Conscience votes during the Howard Government 1996 2007


Research Paper Index

Research Paper no. 20 2008–09

Conscience votes during the Howard Government 1996 2007

Deirdre McKeown and Rob Lundie
Politics and Public Administration Section
2 February 2009

Contents

Executive summary
Introduction
Background
  Definition
  Issues attracting a conscience vote
  Reasons for calling for a conscience vote
  Frequency of conscience votes
The Howard government and conscience votes
  Who introduced the legislation
  Votes of the Prime Minister and Leader of the Opposition on conscience bills
    Backbench pressure
  Voting patterns
    Chamber voting
    Party voting
    Gender voting
    Behaviour in the RU486 and therapeutic cloning debates
  Call for more conscience votes
  The media and conscience votes
  Dilemmas facing MPs in conscience votes
Conclusion
Appendix 1: Voting by party and gender on conscience vote bills during the Howard Government (1996–2007)
Appendix 2: Dates of stages of conscience vote bills debated during the Howard Government (1996–2007)
  Prohibition of Human Cloning Bill 2002
Appendix 3: Conscience votes in the federal parliament 1950–2007

Executive Summary

  • During the Howard Government s time in office five bills attracted a conscience vote. These bills were: Euthanasia Laws Bill 1996, Research Involving Embryos Bill 2002, Prohibition of Human Cloning Bill 2002, Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005 and Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006.
  • This paper considers aspects of these votes and tracks patterns that emerged. Aspects considered include the voting patterns of party leaders, the party vote, the vote of women, the media and conscience votes and the dilemmas facing members of parliament in these votes.
  • A list of conscience votes in the federal parliament from 1950 to 2007 is included in an appendix.

Acknowledgements

The authors would like to thank Cathy Madden, Sarah Miskin, Matthew Thomas and John Warhurst for their assistance in preparing this research paper.

Introduction

In August 2002 the Parliamentary Library published a paper on conscience votes in federal, state and some overseas parliaments.[1] In compiling the list of conscience votes in the federal parliament reliance was made on references in House of Representatives Practice. Since 2002, additional conscience votes on bills and procedural issues have been found and some other votes included in the original list have been reclassified. A full list of conscience votes in the federal parliament since 1950 is included at Appendix 3.

In this paper we consider aspects of conscience votes during the Howard Government (1996 to 2007). We do not attempt to draw conclusions on the basis of our analyses but rather to track patterns in the votes that occurred. The aspects considered include voting patterns of party leaders and the party vote, the vote of women, the media and conscience votes and dilemmas facing MPs in these votes. An earlier version of this paper was presented to the Australasian Study of Parliament Group Conference in August 2007.[2]

At the time of writing the Rudd Government has not initiated any conscience votes but two issues which traditionally attract a conscience vote, euthanasia and abortion, have been raised by senators.[3]

Background

Definition

The term free vote or conscience vote is defined as the rare vote in parliament, in which members are not obliged by the parties to follow a party line, but vote according to their own moral, political, religious or social beliefs .[4]

The term conscience vote is most commonly used in Australia to describe votes on moral and social issues such as abortion, euthanasia and capital punishment the life and death issues in which senators and members are not obliged to vote along party lines. In Australia the term may also include issues on which the parties do not always have a formal policy such as parliamentary procedure and parliamentary privilege. The term free vote is more commonly used in other Westminster parliaments.

In Australian state and federal parliaments the decision to allow a conscience vote is a political one usually made by the party leader and is not a subject on which the Speaker can be asked to rule.[5] The conscience vote can apply to one party, more than one party or all parties represented in the parliament.

Issues attracting a conscience vote

Conscience votes have been allowed on:

  • life and death issues, such as abortion, euthanasia and capital punishment
  • human reproductive and scientific research issues, such as in vitro fertilisation, stem cell research and therapeutic cloning
  • social or moral issues, such as family law, homosexuality, drug reform, war crimes and gambling and
  • parliamentary procedure and privilege issues and standing orders.

Conscience votes are not usually allowed on economic issues or issues that have a significant impact on the budget, although 'until 1936 tariff proposals were free votes in both Houses in the Australian Parliament'.[6]

Conscience votes are generally not allowed when a party has a definite policy on an issue. For example, the Australian Labor Party (ALP) does not allow its members a conscience vote on capital punishment because the party has already adopted an anti death penalty policy. One exception to this approach is the ALP s attitude to abortion. In this case the party has a policy but also allows a conscience vote on the issue. The ALP National Platform states that Labor will:

support the rights of women to determine their own reproductive lives, particularly the right to choose appropriate fertility control and abortion.[7]

The ALP National Constitution records the 1984 National Conference decision on abortion:

Conference resolves that the matter of abortion can be freely debated at any State or federal forum of the Australian Labor Party, but any decision reached is not binding on any member of the Party.[8]

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Reasons for calling for a conscience vote

The reasons for calling for a conscience vote are varied and may include:

  • the need to accommodate a senator or member s personal philosophy or beliefs
  • to prevent members crossing the floor
  • to embarrass or destabilise another party
  • to gain publicity or support for a particular stance on an issue and
  • to push an issue or defuse tensions within a party and perhaps avoid an embarrassing party split.

Some of these reasons will be illustrated in the following discussion on conscience bills debated during the Howard Government.

David McGee, former Clerk of the New Zealand House of Representatives, has described conscience issues as fractious, stimulating, moving and confusing by turns. They remain a necessary safety valve to handle those issues which cannot appropriately be treated as party matters .[9]

Frequency of conscience votes

From 1950 to 2007, 32 bills/issues were decided by a conscience vote (see Appendix 3). Table 1 indicates the duration of each government during this period, the number of conscience vote bills/issues dealt with by each government and the average frequency with which they were dealt. The nine governments during this period, excluding the short-lived McEwen Government, each dealt with an average of 3.6 bills/issues by conscience vote. A conscience vote bill/issue was debated on average every 1.8 years. The highest number of conscience votes occurred during the three-year Whitlam Government (8), an average of one every 0.4 years, or about every five months.

Table 1: Bills/issues on which a conscience vote was allowed by each government from 1950-2007

Government

Duration of Government (rounded years)

Number of bills/issues decided by a conscience vote

Average frequency of conscience vote bills/issues (years)

Menzies (LIB) 19.12.49 26.1.66

16

5

3.2

Holt (LIB) 26.1.66 19.12.67

2

0

-

Gorton (LIB) 10.1.68 10.3.71

3

6

0.5

McMahon (LIB) 0.3.71 5.12.72

2

2

1.0

Whitlam (ALP) 5.12.72 11.11.75

3

8

0.4

Fraser (LIB) 11.11.75 11.3.83

7

3

2.3

Hawke (ALP) 11.3.83 20.12.91

9

3

3.0

Keating (ALP) 20.12.91 11.3.96

4

0

-

Howard (LIB) 11.3.96 3.12.07

12

5

2.4

TOTAL

58

32

1.8

The Howard government and conscience votes

During the Howard Government (1996 2007) five bills attracted a conscience vote at an average of one every 2.4 years. These bills, with a shorthand term for each bill in brackets, were:

  • Euthanasia Laws Bill 1996 [Euthanasia Bill]
  • Research Involving Embryos Bill 2002 [Stem Cell Bill]
  • Prohibition of Human Cloning Bill 2002 [Cloning Bill] [10]
  • Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005 [RU486 Bill] and
  • Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 [Therapeutic Cloning Bill].

Four of these bills illustrate the complex issues raised by biotechnology and medical science. Despite the fact that the RU486 Bill was concerned with administrative issues involving the approval of the abortion drug RU486, it is generally acknowledged that the issue developed into a hotly contested moral and religious debate about abortion .[11]

The fifth bill, on euthanasia, could be classified as a more traditional life and death issue and one that would expect to attract a conscience vote. This Bill also had the complication that the federal government was proposing to override Northern Territory legislation.

In the 21st century medical science and ethics have become the predominant issues for decision by conscience votes. Political scientist John Warhurst has called them socio-moral issues .[12]

Two of the five bills the Stem Cell Bill and the Therapeutic Cloning Bill have required, as part of a cooperative legislative approach, that the states enact mirror legislation. This was done by all states for the Stem Cell Bill with members of state parliaments being allowed a conscience vote. At the time of writing, bills mirroring the Therapeutic Cloning Bill have been passed by the Victorian, New South Wales, Queensland, Tasmania and Australian Capital Territory parliaments. Legislation is being debated in the South Australian Parliament.[13] The Western Australian bill was defeated in the Legislative Council on 6 May 2008. The stem cell legislation appears to be the first time that conscience votes at federal and state levels have determined the outcome of a cooperative legislative scheme.

