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Research Report: By the people, for the people?  Community participation in law reform
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By the people, for the people? Community participation in law reform  ( 2010 )  Cite this report



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3. Method


This study explores, primarily through case studies, the capacity of people, particularly disadvantaged people, to participate in law reform. The research strategy was informed by a number of considerations. We held initial consultations with four senior staff members of the (then) NSW Attorney General’s Department (AGD), an ex-parliamentarian with extensive experience in the New South Wales Legislative Assembly, and a chief executive officer of a specialist community legal centre (CLC) which focuses on the interests of the general public and disadvantaged people in law reform. A preliminary literature review was also conducted in order to get a broad understanding of New South Wales law reform processes, the key institutions involved, and to identify formal opportunities and constraints to public participation.

Our institutional informants and the literature review confirmed that law reform processes vary significantly, depending on the circumstances and context. We also wanted to examine experiences of and constraints to participation, rather than describe the opportunities that formally exist. These considerations suggested a case study methodology was our most appropriate research strategy (Yin, 1994).

The case study method is a research strategy to empirically investigate a particular phenomenon within its real context, using multiple sources of evidence (Yin, 1994). As multiple case studies increase the power and validity of findings (Yin, 1994: 53), we selected and examined five cases of law reform in New South Wales. We outline the methods used and introduce the five case studies below.

3.1 Data collection

Overall the data collection for this study occurred over a period from 2006 to 2009. As we shall discuss below however, some data was collected over specified periods within this timeframe.

We gathered relevant documentation and interviewed key informants for each case study. To get a broader sense of law reform activity in New South Wales, we also collected data on the number of Acts passed by the Commonwealth and New South Wales Parliaments, and the number of Bills introduced in the New South Wales Parliament during the calendar years 2002–2006.

Documentation

Documentation relating to the case studies provided an additional source of evidence to corroborate and triangulate data collected in the interviews.

The documentation that was collected and analysed for each case study included: parliamentary and Hansard records, explanatory memoranda, government publications, annual reports, newspaper or briefing articles, organisational press releases, reports of inquiries, newsletters and campaign kits. Press releases, policy papers, reports and parliamentary documents comprised the majority of our documentation. Documentation also included any additional materials or information referred to us by our informants.

Interviews

We conducted face-to-face interviews with informants during June 2006–March 2007.

Sampling

A purposive (or snowball) sampling method was used for each case study. Potential informants, individuals and/or organisations were first identified from documents relating to the case studies. Additional informants were also suggested by some informants. These leads were followed up if the individual had a particular stakeholder view that had yet to be captured for the case, the stakeholder perspective was relevant to research concerns, and there were sufficient project resources to include them in the study.

For each case study we sought to capture a cross-section of the following stakeholder viewpoints:

  • government officers including policy officers, legal advisers, or senior staff members of government bureaucracy
  • members of a government advisory body including senior staff members of bodies tasked to provide government with independent policy or law reform advice
  • parliamentarians
  • staff of legal CSOs, where a legal CSO is a service provider or professional association whose primary expertise is in the law
  • staff of non-legal CSOs, such as service providers, consumer organisations or professional associations
  • individuals, including individuals affected by the law reform, or officers or members interviewed in their personal capacity.

Given the central role of the executive in law reform and in order to ensure a balance of views was captured, we approached and invited the participation of informants from all of the government departments involved in the case studies. We also spoke with informants who had a breadth or depth of experience of New South Wales law reform processes, whom we classified as ‘general’ informants. Some general informants were also involved in specific case studies. Interviews averaged two hours in duration.

The distribution of our informants across the five case studies and across the different stakeholder classifications is outlined in Table 3.1. Of the 41 individuals or organisations we approached, 40 agreed to participate. In some instances more than one informant from the same organisation participated in the interview such that a total of 50 informants were interviewed for the study. Informants who were interviewed for more than one case study are listed separately for each case study.

As can be seen in Table 3.1, most of our informants were CSO stakeholders. Seventy-two per cent of all our informants worked in CSOs — with 50 per cent from non-legal CSOs and 22 per cent from legal CSOs. We deliberately over-sampled CSO informants, as it became apparent that it is through CSOs that disadvantaged people have the most opportunity to participate in law reform. Government officers comprised 10 per cent of our sample. A little over half of our informants provided a system-wide perspective of law reform in New South Wales. Noteworthy is the small number of individual informants, who comprised only 6 per cent of our informant sample. This is a key limitation of the study, and is discussed in more detail in Section 3.2 below.

