Legal Beagle by Graeme Edgeler


A matter of conscience

Yesterday - after a bit of effort - the House of Representatives held a conscience vote on the Gambling (Gambling Harm Reduction) Amendment Bill.

When the House abandons its usual practice of voting upon party lines, or at least when it has in the past on more controversial matters, there has been some debate over whether MPs should be exercising their consciences, or the consciences of the the people they represent. And for those who don't directly represent people - list MPs - some have raised concerns about whether they should be voting at all.

I have always considered the matter admirably simple.

The reason we have political parties, and the reason our political parties take party positions is that that it enhances democracy. When parties take collective positions, voters are better placed to decide how to cast their votes in order to see their desire enacted into law. Parties seek mandates to enact policies, and the voters who vote for them give them a mandate to vote accordingly.

Now, you may feel that every MP should exercise personal judgment and cast a personal vote on every question. Or you may feel that every MP should ignore their personal judgment and cast a representative vote (what their constituents would want) on every question. But this isn't what conscience votes are about.

The philosophical underpinning of the conscience vote is that on some issues a person’s morality is so strongly in play that they should be permitted to be guided by it, rather than public opinion, or collective decision-making processes. On conscience votes, MPs don’t represent the consciences of their electorates, but act according to their own consciences. Delineating between list MPs and electorate MPs on these issues makes no sense – on a conscience vote no MP is representing anyone other than themselves.

Conscience votes deal with laws that touch upon matters that that people generally would agree it is wrong to force someone to support a view that is not their own. Few would consider it immoral that a member of Parliament might have to vote in accordance with the majority of their party caucus on whether there should be a capital gains tax, despite personal opposition. Although few (if any) votes are cast via direct representation, few would consider it wrong if a member of Parliament might have to vote in accordance with the wishes of their local community to allow the building of a sports stadium they'd personally opposed.

But on a very few issues of morality, it is wrong, indeed, it is unconscionable, to force someone to vote contrary to their views. A conscience issue is one that a party considers it would be immoral for us to collectively decide on a view and have everyone vote for it. For us as a society, a conscience vote should be something that we feel an individual MP's beliefs should not be subjugated to majority concerns.

For example, it is unconscionable to force someone to support legalisation of abortion if that person believes abortion is murder, even if their party supports it, and even if the public supports it. It is wrong to force someone to vote for the death penalty if they believe that all life is sacred, and even if we overwhelmingly support the death penalty, we cannot expect that someone who doesn't should vote for it. In short, MPs should not be put in the position of voting in a way that they consider might damn them to Hell.

There is a distinction between a personal vote - which is one cast by an individual MP - and a conscience vote. A conscience vote should be an exercise of the conscience - on something for which there is no democratic accountability.

The issues on which our House of Representatives has historically held conscience votes are matters that have historically been moral issues: abortion, the death penalty, euthanasia, prostitution, gambling, alcohol, and Sunday and Easter trading.

Some of there are still clearly moral issues for a great many people, but I'm not sure all of them still are. A the height of the prohibition movement, alcohol as a social and moral ill was a matter not unlike slavery, or the death penalty – and it was properly considered morally wrong to force someone to vote for liberalisation of alcohol laws when it might attack their moral core. about something many considered the demon drink. For many, abortion is still like that, and prostitution is like that for some, but alcohol is like that for almost no-one.

Alcohol prohibition may be a moral issue for some, but other aspects of the regulation of alcohol have long ceased being moral questions. Many consider alcohol a social ill, or even a moral one, but how many people consider the age at which one may be sold alcohol to be a moral question?

So why is it that alcohol votes are not now subject to the same democratic processes as votes on education policy or tax? Why do MPs, in respect of the alcohol-purchasing age, act according to their “consciences”, when on most other issues of social and criminal justice policy they vote according to agreed party policy or public views?

There may be more pragmatic reasons why a party may choose not to whip a vote - it might cause party disunity, or annoy a great swathe of the voting population to adopt a party policy position - but the idea that alcohol votes are an exercise of conscience is a pretense well past it's use-by date. It may now simply be an issue on which MPs have unusually strong personal views, but I doubt any of them is worried about going to Hell over it, rather, many are motivated by the same instincts they have over much other legislation: perhaps a view of the importance of personal responsibility, or a desire to minimise social harm. But in these respects, questions around alcohol aren't substantially different from many other matters, from prison policy, to road safety. If we want MPs to exercise personal judgment over this issue, rather than collective judgment, then there are dozens of other issues of social policy we could properly expect the same. It would certainly make the House a more interesting place.

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