Who introduced the legislation

Table 2 shows that one of the bills was introduced by the Government and then split into two bills, two were introduced by government backbenchers (one senator and one member) and one was sponsored by four female senators across party lines. [14] Cross-party sponsorship of private senators bills is not common. Senator Fiona Nash said in her second reading speech on the RU486 Bill:

I am advised that this is the first time in the history of this place that four members of different parties have co-sponsored a private senators bill.[15]

It is also the first time that a bill with cross-party sponsors has been granted a conscience vote. In December 2006 four female senators again came together as cross-party sponsors of a private senators bill the Pregnancy Counselling (Truth in Advertising) Bill 2006. A number of female senators noted the cross party cooperation and expressed the hope that the cross-party work between women in the Senate would continue.[16] This bill did not attract a conscience vote and, at the time of writing it has been restored to the Senate Notice Paper in the 42nd Parliament.

Table 2: Introduction of legislation on which a conscience vote was allowed from 1996-2007

Bill

Chamber/Introduced by

Euthanasia Laws Bill 1996

House of Representatives, Kevin Andrews MP (Lib, Vic)

Prohibition of Human Cloning Bill 2002

House of Representatives, (original bill introduced by Prime Minister John Howard)

Research Involving Embryos Bill 2002

House of Representatives, (original bill introduced by Prime Minister John Howard)

Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

Senate, bill co-sponsored by Senator Fiona Nash (Nationals, NSW), Senator Claire Moore (ALP, Qld), Senator Judith Troeth (Lib, Vic) and Senator Lyn Allison (Aust Democrats, Vic)

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

Senate, Senator Kay Patterson (Lib, Vic)

Votes of the Prime Minister and Leader of the Opposition on conscience bills

When members are allowed a conscience vote it is not uncommon for the leaders to declare their positions before the debate.[17] John Warhurst has suggested that in this case a conscience vote is never straightforward 'because backbenchers are still faced with the prospect of disagreeing with their leaders. It is much easier to conform'.[18] In this situation it is possible that a de facto 'party view' could emerge for members to 're-coalesce around'.

Research on conscience votes in the New Zealand, British and Canadian parliaments confirms that members generally tend to act in accordance with caucus decisions and that, often in these votes, the primacy of the party is not diminished.[19]

Table 3 shows the votes of the Prime Minister and the Leader of the Opposition in the House of Representatives on the conscience vote bills. All bills passed the House of Representatives and the Senate. A list of these bills and the dates they were debated in both chambers is at Appendix 2.

Table 3: Voting pattern of party leaders in the House of Representatives

Bill

2nd reading

Ayes Noes

3rd reading

Ayes Noes

Result

Euthanasia Laws Bill 1996

Howard

Beazley

 

Howard

Beazley

 

Bill passed

Research Involving Embryos and Prohibition of Human Cloning Bill 2002

Procedural motion to split the bill

Howard Aye Crean No

Motion passed

Prohibition of Human Cloning Bill 2002

No division

No division

Bill passed

Research Involving Embryos Bill 2002

Howard

Crean

 

Howard did not vote

Crean Divider

Bill passed

Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

Beazley

Howard

No division

Bill passed

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

 

Howard

Rudd

No division

Bill passed

Table 4 shows the voting pattern of party leaders and the percentage of the ALP and Liberal Party vote at the last stage at which a division was held.[20] This could have been at the second or third reading stage. The Prohibition of Human Cloning Bill 2002 is not included as there were no divisions.

Table 4: Voting pattern of party leaders and the party vote

Bill

Leader and vote

Party

House of Representatives vote

Senate vote

Euthanasia Laws Bill 1996

Howard - yes

LP

83% yes

17% no

75% yes

25% no

 

Beazley - yes

ALP

51% yes

49% no

33% yes

67% no

Research Involving Embryos Bill 2002

Howard - yes

LP

69% yes

31% no

59% yes

41% no

 

Crean - yes

ALP

90% yes

10% no

71% yes

29 % no

Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

Howard - no

LP

51% yes

49 % no

47% yes

53 % no

 

Beazley - yes

ALP

92% yes

8% no

81% yes

19% no

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

Howard - no

LP

54% yes

46% no

67% yes

33% no

 

Rudd - no

ALP

73% yes

27% no

68% yes

32% no

While political scientists have suggested that how leaders vote set the pattern for their party members, analysis shows that this is not always the case.

In the vote on the Therapeutic Cloning Bill the parties did not vote with either leader.

In the RU486 Bill debate, the ALP voted with the Leader of the Opposition while the Liberal Party was split: the House of Representatives did not vote with the Prime Minister while the Senate voted with him. Possible reasons for the split in the RU486 Bill vote are discussed below.

Both parties voted with their leaders in the Stem Cell Bill debate.

In the Euthanasia Bill debate, the Liberal Party voted with the Prime Minister. ALP members of the House of Representatives voted with the Leader of the Opposition while ALP senators did not.

Since 1996, there have probably been too few conscience votes to establish a trend but it appears that, apart from the vote on the Therapeutic Cloning Bill members of parliament have tended to vote with their leaders.

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Backbench pressure

In the lead up to votes on the RU486 and Therapeutic Cloning Bills the Prime Minister responded to backbench pressure and allowed a conscience vote on bills that overturned existing legislation.

In late 2005, two Liberal members were reported as having asked the Prime Minister to allow a conscience vote on legislation removing the right of the Minister for Health to approve the abortion drug RU486:

Liberal MPs Sharman Stone and Mal Washer have asked Mr Howard to ignore a decision by Health minister Tony Abbott to extend an effective ban on the controversial drug [RU486] and let coalition members have their own say.[21]

It was also reported that Sharman Stone (Lib, Vic) a parliamentary secretary at the time, would have considered crossing the floor to gain greater access to the drug .[22]

In response to pressure on the therapeutic cloning issue, in 2006 the Prime Minister initially ruled out any changes to the current laws saying:

The clear view of cabinet is the status quo and my sense in the party is there could be a majority in that direction as well

My sense is this is a difficult issue, but there s a clear cabinet view.[23]

Just over one week later he was forced to move to:

head off a fresh backbench revolt by allowing a conscience vote that could overturn a cabinet ban on therapeutic cloning.[24]

The Prime Minister did not support either bill, but both were passed by the Senate and the House of Representatives. The backbench had been determined to push for change on these issues and this could explain the lack of Liberal Party support for the Prime Minister in the conscience votes on the RU486 and Therapeutic Cloning Bills.

Voting patterns

The results of divisions in four conscience votes (there were no divisions in the Prohibition of Human Cloning Bill 2002) are listed at Appendix 1.

The voting patterns by chamber, party and gender of the three most recent bills (the Stem Cell Bill, the RU486 Bill and the Therapeutic Cloning Bill) are presented in Table 4.[25] As two bills (RU486 Bill and the Therapeutic Cloning Bill) did not have third reading divisions in the House of Representatives, the final vote on each bill has been used in the table to maintain statistical consistency.

Chamber voting

Table 4 shows that overall support for the bills was higher in the House of Representatives (66 per cent) than in the Senate (59 per cent). A majority of Liberal Party members of parliament supported the bills in the House of Representatives (57 per cent) but not so in the Senate (46 per cent). In other parties a majority of MPs either supported the bills in the Senate and the House of Representatives or rejected the bills in both chambers.

Party voting

The strength of each major party s support for the bills probably reflected the public perception of each party s position on the liberal/conservative continuum. That is, the more small l liberal the party, generally speaking, the more likely its members were to vote for change on moral and/or social issues. Table 4 shows that party support ran from the Australian Democrats (100 per cent), the Australian Greens (89 per cent), the ALP (Reps: 85 per cent; Senate: 72 per cent), the Liberal Party (Reps: 57 per cent; Senate: 46 per cent), to the Nationals (Reps: 29 per cent; Senate: 10 per cent). Where a party had representatives in both chambers, support for the bills was always stronger in the House of Representatives.

Gender voting

Perhaps the most outstanding feature of conscience votes during the Howard Government was the strong support of women in the Senate and the House of Representatives for the bills concerned. Women supported the bills in both chambers (Senate: 86 per cent; Reps: 80 per cent) much more strongly than men (Senate: 44 per cent; Reps: 61 per cent). In each party and the two chambers women supported the bills more than men. In the two major parties, strongest support came from Labor women members (97 per cent) followed by Liberal women senators (87 per cent), Labor women senators (81 per cent) and Liberal women members (63 per cent).

The biggest gap between men and women occurred among the Nationals senators where all the males voted against the bills and the single female senator supported them. The only other intraparty disparity occurred among Liberal Party senators where 87 per cent of the women supported the bills compared with only 32 per cent of the male senators. These were the only occasions in either chamber when both the majority of men and women did not vote together either in support of, or against the bills.

