Empowering citizen’s voices: lessons from inside a citizen’s jury

The NSW government has commissioned New Democracy Foundation (NDF) to conduct a 'Citizens Jury' to advise whether the state should repeal legislation prohibiting the development of nuclear power. Many will welcome processes allowing citizens to explore evidence for and against controversial proposals before they are legislated. However, some caution is needed here.

In 2016 a 350 person Citizens Jury, set up by the SA government and facilitated by New Democracy, examined the idea that the state could profitably and safely import, store and eventually 'dispose' of nuclear wastes. Six weeks of deliberation concluded with two-thirds of the jurors saying "No, under any circumstances' but seen from the inside it could have been very different were it not for critical questioning of the process by some of the Jurors and how this evolved into a deeply- and widely-held concern among jurors over the way the process was run by NDF facilitators.

The outcome was in part a reaction to a sense of being manipulated, guided and steered towards a decision to at least permit if not encourage government to proceed with the proposal – despite the mass of evidence against.

A representative jury?

I was one of 25,000 people randomly selected via Australia Post listings who received an invitation to be part of the jury process and one of around 1200 who expressed interest. Though not chosen to be part of the first 50 person jury that set the parameters for the second I observed some of the sessions in June-July 2016, read transcripts of jury sessions, viewed the government's 'Know-Nuclear' website, attended the travelling roadshow and contributed to the public opinion survey. I was pleasantly surprised to be one of the 350 randomly selected to participate in the second jury starting in October.

I freely admit to having been an active critic of the nuclear industry for over 40 years. I have campaigned on risks of public and occupational radiation exposures in the UK, USA, Canada and Australia. I've also argued that the world needs a long-term solution to the problem of nuclear wastes, preferably by international agreement with one or more countries carrying the burden as a global-citizen responsibility – something not always popular with environmentalists and anti-nuclear advocates. I remain sceptical it can be done responsibly as a commercial venture or as a solution to regional or national economic and employment woes.

The evidence from other jurors' early postings on the electronic discussion board, conversations, comments and questions posed in the jury sessions indicated that most of us approached the task of reviewing the evidence for the proposal with an open mind; facing up to the challenge of producing reasoned advice to government on whether, and if so under what conditions, to pursue the opportunity outlined in the earlier report of the SA Nuclear Fuel Cycle Royal Commission. As further evidence of open-mindedness, at the end of the second of three weekend sessions, an 'opinion line' on juror thinking showed clearly that while some had firmed up their opinion (at both ends) most were still undecided.

Reviewing the evidence

The early part of the jury process was commendable. Facilitators introduced a range of critical thinking skills for questioning information and evidence from witnesses to use in reaching our conclusions. We were also invited to post questions on a 'fact-check' wall and could ask for 'fact-checks' at any stage in the process.

Witness evidence was critically evaluated through two distinct processes. The first involved hearing from experts with views across the spectrum of opinions chosen by a 'Stakeholder Reference Group' of industry, government and community agencies A 'speed-evidence' process provided small groups of jurors the opportunity to hear these expert's evidence and ask questions.

The second process involved jurors hearing witnesses they chose to fill gaps in the initial evidence. The stakeholder reference group offered an expanded list with details of expertise. Jurors completed 'information gap cards' suggesting concerns needing further information and the additional witnesses they thought might fill these gaps. The expanded profiles of over 200 was posted on a 'Witness Wall' grouped according to six key concerns jurors indicated needed consideration. Selection from this list of potential witnesses involved each juror placing five dots against names of those they most wished to hear from. The top five in each area of concern were to be invited to present and be questioned at the next jury session three weeks away.

Witness selection at this stage was to be the jurors' choice for information we judged was needed. Concern was raised when the Democracy Co facilitators running the process immediately asked that they be allowed to add additional witness to achieve "balance" in the list to be invited. This resulted in something close to uproar. The jury had been told – no ifs or buts ‒ that we would be selecting the witnesses we wanted to hear from. Not the facilitators. Not the Government. Eventually permission was given to include additional witnesses below the top five where chosen ones were not available. Balancing of witness evidence had already occurred in the first stage. The 'dot-mocracy' process selected witnesses to assist with critical evaluation of the evidence already provided that the project: would be financially viable, could be done safely, and there was a genuine process for exploring public consent.

Honouring the jury process?

Despite this, 48 hours later facilitators announced they had included additional witnesses with views heavily biased towards the pro-dump case. These were to be invited ahead of about twenty others in their field who had received higher dot 'votes'. This was 'justified' by claiming the 'info gap cards' had requested these witnesses. After several requests I was eventually allowed to view these cards. Some 40 cards indicated gaps in the economic modelling case. Not one indicated jurors wanted evidence from a Dr Tim Johnston (Jacobs MRM consultancy) who facilitators claimed 20 cards wanted as witness. Eighteen cards requested information from other witnesses critical of the evidence already presented by Dr Johnson's consultancy. Only ten could be interpreted as seeking further information relating to the Jacobs case. The following day the facilitators released a revised witness list still including Dr Johnston but changing their justification from the 'info gap cards' to unreviewed evidence from a 'the fact check wall'.

