Lessons of the Australia Capital Territory compulsory third party car accident insurance citizen jury

In March 2018, a citizen jury convened by the Australian Capital Territory (ACT) government delivered its decision regarding the design of a compulsory third party (CTP) car accident insurance system. The government’s Chief Minister Andrew Barr had committed ahead of time to implement the jury’s decision, but there are now significant political forces pushing against implementation, including Barr’s coalition partner. Adopting the jury’s decision would have significant economic implications for various parties, and as can be expected the process has been called into question. A timeline of criticisms of the citizen jury process is laid out below.

While the attacks are no doubt motivated by interests, the claims that the process itself was tainted by interests cannot be dismissed. The important, if unsurprising, lesson for those advocating the use of citizen juries for public policy is that an expectation that the fact that a decision was made by a citizen jury would by itself carry enough power to resolve significant political conflicts is unrealistic. If the citizen jury’s decisions are to have political power, the citizen jury process must be evidently democratic, i.e., representative of the population and free of elite manipulation. In the case of the ACT CTP jury, this does not seem to be the case. As a result, the jury’s decision cannot be taken at face value as being well-informed and well-considered. The “deliberative democracy” process, then, has had very little value.

The ACT CTP citizen jury, a timeline of criticisms

Even before the jury made its decision, the opposition claimed the process was rigged:

Canberra Liberals to call for inquiry into CTP citizens’ jury
By Katie Burgess, February 20, 2018

The ACT Opposition will push for higher scrutiny of the citizens’ jury on a new compulsory third party insurance scheme for the ACT after concerns the process has been undermined.

Canberra Liberals leader Alistair Coe will on Wednesday call for an inquiry into the citizens’ jury on the insurance scheme currently under way.

“The government’s first shot at a citizens’ jury has rightly made Canberrans sceptical of its merits,” Mr Coe said.

“If deliberative democracy is going to become a function of government, Canberrans need to be able to trust that it is conducted in a fair and impartial manner.

“If we can’t trust the process, then deliberative democracy will be nothing more than expensive tokenism.”

Mr Coe previously accused the Barr government of trying to “manufacture its preferred outcome” on the scheme, which he said was an “insult to the people who participated in good faith”.

That came after an ANU academic found while the exercise in deliberative democracy was worthwhile, the close involvement of expert decision makers in the jury’s deliberation stages risked undermining the autonomy of jurors.

He also found the public framing of the issue favoured abandoning the current model and jurors did not have enough time to get a good grasp of the subject matter.

Immediately following the jury’s decision, the criticism of the process was joined by a member of the jury itself:

Canberra third-party insurance jury ‘corrupted and misleading’, participant says
By Elise Scott, Apr 9, 2018

A juror on the ACT Government’s first citizens’ jury walked out on the final day, angry at what he calls a “grossly corrupted” and “misleading” process.

Luke Hitch sat on the jury since it began examining compulsory third-party insurance in October, and was satisfied with the process until he felt the group was blindsided last minute with key information used in the presented options.

Mr Hitch raised his concerns on the final weekend, alleging an injury calculation tool known as whole person impairment (WPI) — a key factor in the chosen model — had been glossed over and not thoroughly explained.

“We were blindsided, it was just in there,” he said.

Mr Hitch said the jury was given a 30-minute briefing session on WPI and another scale called ISV on the final Saturday, not long before a vote that ruled out two of the four models.

“Until the jury actually arced up and said they wanted more information [the organisers] were quite happy for us to just roll on and make these decisions in this vacuum really,” he said.

The jury was then asked whether they wanted to investigate the methods further but declined.

“In the first instance they were uninformed and then once they wanted information they were quite clearly misled.

Later, a different former juror expressed misgivings about the process and the outcome.

Once the decision was made, it was slammed by Ken Archer, the president of the ACT Bar Association.

Citizens’ jury? Small wonder people have little faith in the system
By Crispin Hull, May 17, 2018

The political equation is clear. On one hand, every year nearly everyone pays rego and third-party and mentally puts it down as a government-imposed charge. On the other hand, only a few hundred in the ACT and a few thousand nationally are injured seriously enough in road crashes to warrant a compensation claim.

And thus, to dilute the blame for the former, the rights of the latter are made expendable.

This week, the president of the ACT Bar Association, Ken Archer, wrote about the citizens’ jury process that recommended radical changes to the ACT’s system that would abolish common-law damages, institute caps, and impose injury thresholds below which a person could not get any damages.

Archer’s damning dissection in the latest ACT Bar Bulletin should remove any confidence that the citizens’ jury process used in this instance was applied in any fair or rational way. It was utterly skewed towards a pre-determined outcome. Leaving the system as is, or just making minor modifications was not an option.