Table 4: Summary of final vote (%) in the Senate and the House of Representatives on the Stem Cell Bill, RU486 Bill and the Therapeutic Cloning Bill by party and gender[26]

House of Representatives

     
 

ALP

LP

NP

IND

Total

Men

         

Ayes

79

56

28

13

61

Noes

21

44

72

88

39

Women

         

Ayes

97

63

33

n.a

80

Noes

3

37

67

n.a

20

Total

         

Ayes

85

57

29

13

66

Noes

18

43

71

88

34

 

Senate

               
 

ALP

LP

NP

AD

AG

FF

IND/ON

Total

Men

               

Ayes

64

32

0

100

67

0

0

44

Noes

36

68

100

0

33

100

100

56

Women

               

Ayes

81

87

100

100

100

n.a

100

86

Noes

19

13

0

0

0

n.a

0

14

Total

               

Ayes

72

46

10

100

89

0

25

59

Noes

28

54

90

0

11

100

75

41

The votes on the RU486 Bill illustrate the power of women voting together in the Senate and the House of Representatives. The bill was co-sponsored by four female senators representing the ALP, Liberal Party, the Nationals and the Australian Democrats. The female vote in the Senate (89 per cent) and the House of Representatives (81 per cent) was extremely high. Journalist Anne Summers wrote that two things were remarkable about what she called this unprecedented exercise of multi-partisanship: firstly, it was composed entirely of women, and secondly, its purpose was to benefit women:

This collaboration by women, for women is a real breakthrough. The question, is: was it a one-off or are politics going to be different from now on?[27]

Another journalist suggested that the exercise demonstrated that change can be achieved outside the traditional structures of power .[28]

Despite the collaboration on the RU486 Bill, there appears to be no evidence that women senators and members have started to operate in a systematic cross-party fashion. It may simply be the case that the sorts of issues that attract conscience votes are ones that women strongly support.

Behaviour in the RU486 and therapeutic cloning debates

It is generally believed that in conscience votes members of parliament behave differently from the way they behave in debates along party lines. During the therapeutic cloning debate the Prime Minister noted that as always, a free vote brings out the best in Parliament .[29]

In the RU486 debate he said, I think parliament rises to its greatest heights when we have debates of this kind .[30]

This may be true, but in the RU486 and Therapeutic Cloning conscience votes other behaviour also emerged.

In the RU486 debate there were reports that while members of parliament were publicly proclaiming the freshness of the conscience vote, out of the public eye, the wheeling and dealing was anything but fresh : [31]

Anti-abortion activists threatened colleagues with retribution at preselections. Right-wing religious minor parties threatened to direct preferences away from MPs who lifted the ban on RU486.[32]

Some newspaper reports suggested that the Prime Minister was forced to:

urge his MPs to be tolerant of each other s views on RU486 as debate heats up before the conscience vote .[33]

There was talk of a rift between the conservative wing of the Liberal party, represented by John Howard and Tony Abbott (Lib, NSW), and the moderates, represented by Peter Costello (Lib, Vic):

Their public speeches betrayed some tension, but in private real anger crackled between the two groups.[34]

Health Minister, Tony Abbott had declared that passing the RU486 bill would be a reflection on the minister (Abbott) and the government. Abbott had reportedly lobbied his colleagues to back him in retaining the power to authorise the use of RU486.[35]

Senator Kerry Nettle (AG, NSW) continued the personal nature of the debate when she wore a T-shirt saying Mr Abbott: get your rosaries off my ovaries . Senator Paul Neville (Nats, Qld) described the T-shirt as:

unnecessary, offensive and bordering on bigoted sectarianism using a man s faith to denigrate him as part of this debate.[36]

The next conscience vote, on therapeutic cloning, saw a number of public threats from religious figures and the disendorsement of a sitting senator, Senator Linda Kirk (ALP, SA).

After the vote in the Senate, Senator Kirk was reported as saying that she was the first political victim of the stem-cell dispute . Senator Kirk was said to have linked her disendorsement by the South Australian Labor Party to her support for legislation allowing the research to go ahead. [37]

She said that she was threatened by conservative pro-Catholic elements in the Labor Party, in particular Shop Distributive and Allied Employees Association [SDA] national secretary Joe de Bruyn and reported that:

Joe de Bruyn said that if I did not vote against the stem-cell legislation I could not expect support from the union for pre-selection.[38]

Senator Kirk acknowledged that she had been preselected for the 2001 election with the support of the conservative SDA union and that she had lived by the union and died by the union . Another Labor source suggested a different reason for disendorsement saying that Senator Kirk had not paid enough attention to her electorate and did not have a high enough profile .[39]

Mal Washer (Lib, WA) also reported that some Liberal senators were actively lobbied and were:

allegedly a bit intimidated about how it will affect their preselections.[40]

The disendorsement of sitting members of parliament who fail to follow a party or factional view is not new. Senator Grant Tambling, for example, experienced the force of the Country Liberal Party when he failed to regain preselection in September 2001 for refusing to cross the floor as instructed by the Party over Internet gambling. Tambling voted with the government to impose restrictions on online gambling. [41]

Church leaders tried to influence the therapeutic cloning debates in the parliaments of New South Wales and Western Australia. The Catholic Archbishop of Sydney, George Pell, was reported as saying:

[Cloning] is a serious moral matter and Catholic politicians who vote for this legislation must realise that their voting has consequences for their place in the life of the church.[42]

Pell s comments did not have an impact on the final outcome of the New South Wales vote, with the Legislative Assembly voting a convincing 65 to 26 in favour of the bill. The Bill also passed through the New South Wales Legislative Council.

The Catholic Archbishop of Perth, Barry Hickey, made similar threats to Western Australian members. The Parliaments of New South Wales and Western Australia investigated the comments of Pell and Hickey respectively to determine whether they constituted contempt of parliament.

The New South Wales Legislative Council Privileges Committee inquiry found that Archbishop Pell s comments did not amount to an improper interference with the ability of the Legislative Council or its members to perform their functions and therefore did not constitute contempt of parliament.[43] By contrast the Western Australian privileges committee decided that Archbishop Hickey's threat to members of parliament could be regarded as contempt.[44] In a letter tabled in the Western Australian Parliament on 28 August 2007 Hickey said he had not intended to threaten MPs but reiterated his concern that the actions of Catholics be consistent with their beliefs.[45]

Call for more conscience votes

As mentioned above, one reason for granting members of parliament a conscience vote is to accommodate their personal beliefs and philosophies.

This view was developed further by the President of the Senate, Senator John Hogg (ALP, Qld), in a paper presented at the 38th Presiding Officers and Clerks Conference in July 2007. Senator Hogg argued that conscience votes should not be limited to life and death issues. He suggested that there may be significant, sensitive social issues where a parliamentarian s innate moral principles and values may have the over-riding dictate on how the individual parliamentarian should vote on such an issue . These issues could include (but should not be limited to) the way our society is organised by way of family, marriage, relationships, conception, medical science .[46]

Senator Hogg sees more conscience votes as a way in which the parliament can better represent the pluralistic Australian society.

The personal values of members of parliament were raised in the 42nd Parliament by Senator Barnaby Joyce (Nats, Qld) during debate on a family law amendment bill dealing with financial matters for de facto couples. Senator Joyce expressed the view that:

this legislation is about an inch and a half away from being a conscience vote, because it does drag out some fundamental beliefs that people on both sides of the chamber hold dearly. This skirts around the edges of what is fundamentally the essence of how they see life and the structures and rules by which they would like to see life lived.[47]

In the 2007 Kenneth Myer lecture delivered by journalist Michelle Grattan, she talked about the need for a better balance in parliament between collective discipline and individual thought .[48] She acknowledged that achieving this balance was a challenge and expressed the view that currently the scales are tipping too far in favour of collective discipline. Grattan was critical of the lack of debate in the party room on some issues, suggesting that the democratic process can only benefit from a more open approach:

When politicians behave like a merino mob huddled with heads together, they ve lost their vocation.[49]

The late John Button, former Labor senator and minister, highlighted what he saw as some of the positive aspects of conscience votes for the individual and the party:

Individuals get better opportunities to speak. Parties are able to give the impression that they have no serious internal divisions. Even a minister who might seem to have a conflict of interest is able to remove the ministerial hat and speak and vote as an ordinary parliamentarian.[50]

But some commentators have also identified problems. John Warhurst, for example, maintains that:

conscience votes are, in practice, problematic while in theory very appealing.[51]

As he says:

While conscience votes make excellent parliamentary theatre and excellent democratic politics in one sense, they also make unpredictable public policy in another.[52]

One deterrent to granting more conscience votes is the Westminster system of government where every vote is seen as a vote of confidence in the government of the day. According to this logic, a government must win all votes on the floor of the lower house if it is to retain its perceived legitimacy. In conscience votes members of parliament, rather than the government, make the decisions. If more conscience votes were allowed it would be members, rather than government who should be held accountable.[53]

If political parties agreed to a relaxation of the rules governing confidence there would be a possibility of more conscience votes. In theory, this would mean that:

no longer would defeat of government bills be tantamount to a motion of no-confidence, so government members of parliament would be able to vote against their party without fear that such a vote would bring down the government.[54]

But a more practical reason for not increasing the number of conscience votes is the impact this would have on the operation of the Senate and the House of Representatives. Bob McMullan (ALP, ACT) referred to these problems when he spoke in the therapeutic cloning debate:

It is not possible for every matter that comes before the parliament to be considered as a conscience vote.

