Plain Language Bill

  • enacted

Plain Language Bill

Member’s Bill

70—2

As reported from the Governance and Administration Committee

Commentary

Recommendation

The Governance and Administration Committee has examined the Plain Language Bill and recommends by majority that it be passed. We recommend all amendments by majority.

About the bill as introduced

The Plain Language Bill is a Member’s bill in the name of Rachel Boyack MP. It aims to improve the effectiveness and accountability of the public service by requiring communications to be clear and accessible to the public. The bill would create plain language requirements including:

  • requirements for using plain language in documents

  • requirements to appoint plain language officers with responsibilities for plain language

  • a reporting framework for how agencies are complying with plain language requirements

  • the provision of plain language guidance by the Public Service Commissioner.

Proposed amendments

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Where “we” is referred to in the commentary that follows, it should be interpreted as “the majority of us”.

Legislative scrutiny

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We discuss later in this commentary the issues that we noticed. We also examined what non-legislative alternatives exist to fulfil the bill’s intent. Some of the options we considered were:

  • making plain language training mandatory for public servants

  • placing formal expectations on chief executives and senior managers

  • creating accountability mechanisms where Parliament holds the Executive to account for promoting and progressing the use of plain language.

A number of submitters told us that legislation was the best option to address the significance of the issues that the bill addresses. We agree that legislation is the best option to ensure that the issue is given the attention it deserves.

Commencement

As introduced, the bill would come into force the day after it received the Royal assent. We consider that reporting agencies would need time to ensure that they are able to comply with the obligations of the bill. We therefore recommend amending clause 2 to specify that the bill would come into force 6 months after it received the Royal assent.

Purpose of the bill

As introduced, clause 3 provides that the legislation’s purpose would be to require communications to be clear and accessible to the public. “Communications” are not mentioned elsewhere in the bill. We recommend removing the reference to “communications” and instead referring to certain documents that public service agencies and Crown agents make available to the public. We discuss definitions for “document” and “relevant document” below.

We also recommend amending clause 3 to more clearly set out the bill’s purpose, by describing the language that certain documents would be required to use under the bill. Our proposed amendment would align the wording in the purpose clause with the definition of “plain language” in our proposed clause 4A. We discuss the definition of “plain language” below.

Interpretation

Defining “plain language”

Clause 4, as introduced, would define “plain language” as:

  • language that the intended reader can easily understand after 1 reading

  • language that is clear, concise, and well-organised, and follows recognised guidelines of plain language writing.

We believe the term “intended reader” could be problematic. It could be interpreted to mean that a document must be able to be understood by each individual reader, rather than be appropriate to a particular audience as a group. We consider that the definition would be better framed as language “appropriate to the intended audience”. We therefore recommend deleting this part of the definition and inserting instead clause 4A(a).

We also note that “plain language” may differ depending on who the audience of a document is, as readers may have, for example, varying levels of understanding about subjects. For example, a document prepared by officials from Immigration New Zealand, intended for immigration advisers, might differ in its wording from one prepared by the same officials for immigrants.

We also consider that it is impractical to require that the intended reader must be able to easily understand the document after 1 reading. We believe that this is a subjective test. It may not always be feasible for readers to understand some documents—particularly technical ones—after a single reading, even if they have the relevant expertise. We recommend removing this requirement from the “plain language” definition.

The proposed definition, as introduced, includes that plain language “follows recognised guidelines of plain language writing”. We note that the definition does not specify which guidelines are being referred to. This would be unhelpful for reporting agencies and could create interpretation issues about which guidelines to follow. We recommend removing this from the definition. We discuss further recommendations relating to the Commissioner’s plain language guidance below.

Defining “document”

We note that there is no definition of “document” in the bill as introduced. We consider that a clear and explicit definition of “document” should be provided. The definition of “relevant document”, as introduced, refers to documents in both paper and electronic form. We believe that the framework set out in the bill is designed to apply to written documents. Interpreting “document” to include forms of audio and visual communication, or oral language would be difficult to implement within this framework. We recommend inserting clause 4B(2). Our proposed amendment would define “document” as anything that sets out text in a visible and tangible form and medium (like print), or in a visible form by electronic means (like a webpage on an Internet site).

