of legislation has been long-standing, and appears to be widespread. Lord Denning observed that in England in 1923 “there was one volume of 500 pages”, while at the time of his writing in 1978, there were “three volumes of more than 3,000 pages”. Currently, two statutes in Australia – the Income Tax Assessment Act 1997 (Cth) and Corporations Act 2001 (Cth) – each single-handedly exceed that 3,000 page mark.

The use (and abuse) of statutory law-making raises significant public law questions, particularly relating to the rule of law. As a recent article by Crawford argues, there is “cause for concern” that the length and complexity of Commonwealth legislation, in particular, is contrary to rule of law values. And yet, as Van Geelen notes, despite the substantial issues at stake, “this area of public law has not been overwhelmed with academic consideration” (Company and Securities Law Journal, forthcoming).

Crawford’s article lamented that there was “little empirical research” to inform discussion in this area, but made a valuable contribution to plugging that gap. She also expressed a desire to “spark a debate” about her concerns. In this post we aim to respond to her promptings. In particular, we draw on work undertaken for a current ALRC inquiry in arguing that Australia’s corporations legislation provides a powerful example of rule of law concerns arising from statute. The particular concerns we discuss are: (1) complexity; and (2) accessibility.

Although the focus here is on a ‘private law’ statute, the issues raised are likely demonstrative of broader problems. We conclude with some observations about how these problems appear to have emerged, and suggest some possible measures to improve the rule of law in statutes. However, before going further, it is useful to set out precisely the ‘rule of law’ values at stake. 

The rule of law

As recently observed on this blog, what the ‘rule of law’ entails is the subject of dispute. Former Chief Justice French has described the concept as a “many coloured dream coat”. Whatever the debate may be about its outer edges, it is commonly agreed that a key thread in the “fabric of the Rule of Law” is the “need for the law to be accessible in its coherence and writing”.

Legal philosophers of varied persuasions have been in agreement on this point. For example, Fuller considered that “[t]he desideratum of clarity represents one of the most essential ingredients of legality”, since it is “obvious that obscure and incoherent legislation can make legality unattainable by anyone”. Similarly, Hart wrote that “[i]f social control [through law] is to function, the rules must satisfy certain conditions: they must be intelligible and within the capacity of most to obey”.

In his popular book The Rule of Law, Lord Bingham summarised the import of this theorising in the dictum that: “[t]he law must be accessible and so far as possible intelligible, clear and predictable”. A failure to satisfy that requirement will likely lead to non-compliance with the law (because people will not know the law and/or it will not be effectively enforced), and possibly to injustice in its enforcement (if people cannot reasonably be expected to know its requirements).

The aspiration that all citizens be able to understand statutes is probably forlorn. While not all statutes need to be comprehensible by all persons, the question is to whom the statute is designed to ‘speak’. In the case of consumer protection legislation, this arguably includes those consumers it is meant to protect. At the very least, those required to comply with and/or administer particular laws must be capable of ascertaining and comprehending them. In the remainder of this article we outline why even this weaker aspiration is threatened by current corporations legislation.

Complexity

It is inevitable that corporations legislation will, to some extent, be complex. As Justice Black observes, this “may reflect the complex policy objectives which the legislation is seeking to achieve”. To this may be added the evident complexity of modern corporations and financial markets, which the law seeks to regulate. Nonetheless, amongst those most experienced in this field, a chorus of voices decries the status quo.

For example, former Justice Austin says a “striking characteristic” of amendments to statutory corporate law since 2001 is “their technicality” and their “abandonment of the principles of simplification” (A speech to the Corporate Law Teachers Association Conference, 8 February 2021). Elsewhere he bemoans the “excessive detail and complexity”. Similarly, Sir Anthony Mason has spoken of the corporations law’s “[b]yzantine complexity” ((1992) 2(1) Australian Journal of Corporate Law 1), and Justice Rares rues that the law in this area is “almost intellectually impenetrable” and full of “unnecessary detail”.

Some of the law’s complexity is attributable to its length. When it was enacted in 2001, the Corporations Act (the Act) was already a sizeable 1866 pages. In the years since it has become even more corpulent, and now clocks in at over 3,700 pages, excluding Regulations and other legislative instruments. In the same time period the Regulations have grown from 491 pages to over 1,200 pages. There are also over 430 other legislative instruments currently in force, including 60 made last year alone. The sheer volume of law makes it extremely difficult “for the ordinary person, including the scions of the business community, to grasp the point and comply”. Courts are also challenged, including because numerous overlapping provisions (for example, proscribing misleading and deceptive conduct) make it necessary for a court to wade through “legislative porridge” to work out which provisions apply, “even though it is likely that the end result will be the same”.