Some people in the community think it would be a good idea; I think there are all sorts of reasons of good governance why it could not possibly work. Just the time and the arrangements that would need to be made for such a thing to occur make it absolutely impossible.[55]

The view that government would become unworkable if more conscience votes were allowed was expressed in a newspaper editorial during the RU486 debate:

Voters know that at most times party politics operates as a machine because in the real world it has to.

Government would be unworkable if the MPs that make up its parts all worked towards their own, various, outcomes.[56]

In the therapeutic cloning debate, even though he called for more conscience votes, Senator Nick Sherry (ALP, Tas) also acknowledged the role of party discipline in our democracy:

I wish we had a few more conscience votes in the parliament. I do not see that they are a threat or will undermine party discipline or democracy as it has evolved and as we currently practice it in Australia.[57]

The media and conscience votes

The media are great supporters of conscience votes. During these debates journalists make claims such as this is democracy at its best , that the debate brings out the best in our elected representatives and shows what parliament could be, but almost never is .[58]

In their enthusiastic support of conscience votes, the media often imply that members of parliament do not exercise their conscience during debates along party lines. This issue was tackled by Julia Gillard during the 2002 stem cell conscience vote:

I will start with the question of the conscience vote. Obviously this debate has enlivened a lot of media interest because it is unusual in this parliament to have a conscience vote The line has almost been drawn in some of the media reporting that, as we go about the rest of our business in this parliament, voting on bills which might be to do with education or health or industrial relations, or making decisions perhaps about what role Australian troops should play in an engagement overseas with Iraq having been debated back and forth of late somehow we are not being guided by moral and ethical frameworks, that we are not being guided by our conscience. When we make the full suite of decisions in this place, we are guided by our ethical framework and by our conscience. I have not at any time been required by party discipline to vote in a way that I have found did not accord with my conscience. We really do need to say that to dispel the media spin that most of the time we are robots exercising votes and that there are very few occasions when we get our conscience out of the cupboard, scrub it down and use it to define our position in relation to a bill. We use our conscience, our moral and ethical framework, all the time. [59]

Another aspect of reporting on conscience votes is that the media sometimes confuse the concepts of the conscience vote and crossing the floor.[60] For example, a newspaper report of the therapeutic cloning debate in the Victorian Parliament described the vote in the following way:

Fifteen members of State Parliament crossed the floor as a Bracks Government push to legalise therapeutic cloning was supported in the lower house.

Members of the Labor Government, the Liberal party and the Nationals voted against party colleagues last night .[61]

Even former leader of the Victorian Liberal Party, Robert Doyle, writing about the same debate, said:

Liberal members crossed the floor to join Labor members to pass the stem cell bill [62]

It is worth mentioning the distinction, identified by Laurie Oakes, between conscience votes and crossing the floor. Oakes described Prime Minister Howard s attitude to conscience votes:

Howard decides when Coalition MPs are permitted to have a conscience (and all hell breaks loose when someone follows his conscience without permission).[63]

So members of parliament who cross the floor are simply exercising their conscience without permission!

Dilemmas facing MPs in conscience votes

John Warhurst has described the dilemma facing members in a conscience vote in this way:

[there is] really no such thing as an absolutely free vote. Parliamentarians are never free, in any meaningful sense of that term, to do whatever they like. They are never really free from their community responsibilities or from their personal values or from their political parties.[64]

This dilemma had been identified as early as 1774 in the famous speech by political philosopher Edmund Burke following his election to the constituency of Bristol. Burke told the electors of Bristol:

Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.[65]

In the therapeutic cloning conscience vote, a number of senators and members talked about how they had reached their decisions. Some, such as Tony Windsor, (Ind, NSW) decided contrary to Burke s view that their decisions represented the collective view of the electorate:

I am not here to represent my conscience; I am here to represent the conscience of the people who elect me.[66]

Similarly, Senator Trish Crossin (ALP, NT) said that although she did not come to the debate with a Northern Territory perspective:

I do come here representing the views of people in my constituency who have lobbied me in respect of this legislation.[67]

Members, such as Anthony Smith (Lib, Vic), believed their decision was based on:

my own consideration of the detail of what is proposed and my own conscience.[68]

Others, such as Andrew Southcott (Lib, SA), used a number of sources:

When we weigh up a conscience vote we listen to the evidence and to our constituents and we look deeply to our own experiences.[69]

There was even a suggestion after the RU486 debate in the Senate that:

More than one [senator] was heard to suggest that they could get used to making decisions for themselves.[70]

Conclusion

The results of the conscience votes considered in this paper show that women across all parties have, particularly in the last three bills, voted as an effective bloc. The voting patterns also show that while there is consistency in members of parliament voting with their leaders, this was not always the case for both major parties during the Howard Government.

The federal parliament has used conscience votes more frequently over the last decade, largely as a result of developments in medical science and biotechnology. It is likely that this trend will continue and conscience votes rather than votes along party lines will be used to resolve some of the complex social and moral issues challenging members of parliament. [71]

This cartoon has been reproduced with the kind permission of Andrew Weldon. The cartoon appeared in the Age during the therapeutic cloning debate in the Victorian Parliament.

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Appendix 1: Voting by party and gender on conscience vote bills during the Howard Government (1996 2007)

Note: there were no divisions in the Senate and the House of Representatives on the Prohibition of Human Cloning Bill 2002.

Euthanasia Laws Bill 1996

Research Involving Embryos Bill 2002

Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Bill 2006


Appendix 2: Dates of stages of conscience vote bills debated during the Howard Government (1996 2007)

Euthanasia Laws Bill 1996

House of Representatives

Bill introduced: 9/9/1996

2nd reading speech: 28/10/1996

2nd reading vote: 9/12/1996

3rd reading vote: 9/12/1996

Senate

2nd reading vote: 24/3/1997

3rd reading vote: 24/3/1997

Assent: 27 March 1997

Research Involving Embryos and Prohibition of Human Cloning Bill 2002

House of Representatives

Bill introduced: 27/6/2002

2nd reading speech: 27/6/2002

Vote on motion to split the Bill into two bills: 29/8/2002

Prohibition of Human Cloning Bill 2002

House of Representatives

2nd reading vote: 29/8/2002 (no division)

3rd reading vote: 29/8/2002 (no division)

Senate

2nd reading vote: 12/11/2002 (no division)

3rd reading vote: 14/11/2002 (no division)

Assent: 19 December 2002

Research Involving Embryos Bill 2002

House of Representatives

2nd reading vote: 16/9/2002

3rd reading vote: 25/9/2002

Senate

2nd reading vote: 12/11/2002

3rd reading vote: 5/12/2002

Assent: 19 December 2002


Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

House of Representatives

2nd reading vote: 16/2/2006

3rd reading vote: 16/2/2006 (no division)

Senate

Bill introduced: 8/12/2005

2nd reading speech: 8/12/2005

2nd reading vote: 9/2/2006

3rd reading vote: 9/2/2006

Assent: 3 May 2006

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

House of Representatives

2nd reading vote: 6/12/2006

3rd reading vote: 6/12/2006 (no division)

Senate

Bill introduced: 19/10/2006

2nd reading speech: 19/10/2006

2nd reading vote: 7/11/2006

3rd reading vote: 7/11/2006

Assent: 12 December 2006

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Appendix 3: Conscience votes in the federal parliament 1950 2007

Year
Govt

Initiated by Chamber

Issue

Major parties with a free vote

Result

1957

Menzies Coalition Govt

Private member s bill

House of Reps

Matrimonial Bill 1957

The bill provided for a uniform set of divorce laws for the Commonwealth which would take the place of a diverse set of laws that existed in the states and territories.

The bill was introduced by Percy Joske (Lib, Vic) on 1/5/1957. The Leader of the House Harold Holt (Lib, Vic) stated this is a matter in respect of which members should be guided by their own good sense and good conscience . Similarly Gough Whitlam (ALP, NSW) stated that it is altogether likely that the Opposition will treat this bill, during the second reading stage and at its succeeding stages on a non party basis. However, Whitlam moved at the 2nd reading stage that the bill be referred to a joint select committee. This amendment was moved on behalf of the opposition and was defeated along party lines. Although the bill did not proceed past the 2nd reading stage and there was no division at this stage it is evident that the government and opposition had granted members a free vote on the substantive stages of the bill.