Defining “relevant document”

Clause 4, as introduced, sets out how “relevant document” would be defined. It provides that this would be a document in either paper or electronic form that:

(a)

is necessary to obtain a service or file a tax return

(b)

provides information about any benefit or service

(c)

explains to the public how to comply with a requirement the public service administers or enforces.

We recommend deleting and replacing this definition to make clear what documents must use plain language. We discuss each part in turn, below.

As introduced, paragraph (a) of the “relevant document” definition refers to documents “necessary to obtain a service or file a tax return”. We agree that public guidance about tax matters and processes should be clear and accessible. However, we consider that specifically mentioning tax returns could cause interpretation issues. For example, it could be interpreted that information about other documents needed to fulfil taxpayer obligations would not need to be in plain language. Or it could mean that information about other non-tax-related processes for filing, registering, or lodging information with an agency would not be covered by the bill. We therefore recommend deleting paragraph (a) of this definition and inserting instead clause 4B(1)(c)(ii). Our wording would refer to documents that provide information about filing, registering, or lodging information with, or giving more information to, a reporting agency.

We consider that similar interpretation issues could arise with the term “benefit” in paragraph (b) of the “relevant document” definition. It is unclear whether this is intended to be limited to a social welfare benefit, or whether it would have a broader meaning. We recommend deleting paragraph (b) of the definition and inserting instead clause 4B(1)(c)(i). Our proposed amendment would more clearly target specific information about a service, such as information about what services are available, and how to obtain these services.

As introduced, paragraph (c) of the definition would only cover requirements administered or enforced by public service agencies. This would be inconsistent with the rest of the bill, which includes Crown agents as reporting agencies. We propose amending paragraph (c) of the definition to clearly include all reporting agencies, including Crown agents. We therefore recommend deleting paragraph (c) of the “relevant document” definition and inserting instead clause 4B(1)(c)(iii).

We also note that paragraph (c) as introduced only refers to explaining how to comply with requirements administered or enforced by the public service. We consider that it would be valuable to include documents that provide information about requirements administered or enforced by a reporting agency that may affect the rights or interests of the public. We therefore recommend inserting clause 4B(1)(c)(iv).

We consider that it would also be beneficial for the definition of “relevant document” to include documents that provide information relating to public education initiatives. We therefore recommend inserting clause 4B(1)(c)(v) to this effect.

Documents in English

As introduced, the bill does not specify which language “plain language” would refer to. We consider that the requirements could therefore apply to relevant documents in any language and not just English. We note that the bill’s explanatory note says the bill is intended to “promote the use of plain English in official documents and websites”. We consider that limiting the application of the bill to English documents would be beneficial for a number of reasons, for example:

  • we do not consider that one set of guidance will be applicable to all languages

  • most government documents written in other languages have already been translated from English

  • we consider that it is important to clarify that the bill does not require relevant documents to be translated into other languages in order to meet plain language requirements.

We therefore recommend inserting clause 4B(1)(a) to clarify that only documents in English must use plain language.

Documents incorporating te reo Māori

We note that the public service incorporates te reo Māori in many documents. We do not want to discourage agencies from using te reo Māori in their documents. We therefore recommend inserting clause 4B(3) to make it clear that the Act would not restrict a reporting agency from including te reo Māori in any relevant document.

Documents intended for the public

We consider that the definition of “relevant document”, as introduced, could include documents not intended to be read by the public—such as internal policy or technical documents. We consider that this would go beyond the intentions of the bill. We propose amending the definition to make it clear that a relevant document is one that is intended for public consumption. We recommend inserting clause 4B(1)(b) accordingly.

We also recommend clarifying who “the public” is for the purpose of the bill. We consider that it is unclear whether this refers to the public as a whole, to individual members of the public, or to sections of the public in particular circumstances. We recommend inserting a definition in clause 4 to specify that “public” includes a section of the public. We consider that this reference would clarify that a document intended for a part or segment of the public is still subject to the plain language requirements.

We consider that documents sent to members of the public using a standard form or template may be considered “relevant documents”. This is because these documents may be used to communicate with a significant section of the public. We therefore recommend inserting proposed clause 4B(4)(a) to reflect this.

