Tackling the challenge of legislative complexity
William Isdale and Nicholas Simoes da Silva
15.02.2022
In a recent post on this blog, Crawford, Akand, Contractor and Sisson made the case for a greater focus on legislative complexity — an issue they said should be of concern to ‘everyone interested in the way that our legal system functions, and its ability to sustain core values like the rule of law’. We couldn’t agree more.
The Australian Law Reform Commission (ALRC) has been thinking deeply about the problem of legislative complexity over the past two years, as a result of its inquiry into the simplification of corporations and financial services legislation. But as Crawford and colleagues also indicated, ALRC research has confirmed that the problem of legislative complexity is far more widespread.
In previous posts on this blog, ALRC staff have outlined why we think rule of law values are imperilled by the inaccessibility and undue complexity that currently plagues much modern legislation. We have also outlined how we might ‘tidy up’ our ‘house of law’, particularly through the repeal of ‘dead law’ (redundant and time-limited provisions), and by bringing ‘dark law’ (notional amendments made by legislative instruments) out into the light.
In this post we build upon the empirical work outlined by Crawford et al to reveal just how big a problem legislative complexity actually is. In doing so, we will explain how a recently launched ALRC initiative — the DataHub — can deliver new insights for scholars interested in probing these issues further. We will also outline some additional answers to a question posed by Crawford and colleagues: “how do we actually simplify legislation?”, drawing on the ALRC’s latest research.
New insights on legislative complexity from the ALRC’s DataHub
Plenty of ink has been spilled by scholars on ‘statutory construction’ in the interpretive sense, but far less on how legislation is actually constructed in the design and execution sense. Further, as Crawford has previously lamented, there is ‘little empirical research’ to inform discussion about legislative complexity. That is a concern, because without a good understanding of the problem that confronts us, the less likely we are to identify possible solutions.
Late last year, the ALRC launched a new initiative which we hope will help plug the empirical research gap and spur further academic research on legislative complexity and its solutions. The ALRC’s DataHub offers insights into the operation of the Australian legal system and includes the first comprehensive collection of data on all Commonwealth legislation made since 1901. The DataHub hosts a range of data sets on the statute book, including two data sets allowing scholars to examine the complexity of Acts of the Commonwealth Parliament, and six data sets allowing exploration of the complex relationships between pieces of legislation. The DataHub includes seven case studies demonstrating how the data can be used to explore Commonwealth legislation, including in relation to its design and complexity.
For example, the data sets allow scholars to examine the rise of potentially complex language, such as the growth of ‘reasonableness’ standards in the over 13,200 Commonwealth Acts made since 1901. Figure 1 (below), which shows the remarkable rise of such standards, raises questions about how realistic it is for administrators and courts to apply and enforce them. This underscores the importance of more qualitative analyses of ‘reasonableness’ standards, including their implications for Executive power, legal complexity, and the rule of law.
As this figure demonstrates, the DataHub can provide a big picture perspective that is often missing. Further, the DataHub can facilitate the creation of visualisations that can clearly communicate the existing and growing complexity of our vast ‘Universe of Law’. Because a picture tells a thousand words, visuals can powerfully make the case for reform.
Figure 1: The rise of reasonableness in as made Commonwealth Acts
Source: ALRC DataHub Measuring Legislative Complexity webpage
The DataHub allows scholars to analyse a range of metrics to identify legislative complexity, or better understand our legal system. This includes data on the metrics discussed by Crawford et al, namely the length of legislation and the frequency of legislative amendments, but additionally on the prevalence of cross-references (both within and between Acts), and on delegated legislation made by the Commonwealth Government. Data on the subject-matter, administrator, age, and type (amending or principal) of legislation facilitates analyses of entire subject-areas, or on legislation made by particular departments.
The DataHub will also allow debates around commonly accepted metrics of complexity, including length, to be more empirically informed. A recent article by Freiberg, Pfeffer, and van der Heijden on the ‘war on red tape’ cited various figures for the scale of Australian law, underlining the paucity of good data in this area. The DataHub, based on analysis of the authoritative Federal Register of Legislation, can provide a firm data foundation for scholars to debate the merits of various measures of complexity, rather than focusing on creating, identifying, or synthesising previously conflicting data.