Labor and

Liberal

23/5/1957 2nd reading House of Reps: no division

The bill passed the second reading stage in the House of Reps but then lapsed.

1959

Menzies Coalition Govt

Govt bill

House of Reps

Matrimonial Causes Bill 1959

This bill sought to consolidate the laws of nullity and divorce of the states into one legal code which was applicable throughout Australia. To achieve uniformity, the Bill aggregated all the various divorce grounds of the states.

17/11/1959 House of Reps: move to refer the bill to a select committee defeated Ayes:16, Noes: 84

26/11/1959 Senate: move to refer bill to a select committee defeated Ayes: 9, Noes: 43

Labor and Liberal

17/11/1959 2nd reading House of Reps: no division

19/11/1959 3rd reading House of Reps: no division

Bill passed 2nd and 3rd readings in House of Reps

26/11/1959 2nd reading Senate Ayes: 44, Noes: 7

28/11/1959 3rd reading Senate: no division

Bill passed 2nd and 3rd reading in Senate

1961

Menzies Coalition Govt

Govt bill

House of Reps

Marriage Bill 1961

The Marriage Bill 1961 was first introduced on 19/5/1960 as the Marriage Bill 1960. It sought to introduce uniform marriage laws across Australia. The second reading debate was postponed to allow for consultations with the States and other interested organisations over the proposed administrative arrangements. The Bill passed the second reading stage in the House of Reps on 18/8/1960 without a division. On 8 September 1960 Attorney General Sir Garfield Barwick (Lib, NSW) who had carriage of the Bill, announced that various adjustments to the Bill were required. He proposed that he circulate amendments and when the Bill was to be discussed in the committee stage, withdraw the Bill and replace it with a new Bill incorporating the amendments. The Bill lapsed before the committee stage. It was reintroduced in its reprinted form on 21/3/1961.

The Bill was introduced into the Senate on 23/3/1961. During the committee stage Senator Hannan (Lib, Vic) sought to insert a definition of marriage but this was defeated 40-8. Senator Cole (DLP, Tas) sought to include Schedule 2 of the Matrimonial Causes Act dealing with consanguinity and affinity, but this was defeated without division. Senator Cole also sought to have removed a paragraph which he said enabled a registrar to decide who could perform marriages but this was defeated 37-12.

Labor and Liberal

22/3/1961 2nd and 3rd reading House of Reps: passed without division

18/4/1961 2nd reading Senate: no division

19/4/1961 3rd reading Senate: no division.

Bill passed Senate without division

1965

Menzies Coalition Govt

Govt motion

House of Reps

Report of the Standing Orders Committee amendments to standing orders

The motion that the report be adopted and that the Standing Orders of the House be amended was moved by Treasurer Harold Holt (Lib, Vic). An amendment moved by W. C. Wentworth (Lib, NSW) was defeated Ayes: 12, Noes: 93

Liberal

31/3/1965 House of Reps: the motion was passed without division.

1965

Menzies Coalition Govt

Govt member s motion

House of Reps

Motion Fluoridation of Canberra water supply proposed referendum

Jim Killen (Lib, Qld) moved:

That as the Canberra Advisory Council is but part elected and believing that the citizens of Canberra have a right to say whether or not they want fluoridation of their water supply this House is of opinion that a referendum on the question should be held.

Liberal

18/3/1965: the motion was carried: Ayes 56, Noes 52.

1968

Gorton Coalition Govt

Opposition bill

Senate

Death Penalty Abolition Bill 1968

21/3/1968 bill introduced by Sen Murphy (ALP, NSW). The 2nd reading speech was delivered by Sen Cohen (ALP, Vic) on 14/5/1968. Cohen said:

the purpose of this bill is to abolish capital punishment under the laws of the Commonwealth. The Opposition seeks to remove the death penalty entirely and without qualification from all Commonwealth acts, regulations, ordinances or other laws.

Liberal in Senate

4/6/1968 2nd reading Senate: Ayes 24, Noes 21

4/6/1968 3rd reading senate: no division

The Bill was passed by the Senate

5/6/1968: the bill was introduced into House of Reps. The bill did not proceed past the second reading stage

1968

Gorton Coalition Govt

Govt motion

House of Reps/ Senate

Motion as to site of New and Permanent Parliament House

The motion was moved by the Prime Minister, John Gorton on 15/8/1968. He moved:

That this House is of the opinion that the new and permanent Parliament House should be situated on the lakeside site.

The motion as amended:

That this House is of the opinion that the new and permanent Parliament House should be situated on Capital Hill or the Camp Hill area and that the matter be referred to the Joint Select Committee on New and Permanent Parliament House for report on the alternatives

Labor and Liberal

17/10/1968 House of Reps: the amended motion was agreed to without a division.

22/8/1968 Senate resolution: passed stating that new and permanent Parliament House should be sited on Capital Hill.

26/11/1968: without prejudicing its earlier resolution the Senate concurred with the House of Reps proposal that the matter of alternative Parliament House sites be referred to the Joint Select Committee.

1969

Gorton Coalition Govt

Govt motion

Motion New and Permanent Parliament House

Joint select Committee on New and Permanent Parliament House Report on the Alternative Sites of Capital Hill and the Camp Hill Area

The report was tabled by the Speaker on 30/4/1969. Debate on the motion that the report be adopted , moved by Peter Nixon, Minister for the Interior (Nat, Vic) commenced on 13/5/1969. The report favoured the Camp Hill site.

Labor and Liberal

14/5/1969 the motion was passed Ayes 53, Noes 44.

29/5/1969 Senate rejected the Committee s recommendation Ayes 40, Noes 13

1970

Gorton Coalition Govt

Govt motion

House of Reps

Report of the Standing Orders Committee

The report included sitting days, time limits for debates and speeches, House of Reps quorum, amendment of standing orders 72 and 250.

Labor and Liberal

10/6/1970: the motion was passed without division

1970

Gorton Coalition Govt

Senate bill

Death Penalty Abolition Bill 1970

The Bill was referred to a Senate committee after a series of procedural motions decided on party lines.

At the Committee stage in the Senate the following amendments were moved: an amendment to include coverage of Imperial Acts in the Bill was passed Ayes 26, Noes 23. Two amendments excluding Papua New Guinea from the Bill and including offences committed before the Bill became law were passed without division. An amendment relating to offences in Commonwealth places was passed Ayes 27, Noes 23. An amendment that the Bill not cover the murder of police or prison staff was defeated Ayes 23, Noes 28. An amendment that the Bill not cover the murder of police or prison staff by serving prisoners was defeated without division. An amendment that the Bill not cover murder by aircraft hijackers was defeated Ayes 20, Noes 28.

Liberal in Senate

The Bill passed the 2nd reading stage in the Senate 26-21.

The Bill passed the third reading stage without division.

The Bill was introduced into the House of Reps but did not proceed past the Minister s second reading speech before a motion to adjourn debate was passed Ayes:56, Noes 49 along party lines. The Bill lapsed at the 1972 Federal election.

1970

Gorton Coalition Govt

Govt bill

House of Reps

House of Representatives (Quorum of Members) Bill 1970

The purpose of the bill was to reduce the quorum of the House of Reps from one third of members to one fifth. The Bill did not affect the quorum in the Senate.

The bill was introduced by Billy Snedden, Minister for Labour and National Service on 1/9/1970.

Labor and Liberal

4/9/1970 2nd reading House of Reps: passed Ayes 45, Noes 27.

4/9/1970 3rd reading House of Reps: passed without division.

21/10/1970: the bill did not proceed after 1st reading in Senate

1971

McMahon Coalition Govt

Govt motion

House of Reps

Report of the Standing Orders Committee

The report was tabled on 20/8/1971. It recommended that Standing Orders be amended to provide for 4 sitting days a week instead of 3 days a week. The report was debated on 23 and 26/8/1971.

Labor and Liberal

26 August 1971: the motion that the report be adopted was passed Ayes 55, Noes 50

1972

McMahon Coalition Govt

Govt motion

House of Reps

Report of the Standing Orders Committee

The recommendations included in the report, dated 20/3/1972, included amendments to Standing Orders and changes in House practice. The report was debated on 13,18, 19 April 1972

Labor and Liberal

The report was agreed to with amendments

1973

Whitlam Labor Govt

Govt backbench motion

House of Reps

Motion as to site of New and Permanent Parliament House

The motion was moved by Gordon Scholes (ALP, Vic) on 23/8/1973. The motion called for :

(a)     the site to be determined forthwith,

(b)     a joint meeting of the Senate and the House of Representatives be convened to determine the matter,

(c)     that planning for the new House should commence immediately

(d)     a message be sent to the Senate acquainting it of this resolution and requesting its concurrence

The Senate considered the House of Reps resolution and passed an amended resolution:

The senate, while not agreeing to the resolution of the House of Representatives for a joint meeting of the Senate and the House of Representatives, expresses the opinion that planning for the new and permanent Parliament House should commence immediately and the site be upon Capital Hill.

