Haste makes waste: Deliberative improvements for serious crime legislation
| DOI | 10.1177/0004865812470120 |
| Date | 01 April 2013 |
| Author | Julie Ayling |
| Published date | 01 April 2013 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
46(1) 12–31
Haste makes waste:
! The Author(s) 2013
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Deliberative improvements
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DOI: 10.1177/0004865812470120
for serious crime legislation
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Julie Ayling
Australian National University, Australia
Abstract
Too often the making of laws on serious crime is conducted in haste. Unnecessary, ineffective
or invalid laws on serious crime have major negative impacts on both individuals and societies.
The processes that permit the creation of such laws clearly need reforming. In order to slow
down and bring more rationality to the legislative process for serious crime, a clear and
mandatory ex ante deliberative system that enables a thorough assessment of the costs and
benefits of legislating and of particular legislative approaches is needed. This article draws on
work by Dryzek to identify the elements of a deliberative system – authenticity, inclusiveness
and the quality of being consequential. It assesses Australia’s current legislative processes for
serious crime against this deliberative standard and concludes that they rarely meet it. Several
practical steps that could be taken to incorporate deliberation into serious crime lawmaking
are suggested: the creation of guides to legislative approaches for use by policy makers, the
introduction of an ex ante impact assessment process (termed a Serious Crime Legislation
Impact Assessment or SCLIA), and the establishment of actor networks registers to facilitate
consultative processes. The adoption of such a deliberative system would result in better,
more evidence-based and impact-sensitive serious crime legislation.
Keywords
actor network registers, criminal law, deliberative systems, impact assessment, legislative
policy guides, legislative process, serious crime legislation
Introduction
Anthony Zervas was murdered on 22 March 2009 during a brawl between warring
outlaw motorcycle gangs (‘bikie’ gangs) at Sydney domestic airport terminal. Just ten
days later, amidst a media-fuelled ‘moral panic’ (Cohen, 1972; Morgan et al., 2010), the
government of New South Wales enacted the Crimes (Criminal Organisations Control)
Act 2009, a law designed to enable the state to limit and prohibit associations between
members of bikie gangs. Slightly over two years later, in June 2011, this law was held
Corresponding author:
Julie Ayling, Australian Research Council Centre of Excellence in Policing and Security, Regulatory Institutions
Network, College of Asia and the Pacific Australian National University, Canberra 0200, Australia.
Email: julie.ayling@anu.edu.au
Ayling
13
invalid as unconstitutional by the High Court of Australia when it was challenged by a
member of the Hells Angels.1 It had achieved nothing substantive except the expenditure
of a significant amount of taxpayers’ money on the legal costs of defending it.2
When incidents of high visibility crime such as the Zervas murder occur, passing
legislation often seems to those in power the simplest and most expressive option for
allaying public concern and signalling condemnation. But acting ‘in the heat of the
moment’ too often has consequences for the legislative product. As Cowdery (2009)
explains, ‘on occasions the lawmakers have taken their drafting instructions from the
most prominent rantings of the tabloid media’. A nuanced approach that pays regard
to ‘what works’ and has worked elsewhere is likely to be passed over for a simpler ‘off-
the-shelf’ solution, usually involving an expansion of police powers. Scant attention is
paid to the likely impacts of the proposed laws, on human rights, on police resources, on
the criminal justice system more generally, and on victims and offenders, as well as any
potential unintended consequences. Even where existing laws are adequate to deal with
the problem, the assumed expressive or symbolic functionality of legislating may prevail.
Overall, the result can be unnecessary, ineffective, invalid or in some cases harmful
criminal laws. The processes that permit the creation of such laws clearly need some
work. This is especially the case for laws relating to serious crime by criminal groups,
because it is here that bad lawmaking has its most serious impacts for both individuals
and societies.