Some jurors complained that they did not have enough time. People in industries linked to the issues – particularly law and insurance – were excluded. About 70 of the 6000 people invited to join the jury agreed to do so. In short, the very people who might shed light on the matter were excluded. Instead, the jurors were advised by government-selected experts.

The Government, in an extraordinary abdication of its fundamental role in a democracy, said beforehand that it would accept whatever the jury proposed.

Finally, more recently, allegations of misconduct have been made:

Canberra’s citizens’ jury on reforming compulsory third party insurance had a “predetermined outcome”, law firm Maurice Blackburn has alleged, after releasing an embarrassing trail of government emails.

The firm has also alleged insurer Suncorp had greater access to the government before and after the citizens’ jury than other stakeholders.

The allegations stem from a tranche of documents the firm obtained from the Chief Minister’s office under freedom of information laws. The government denies it had a predetermined outcome or was unduly influenced by Suncorp.

Maurice Blackburn and a host of other personal injury law firms in Canberra stand to lose when the ACT moves to a no-fault capped model of third party compulsory insurance in 2019.

13 Responses

  1. Thanks for posting this Yoram.

    Seems like a smoking gun to me – and certainly conforms with my own experience of bureaucrats being more or less unable to do anything other than try to get their masters what they want – even to the point of imagining what they want if they don’t know.

    The South Australian citizens’ jury (should be called a citizens’ assembly given it had around 340 people) also had people who felt they were being railroaded into supporting what everyone knew the Premier wanted – though knowing the Premier I doubt he was trying to get the bureaucrats to do that.

    I’m also saddened that the news reports are so reflexively uncritical of vested interests – particularly lawyers who prey off the injured and run away with vast parts of the fortunes that badly injured people need.

    I’m dead against caps for the reasons made clear in the coverage, but if you really cared you wouldn’t spend huge sums on lawyers in getting people the compensation they need.

    Liked by 1 person

  2. About 70 of the 6000 people invited to join the jury agreed to do so. In short, the very people who might shed light on the matter were excluded.

    The jury was clearly unrepresentative, but the second sentence is a non-sequitur, as there is no reason to believe that the citizens who refused the invitation would be any better informed.

    Instead, the jurors were advised by government-selected experts.

    There’s nothing wrong with that, but the opposition should have enjoyed equal information advocacy rights. The rhetorical style necessary to ensure impartiality in binary decision making is forensic, not deliberative, and the argumentative exchange should be supervised by a judge, applying well-established courtroom principles.

    Yoram:> the citizen jury process must be evidently democratic, i.e., representative of the population and free of elite manipulation.

    Whilst statistical representativity is a sine qua non, freedom from elite manipulation is a pipe dream, hence the need to give equal information and advocacy rights to spokespersons for the other side. There is no reason to believe that the information that emerges as the result of an unmediated deliberative conversation will be well balanced.

    Liked by 1 person

  3. Yes, on the 70 out of 6,000 that seems like a very odd ratio. People tend to agree to these things in much higher proportions than that.

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  4. John Burnheim has asked me to convey this comment which he apparently made, but ran into some technical glitch

    “A sortition process may ensure that someone on a c0mmittee HAS a certain interest. It cannot assure that somebody can make the case for that interest effectively. If people are to be assured that an interest is well represented the deliberation process must be public at every stage and responsive to criticism.”

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  5. Two comments on John’s intervention:

    1. The sortition process will only ensure the presence of someone on the committee with a certain interest if the sample is a) large and b) quasi-mandatory (70 out of 60,000 isn’t good enough). Neither of these considerations apply to JB’s demarchic committees.

    2. The sortition process cannot ensure every interest is represented effectively as some people are a lot more persuasive than others. Publicity is not a significant constraint, as few people will bother to study the proceedings (by which time it is too late anyway). How many people go through Hansard in order to see if their MP has been representing them effectively?

    therefore

    3. Sortition can have no role to play in the advocacy of interests, it can only (under very exacting conditions) establish a body capable of judging the outcome of the debate in a democratically satisfactory manner.

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  6. > the 70 out of 6,000 that seems like a very odd ratio

    I wouldn’t take this statement at face value. It is a claim by the president of the ACT Bar Association who is by no means an uninterested observer.

    That said, it seems difficult to find details about the recruitment procedure which of course would be another reason for being suspicious about the entire process.

    In any case, leaving the statistical representativity aside, the notion that people can pick up a new issue of any complexity and make an informed and considered decision over a few weekends, based on material handed to them by some external authorities, is of course incredible.

    Liked by 1 person

  7. I don’t think it’s that hard to come to a reasonable view on compulsory third party insurance and whether it should be run through law courts or a (vastly more efficient and fair) administrative scheme in a few days deliberation. It’s a no-brainer. The big question is whether the people in the jury will fall for the BS about capping amounts – which is obviously unfair to those who need help the most. But it’s how politicians have typically dealt with it, and it seems nice and neat to people. And there are so few people it affects badly – just the ones who need it the most!