Labor and Liberal

24/10/1973 House of Reps; the motion was passed without division.

15/11/1973 Senate: an amended motion was agreed to without division

1973

Whitlam Labor Govt

Private senator s bill

Senate

Parliament Bill 1973

The bill was introduced by Senator Reg Wright (Lib, Tas) on 22/11/1973. Wright noted that the Parliament had experienced protracted delays in reaching a decision on the site of the new and permanent Parliament House. He said his chief purpose in introducing the bill was to provide the ordinary parliamentary statutory process as the means of reaching a decision on the site.

Note: on 17/7/1974 Wright gave notice of his intention to introduce a bill to determine the site of the new and permanent Parliament House. The bill lapsed.

Labor and Liberal

22/11/1973 2nd reading Senate: passed without division (The Senate Journals note that there was no dissenting voice)

The bill did not proceed past the committee stage.

1973

Whitlam Labor Govt

Private member s bill

House of Reps

Medical Practice Clarification Bill 1973

The bill was introduced by David McKenzie (ALP, Vic) on 10 May 1973 after a motion by Opposition Leader Billy Snedden to extend the time for debate was defeated Ayes 57, Noes 60 along party lines.

The bill allowed for abortions to be performed in the Australian Capital Territory on women up to 12 weeks pregnant provided that the medical practitioner was satisfied that a women had been advised of alternatives to abortion and support services if she decided to bear the child. Where the woman was between 12 and 23 weeks pregnant abortions were only permitted if two medical practitioners were satisfied that without termination the woman, the unborn child or her family would be at greater risk of physical and mental injury. It also recognised the rights of medical practitioners not to carry out abortions ie they were not forced to carry out abortions against their conscience or medical judgment.

Labor and Liberal

An amendment moved by Race Mathews (ALP) to establish a royal commission into abortion was defeated Ayes 42, Noes 80.

The Bill was defeated at the second reading stage Ayes 23, Noes 98 on the same day it was introduced

1973

Whitlam Labor Govt

Govt member s motion

House of Reps

Motion: sexual relationships social, educational and legal aspects proposed Royal Commission

13/9/1973 Motion introduced in the House of Representatives by Race Mathews (ALP, Vic). The motion was seconded by Don Chipp (Lib, Vic)

Malcolm Fraser (Lib, Vic) moved an amendment to the original motion. This was seconded by Frank Stewart (ALP, NSW). Race Mathews said of the Fraser amendment:

I ask honourable members not to accept the shadow of an inquiry in place of an enquiry of substance. an amendment which is too coy to mention sex education and too timid to evoke any aspect of abortion other than its causes, is relevant neither to our needs or our times.

Labor and Liberal

The motion, as amended, was agreed to Ayes 85, Noes 11.

1973

Whitlam Labor Govt

Senate

Death Penalty Abolition Bill 1973

Amendments in the Senate were defeated which aimed to: remove offences under Imperial Acts Ayes 23, Noes 30, treason Ayes 24, Noes 29; murder of police or prison staff Ayes 24, Noes 29; murder of police or prison staff by prisoners serving life Ayes 24, Noes 29; murders committed during hijackings Ayes 22, Noes 30; remove the Geneva Conventions Act 1957 Ayes 21, Noes 26; to remove murders committed during unlawful political or terrorist activity Ayes 21, Noes 27.

Amendments in the House of Reps were defeated which aimed to: remove offences under Imperial Acts Ayes 32, Noes 68; treason Ayes 38, Noes 65; murder of police or prison staff by prisoners serving life without division; murders committed during hijackings without division; remove the Geneva Conventions Act 1957 without division; to remove murders committed during unlawful political or terrorist activity without division

Liberal

The Bill was passed in the Senate at the second reading stage on 8 May 1973 Ayes 30, Noes 22. The Bill was read a third time on 28 August 1973 without division.

The Bill was introduced into the House on 29 August 1973 but did not pass the second reading stage until 13 September Ayes 73, Noes 27.

The Bill was read a third time on 13 September 1973 without division.

1973

Whitlam Labor Govt

Opposition member s motion

House of Reps

Motion: Homosexual acts

John Gorton (Lib, Vic) moved: that in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law

Labor and Liberal

18 /10/1973 the motion was passed: Ayes 64, Noes 40.

1974

Whitlam Labor Govt

Private Member s Bill

House of Reps

Parliament Bill 1974

The Bill was introduced by Keith Johnson (ALP, NSW) on 26/9/1974.The bill s main purpose was to establish agreement on the site for the new and permanent Parliament House, an issue which had been debated for many years.

Labor and Liberal

26/9/1974 2nd reading House of Reps: Ayes 72, Noes 33

17/10/1974 3rd reading House of Reps: no division.

Bill passed the House of Reps with amendments

Senate

29/10/1974 bill returned from the Senate with amendments

5/12/1974: House of Reps agreed to Senate amendments

1974

Whitlam Labor Govt

Govt bill

Senate

Family Law Bill 1974

The bill was introduced on 1 August 1974. In his second reading speech, Attorney General Senator Murphy said:

The purpose of the Bill is to repeal the Matrimonial Causes Act 1959-1973 and to replace it with a greatly improved, comprehensive set of provisions dealing not only with divorce but also with other areas of family law.

The Bill had been introduced into the Senate in December 1973 but was not debated before prorogation. It was reintroduced into the Senate in April 1974 but was not debated because parliament was dissolved in that month.

The Bill removed the existing grounds for divorce such as adultery, cruelty and desertion and instead provided that here would be one ground of divorce, irretrievable breakdown of the marriage. The Bill also provided for the establishment of Family Courts.

Labor and Liberal

The Bill was passed at the 2nd reading stage Ayes 49, Noes 7. There was no division at the 3rd reading stage on 27/11/1974

House of Reps: there were no divisions at the 2nd and 3rd reading stages.

1978

Fraser Coalition Govt

Govt motion

Senate

Motion proposing that a Joint Select Committee be appointed to inquire into and report on the provisions and the operation of the Family Law Act 1975.

Attorney-General Senator Peter Durack (Lib, WA) introduced the motion into the Senate on 17 August 1978

In the House of Reps Lionel Bowen said:

I say at the outset that Opposition members will have an opportunity to express a personal view on this matter as it is not deemed to be a party matter . Later in the debate Clyde Holding said The Opposition is supporting the creation of this committee .

In the Senate Senator Button said:

I indicate briefly that the Opposition supports the establishment of this joint select committee

It is likely that Labor did not have a free vote.

Liberal

The Senate passed the motion which was then considered by the House of Reps. The Reps amended the motion which widened the terms of reference and changed the numbers on the joint committee. The amended motion was agreed to by the Senate.

Note: there were no divisions in either chamber.

1978

Fraser Coalition Govt

Opposition senator s motion

Senate

Motion: Termination of Pregnancy Ordinance 1978. Motion to Disallow Ordinance.

Senator Susan Ryan (ALP, ACT) moved on 11 October 1978:

That the Termination of Pregnancy Ordinance 1978, as contained in Australian Capital Territory ordinance No. 16 of 1978 and made under the Seat of Government (Administration) Act 1910, be disallowed.

Senator Ryan said that her main purpose in moving the disallowance motion was because:

the Ordinance defies a principle of self-government; it defies a democratic principle in its present form . She said that the Government had promised the people of Canberra that they could decide through the Legislative Assembly the manner in which abortions would be carried out in the ACT. whether there should be independently run abortion clinics or special abortion clinics run by the Capital Territory Health Commission or whether there should be no abortion clinics in the ACT. The Legislative Assembly report made 47 recommendations to the Government, concerning mostly the establishment of a public clinic administered by the Health Commission. In response to this the Government has ignored 46 of the recommendations and has acted on only one of the recommendations. The Government has brought in this Ordinance [first introduced as a temporary ordinance] as a permanent measure to prevent the establishment of any abortion clinics, whether they be privately or publicly controlled.

Amendments moved by Senator Evans and Senator Rae were defeated Ayes 22, Noes 39 and Ayes 26, Noes 35 respectively.

Labor and Liberal

Senator Ryan s motion was defeated Ayes 24, Noes 36.

The Age 9 /11/1978 reported that the Prime Minister, Mr Fraser, exerted strong public pressure yesterday to stop his senators supporting the move by Labor Senator Ryan to disallow the Government ordinance on abortion.