The haste with which the NSW law was passed is symptomatic of a wider problem
concerning the direction in which the criminal law is travelling. Disquiet over the quality,
quantity and breadth of the criminal law in Western jurisdictions has been expressed for
many years now,3 and appears to be growing. However, it is not the intention of this
article to describe the many analyses of how and why criminal law has lost its way, or to
explore specific issues such as penal populism or the precautionary bent of recent law-
making on serious crime. Rather, it is accepted that a problem exists.4 We move beyond
analyses of cause and effect to consider practical steps that might be adopted to bring
more rationality to criminal lawmaking on serious crime and take some heat out of the
‘heat of the moment’. Although avoiding bad criminal laws altogether is for many rea-
sons unlikely, little thought has been given to pragmatic ways to address this challenge
so that lawmakers might be better able to craft meaningful, evidence-based and non-
redundant law in the future.
Bad laws may result from rushing to legislate in the heat of the moment. The costs of
such haste are discussed in the first section of the article. Our arguments are limited to
serious crime because, as the next section argues, criminal law in this area has the most
severe impacts for both individuals and society. One of the major causes of the enact-
ment of bad law on serious crime is the lack of a system for ensuring that policy makers
and legislatures take into account a range of relevant considerations in the early stages of
the law-making process. This is at odds with the shift to evidence-based criminal justice
policy making in recent times, as is discussed next. The article then turns to possible
solutions. Ex post assessment of legislation, while not to be undervalued, only goes so
far. It is argued that what is needed is a clear and mandatory ex ante deliberative system
built into serious crime law-making processes The elements of a deliberative system are
then identified. Dryzek (2009) has argued that to be both effective and democratic,
a deliberative system needs to be high in authenticity and inclusiveness, and to
14
Australian & New Zealand Journal of Criminology 46(1)
be consequential. Assessed against these criteria, Australia’s system for developing laws
on serious crime such as terrorism and organised crime, it is argued, is demonstrably
lacking. In the penultimate section the article suggests the adoption of several steps that
would help to restructure decision making ex ante the legislative process. The first is the
creation of maps of, or guides to, legislative approaches for use by policy makers and
applicable to the particular problem in hand. The second is the introduction of an
impact assessment process, termed here a Serious Crime Legislation Impact
Assessment (SCLIA), that would be similar to but more comprehensive than regulatory
impact assessments currently used for Australian laws impacting on business. Impact
assessment would need to involve transparency through public and expert consultations,
and so it is suggested that registers of significant actor networks be established to facili-
tate these consultations. Finally, the conclusion briefly canvasses how such a deliberative
system for serious crime laws could be implemented in practice.
The costs of haste
Few people would argue that every decision about what laws are appropriate for our
society should be put to a public vote. After all, one of the reasons we elect politicians is to
take responsibility for such matters. But when it comes to some ‘hot’ issues, such as crime,
legislators often behave as hostages to moral panic and electoral cycles rather than as the
rational reflective public representatives we would like them to be. They enact laws
because doing something, anything, quickly is perceived as politically advantageous.
The result may be legislation that is not needed. One cost of unnecessary legislation is
that resources are misallocated. With finite resources and under pressure to use new laws,
police have to give priority to the new solution embodied in the legislation, channelling
resources to it at the expense of already existing solutions. Where the older ways were
adequate and effective and the new solution is not, this constitutes a waste of resources.
Another cost is an opportunity cost. A more effective better designed solution, one that
may or may not require legislation, may be overlooked in the rush to do something.
Haste in lawmaking could also result in legislation that is flawed. Flawed legislation
invites expensive legal challenge. Any resulting legal invalidity also has costs in the form
of leaving untouched the identified problem and its associated harms. Law enforcement
bodies may also encounter operational problems with such legislation. In trying to
implement flawed legislation, their resources may be wasted or even inadvertently
used to cause harm (for instance, if the law is poorly targeted).
Once a flawed or unnecessary legislative model is enacted, it becomes the framework
within which the problem is perceived and managed. Because political legitimacy is
invested in that...
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