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  8. Yoram,
    You wrote:
    >”the notion that people can pick up a new issue of any complexity and make an informed and considered decision over a few weekends, based on material handed to them by some external authorities, is of course incredible.”
    I agree with the skepticism about “material handed to them by some external authorities” unless those external authorities are also controlled by a mini-public. But the rest of your statement I disagree with. It is ALWAYS the case that representatives make decisions based on limited understanding in a relatively short time. In any elected legislature a handful of members serve on a committee that takes testimony, and staff of those members do research, and some level of understanding is achieved, and recommendations are made, and then the chamber as a whole makes a decision in the blink of an eye on complex matters based on this material handed to them by the committee ( an authority distinct from the body as a whole). This is not good process — but it is UNIVERSAL. In the case of a short duration mini-public we at least have the opportunity to have members genuinely focus on a single issue, unlike an all-purpose legislature, whether elected or allotted, which is tackling countless other issues at the same time. I think it is almost certain that (IF given balanced opposing information under the control of another mini-public) a short duration mini-public will be BETTER informed and more competent than any traditional or allotted legislature.

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  9. Terry:> I think it is almost certain that (IF given balanced opposing information under the control of another mini-public) a short duration mini-public will be BETTER informed and more competent than any traditional or allotted legislature.

    Why do you feel the second minipublic would be in a better position to provide balanced information than the decision-making minipublic? If it’s an up-down decision and the two sides have existing advocacy bodies (aka lobbyists) why not leave it to them to fight it out? This would certainly work for politicised decisions (like Brexit), but I imagine in the case of car insurance there would be a similar polarisation between the insurance industry and organisations like the AA (Automobile Association) and the RAC (Royal Automobile Club) [UK examples]. In your determination to keep it purely in the hands of allotted bodies you are excluding the very people who could best inform the debate. And why not have the procedure overseen by a judge, as ensuring balanced debate is what they are trained to do (unlike a group of randomly-selected persons)?

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  10. Keith,
    The intent is to put the broad framework of the process for selecting balanced information under democratic control of a mini-public. They would not DO the information sorting themselves, but would be in charge of the staff, and establish the rules for how opposing advocates are selected etc. The point is we can’t leave the selection of expert witnesses to biased interests (such as an elected partisan government). There are often far more than just TWO sides to an issue, and some important perspectives may not have organized lobbyists at all, requiring special efforts to bring in such experts. I often compare this to the “veil of ignorance” thought experiment of Rawls. A separate mini-public has the incentive to designate the fairest possible information filtering system if they don’t know exactly what issues it will be applied to, or who exactly will be on that decision-making jury. The jury should be able to ask questions and demand more information based on what they learn, but the initial “education” phase needs to be democratically set up before they arrive on the scene.

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  11. Terry:> The point is we can’t leave the selection of expert witnesses to biased interests

    Three points:

    1. I know the we use the term “trial” in a quasi-metaphorical way when it comes to the legislative process, but we assume that the judiciary is independent in the first case, so why not the second? (Yoram’s “the president of the ACT Bar Association is by no means an uninterested observer” struck me as an odd claim.) We don’t charge the trial jury with uncovering evidence or any of the other functions of the advocates, as we don’t think they are competent and there is no way of counteracting any random biases. The same principle would apply to the legislative process.

    2. This demonstrates again the contrast between your faith in deliberative democracy and the liberal notion that balance can only be achieved via the clash of (elite) interests.

    3. I don’t see the relevance of the Rawls allusion as we are referring here to the gathering of information for a specific purpose (compulsory third party car insurance) rather than a general deontological theory of justice.

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  12. Terry,

    > the chamber as a whole makes a decision in the blink of an eye on complex matters based on this material handed to them by the committee

    Then, of course, it is the committee that makes the informed and considered decisions while the chamber, at best, decides who on the committee they trust. If that committee is unrepresentative (either due to statistical unrepresentativity or due to lack of time or resources), then so will be the final decision by the chamber.

    That, of course, is the reason you insist that the material gathering and analysis has itself to be managed by an allotted chamber. But then all you did was push back the statistical representativity, as well as the demand for time and resources, to the committee phase. This may be fine, but it does not negate my original point – it is in complete accordance with it.

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  13. Nicholas,

    > I don’t think it’s that hard to come to a reasonable view on compulsory third party insurance and whether it should be run through law courts or a (vastly more efficient and fair) administrative scheme in a few days deliberation. It’s a no-brainer.

    I disagree. I think that there would be quite a few details to consider without which no informed and considered decision can be made.

    Like

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