Thank God For The Conscience Vote

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The final results of the NSW upper house election are still unclear but the Reverend Fred Nile of the Christian Democratic Party has wasted no time in flexing his conservative muscle. Whatever the outcome of the showdown between Pauline Hanson and the Greens’ Jeremy Buckingham for the final Council seat, Barry O’Farrell’s Coalition needs Fred Nile — and Nile won’t let them forget it.

The Daily Telegraph stroked Nile’s sense of grandeur in reporting that the CDP and the Shooters and Fishers "now hold ultimate power over Mr O’Farrell" and were "not afraid" to use their hold on the balance of power in the Legislative Council to forward their aims. The Shooters want the reintroduction of shooting in national parks and for target practice to be on the school curriculum, while Nile "said he wanted abortion laws refined and would expect the Coalition’s support".

By the refining of abortion laws, Nile said he means that "either women will be shown an ultrasound of their foetus before the procedure, as they do in some parts of America, or they have to see a counsellor once they make the decision." Nile explained the deal here: "I don’t see it as doing deals". He added, "but if we are helping [the government]then I expect that they would be looking fairly at our [policies]".

The Shooters and Fishers have threatened a voting strike by their MLCs if the new government does not meet their demands. What Fred Nile knows very well is that the Shooters’ demands are in with a much greater chance of passing with coalition support than are the CDP’s proposals on abortion. Nile’s muscle-flexing is for the benefit of the audience. To those audience members who are CDP voters (all 114,432 of them), Nile appears to be acting on the issue of abortion. For the rest of us, Nile’s act is like that of the circus strong man in a leopard-skin leotard who shows his bulging muscles in the hope that the spectators will quiver at the sight. Making us quiver is the aim — not changing the law or practice on abortion, which Nile knows is not going to happen.

In NSW, the lawful provision of abortion is conducted under the Levine test. In the 1971 case of Wald, Judge Levine phrased the test of lawfulness in these terms: "it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused [doctor]could honestly and reasonably believe there would result a serious danger to her physical or mental health." This formulation has since been further clarified in the case of Superclinics at the NSW Court of Appeal in 1995.

Many people, both pro-choice as well as pro-life, believe this test to be unsatisfactory, whether in its reasoning or in its status as law. The NSW Greens have been making noises for some time about changing the legal position of abortion along the lines of the ACT or Victoria model. 

Most legislative reform proposals in NSW, however, have been initiated by members of the CDP, and have involved attempts to limit the availability of abortion. For example, on 2 June 1988, the Legislative Council approved a motion put by Marie Bignold, to the effect that the principle of the sanctity of life applies to the unborn child and should be guaranteed in law, and condemning the public funding of abortion. In 1989, the Procurement of Miscarriage Limitation Bill was introduced into the Legislative Assembly by Guy Yeomans, and then in 1991 into the Legislative Council by Fred Nile, with the object of confining abortion provision to public hospitals. This bill did not proceed to a vote in the Assembly, and was not passed by the Council.

It might seem ominous that the vote on Bignold’s motion was deadlocked 20 votes each way, with the Legislative Council President using his casting vote in its favour. But this was more than 20 years ago, Bignold’s motion had taken two years to get to a vote, and the only legislative actions that followed its passing, the Yeomans-Nile bills, both sank with only a ripple.

In 2011, Fred Nile is pushing Barry O’Farrell to come good on a deal that isn’t actually a deal. Indeed, abortion reform is perhaps the chief item on which O’Farrell cannot make bargains or promises, because he cannot deliver on behalf of his party. This is because the Coalition has a policy of allowing a conscience vote on this issue. That is, individual members are permitted to vote in the way their consciences dictate or guide them, and not according to any party platform. The ALP also allows its members a conscience vote on abortion, a decision that was enshrined at the 1973 national conference.

Many feminists used to claim that the conscience vote stood in the way of abortion reform, with Labor women vigorously contesting the classing of abortion as a moral or conscience question, and arguing that abortion should be the subject of party policy and discipline like any other issue. For example, the NSW Labor Women’s Conference in 1976 passed a resolution calling for the abolition of all laws on abortion, with the resolution adding, wonderfully, "No man is being asked to violate his conscience, but merely to cease oppressing women".

But now the tide seems to have turned on conscience votes, which have recently worked in women’s favour, as in the Commonwealth parliamentary debate on RU486. In the face of intense lobbying by Tony Abbott, and a strong stance by Howard, Ruddock and Costello, there was still a sufficient number of Coalition members voting in line with their conscience to repeal the control of RU486 by the Health Minister. Even some Catholic male consciences had turned, despite threats of electoral retribution by Right to Life and other pro-life groups.

Our forthcoming research shows that claims of the existence of an electoral backlash against MPs who vote in favour of pro-abortion reforms simply do not stand up in the face of the evidence.

In late October 2010, the Australian Family Association released a report entitled What Queenslanders Really Think about Abortion, claiming that an electoral swing of 12 per cent would be generated against Queensland MPs if they voted for decriminalisation of abortion. However, we have found no evidence that opinions about abortion are a significant determinant, or indicator, of voter choice anywhere in Australia.

It is also clear from the 2010 Victorian election results that there were no significant repercussions from the abortion debate on the electoral performance of individual candidates or of the parties. No one lost their seat because of support for pro-abortion reform. The Victorian Liberal leader Ted Baillieu and his deputy Louise Asher both supported, publicly and with some passion, the Brumby abortion reform bill, support that did not damage their performance or that of their party in the 2010 poll. MPs should know that they need not fear electoral retribution for their position on abortion, wherever it falls on the spectrum.

Barry O’Farrell is a moderate. Shortly after he was elected Opposition Leader in 2007, he was asked his position on abortion. He replied, "Frankly … whether I’m a Roman Catholic or not [he is], my view is I support the status quo. I support the Levine judgment. I’m not in the business of wanting to change it." At a forum of Christian leaders on 15 February 2011, O’Farrell is reported to have said that although his party had no plans to decriminalise abortion, any parliamentary vote on the issue would be a conscience vote for members of his party. O’Farrell’s speech on same-sex adoption is an indicator of his liberal tendencies on social issues more broadly. indeed, it is even quite eloquent, and suggests that hard men like David Clarke will not be let off the leash in an O’Farrell government. Greg Smith, the incoming Attorney-General, has campaigned against abortion but he too has pledged that he will not initiate any tightening of abortion laws.

The Australian public has long shared a liberalism on questions about abortion, and opinion polls indicate solid support throughout Australia, including Anna Bligh’s Queensland, for the settlement on abortion reached beginning in the early 1970s. O’Farrell might be able to pledge to drag his party with him on Shooters issues, in order to bargain for their support. But because of the institution of the conscience vote, he cannot make any such promises on behalf of his party in regard to abortion. Nile knows this; indeed, he is not a parliamentary neophyte, and is not politically naïve. His muscle flexing is a carefully crafted show of bluster for the crowds, all sound and fury but signifying not much at all. Thank God!

 

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