Criminalizing Organizations: Towards Deliberative Lawmaking

• Published date: 01 April 2011
• Author: JULIE AYLING
• DOI: http://doi.org/10.1111/j.1467-9930.2010.00333.x
• Date: 01 April 2011

Criminalizing Organizations: Towards

Deliberative Lawmaking

JULIE AYLING

With threats from diverse criminal organizations on the increase and current state

approaches being of variable effectiveness, legislatures now need to take a more

systematic and deliberative approach to framing policy and legal responses to

criminal groups. This article proposes a typology of legislative approaches to the

whole spectrum of criminal groups that would facilitate a more holistic assessment

of what to do about gangs, organized crime, and terrorist groups. It clarifies the

advantages and disadvantages of different legal approaches and paves the way for

further research on more nuanced and effective laws on criminal organizations for

the future.

INTRODUCTION

In 2008 the Serious and Organised Crime (Control) Act was enacted in the

Australian state of South Australia (SA) to deal with the problem of outlaw

motorcycle gangs (OMCGs) in that state. In March 2009, the brother of a

member of the Hells Angels Motorcycle Club was fatally bashed, at Sydney

domestic airport terminal, by members of the Comanchero Motorcycle Club.

As a result, the governments of New South Wales (NSW), the Northern

Territory (NT), and Queensland (Qld) hurriedly enacted legislation with

similar structures and objectives to the South Australian legislation (Crimes

[Criminal Organisations Control] Act 2009 [NSW]; Serious Crime Control

Act 2009 [NT]; Criminal Organisation Act 2009 [Qld]; Western Australia

[WA] plans to pass similar legislation in 2011). In this article, these laws are

collectively termed “Australian OMCG laws,” although it should be noted

This work was supported by the Australian Research Council Centre of Excellence in Policing

and Security and the Regulatory Institutions Network at the Australian National University.

My gratitude goes to Professors Simon Bronitt, Roderic Broadhurst, and Peter Grabosky for

their helpful comments and suggestions in relation to earlier drafts, and to Christine Nam for her

administrative assistance. Thanks also to the two anonymous reviewers for their insightful

comments.

Address correspondence to Julie Ayling, ARC Centre of Excellence in Policing and Security,

Regulatory Institutions Network, Bldg. 8, Australian National University, Canberra, ACT

0200, Australia. Telephone: +61 2 6125 6035; Fax: +61 2 6125 1507; E-mail: julie.ayling@

anu.edu.au.

LAW & POLICY, Vol. 33, No. 2, April 2011 ISSN 0265–8240

© 2011 The Author

Law & Policy © 2011 The University of Denver/Colorado Seminary

that this is a label of convenience only, as the laws are not framed exclusively

around OMCGs. Their purpose is to disrupt and restrict the activities of

organizations involved in serious crime and of their members and associates,

and to protect the public from the associated violence. Under these laws, a

declaration of an organization, either by the state’s attorney general or a

court, serves as a basis for police-requested, court-imposed control orders

that (among other things) can limit association and communications between

members of declared organizations.

The Australian OMCG laws have been criticized at many levels.1It has

been suggested that these laws fail to deal effectively with criminal organiza-

tions, being designed to reassure the community by raising the numbers of

individual criminals caught and charged. Addressing the real problem and

closing down criminal enterprises, it has been argued, “takes far longer,

requires many more resources and needs some political maturity” (Le Grand,

quoted in Koch 2009).

One reason for the problems encountered by governments in dealing effec-

tively with criminal organizations is that agreeing on definitions is difficult.

There is a wide array of definitions of “gang,” “organized crime,” “terrorist

organization,” and related terms in laws around the world, in part because

criminal groups are shaped by their particular social, economic, and political

contexts and are evolving in, and coevolving with, these contexts. Some

scholars have argued that, in any case, defining and targeting taxonomic

groups is of limited use in identifying the causes of crime and that it would be

more constructive to adopt an approach that recognizes other frames of

reference (such as one that focuses on routine activities or social relations; see

Edwards and Levi 2008). Nevertheless, governments continue to choose to

enact laws that focus on organizations as criminal actors, such as the Aus-

tralian OMCG laws. This is understandable, given that group processes tend

to increase rates of crime and delinquency (Klein and Maxson 2006; Lien

2005; Thornberry et al. 2003) and amplify harm. Furthermore, work at the

international level, particularly the United Nations Convention against

Transnational Organized Crime (UNTOC),2has promoted consensus over

an organizational approach.

Legislation embodies and sets the ground rules for implementing a gov-

ernment’s political choices about how to respond to serious crime and the

groups that perpetrate it. One necessary (but not sufficient) precondition of

effective “law in action” is that the “law in the books” is both well drafted

and based on well-considered policy. Laws that do not meet those require-

ments can be ineffective for their purposes and even do damage, highlight-

ing the putative gap between practiced law and written law (Bottomley and

Bronitt 2006; Pound 1910), and bringing the latter (and its creators) into

disrepute. Yet the details of how criminal law deals with criminal groups

have had little attention from criminologists who have largely left it up to

criminal lawyers to think through the issues. Understandably, the latter

have tended to focus on legal matters, often those pertaining to a particular

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© 2011 The Author

Law & Policy © 2011 The University of Denver/Colorado Seminary