Documents released under the Official Information Act

Some documents that are released under the Official Information Act 1982 are internal documents that were not originally created or produced for public consumption. We consider that, just because a document is made available to the public under the Official Information Act, this does not mean that it should be a “relevant document” for the purposes of the bill. We recommend inserting clause 4B(4)(b)(i) to clarify this.

For the same reason, we believe this clarification should also include documents proactively released by reporting agencies for the purpose of making official information available to the public. We propose inserting clause 4B(4)(b)(ii) to this effect.

Parts of a document

As discussed above, our proposed clause 4B(1) would define what a “relevant document” is. We note that sometimes only part of a document will meet the definition of a relevant document. We consider that the bill should set out what would happen in this case. We recommend inserting clause 4B(5). This would provide that, if a document contains a part that meets the requirements of proposed clause 4B(1) and a part that does not, only the part that does meet the requirements needs to use plain language.

Plain language requirements

Relevant documents to use plain language

As introduced, clause 6(1) provides that a reporting agency would need to ensure that all of the relevant documents it is responsible for use plain language. The phrase “to ensure”, used in the bill as introduced, expresses an absolute requirement for agencies to make sure that their relevant documents use plain language. We consider that this would be unachievable because plain language is subjective in nature and open to interpretation. We believe that this duty would be difficult for agencies to meet with certainty. Therefore, we recommend amending clause 6(1) to state that agencies must “take reasonable steps” to ensure that relevant documents use plain language.

We note that clause 6(1) does not specify who the legal duty would be owed to when ensuring that relevant documents use plain language. We recommend inserting clause 6(2) to clarify that a public service agency’s legal duty would be owed only to the Public Service Commissioner. For a Crown agent, the duty would be owed only to its responsible Minister (within the meaning of the Crown Entities Act 2004). This approach is consistent with other legal duties placed on public service agencies and Crown agents in the Public Service Act 2020.

We consider that the purpose of the bill is to provide only administrative accountability for agencies, rather than to create enforceable rights or duties. The change mentioned above supports that purpose. In addition, we believe the bill should make it clear that the bill does not create any legal rights or obligations that are enforceable in a court of law. To this end, we recommend inserting clause 10A.

Plain language guidance

Clause 7(1), as introduced, provides that the Commissioner may issue guidance on how reporting agencies may comply with plain language requirements under the bill. We note that the Commissioner would not be required to issue guidance. We believe guidance will be important for agencies to understand and meet their legal requirements. We therefore recommend amending clause 7(1) to require the Commissioner to issue this guidance. We also recommend that the guidance should relate to all requirements of the bill, not just plain language requirements. For example, it should cover requirements relating to plain language officers and annual reporting.

Clause 7(2) provides that the Commissioner must not issue the guidance unless they are satisfied that all appropriate people and organisations have been consulted. We consider that drawing from established guidelines, standards, and other resources will also help the Commissioner develop guidance. We therefore recommend inserting clause 7(2)(b). Our recommended amendment would provide that the Commissioner must have regard to international best practice on plain language writing when developing guidance.

Accessibility

We believe that the Commissioner’s guidance should include guidance to support the accessibility of relevant documents. This would include the accessibility of those documents to people with disabilities. We therefore recommend inserting clause 7(2A).

Plain language officers

As introduced, clause 8 would require a reporting agency to appoint 1 or more plain language officers to:

  • educate agency employees regarding the requirements of the Act

  • deal with complaints or requests from the public regarding the agency’s compliance with the Act

  • ensure that the agency complies with the provisions of the Act.

We consider that agencies should have flexibility to apply the role of plain language officers to the context in which they operate. We therefore recommend amending clause 8 to allow reporting agencies to appoint plain language officers either from within or outside their agency.

As introduced, clause 8(b) would make it the officers’ responsibility to deal with complaints or requests from the public about the agency’s compliance with the bill. However, the bill does not create a formal complaints regime or provide for requests. We recommend amending clause 8(b) to make it the responsibility of plain language officers to deal with feedback from the public, rather than complaints or requests. This would still allow the public to comment on an agency’s plain language writing.

Reporting provisions

Reporting to the Public Service Commissioner

Clause 9(2) would require agencies to report annually to the Commissioner on how they are complying with the requirement to use plain language. As introduced, this provision could limit the content of these annual reports. We consider that greater accountability for agencies would be provided if they reported on their compliance with the bill more generally, for example their duty to appoint plain language officers. We therefore recommend replacing clause 9.

