Haste makes waste: Deliberative improvements for serious crime legislation

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.