Detailed analysis of the 'fact check' and 'info gap' data was only released to the jury as 21 pages of data placed on the jury's information table on the morning of the next session. A week earlier, members of the Stakeholder Reference Group had insisted the jury be advised that they had "…concerns that the view of the jury was not honoured in the way additional witnesses were added". This statement was buried in a general information post on the internet discussion board at 9.30 pm on the Friday night before jurors attended the session at 8.30am Saturday morning. Facilitators did not advise the jury of the Stakeholder Reference Group concerns at the start of this session and shut down jurors' attempts to raise it from the floor.

Further concerns over the facilitation process followed. The jury was advised of a debate between added witness Dr Johnston and Dr Richard Denniss who had published a critical review of the Jacobs MRM economic modelling. Dr Johnston pulled out of this debate leaving another witness to speak in his place but jurors at the subsequent witness panel session were told Dr Dennis would only be allowed to answer questions not make further presentations. This was overturned by the jurors who heard details of how the business case was: based on dubious assumptions about benefits and costs; relied on advanced contracts to take and store wastes long before an underground disposal facility would be built; that South Australia would need to commit $600 million over six years before the first contract was signed; that the project relied for profit on contracting a third of the world's nuclear rubbish at a price 50% higher than any country was considering spending; and that no other country would be competing with us. Assumption on assumption with little evidence and divorced from common-sense.

Whatever the merits of arguments for 'balance' the facilitators chose not to consult with the jurors, chose not to make their case for change in the process and share the evidence they believed justified this. They chose not to seek agreement of the jury – which could easily have been done in the three-week gap between the jury sessions and which I think most jurors would have agreed to. They chose to conceal the concerns growing both inside and outside the jury that all was not being handled with openness and integrity essential for trust in the jury process to be maintained.

Answering the core question?

A number of other manoeuvres seemed designed to fragment and dilute the growing concerns over the project. Discussions were restricted to small groups focussed on specific aspects of the proposal. There was undermining of the near unanimous voice of the Aboriginal community witnesses who were not merely saying no but asking pointedly which part of the word 'no 'did government not understand. There was an ongoing struggle over the form of the core question and the way this was framed in terms of three (traffic light) options. Yes – go ahead (green). Yes – go ahead under these conditions (amber). No – don't go ahead (red). There was ongoing argument over whether the question should address whether the project 'could' go ahead (anything can be done given enough time and money) or whether it 'should' – under the circumstances proposed and with the evidence provided.

Despite this, two thirds of jurors decided the project should not proceed. Attempts to provide wriggle room for this ended with solid votes showing that jurors did not believe more information was needed and that it should not proceed 'under any circumstances.' A small group of 20 jurors presented a minority report advocating: (unnecessary) legislation changes to permit further work, suggesting jury bias, and questioning the evidence from Aboriginal Community witnesses.

The government response was to consider the jury report as part of other public consent initiatives. Six weeks of intense Jury work was set against community responses to a wholly one-sided presentation based on: a flawed and inadequate Royal Commission report and the government's 'Know Nuclear' website, travelling roadshow, on-line questionnaire and focus group discussions. These attempts to undermine the jury decision failed. Over 50% of the people who responded said no. Parliament received a 35,000 resident petition saying no. The pro-nuclear Business Council declared the proposal 'dead'. With all other political parties opposed, and significant opposition within his own party, the Premier realised it was a non-starter, at least for the time being. As he said on the first day to the jury, there was perhaps no harder issue than this - one that could only proceed with community support which was clearly not there in SA in 2016. Following retirement from politics the former Premier accepted a position with the New Democracy Foundation.

Where next?

Given the experience outlined here the decision to involve New Democracy in the upcoming NSW citizens jury suggests there will need for very close scrutiny of the process by which this jury arrives at its conclusions.

Let me be clear, as someone with experience of citizen democracy processes in other countries that are truly 'independent' and empowering of citizen's voices to government like the Danish 'Consensus Conference' process, I think that well-run Citizen's Juries and other deliberative processes that involve communities affected have a significant role to play informing hard decisions. I look forward to a 'voice' for input into legislation being exercised by the Aboriginal Community in the near future. Important will be informed and considered voices from communities affected by 'unprecedented' civic and environmental climate damage this year and how we mitigate the role of carbon pollution. But for these processes to have broad support – and be accepted as valid whatever the outcome or political fallout – we need openness, transparency and integrity from those who are entrusted with guiding and facilitating them.