Reporting to the Minister

As introduced, clause 10(1) provides that the Commissioner must report annually to the Minister for the Public Service about how agencies have complied with the requirement to use plain language. It also provides that the Commissioner may make recommendations to the Minister on plain language guidelines and best practice. We consider that it is unclear why the Commissioner would need to make recommendations to the Minister about this, given that the bill already provides that the Commissioner must issue guidance. It is also unclear what action the Minister would take in response to the recommendations.

We recommend removing from clause 10(1) the reference to the Commissioner making recommendations to the Minister on guidelines and best practice. However, we recommend retaining the requirement for the Commissioner to report annually to the Minister on how reporting agencies have been complying with the bill.

We also recommend retaining the requirement in clause 10(2) that the Minister must present a copy of the report to the House of Representatives within 20 working days of receiving it. We consider that this would support the Minister’s accountability to Parliament.

Transitional provisions

Substantial revisions of documents

As introduced, the bill would only apply to documents issued or revised after the bill comes into force. For documents issued before the bill’s commencement, we consider that plain language requirements should only apply when a reporting agency substantially revises those documents. We propose that a document would be defined as “substantially revised” if a reporting agency makes changes to the document that are more than minor. This would mean that agencies could make minor changes without being required to rewrite their documents in plain language.

We also believe that, if a document is substantially revised after commencement, then plain language requirements should apply to the whole document, not just the amended sections of the document. We therefore also recommend inserting clause 1(3) in the Schedule to assert this.

New Zealand National Party differing view

The National Party strongly opposes this bill. It is the very legislative essence of a solution looking for a problem. It has wasted the time of this Parliament and the Governance and Administration Select Committee. Most of the submitters who supported the bill will be unhappy that the bill as reported back to the House is a watered-down version of what they sought. The submitters who for very good reasons opposed the bill will be deeply unhappy that it is progressing at all, as it will consume considerable public sector resources with no obvious gain in the quality of public documents.

National supports the aim of improving the effectiveness and accountability of the public service in using clear, concise, easily understood language in public documents. We do not believe it should be a legal requirement.

That position was supported by a number of learned submitters. The New Zealand Law Society pointed out the lack of a Departmental Disclosure Statement, Regulatory Impact Analysis or Cost–Benefit Analysis. The influential Legislation Design Advisory Committee submitted that the policy objective was best achieved more effectively through non-legislative means, noting Legislation Guideline 2.3 states that “Legislation should only be made when it is necessary and is the most appropriate means of achieving the policy objective.” The New Zealand Law Students Association questioned whether primary legislation was the most appropriate vehicle and suggested public service guidance rather than primary legislation was the preferred method.

In its legislative scrutiny briefing memorandum, the Office of the Clerk considered the requirements in the bill to be uncertain and without consequence. It suggested the committee explore with officials whether non-legislative alternatives exist. We did. There are. National is disappointed that those alternatives were not pursued.

The requirement to appoint Plain Language Officers is particularly galling. Despite assertions that this could be carried out by existing staff, we are in no doubt that taxpayers will be required to fund new roles to give effect to the requirements in the bill. The Government has a track record of massively increasing bureaucracy and in our view this bill will continue that trend.

The Plain Language Bill should be discharged so that no further public sector time and cost is wasted on it.

Appendix

Committee process

The Plain Language Bill was referred to the committee on 15 February 2022. We held a hearing of evidence with the member in charge of the bill, Rachel Boyack, on 6 April 2022.

We called for submissions on the bill with a closing date of 31 March 2022. We received and considered 68 submissions from interested groups and individuals. We heard oral evidence from 20 submitters at hearings in Wellington and via videoconference.

We received advice on the bill from Te Kawa Mataaho—Public Service Commission. The Office of the Clerk provided advice on the bill’s legislative quality. The Parliamentary Counsel Office assisted with legal drafting.

Committee membership

Ian McKelvie (Chairperson)

Rachel Boyack

Naisi Chen

Dr Deborah Russell (until 4 May 2022)

Jamie Strange (from 4 May 2022)

Hon Michael Woodhouse