If ACT Chief Minister Andrew Barr were organising a citizens jury on same-sex marriage, one imagines that he would adopt a rule forbidding a vote by any person who was homosexual, or contemplating marriage or divorce, or involved, as a lawyer, judge or counsellor, in any sort of family law services. Also excluded would have to be any member of the families of such people.
Or at least that is a significant organising principle, set by the Barr government, of the citizen's jury which is to be asked to recommend changes in the ACT compulsory third-party insurance system.
So as to be "balanced and not unfairly influenced in any direction by people with a stake in the system" those selecting the supposedly randomly selected jury will fiddle with the panel to exclude anyone providing services to people injured in car accidents, such as lawyers, insurance industry employees, or people working for government in a personal injury compensation scheme. Members of their families or households would also be out. . Also excluded will be anyone currently suing over a third-party injury. And, of course, any member of their families.
Barr would no doubt think that joining that thought to the same-sex marriage debate would be outrageous. Indeed almost as great as the outrage, which he must unwillingly suffer, of seeing citizens being invited to decide whether other classes of citizens are to have basic human rights. One matter of public debate involves great issues of public principle, touching the fundamental structure of society; the other involves, relative priorities of a practical law.
Just so, might murmur some folk (wrongly, in my opinion). Except, they would suggest that Barr has it the wrong way around. Given an absence of active discrimination against same-sex couples, perfecting their rights might not be a matter as important to them as something touching their very bread and butter. Lawyers, like bankers, grocers and political parties, make their livings by taking a commission from everyday transactions between others. Like the others, they probably ask for and get too much, but this is usually rationalised as being the price for having the system work. There's a marketplace supposed to sort out the inefficient and incompetent.
There may be – probably is – a need to get lawyers out of the compensation system. But if politicians are not up to the task of doing so by ordinary political process, it seems unlikely that some guided novices can succeed. Least of all by pretending that every decision along the way springs from pure reason, rather than value judgment.
Government, even when pure, honest and evidence-based, necessarily involves dividing the cake. It is of limited size. There will be winners and losers. Losers are often sore losers...
That's one of the attractions of contracting out political responsibility through referendums, plebiscites (compulsory or voluntary), and systems of deliberative democracy such as citizen's juries. Or by farming out hard choices to tribunals, on the pretence that they can, in some sort of scientific manner, weigh and determine competing public interests.
At the end of the day, however, politicians cannot shed the responsibilities they were given by election. Nor can all of their judgments be scientific or "objective." A carefully choreographed set of presentations may help in the public relations game of persuading the public of the need for change. But it does not help much in the auction of settling who wins and who loses, particularly if, as usual, it's really all about asking the public to expect less from the system than before. Fewer benefits. Higher thresholds of injury before benefits are paid. And lower rates of compensation.
Nor will the opinion of a random collection of citizens, with or without the vested interests inside the room, and with or without all of the evidence and advocacy imaginable, necessarily make the right decision, or one that will stick or which government will adopt.
That's not to say that such processes cannot be useful, or that it cannot sometimes produce useful change. But the fact that they are gimmicks is underlined by the way that government commitment to real consultation, or public involvement, is generally in inverse proportion to the immediate and direct political interests of the governing party.
Would Barr allow a citizens jury to determine whether casinos have poker machines? Or how many poker machines are to be allowed to clubs, especially ones belonging to friends and allies of the Labor Party? Should a deliberative democracy process determine whether major league sports are to be given massive subsidies, the building of a Civic or Manuka stadium, the merits of a tram service, or real estate developments in West Basin?
'Politicians cannot leave the difficult choices to others'
These are, politicians will intone, matters for elected politicians. They will build the buildings; at best deliberative democracy can decide what colour they are painted.
That doesn't mean that choosing third-party insurance reform for an initial exercise is in an area where the interests of government cannot be hurt, or where outcomes do not matter. What is doubtful is whether the cause will benefit from the exercise. Premiums are high in the ACT, as Barr complains. But that is primarily a function of the fact that the ACT is a high wage city, with a high standard of living; the same accident here costs more, because the person hurt has, on average, a higher standard of living.
Real reform of personal injury compensation laws has been bedeviled for decades by the vested interests of lawyers in having an adversary system which turns on the apportionment of blame, and the exclusion of some victims. It is sometimes estimated that about a third of the total annual income from insurance premiums ends up in lawyers' pockets. The pickings are so great that vast sums of money can be hurled into lobbying against any reform proposal, or against any reform politician.
But lawyers are hardly alone in resisting change which affects their income and their job security. Nor are they alone in fervently believing that arrangements which suit and profit them are in the public interest. The special pleading of lawyers is not greatly different in quality or quantity, or worthiness, than that of pharmacists, teachers, building unionists or Christian clergy.
One can assume that Barr genuinely wants reform, or, at the least, a scheme which is cheaper for motorists and government, fairer to everyone who have suffered serious injury on the roads, and, more focused on directly helping victims than enriching the representatives of the victims. One can imagine that he feels dreadfully frustrated about all of the obstacles that the vested interests – particularly plaintiff lawyers – put in the way of reform.