1979

Fraser Coalition Govt

Govt member s motion

House of Reps

Motion: Termination of Pregnancy medical benefits

The motion was moved by Stephen Lusher (NAT, NSW)

The Lusher motion first appeared in Notice Paper no.41 16 Aug 1978 p.2090 and sought to stop medical benefits for abortions except when the life of the woman was in danger.

The motion was debated on 21 22 March 1979.

The motion that was passed: That this House is of the opinion that the Commonwealth Government should not pay any medical benefits for or in relation to the termination of pregnancy unless the procedure is performed in accordance with the law of a State or Territory.

Labor and Liberal

This motion was defeated not by a direct vote but by the House accepting an amendment to the motion moved by Liberal Member for McMillan, Mr Barry Simon, which said that benefits should only be paid where the abortion was carried out in accordance with the law of a state or territory. This amendment was carried Ayes 62, Noes 52 and a subsequent amendment to that amendment moved by Liberal Member for Ballarat, Mr James Short, was lost Ayes 47, Noes 65.

1983

Hawke Labor Govt

Govt bill

Senate

Family Law Amendment Bill 1983

The Bill was introduced by Attorney General Senator Gareth Evans (ALP, Vic) on 1/6/1983.

The Bill proposed overdue reforms of the Family Law Act and implemented wholly or in part 37 recommendations of the Joint Select Committee on the Family Law Act.

Liberal

24/8/1983 2nd reading Senate: no division

7/10/1983 3rd reading Senate: no division

Bill passed the Senate with amendments

19/10/1983 2nd and 3rd reading House of Reps: no division

1983 1984

Hawke Labor Govt

Govt bill

Senate

Sex Discrimination Bill 1983

The Bill in part aimed to eliminate discrimination on the ground of sex, marital status or pregnancy in the areas of employment, education, accommodation, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs.

The Bill was introduced into the Senate by Senator Susan Ryan (ALP, ACT) Minister for Education and Youth Affairs on 2/6/1983. On 29/11/1983 the Senate agreed that the bill should be discharged from the Notice Paper. It was replaced by Sex Discrimination Bill 1983(No. 2) which incorporated Govt and some Opposition amendments.

Liberal

13/12/1983 2nd reading Senate: no division

16/12/1983 3rd reading Senate: Ayes 40, Noes 12.

5/3/1984 2nd reading House of Reps: no division

7/3/1984 3rd reading House of Reps: Ayes 86, Noes 26.

1987

Hawke Labor Govt

Govt motion

House of Reps

Motion: Procedure Committee (change to standing orders quorum)

On 9/12/1987the Leader of the House, Mick Young (ALP, SA), moved:

That the House endorses in principle the recommendation of the Standing Committee on Procedure that legislative action be taken to reduce the quorum of the House from one-third of amendments were foreshadowed of the Members to one-fifth and requests the Government to introduce legislation to achieve this end.

He noted that the Government had not taken a position on this matter but the Opposition had made a party decision.

Labor

9/12/1987: motion was agreed to Ayes 77, Noes 55.

1996 1997

Howard Coalition Govt

Private member s bill

House of Reps

Euthanasia Laws Bill 1996

The purpose of the bill was to prevent the Northern Territory, the Australian Capital Territory and Norfolk Island from passing certain laws permitting euthanasia.

The bill was introduced by Kevin Andrews (Lib, Vic).

Labor and Liberal

9/12/1996 2nd reading House of Reps Ayes 91, Noes 38

9/12/1996 3rd reading House of Reps Ayes 88, Noes 35

24/3/1997 2nd reading Senate Ayes 38, Noes 34

24/3/1997 3rd reading Senate Ayes 38, Noes 33

The Bill passed both Houses

2002

Howard Coalition Govt

Govt bill

House of Reps

Bill initially debated in the Main Committee and the House of Representatives as Research Involving Embryos and Prohibition of Human Cloning Bill 2002.

The Prime Minister introduced the original bill.

He described the purpose of the bill as to ban human cloning and other unacceptable practices associated with reproductive technology, and to regulate research involving human embryos .

Prohibition of Human Cloning Bill 2002

29/8/2002 2nd and 3rd reading House of Reps: no division

12/11/200 2nd reading Senate: no division

14/11/2002 3rd reading Senate: no division

Research Involving Embryos Bill 2002

Labor and Liberal

House of Reps: No 2nd reading vote on the original bill

29/8/2002 conscience vote in House of Reps to split the original bill: Ayes 89, Noes 43

The Bill passed 2nd and 3rd readings in both Houses without a division

The Bill passed both Houses

16/9/2002 2nd reading House of Reps Ayes 103, Noes 36

25/9/2002 3rd reading House of Reps Ayes 99, Noes 33

12/11/2002 2nd reading Senate Ayes 43, Noes 26

5/12/2002 3rd reading Senate Ayes 45, Noes 26

2005 2006

Howard Coalition Govt

Private senators bill

Senate

Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005

This Bill removed responsibility for approval of RU486 from the Minister for Health and Ageing, and provides responsibility for approval of RU486 to the Therapeutic Goods Administration.

The Bill was sponsored by Sen Fiona Nash (Nats), on 8/12/2005, Sen Claire Moore (ALP), Sen Judith Troeth (Lib) and Sen Lyn Allison (Aust Democrats)

Note: When a 3rd reading division in the House of Reps was not required the Member for Wentworth, Malcolm Turnbull, asked that his name be recorded as supporting the bill.

Labor and Liberal

9/2/2006 2nd reading Senate Ayes 45, Noes 26 (1 pair: Sen Ian Campbell and Sen Rod Kemp)

9/2/2006 3rd reading Senate Ayes 45, Noes 28 (1 pair)

16/2/2006 2nd reading House of Reps Ayes 95, Noes 50

16/2/2006 3rd reading House of Reps: no division

The Bill passed both Houses

2006

Howard Coalition Govt

Private senator s bill

Senate

Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006

The bill amended the Prohibition of Human Cloning Act 2002 (PHC Act) and the Research Involving Human Embryos Act 2002 (RIHE Act). The amendments were based on the recommendations of the Lockhart Review.

The Bill was introduced in the Senate by Senator Kay Patterson (Lib, Vic) on 19 October 2006.

The bill was introduced in the House of Reps on 27/11/2006 by Dr Mal Washer (Lib, WA)

6/12/2006:Committee stage Michael Ferguson s amendments: Ayes 76, Noes 53

Labor and Liberal

7/11/2006 2nd reading Senate Ayes 34, Noes 31

7/11/2006 3rd reading Senate Ayes 34, Noes 32

6/12/2006: 2nd reading House of Reps: Ayes 82, Noes 62

6/12/2006 3rd reading House of Reps: no division

The bill passed the 2nd and 3rd reading stages in the Senate & House of Reps

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[1]. D. McKeown and R. Lundie, Free votes in Australian and some overseas parliaments , Current Issues Brief, no. 1, 2002 03, Parliamentary Library, Canberra. This publication provides more information on conscience votes including the major parties attitudes to these votes and the practice in other Westminster parliaments and the United States Congress.

[2]. See D. McKeown and R. Lundie with G. Woods, Conscience votes in the federal parliament since 1996 , Australasian Parliamentary Review, vol. 23, no. 1, 2008, pp. 172 194.

[3]. On 17 September 2008 Senator Bob Brown (Australian Greens, Tas) introduced the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 into the Senate. The Bill repealed the Euthanasia Laws Act 1997. Debate was adjourned after Senator Brown s second reading speech on the same day. On 18 June 2008 Senator Guy Barnett (Liberal, Tas) gave notice of his intention to move the disallowance of funding for a Medicare item which would mean the withdrawal of funding for late term abortions. The issue was referred to the Senate Finance and Public Administration Committee. Senator Barnett withdrew his disallowance motion. The Committee reported on 13 November 2008 and made two recommendations aimed at improving the collection of perinatal and neonatal data in Australia. Senator Barnett has indicated that he will wait for the Government s response to the report before deciding whether to reintroduce his disallowance motion.

[4]. The Penguin Macquarie Dictionary of Australian Politics, Penguin Books, Ringwood, Victoria, 1988, p. 86.

[5]. Joe de Bruyn, National Secretary of the Shop, Distributive and Allied Employees Association and member of the Australian Labor Party national executive has argued that the national executive should be involved in these decisions. See, for example: A. Ramsey, Whitlam s sharp tongue can still leave its mark , Sydney Morning Herald, 13 September 2000, M. Grattan, IVF who is minding the ALP shop? , Sydney Morning Herald, 18 August 2000, L. Tingle, Moral vote to move with the times , Sydney Morning Herald, 23 March 2002.

[6]. J.R. Odgers, Australian Senate Practice, sixth ed., 1991, p. 420.

