Improving the law reform process: Opportunities for empirical qualitative research?
| Author | Anastasia Powell,Natalia Hanley,Wendy Larcombe,Bianca Fileborn,Nicola Henry |
| Published date | 01 December 2016 |
| DOI | 10.1177/0004865815604195 |
| Date | 01 December 2016 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(4) 546–563
!The Author(s) 2015
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DOI: 10.1177/0004865815604195
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Article
Improving the law reform
process: Opportunities for
empirical qualitative research?
Natalia Hanley
School of Social and Political Sciences, The University of Melbourne,
Melbourne, Victoria, Australia
Bianca Fileborn
The University of Melbourne, Melbourne, Victoria, Australia
Wendy Larcombe
The University of Melbourne, Melbourne, Victoria, Australia
Nicola Henry
La Trobe University, Melbourne, Victoria, Australia
Anastasia Powell
RMIT University, Melbourne, Victoria, Australia
Abstract
Research on law reform has identified a variety of factors that help or hinder the reform
process, but it has not systematically explored the role that empirical research plays and
could play in enabling and enhancing law reform. Drawing on a series of qualitative interviews
with criminal law reform experts in Victoria, we analyse the current uses and perceived value
of empirical research in criminal law reform and explore opportunities for qualitative
research methods to be used more systematically or extensively to improve criminal law
reform processes and outcomes.
Keywords
Empirical research, law reform, qualitative methodology
Corresponding author:
Natalia Hanley, School of Social and Political Sciences, The University of Melbourne, Parkville Campus, Melbourne,
Victoria 3010, Australia.
Email: nhanley@unimelb.edu.au
Introduction
Research on the nature and effectiveness of the law reform process
1
highlights the
myriad ways in which law reform is imagined, implemented and evaluated. Designing
and implementing effective law reform is challenging, not least because the law reform
process is variable, non-linear and involves a changing array of actors and stakeholders
(Easteal, 1998). Law reform can be particularly difficult when addressing socially or
culturally sensitive topics such as sexual offences, family violence, reproductive and
sexual choices, and illicit drug use (Freiberg & Carson, 2010; Kennedy & Easteal,
2011; McMahon-Howard, 2011; Neave, 1988; Powell et al., 2013). In particular,
sexual offences legislation has received significant law reform attention in recent years,
particularly in relation to competing demands to improve confidence in the criminal
justice process, improve the experiences of victim/survivors and protect due process for
complainants. Achieving an appropriate balance between these demands has proven
challenging for criminal justice practitioners and law reformers in Victoria, as the
series of legal reforms over the past 20 years attests (Larcombe, 2012; Victorian Law
Reform Commission, 2004).
For a number of scholars, law reforms in sensitive areas such as sexual offences have
been complicated or hindered by the ‘wide gap between the law on the books ...and its
interpretation and enforcement at the grassroots level by police, prosecutors, and lower
court judges’ (Vandervort, 2013, p. 144). As a result, legislative change on these topics
may not give effect to the original intention of the reform. Indeed, it may be differentially
interpreted by legal practitioners or jury members, and there may be unpredictable or
unintended effects (Gunby et al., 2010). This suggests that empirical social science
research might be particularly useful to navigate the gap between sexual offences legis-
lation and its implementation.
Improving the outcomes and impacts of law reform processes has evident benefits for
litigants, practitioners and the community. Our research focuses on exploring the role
that empirical social science research methods
2
and qualitative methods
3
in particular
currently play or could play in enabling and enhancing law reform processes in general
and sexual offences legislation reform in particular. As Dannin and Singh (2005, p. 46)
point out, ‘social science has developed methodological and statistical tools that can
assist us in law reform. Unfortunately, they have not been used to test how laws will
function’. We investigate whether qualitative research on prospective sexual offence
reforms can help to identify potential problems and information needs.
4
However, in
order to develop a sustainable, relevant and helpful law reform research program, it is
crucial to first explore how research is used and viewed by participants in criminal law
reform processes.
To that end, we interviewed 13 stakeholders with extensive law reform experience,
working in a variety of organisations and roles, predominantly in Victoria. This article
reports our informants’ experiences of the extent, use and value of empirical research in
criminal law reform as well as their views regarding the potential for qualitative research
methods to be used more systematically or extensively to improve sexual offences legis-
lation reform outcomes. In line with exploratory research, interviews with this small
sample of local experts provide rich insight into the role that empirical research does and
could play in law reform in Victoria.
Hanley et al. 547
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