Government Gazette Notices and Shifting the Onus – a Systems Perspective
The ostensible purpose
The ostensible purpose of publishing notices in the Gazette is to inform the public of what its members must or must not do under this or that law, to inform the public of processes in which its members have a right or duty to participate, and to facilitate that participation.
What confounds achieving that primary purpose, however, on my analysis, are secondary purposes of the authors, which include a myriad of considerations such as, can we simplify the drafting so it can be done by an underling, can we copy / paste a previous notice and only make minor changes to the content; can we get the notice to the printers by their publication deadline by not wasting time spellchecking it; can we make it as short as possible so the departmental budget isn’t strained; can we preempt and direct the potential flood of public enquiries about the notice by limiting the public to a short comment deadline; or can we allow the public to only communicate with us about the notice by email, and can we give an email address that cannot be copy pasted, because spam?
In a decade or so of auditing Gazette notices, I can literally hear these secondary considerations running through the minds of the authors of Gazette notices as I read the product of all those exigencies, and I can see the effect these have on the extremely poor quality notices being published which are full of obfuscations, spelling errors, copy and paste errors, mixed up information, tiny windows for public participation and confusions as to which laws are involved. I can see that their struggle is real.
But, recognizing this state of affairs and knowing how it has come about, demands a deeper conversation about how to solve the resulting twin maladies that result from from – which are public ignorance of and failure to participate in and evaluate what the state is doing, and the failure of the state to exercise state power for the benefit of that public.
A convenient drop off point into that deeper conversation is offered by basic principles of the rule of law, at the heart of which lies the notion that, in order for the State / public partnership to work, the public has to be treated as an active participant in, and not merely the subject matter of, governance, and that to that end, the public must be properly informed and able to participate not only in the polls once in a while. but at any time about anything.
And indeed, even from a cursory look at various rule of law principles it is apparent that they offer operative mechanisms through which the public can be offered information on the State and its doings, and avenues of participation and response.
How can these ideas be encapsulated in legal parlance?
I’ve found it interesting to think in terms of onus, not onus of proof of course, but on the Executive to provide information necessary to shifting the systemic onus to the public.
Onus relating to balancing of the system, and the rule of law
Onus, in the sense used here, describes a necessary sequence of events the order of which is dictated by reason, rationality and logic, wherein each step taken triggers the next step that must be taken by others. The Legislature has, for example, the onus of informing everyone what the law is, because that information is in its specific purview. If an Act is published in the Gazette, that publication must state that it is indeed an Act, that it was made by the legislature, that it became an Act on its assent by the President, and what the date of assent was so everyone knows exactly when the Act came into existence.
Publication of this information is necessarily adjunct to publication of the Act in the Gazette, and must be made known along with the publication of the Act. Once published along with these details, the onus shifts to the public, who must where necessary comply with that Act.
It goes without saying that the public, if they are expected to obey the law, must be put in a position to know the law. Can a member of the public be held accountable under an Act that is assented to but pushed in the bottom draw of the President’s desk, unpublished? Can a member of the public be held accountable under a law that is published without information that it has been assented to, and when it was assented to? Or which states “BILL” in big loud letters on the front page, top middle? If the Minister commences the law but does not published the commencement notice, can any member of the public be held liable for transgressions of that law? If a notice is made in terms of an Act that has been repealed, can the public be expected to obey it?
Conversely, if an Act has been published as required with information giving provenance to its status as an Act, then the onus shifts to the public, who are bound to understand the law, obey it, and to participate in processes under the law when and where necessary.
The onus will shift to the public only if the public are put in a position to determine what the law is, what is being done in terms of that law, by whom, under what specific powers, to what end, in relation to which members of the public, and whether and how they as individuals of the public must respond.
In order to shift the onus to the public, to participate and comply, the public has to be properly advised, typically by way of notice in the Gazette, of exactly which creature of statute is giving notice, under which powers of what specific legislation they are acting, to achieve what purpose as described by what legislation, and what the consequences of their actions is to the public, as described by which legislation.