[7]. ALP National Platform and Constitution 2007, http://www.alp.org.au/download/now/2007_national_platform.pdf, accessed on 5 December 2008.

[8]. ibid.

[9]. D. McGee, Parliamentary Practice in New Zealand, GP Publications, second ed., 1994, p. 74.

[10]. The Prohibition of Human Cloning Bill 2002 and Research Involving Embryos Bill 2002 resulted from the decision to split the Research Involving Embryos and Prohibition of Human Cloning Bill 2002.

[11]. L. Cannold, A moral smokescreen , Sydney Morning Herald, 26 November 2005.

[12]. J. Warhurst, Reformist women MPs take lead in ethics debates , Canberra Times, 5 October 2006.

[13]. The Statutes Amendment (Prohibition of Human Cloning for Reproduction and Regulation of Research Involving Human Embryos) Bill passed the South Australian House of Assembly on 30 October 2008. The second reading debate in the South Australian Legislative Council was adjourned on 11 November 2008.

[14]. The Government legislation was introduced as a result of a Council of Australian Governments (COAG) agreement that the Commonwealth, States and Territories would introduce nationally consistent legislation to ban human cloning and other unacceptable practices . See COAG Meeting, Communique, Canberra, 5 April 2002, p. 1.

[15]. F. Nash, Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005, Senate, Debates, 8 February 2006, p. 88.

[16]. For example, R. Webber, Pregnancy Counselling (Truth in Advertising) Bill 2006, Senate, Debates, 14 June 2007, p. 159.

[17]. See, for example, Editorial, Herald Sun, 9 November 2006 and A. Rehn and M. Farr, Howard backs RU486 veto , Daily Telegraph, 9 February 2006.

[18]. J. Warhurst, There is no such thing as a free vote , The Canberra Times, 12 April 2002.

[19]. See McGee, op. cit., p. 73, A. Mughan and R. M. Scully, Accounting for change in free vote outcomes in the House of Commons , British Journal of Political Science, vol. 27, issue 4, October 1997, p. 640 and L. M. Overby, R. Tatalovich and D. T. Studlar, Party and free votes in Canada , Party Politics, vol. 4, no. 3 1998, p.381.

[20]. This table shows the vote of the leader and the party on each bill. It does not take into account the influence of other factors on the vote, such as how loudly and publicly the leader announces his/her intention to vote in a particular way.

[21]. A. Stafford, Abortion pill splits coalition , Australian Financial Review, 17 November 2005.

[22]. ibid.

[23]. C. Pirani, Conscience vote on stem cells rejected , Australian, 7 August 2006.

[24]. M. Franklin and S. Maiden, PM grants free vote on cloning , Australian, 16 August 2006.

[25] In his paper, presented to the Australasian Political Studies Association conference in September 2006, John Warhurst included the results of votes in the Euthanasia Bill, the Stem Cell Bill and the RU486 Bill. The Therapeutic Cloning Bill had not been debated when he presented his findings. He also dealt in some detail with religious identification and voting patterns which we have not included in this paper. See J. Warhurst, Conscience voting in the Australian federal parliament , Australian Journal of Politics and History, vol. 54, no. 4, 2008, pp. 579 596.

[26]. Note: totals may not equal 100 due to rounding.

[27]. A. Summers, You go, girls , Sydney Morning Herald, 18 February 2006.

[28]. M. Gordon, Conscience vote damages Abbott, enhances Costello , Age, 17 February 2006.

[29]. J. Howard, Prohibition of Human Cloning for Reproduction and the Regulations of Human Embryo Research Amendment Bill 2006, House of Representatives, Debates, 6 December 2006, p. 117.

[30]. J. Howard, Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005, House of Representatives, Debates, 16 February 2006, p. 33.

[31]. P. Van Onselen and W. Errington, With consciences to the fore, politics gets uglier , Canberra Times, 20 February 2006.

[32]. ibid.

[33]. Be tolerant in RU-486 vote: PM , West Australian, 8 February 2006.

[34]. P. Hartcher, The Bitterness behind civil debate , Sydney Morning Herald, 17 February 2006.

[35]. I. Macdonald, Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005, Senate, Debates, 9 February 2006, p. 39.

[36]. P. Neville, Adjournment, Senate, Debates, 9 February 2006.

[37]. J. Roberts, Stem-cell vote got me axed: senator , Australian, 12 June 2007.

[38]. ibid.

[39]. See also A. Stafford and M. Grattan, Union halts SA senator s right to life , Age, 8 June 2006.

[40]. M. Franklin, Senators won t risk their careers for cloning , Australian, 30 October 2006.

[41]. Dumped senator slams party , Australian, 17 September 2001.

[42]. N. Ralston, Pell warns MPs: don t reverse ban on cloning , Canberra Times, 6 June 2007.

[43]. New South Wales, Legislative Council Privileges Committee, Report on comments by Cardinal George Pell concerning the Human Cloning and Other Prohibited Practices Amendment Bill 2007, Report No. 38, September 2007, http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/
807d14c0ab0f6de9ca25735b001d6542/$FILE/ATTKNIOC/Report%20No.%2038%20Cardinal%20Pell.pdf
, accessed on 10 December 2008.

[44]. J. Strutt, Hickey apologises to pro-life catholic MPs , West Australian, 16 June 2007.

[45]. B. Spencer Stemcell Bill divides MLAs , West Australian, 29 August 2007.

[46]. J. Hogg, My Conscience My Vote, paper presented by Senator John Hogg to 38th Presiding Officers and Clerks Conference, Rarotonga, Cook Islands, 7 14 July 2007.

[47]. B. Joyce, Family Law Amendment (De Facto Financial Matters and other Measures) Bill 2008, Senate, Debates, 14 October 2008, p. 38.

[48]. M. Grattan, Is Politics still a vocation? , Kenneth Myer Lecture, National Library of Australia, 9 August 2007.

[49]. ibid.

[50]. J. Button, Let the winds of principle blow through the house , Sunday Age, 26 March 2006.

[51]. J. Warhurst, Abortion politics are not for the faint-hearted , Canberra Times, 25 November 2005.

[52]. ibid.

[53]. C.E.S. Franks, Free votes in the House of Commons: a problematic reform , Policy Options, November 1997, p.34.

[54]. P. Malcolmson and R. Myers, The Canadian regime: an introduction to Parliamentary Government in Canada, 2nd edition, Broadview Press, 2002, p.138.

[55]. B. McMullan, Prohibition of Human Cloning for reproduction and the Regulations of Human Embryo Research Amendment Bill 2006, House of Representatives, Debates, 5 December 2006.

[56]. Editorial, Herald Sun, 20 February 2006.

[57]. N. Sherry, Prohibition of Human Cloning for Reproduction and the Regulations of Human Embryo Research Amendment Bill 2006, Senate, Debates, 7 November 2006, p. 29.

[58]. See, for example, J. Fife-Yeomans, Unleashed pollies set good example-briefly , Daily Telegraph, 8 December 2006, Editorial, The Advertiser, 18 August 2006 and L. Oakes, Private members ills , Bulletin with Newsweek, 28 February 2006.

[59]. J. Gillard, Research Involving Embryos and Prohibition of Human Cloning Bill 2002, House of Representatives, Debates, 28 August 2002, p. 6083.

[60]. Crossing the floor is the act of a member of parliament who refuses to vote with her or her own party in a particular division, and crosses the floor of the parliamentary chamber to join the political opponents and vote with them , The Penguin Macquarie Dictionary of Australian Politics, op. cit., p. 100.

[61]. P. Ker, House supports cloning bill , Age, 19 April 2007.

[62]. R. Doyle, When principles win out over politics , Sunday Age, 22 April 2007.

[63]. L. Oakes, Private members ills Bulletin with Newsweek, 28 February 2006.

[64]. Warhurst, There is no such thing as a free vote , op. cit.

[65]. Edmund Burke s, 'Speech to the electors of Bristol [3 November 1774]', in B. W. Hill (ed.), Edmund Burke on Government, Politics and Society, International Publications Service, New York, 1975, p. 157.

[66]. A. Windsor, Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006, House of Representatives, Debates, 6 December 2006, p. 41.

[67]. T. Crossin, Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006, Senate, Debates, 6 November 2006, p.40.

[68]. A. Smith, House of Representatives, Debates, Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006, House of Representatives, Debates, 30 November 2006, p.50.

[69]. A. Southcott, Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006, House of Representatives, Debates, 30 November 2006, p. 55.

[70]. M. Schubert, Conscience an acquired taste? , Age, 10 February 2006.

[71]. A. Weldon, cartoon, Age, 3 April 2007, p. 12. This cartoon has been reproduced with the kind permission of Andrew Weldon. The cartoon appeared in the Age during the therapeutic cloning debate in the Victorian Parliament.

 

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