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.

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).

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:

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.

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.

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.

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.

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.

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.

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.