Therefore, Gazette notices must state who the author is, and what authority they wield, in terms of which legislation, what legislation describes the purpose for which they wield their authority, what exact actions have been taken or are being taken in terms of which provisions, of what legislation, how those actions relate to the purpose of that legislation, what the role of and impact on the public is in relation the above, and what the relevant procedures are under which specific legislation the public can depend on to participate, respond to the information in the notice or comply. And, because the public must be assumed to be an active participatory one, and because the State cannot be assumed to always get things right or clearly explain things, there has to be information in the notice on how to contact those wielding their authority that the public can use to ascertain the legitimacy of the authority being wielded, and the legality of the notice
Notices that leave any single one or other of the above out, are potentially excipiable under basic principles of the rule of law, if not the specific legislation being depended on, and the public can immediately or even in the distant future, shift the onus back to the State for want of validity and legality, should the public not want to comply, or should they want to refuse the outcome of the processes referred to in the notices.
If what is being done is being done by someone with authority, in terms of a law, then the onus falls on the public to comply with actions required of him or her, or to take up public participation opportunities offered that obviate their later complaints.
Content of Gazette notices
At the bare minimum, in order to shift onus onto the public, the content of notices in the Gazette must inform the public of who the author of the notice is, what the source of that author’s authority is, what actions they intend to take or have taken and in terms of which legislation, what the role of the public in the administrative process is and where that is defined, and the processes involved in the public can play that role:
Gazette notices largely fail on one or other of the content requirements for Gazette notices, as provided for in the various principles of the rule of law.
Notices often don’t delineate which provisions of which Act are relevant; don’t identify what is being done under which provisions of which legislation or by whom; don’t clarify the basis for public participation or compliance; don’t identify which sector of the public will be affected by what is being done. Subsequent notices on the same topic relating to the same process are published, that purport to be under a different legislation to that ascribed in the initial notice, leaving the public at sea as to what the relevant law is. The headings of notices are typically long and clumsy, constructed around keywords rather than sense, or so truncated as to be meaningless. Some departments’ notices frequently use so many acronyms that reading them is like having to learn a foreign language. The text of notices often consist of long rambling paragraph-sized sentences with verbs and noun misplaced or missing, and which lack punctuation that would allow the reader to make sense of what is being communicated. Paragraphs often seem to be a collection of keyword phrases pushed into clause order, with no readability. Information on what is being done by whom, under what legislation, how, is missing, and the whole objective of informing the public of the law and persuading them to participate and comply is obfuscated by these and other problems, leaving the public at sea as to what is being done by whom, why, and for what purpose, under what law.
My audits of Gazette notices against basic content requirements generated by principles of the rule of law show that around 60% of notices are fundamentally deficient in content necessary to informing the public what authority is being wielded and whether what is being asked of the public has the force of law behind it
The hidden crisis
That this crisis is unrecognized can be easily explained by a small exercise of you taking a look at some specific Gazette notices, to see if they are persuasive that the author has shifted the onus away from proving their authority to do what they are doing, the legitimacy of the processes involved and outcomes sought, toward the onus on you as a member of the public to participate and comply.
You’ll most likely find that you are operating blind, as you don’t have the relevant legislation in front of you or whether its in force or been amended or repealed. You’ll find that you have few if any details of the author and his or her appointment or term of office, or powers. You’ll have no source of regulations, policies, rules, orders or directions that may be relevant. You’ll have no details of whereabout you are in the process referred to in the Notice as you will not have information on or access to past notices about what has already been undertaken in the process. You won’t even know whether the name of the department at the header of the Notice is correctly stated. Or anything much else that you need to establish the legitimacy of the notice and its requirements of the public.
In these circumstances, the public have no way of knowing whether and how wrong things have gone, and the process of finding out is so daunting that the easiest route is to just to let everyone assume you know the law, and hope and pray that if you follow the requirements in the notice, the legislation will work in your favour or, at least, you will not suffer the consequences of non-compliance with whatever the hell passes for law these days.
Solutions?
The solution in these circumstances cannot come from the public. The solution will rather be to legislate on prerequisites of giving notice to an informed and participative public and the consequences of not informing the public so that those of us who have taken the deep dive into the mechanics of informing the public in such a way that basic principles of the rule of law are satisfied, can set the necessary standards to achieve, and audit Gazette notices against those standards.
That has been my quest this last year, to look at the feasibility of this nd explore other solutions, ways of assisting the public to determine whether Gazette notices shift the onus from the state in proving the law and its authority, to the onus on the public, as individual, to participate and comply with that law.