The surfeit of law is not the only problem. Understanding individual sections can be vexed. Many definitions are used to turn on and off substantive obligations, rather than to clarify meaning, sometimes with counterintuitive results (e.g. a ‘company’ is defined, for some purposes, to include an unincorporated registrable body). The use of Russian-doll definitions sends one down a seemingly interminable rabbit-hole towards yet more “complex and prolix, if not labyrinthine, statutory definitions”. Further, there is no clear legislative hierarchy; instead, Regulations and instruments regularly make substantive changes that render the primary law – on its face – highly misleading. For example, Part 7.6 of the Act requires certain persons to hold a financial services licence, but 46 separate legislative instruments provide exemptions and modifications.

The result of all of this is, as Justice Buchanan has observed, that parts of the Act fail to “operate as a reliable guide to conduct, readily ascertainable and capable of equally ready understanding … even for trained lawyers”. There is a “real possibility of misunderstanding or misapplication of its provisions”.

Accessibility

Another problem is the inaccessibility and poor navigability of corporations law. One example is that the licence conditions on financial service providers – which contain key constraints and obligations – are buried within ASIC’s registers. Typically, only a small extract, rather than the full conditions, are freely available online. ASIC’s pro forma conditions now exceed 40 pages in length, and scattered amongst these can be bespoke restrictions or obligations that apply to particular entities – but ascertaining their existence is far from straightforward.  

Another example is the opaqueness of the Act. The Act itself regularly uses defined terms without drawing attention to their use. In some parts, defined terms are variously bolded, placed in quotation marks, or italicised – while on numerous other occasions their deployment is concealed. Having identified a defined term, one must then look through the multiple dictionaries, and other ad hoc definition sections, to uncover its meaning, but absent any guide indicating where to look. Despite the extensive deployment of defined terms – including from other pieces of legislation – there is no hyperlinking in legislation available on the Federal Register of Legislation, so as to enable ease of digital navigability (cf. the UK’s legislation website, which makes use of hyperlinking).

Perhaps the most egregious example of inaccessibility arises from the extensive use of individual relief and legislative instruments. Thousands of relief instruments for individual entities – which regularly create modified versions of the law – are published in ASIC’s Gazette (and not on the Federal Register of Legislation), which are saved in PDF format as an image, and hence are not digitally searchable. There is currently no way to search across past Gazettes to ascertain whether a particular entity is subject to a modified form of law. The only parties that are likely to know the state of modified law, as it applies to particular entities, are ASIC and the entity itself. This is despite the fact that such modifications may affect other parties. For instance, relief given to a particular entity may mean that it needs to give less disclosure – or observe fewer other restrictions – in its dealings with other persons.

There are roughly 300 legislative instruments that apply more broadly (previously called “class orders”), including some that apply to all regulated entities. As Appleby and Howe note, “[t]he existence of a number of delegated instruments makes it difficult for individuals to even locate the law”. This problem is compounded by the fact that, despite these instruments sometimes being used to substantively re-write the primary law, “[n]one of this detail is apparent from looking at the Corporations Act or regulations” (Van Geelen, Company and Securities Law Journal, forthcoming). Further, instruments are regularly written as ‘notional’ legislative provisions, meaning that an instrument’s effect is not evident on its face, and must be read alongside the law it modifies.

There is no publicly available version of the law that annotates the existence of these instruments, let alone compiles their import to reveal the law as modified. Instead, “a considerable burden” is imposed on regulated entities “to piece together the rules” from a variety of sources (Van Geelen, Company and Securities Law Journal, forthcoming). As Sir Anthony Mason wrote as long ago as 1992, corporations legislation is “indigestible and incomprehensible” ((1992) 2(1) Australian Journal of Corporate Law 1). The proliferation of secondary law has exacerbated the problem. The layer-cake of law has become so thick that it is now entirely inedible.

How did we get here?

So far we have aimed to illustrate how rule of law concerns arise in the particular context of statutory corporations law. However, we would be surprised if the problems we’ve identified are confined to that realm. Doubtless there are hundreds of other examples that can be drawn from our voluminous statute books. But how did we get here? How did complexity and inaccessibility become so entrenched, and the rule of law so threatened, by our statutory law-making?

In our view a substantial part of the problem arises from our style of legislative drafting. We’re hardly the first to suggest this. In 1978, Lord Denning said of similar problems in English legislation that:

The trouble lies with our method of drafting. The principal object of the draftsman is to achieve certainty – a laudable object in itself. But in pursuit of it, he loses sight of the equally important object – clarity. The draftsman – or draftswoman – has conceived certainty: but has brought forth obscurity; sometimes even absurdity.