Our own view on the ‘complexity metrics’ debate, into which Professor Stephen Bottomley also recently waded (at 435), is that metrics will only ever tell part of the story. We do not consider the presence (or absence) of any particular feature or metric to be determinative of whether legislation is unduly complex. Rather, these metrics simply help to identify potentially undue complexity. Whether complexity is ‘undue’ or not is an inherently qualitative judgment, requiring consideration of the available alternatives.
How can we actually simplify legislation?
In the remainder of this post we outline some potential reforms which we hope will spur further thinking. In broad terms, these reforms relate to the tidying up of existing legislation, improving the navigability of legislation, and a better approach to legislative design.
Tidying up existing legislation
Most Commonwealth legislation is a patch-work quilt, developed over many decades. Indeed, 32 currently in force Acts have been around for more than 100 years. As the empirical research shows, the Commonwealth Parliament has also kept itself busy through the enactment of new law. However, insufficient attention has been paid to ensuring that the 1,225 Acts and over 17,500 legislative instruments in force remain in good order.
We desperately need a focus on ‘legislative stewardship’ — a commitment to the care and maintenance of Commonwealth legislation post-enactment. Over time, countless errors and infelicities have accumulated, many of which would be uncontroversial to rectify. For example, in the context of corporations and financial services legislation alone, the ALRC has identified scores of cross-references to repealed provisions, definitions which are not used (or used only once), and other errors like the duplication of section numbers for different provisions. Many of these errors have been around for years, suggesting that existing procedures for legislative review are insufficient.
Apart from fixing such errors, there are other reforms that would help to ‘tidy up’ existing legislation. For example, as we observed previously on this blog, current legislation is full of redundant and time-limited provisions, which serve to clog the statute book and obscure its communicative power. Already, the statute book is experiencing the accumulation of redundant provisions related to the COVID-19 pandemic. ALRC analysis indicates that repealing such provisions would meaningfully reduce the volume of Commonwealth legislation. Other forms of tidying-up would include removing or fixing various redundant regulation-making powers and outdated notes and references. The ALRC has sought to draw specific attention to these topics through publication of explanatory notes and a redundant provisions database, in materials which accompany its latest report.
At present, the Office of Parliamentary Counsel has the power under s 15V of the Legislation Act 2003 (Cth) to make various ‘editorial changes’ to Commonwealth legislation. These powers are broad enough to fix many obvious errors, without wasting valuable Parliamentary time. However, we suggest that these powers are currently being under-utilised. With appropriate resourcing and greater political will, a programme of post-legislative review to identify and fix these problems could significantly improve and simplify current legislation.
Improving the navigability of legislation
Navigating Commonwealth legislation can be a time-consuming and painful exercise. The densely interconnected and networked nature of much legislation makes it a veritable labyrinth. For example, the ALRC has previously drawn attention to the way that long interconnected chains of definitions (where understanding one defined term requires understanding many others), can lead readers on a ‘forlorn search for meaning’. Accessibility tools could help address such problems.
In a Background Paper on Improving the Navigability of Legislation, the ALRC outlined a number of measures which could assist users to navigate and comprehend complex legislation. This includes basic measures like the hyperlinking of cross-referenced provisions and definitions (or the use of optional ‘pop up’ boxes to display such materials when clicked) — features that are present on legislation registers in the UK, New Zealand, Queensland, and in many other jurisdictions, but sadly missing from Australia’s Federal Register of Legislation.
Another technological improvement would come from the use of Extensible Markup Language (XML) in the drafting of legislation. This could allow greater customisability for users to engage with legislation — for instance, it may allow users to only display provisions applying to certain entities, providing statutory causes of action or entitlements, or containing obligations or offences. The ability to ‘filter out’ the irrelevant in this way could vastly enhance the ability of users to find what they need. Again, these are measures that are common in many other jurisdictions. The ability to implement these measures in Commonwealth legislation may require the adoption of new drafting technology, such as the ‘Lawmaker’ software now used in the United Kingdom.