There was some overlap of informants across case studies, particularly between the Boarders and Lodgers Case Study and the Acceptable Behaviour Agreements Case Study as both of these cases involved housing issues. Overall, 54 per cent of our informants spoke about the Boarders and Lodgers Case Study while only 10 per cent of our informants discussed the Civil Procedure Act Case Study. The small number of informants in the latter case study is in part due to the nature of the issues involving technical and administrative reforms to court procedure and management of civil litigation. The informants in this case study were the last to be interviewed for the study, and we stopped interviewing once we formed the view that additional informants were unlikely to add new information to our research questions.

Table 3.1: Distribution of informants by case study and stakeholder classification

Case studyGovernment officerMember of advisory bodyParliamentarian Legal CSONon-legal CSOIndividual % of total interviewed (sample size of case study)
Boarders and Lodgers Case Study
-
2
2
5
18
-
54%
(n=27)
Acceptable Behaviour Agreements Case Study
-
1
2
2
11
3
38%
(n=19)
Mental Health Act Case Study
1
2
1
-
7
-
22%
(n=11)
Bail Amendment Act Case Study
1
-
2
3
4
-
20%
(n=10)
Civil Procedure Act Case Study
1
-
-
4
-
10%
(n=5)
General (across cases)
5
3
2
6
10
1
52%
(n=26)
% of total interviewed
10%
(n=5)
8%
(n=4)
4%
(n=2)
22%
(n=11)
50%
(n=25)
6%
(n=3)

(N=50)
Note: columns do not add to total, as some people spoke on one or more case studies.


Interview schedule

We piloted an initial version of the interview schedule with two informants involved in the Acceptable Behaviour Agreements Case Study and Boarders and Lodgers Case Study, which allowed us to test the questions for their relevance, operation and validity.

The pilot interviews suggested that some standard questions could be asked of all our informants. We also found however that many of our original questions were not sufficiently receptive to the diversity of law reform processes, nor to the widely differing perspectives and experiences of stakeholders. Following the pilot period we refined the questions so as to be more open-ended and flexible, with coverage of the following areas:

  • the informant’s role in, and experiences of, law reform
  • factors and constraints perceived to affect the involvement of the general public and/or disadvantaged individuals in law reform processes and
  • suggestions for enhancing the participation of the general public as well as disadvantaged people.

Particular questions varied depending on the circumstances of the relevant case study, the informant’s perspective, and the extent of their expertise and involvement in both the relevant case study as well as in New South Wales law reform generally. See Appendix 3.1 for questions in the generic interview schedule.

Procedure

Potential informants were initially contacted by letter and telephone to explain the purpose of the study, provide background information, and invite participation in the study. Where interest was not immediate, we followed up with a second telephone call.

The majority of interviews were held one-on-one and face-to-face, with two interviews conducted by telephone. At the beginning of each interview, informants were asked to sign a consent form (see Appendix 3.2).

Two researchers were usually present at any one interview. Often one researcher would lead the interview while the other researcher took notes, including of observations on any interesting aspects of the interview not otherwise captured.

All interviews were tape recorded, with interview data being treated in confidence and only accessible to members of the research team. Where informant comments are used in the report, they are attributed to the class of the stakeholder group to which the informant is classified. For some informants, the circumstances of the particular case meant that their identity could not be protected, and this was explained by the researcher and clearly stated in the consent form. For informants who did not wish to be quoted, care was taken to use the information provided in a way that would not reveal its source.

Two transcribers were contracted by the Foundation to transcribe the majority of the interviews. Where an informant explicitly expressed a concern about confidentiality, or a wish that they not be directly quoted, their tape recordings were transcribed by the researchers themselves. The external transcribers were experienced in handling confidential social research interview material and were required to sign a confidentiality agreement and meet specified security arrangements with the data. All transcription files, once created, were password protected and kept in project folders with restricted access.

3.2 Data analysis and reporting

Both case materials and interview data were entered into and analysed using the qualitative software program QSR NUD*IST Vivo (NVivo).44 We analysed the data in two stages. In the first stage case documentation was coded using NVivo. Coding was done by highlighting segments of text and then allocating them to analytical themes. To enhance consistent coding across the documentation collected, a small number of documents were coded separately by two researchers on the research team and then compared. From this process, a common coding system was developed. To enhance consistency, both researchers regularly checked and compared notes on coding decisions with each other.