Closer to home, in 2015 Chief Justice Bathurst had occasion to wonder, “[w]hy is Australia so particularly plagued with the problem of unnecessarily long and complex legislation?”. He answered that it is “because of the use of prescriptive, rather than principled drafting techniques”. Likewise, Sir Anthony Mason has spoken of a “philosophy which infuses much of our current legislation”, which “appears to require an insistence on detail, an insistence which is carried to the point of complexity” ((1992) 2(1) Australian Journal of Corporate Law 1). It is an approach that, according to Justice Rares, “needs urgent reconsideration”.

Delivering the Hamlyn Lectures in 2017, Burrows (now Lord Burrows) encouraged drafters to resist “the beguiling temptation to tie down all conceivable matters” because trying to do so “produces needlessly complex provisions and will in any event inevitably fail because tying everything down is an impossible goal”. In criticising the state of English legislation, Burrows’ purpose (and so too ours) was “not to attack those who draft our statutes” but to emphasise “that their role and work needs to be better known and appreciated than it now is”. He suggested “a shift of culture towards more principled drafting”.

No doubt, the drive for certainty in our statutes may have been informed by rule of law considerations. After all, vague and aspirational sentiments – when enacted as binding standards of behaviour – can bring problems of their own. As Hayek wrote in The Road to Serfdom:

One could write a history of the decline of the Rule of Law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction, and of the increasing arbitrariness and uncertainty of, and the consequent disrespect for, the law and the judicature.

We need to strike an appropriate balance between prescription and principles. However, we agree with Chief Justice Bathurst that “at present we are too focused on detail and not on outline”. Arguably, far from muddying the waters, principles-based approaches to drafting could restore clarity. As Chief Justice Allsop has observed, “[w]e live, at least with much Commonwealth legislation, in an age of detailed deconstructionism, of rampant reductionism”; but there “comes a point where the human character of the narrative fails, where its moral purpose is lost in a thicket of definitions, exceptions and inclusions”. In statutory corporations law, we have reached that point.

It’s a mistake to think that detail always leads to certainty, because as Ramsay writes, “when legislation becomes too detailed and complex, uncertainty is created”. And as Goode observes:

The more words, the more scope for dispute about meaning, the more chance of inconsistency and obscurity, the less likelihood of accommodation to change and the greater the risk of uncertainty and error.

How can we promote the rule of law through statute?

Over two hundred years ago, Bentham excoriated the common law on the basis that:

As if from a rubbish-cart, a continually increasing and shapeless mass of law is from time to time shot down upon the heads of the people; and out of this rubbish, and at his peril, is each man left to pick out what belongs to him. 

Bentham’s solution to these woes was the codification of the law in statute. However, as we have seen, arguably Bentham’s piercing words are equally applicable to some modern legislation. This degradation in the quality of our law imperils values that were hard-won. As Madison wrote in The Federalist:

It will be of little avail to the people that the laws are made by men of their own choice if the laws [are] … so voluminous that they cannot be read, or so incoherent that they cannot be understood.

It is high time to take seriously the threat posed by poorly designed and expressed legislation, because “if we are to live in a rule of law society, then legislation must give effect to, and reflect the values of the rule of law”. How, though, might we do that?

In our view, a shift towards principles-based drafting is part of the solution (but, we don’t doubt the need, in some circumstances, for additional prescription). As to what principles-based drafting would look like in practice, the issue of disclosure in relation to financial products and services may provide a good example. Currently, the law in that area prescribes an abundance of specific rules; including on minutiae like page length and font size. Arguably, similar objectives could be better served through reliance on broader standards (e.g. that the disclosure be such as may inform an ordinary consumer of all material risks about a product or service, and in terms that are both clear and concise).

However, there are numerous other measures that could improve clarity and aid navigability. Some of these have been outlined in a report by the Victorian Law Reform Commission, and by the Attorney-General’s Department. This includes simple things, like the appropriate use of definitions (e.g. using them consistently, compiling them centrally, and flagging their usage), and the use of examples. We should also be considering the appropriate use of legislative hierarchy – that is, using subordinate legislation only to add detail where necessary, rather than to wholly amend or contradict primary law. Further, we could look to digital means of improving navigability, including by the use of appropriate hyperlinking and annotation of relevant Regulations, instruments or other materials. The ALRC’s Inquiry into Corporations and Financial Services Legislation will be examining these issues in greater detail over the next few years.

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William Isdale and Christopher Ash are both Senior Legal Officers at the Australian Law Reform Commission. The views expressed here are their own, and not necessarily those of their employer.

Suggested Citation: William Isdale and Christopher Ash, ‘Legislative morass and the rule of law: a warning, and some possible solutions’ on AUSPUBLAW (12 May 2021)