A better approach to legislative design
Simplification can also be achieved through better legislative design — a topic discussed by the ALRC in its Background Paper on Complexity and Legislative Design. The ALRC has continued this research in subsequent publications, including in a short article on the ‘Design of Everyday Law’ (which explores the potential value of applying principles from the field of ‘human-centred design’). Notably, broader principles of legislative design are absent from official drafting manuals published by the Commonwealth Office of Parliamentary Counsel.
A clear example of how design is relevant to legislation is in the use of a legislative hierarchy, governing how material is distributed between an Act, regulations, and other legislative instruments. As Crawford and colleagues observed, the common story that ‘we tell in law school’ is that ‘statutes set the broad policy agenda, but all the technical detail is left to the regs’. However, ALRC research has shown how things are often not this simple. For example, corporations and financial services Acts are full of prescriptive minutiae, while regulations and other legislative instruments frequently contain substantive provisions addressing core policy. Moreover, the vast volume of both primary and delegated legislation, highlighted by the new ALRC DataHub, suggests Acts are doing a lot more than setting broad policy agendas. There appears to be little rhyme or reason as to what goes where or why. This incoherency makes it difficult for users of legislation to know where they need to look, causing unnecessary confusion.
In its Interim Report B, the ALRC suggested that use of a ‘more rational legislative design and hierarchy is key to resolving much of the byzantine complexity that currently afflicts corporations and financial services law’ — but it could equally improve other legislation too. The model proposed by the ALRC would see the Act establishing the core policy, a separate Scoping Order containing a single ‘home’ for exclusions, exemptions, and related material, and thematically consolidated ‘rulebooks’ for prescriptive detail. This would help ensure ‘vertical coherency’ in legislation.
Good design should also ensure ‘horizontal coherency’, by presenting material in a logical order, with the most important details appearing earlier in a statute, and through clustering of related provisions by theme or topic. At present, much legislation contains an incoherent scattering of provisions, and a great deal of repetition and redundancy. For example, misleading and deceptive conduct provisions applicable to financial services entities can be variously found in more than six overlapping provisions in both the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth). Finding and understanding the law on a single topic should not be this difficult. In this regard, simplification may also be achieved through consolidation or repeal of duplicative provisions.
Finally, good legislative design is also concerned with the overall the style of drafting, including the balance to be struck between principles and prescription. While the appropriate balance in any particular case will depend on the circumstances, in our view a great deal of current legislation is unduly prescriptive. A consequence of unnecessary prescription is that the law becomes more complex, reducing the likelihood of compliance and increasing the burden on courts and regulators. As observed by the Financial Services Royal Commission, the ‘more complicated the law, the harder it is to see unifying and informing principles and purposes’. The Commission considered that, in the context of financial services legislation:
So many wires are strung between the fence posts that they inevitably overlap, intersect and leave gaps. And, instead of entities meeting the intent of the law, they meet the terms in which it is expressed.
In our view, parliamentarians and law designers should heed the calls of distinguished jurists for a less prescriptive and more principles-based approach, which could improve the communicative power of the law. Amongst those jurists are Chief Justice Bathurst, Justice Rares and Lord Burrows.
Conclusion
In this post we have aimed to show how a new resource published by the ALRC — the DataHub — can shed new light on the problem of legislative complexity. Further, we have outlined a number of ways in which legislation could be simplified, including through fixing errors and infelicities, enhancing its navigability, and improving its design and drafting.
We hope that further academic research, perhaps using the data sets now available on the DataHub, will highlight other potential solutions to legislative complexity, and thereby help to ensure that statutory law-making reflects the rule of law values to which we should aspire.
William Isdale and Nicholas Simoes da Silva are both Senior Legal Officers with the Australian Law Reform Commission. The views expressed here are their own, and not necessarily those of their employer.
Suggested citation: William Isdale and Nicholas Simoes da Silva, ‘Tackling the challenge of legislative complexity’ on AUSPUBLAW (15 February 2023) <https://www.auspublaw.org/blog/2023/2/tackling-the-challenge-of-legislative-complexity/>