I personally hope that there will be some reform, though I expect that someone will say I am disqualified from having a view because I have relatives (perhaps five, of the 800 or so descendants of my great-grandparents) in the crash and bash game. But then again I have relatives in a lot of occupations.
But I do not think that progress will be much helped by short-circuiting the ordinary political process, tedious and difficult as that process might be. Indeed that process may well be critical to making reform, if any, stick. The biggest risk to reform is whether Barr and his colleagues have the patience, the cunning and the will to take on big and powerful lobbies who play for keeps.
Indeed the lawyer mafia is probably as powerful a lobby as the doctor mafia, and is a good deal more rich and influential than the clubs' mafia, the developers' mafia, and the rich sports mafia. Labor seems to be in perpetual thrall to these, and only occasionally takes on the professions, rarely with conspicuous success. That a number of influential players among lawyers in the negligence game are closely associated with unions adds to the minefield, as does the fact that lawyers are common as muck among the class of Labor minders and suits.
It would be hard to establish that Labor in office, at federal, state or territorial level had ever been more beastly to lawyers or doctors than to the organisations representing building workers, teachers, health workers and police.
Politicians have to deal with vested interests, no matter how frustrating, time-consuming and annoying the process. One can get into a petty fit of temper with some interests, and, for a while, refuse to meet with, or treat with them – as with Barr's hissy fit against those clubs which campaigned against ACT Labor last year.
But ministers cannot long legally refuse to hear or to heed, somehow or other, legitimate interests with a right to be heard. The right to govern is not a prize or a privilege able to be exercised capriciously, an d only so as to benefits ones mates or punish ones enemies --- least of all in these days of codified administrative law.
But even were the intentions fair dinkum, it is hard to see just why any jaundiced citizen, or person anxious to see a new style of politics, would think that a determination from the process that the government has in mind should be treated as if handed down from Mount Sinai.
The jury's agenda is very narrow. Whatever scheme it adopts must remain compulsory for all motorists and cannot transfer liability from them to government or increase premiums. It must charge everyone the same. The practical consequence of the restrictions is to invite the jury to make the scheme more restrictive, rather than less legalistic . That is to say to pass on to jurors the opprobrium of making the scheme less generous. Perversely it may be that this will accentuate the role of lawyers.
There is no scope, for example, to tax motorists so as to produce a universal scheme, in which injury in a vehicle accident rather than negligence by a driver was the issue. Yet there are studies that suggest that a compensation-based scheme, without lawyers haggling over liability, could be run at the same cost, or less.
One should also forget the idea that the jury will be really random, even leaving out the desire to be free of vested interests. The proposal is that 6000 households, not individuals, receive invitations to play. Let's say 15,000. From those who express interest, the organisers will select a mere 50, and not by random process. This 50 will be " a mix of people according to criteria such as age, gender and location that broadly corresponds to the demographics of the ACT population. The selection process will also seek to involve a diversity of types of road users and those with a diversity of knowledge of the CTP system". Each word or phrase allows organisers to stack the jury any old way they want.
That's even before one gets to facilitators, people carefully selected to help guide and steer an unwieldy lump of strangers to a conclusion. The only certain thing that can be said of facilitators, as a group, is that they work for the interests and desired outcomes of the person paying the bill, not the group being consulted.
The group will be "facilitated [!] by experts in deliberative democracy," the information package says. "The jury will hear from people who work in insurance, the legal system and the health system. There will be highly qualified and experienced actuarial and scheme design professionals available to assist. The facilitators will use a variety of tried and tested methods to help the jury get across the issues and discuss them in a way that respects a diversity of views. The jury will be helped to consider issues one at a time before bringing them back together to consider as a whole and make recommendations."
The stakeholder reference group will contain two bureaucrats, two lawyers, two insurers, an academic, an actuary, a scheme design expert, and a health consumer advocate. It doesn't seem to represent the many excluded for being in the family or households of people said to have a vested interest, though, no doubt, these will be heard from in volume as government attempts to manoeuvre the facilitated outcome through the assembly.
During the last election, Barr drew attention to the fact that half the population was under the age of 34 but that, on planning issues, this half of the population tended to be drowned out by the clamour of older busybodies, bullies and special interests, many of whom are strongly opposed to change, particularly with developments.
He suggested that there would be more representative consultation, of a sort which would allow the real silent majority of younger folk to be heard. There was a hint that he would establish committees that mimicked the demographics of the population, presumably with age, gender and ethnicity balance, included. (It's not clear just how the views and interests of the 20 per cent of the population under the age of 15 would be represented, or by whom, but if they were to be ignored, the median age would be 41.)
It's a nice theory of government, but I am inclined to think that this elaborate method of coming to the right decision on every issue, no matter how technical, should be trialed in the ACT Cabinet first. Only when we can be sure that extensive and exhaustive facilitated discussion, on the model of that in prospect for the CTP panel, had produced perfect political compromises around which everyone, Labor, Green and Liberal could embrace, should the experiment be visited on the population at large.
Jack Waterford is a former editor of the Canberra Times