8. Rewriting existing legislation and government forms
175 The recommendations in the preceding chapters would leave untouched the vast amount of legislation and other legal documents which incorporate defects of the types examined in Chapter 2. Special recommendations are required if the Government’s plain English policy is to be implemented in those documents. Given the costs which they impose on Government and on the community there can be little doubt of the need to rewrite and redesign major items of legislation and forms and documents in common use.
176 The redraft of the Companies (Acquisition of Shares) (Victoria) Code contained in Appendix 2 establishes that existing legislation can be redrafted in plain English without loss of precision. But a redrafting program raises questions of cost. Changing existing legislation is different from writing new legislation. New legislation has to be drafted anyway. For the reasons given earlier, drafting it in plain English should involve savings rather than costs. In the case of redrafting existing legislation, however, all the costs are additional ones. Those costs would only be justified if substantial benefits will be gained from a rewriting program. Most of the benefits of a rewriting program are the same as those discussed earlier in relation to the drafting of new legislation. They include a significant reduction in administrative costs for the Government and compliance costs for business and the general community. But a number of additional benefits would flow from a rewriting program. These include:
• staff development opportunities in the form of extensive training in plain English drafting, leading to considerable early improvement in the drafting of original legislation
• the symbolic and educational value for the legal profession and the business community in the expression of the Government’s commitment to plain English in legislation.
It is, of course, not possible to quantify the benefits of a rewriting program in money terms. Moreover, the benefits and the costs of rewriting legislation would vary from one subject to another. In the case of rarely used legislation, the benefits would be small and would not justify the costs of the rewriting. In the case of heavily used legislation, such as the Credit Act 1984 (Vic), the benefits would be substantial and would outweigh the associated costs of rewriting.
177 In Victoria, the Next Decade the Government announced its decision to establish new programs for business deregulation. The areas in which initiatives are to be taken include the review and rewriting of Acts in plain English. The Commission has conferred on this subject with Mr Robert Miller, the Director of the Regulation Review Unit, and with Chief Administrators of Government departments and agencies. It has concluded that the most cost-effective approach would be to establish a program which gives priority to legislation whose rewriting would produce the greatest benefits.
A legislation rewriting program should be established. It should be aimed at a limited number of important Acts (say, 50) and regulations made under them.
The program should be monitored closely and should be reassessed after it has been in operation for an adequate period. To minimise interference with the discharge of the on-going duties of the Office of Chief Parliamentary Counsel and to provide the necessary management and consultative mechanisms, the Commission recommends that responsibility for the program should be given to it in the form of a reference from the Attorney-General. To minimise interference with the Government’s legislative program, special procedures should apply to the consideration of the redrafted legislation. Chief Parliamentary Counsel should be required to examine the plain English redraft to draw attention to any differences between it and the original legislation before it goes forward for consideration. A standing reference should be given to the Legal and Constitutional Committee of Parliament to report on the accuracy of the redrafted legislation.
178 During consultation, concerns were expressed about the rewriting of Acts whose policy was being substantially revised by the responsible department. It was suggested that the rewriting program should not apply to those Acts; they would be rewritten by the Office of Chief Parliamentary Counsel when policy revision was complete. The Commission recognises that if the revised policy is radically different from the original, it would be preferable to leave the original alone pending the development of the new legislation. However, those cases would be rare. In most cases, a rewriting program should go hand in hand with the policy revision. Policy revisions, including changes which ministers decide upon as the result of the discovery of anomalies during the course of the rewriting program, should be accomplished in the usual way, by means of inclusion of a Bill in the Government’s ordinary legislative program. The plain English Bill would incorporate all policy changes and its passage through Parliament would take place as soon as convenient after the passing of the amending Bill. In some cases, the amendments might even be incorporated in the plain English Bill itself, the policy changes being clearly noted in the Minister’s second reading speech and open for debate in the usual way. Under the Commission’s recommendations, the decision on these matters would be made by Cabinet. In setting priorities within the rewriting program, Cabinet would be able to reallocate particular tasks to the ordinary legislative program.
Rewriting government forms
179 Implementation of the Government’s plain English policy in relation to existing forms has already commenced in some Government departments and agencies, notably the Attorney-General’s Department, the Ministry of Planning and Environment and the Ministry for Police and Emergency Services. The experience in England, and in Victoria so far, shows that there would be considerable benefit to the Government and to the general community if the plain English policy were implemented throughout the public
sector. However, implementation is likely to be uneven, and the realisable benefits put at risk, unless a clear program is established, monitored and reported on.
180 Two main possibilities have been suggested. Under the first, implementation would be the responsibility of individual departments and agencies. An administrative direction could be given to all departments and agencies requiring them to implement the Government’s plain English policy. The direction would be accompanied by guidelines which indicate priorities, methods and deadlines. Each department and agency would be required to include in its annual report details on its response to the direction and on costs and benefits of its work on implementing the plain English policy. Under the second possibility, a special unit would be established and responsibility would be given to it for the implementation of the plain English policy throughout departments and agencies. It would identify areas where benefits could be maximised. It would assist departments and agencies in developing action plans. It would provide consultancy services, particularly in relation to training. It would monitor performance and provide overall reports to the Government on the implementation of the plain English policy.
181 The Commission believes that the latter of these two approaches would be far more effective than the former. In the absence of an established infrastructure within individual departments and agencies, administrative directions are unlikely to produce a sufficient response. Moreover, both the Government and the general community would be best served if priorities were to be established on a system-wide basis and if areas of greatest benefit were to be targeted immediately.
A small Plain English Unit should be established to assist in the implementation of the Government’s plain English program in relation to existing forms and documents. The Unit should provide consultancy services to Departments and Agencies and should monitor implementation of the plain English policy. It should be dissolved within three years.
182 Given the leading role played so far by the Attorney-General and his Department in the implementation of the Government’s plain English policy, the Unit should be attached to the Attorney-General’s Department. However, it should report to a Steering Committee which should include representatives of other bodies as well. Given its overall responsibility for promoting efficiency in the public service, the Public Service Board should be represented. The Regulation Review Unit should also be represented in view of its related proposal for a Forms Management Centre and a proposed Paperwork Reduction Act. Because of the importance of the project to the community at large, consumer and business interests could also be represented. The Unit’s work should be split into three phases. In phase 1, the Unit’s efforts should be concentrated on departments and agencies which are heavily involved in the delivery of services involving a high level of contact with clients, and on departments and agencies whose responsibilities involve regulation of the business community, in particular. In phase 2, the Unit’s efforts should be concentrated on departments and agencies with high levels of internal standardised communications. If poorly designed, these can lead to delay and inconvenience for members of the public through inefficiency of decision making. In phase 3, the Unit should monitor progress against lodged action plans. The Unit’s tasks should be completed, and the Unit dissolved, within three years.