A similar process was used to code the transcribed interviews, serving to further refine and develop identified themes. We also used observational or interview field notes during this process. When coding of each interview material was completed, an interview summary sheet was written up to summarise the key points in the interview. The interview summaries were produced to further reduce and structure the data.

In the second stage, the coded data was analysed in NVivo. During this stage major themes were refined and additional themes identified and developed. This iterative process was used to identify commonalities, patterns and systematic relationships.

This iterative systematic approach to the analysis is the basis of the conclusions reported here. It should be said that because a quotation has been used or interpreted in a certain way, does not mean it is the only interpretation possible. The aim of our analysis is to understand the processes and experiences of how law reform processes in New South Wales occur and the opportunities and challenges for participating in them by the general public and disadvantaged individuals. As the data is qualitative, the themes that we identify and describe were selected not so much for their frequency (although in some instances the strength of a theme may be related to the extent to which it is mentioned), but for the range of views and experiences of law reform and participation in law reform.

For the purposes of this report, we attribute the views expressed by our informants using parentheses to indicate their stakeholder viewpoints. For example a view expressed by a legal CSO informant may be reported as ‘an informant suggested that … (legal CSO)’. Views may be attributed to more than one informant in the parentheses.

Data limitations

Ideally, a study about the participation of disadvantaged people in law reform would include consultation with a range of disadvantaged people who had actually experienced these processes. However, our data was largely drawn from interviews with CSO, government and advisory body informants.

We account for this limitation by making a number of observations. First, this gap in our sample reflects a key aspect of the very issues we are studying. It is consistent with the view, expressed during preliminary consultation with our institutional informants and in the literature, that many members of the public, and particularly the disadvantaged public, do not participate directly in law reform.

Secondly, it was beyond the resources of this study to identify and source more informants who had been involved in our case studies and who also spoke directly from the perspective of the general public or a disadvantaged person.

3.3 Case studies

The following five case studies were selected for more detailed exploration of participation in law reform processes in New South Wales:

  • Acceptable Behaviour Agreements
  • Boarders and Lodgers
  • Mental Health Act
  • Bail Amendment Act and
  • Civil Procedure Act case studies.

These case studies were selected to allow us to explore a wide range of factors which may influence participation in law reform, including:
  • The stage of the law reform cycle: are issues identified as requiring a legislative solution and hence emerging, is a legislative response being formulated, is the enacted legislation being implemented, or is it undergoing review?
  • The institution instigating the process: which body is instigating the reform — government whether by itself or through an advisory body, parliament, or CSOs?
  • The timing (and timeframe) of the process: is the proposal or reform a reaction to public or other pressures (reactive law-making), or is it more deliberate and planned (proactive law-making)?
  • Institutional requirements: is there a procedural requirement to consult the public or stakeholders?
  • The issues which are the subject of law reform: does the proposal or reform seek to primarily change substantive rights of people or groups of people, or effect changes to administrative practices?
  • Specificity of potential impacts: is the proposal or reform likely to impact the general population or more specific groups in the community?

Table 3.2 summarises our case studies, indicating their coverage across these factors of interest.

Table 3.2: Selected cases of New South Wales law reform, along dimensions affecting public participation in law reform

Case studyStage of cycleLeading institutionReactive or proactive?Procedural requirement?Nature of proposalSpecificity of impact
Acceptable Behaviour Agreements Case StudyFormulate / ImplementExecutive governmentReactive- SubstantiveSpecific
Boarders and Lodgers Case Study EmergeCSOsNot Applicable- SubstantiveSpecific
Mental Health Act Case StudyReviewExecutive government and CSOs Proactive üSubstantiveSpecific and general
Bail Amendment Act Case StudyFormulateExecutive governmentReactive- Administrative and SubstantiveSpecific
Civil Procedure Act Case StudyFormulate / ImplementExecutive governmentProactive- AdministrativeGeneral

The case studies selected had to be either current or finalised no more than four years before the time of data collection (June 2006–March 2007), to reduce difficulties associated with locating suitable informants and their recall of events.

We describe each case study in the following chapter, outline the key issues and the objective of the proposal or reform, the people or groups likely to be affected, and provide a brief chronology of the relevant events.



This program stores, organises and retrieves qualitative data.

44  This program stores, organises and retrieves qualitative data.


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Nheu, N & McDonald, H 2010, By the people, for the people? Community participation in law reform, Law and Justice Foundation of NSW, Sydney