“An amendment should be made to Labor’s constitution to provide for a conscience vote on asylum seekers. It should provide that while matters concerning treatment of asylum seekers and refugees can be freely debated at any forum or conference of the Party, any decision reached, which it can be reasonably argued, is not consistent with Australia’s obligations under the Refugee Convention, or the Convention Against torture is not binding on any member of the party.”
Matters of conscience
What exactly is a matter of conscience? The dictionary says it is “the complex of ethical and moral principles that controls or inhibits the actions or thoughts of an individual.”
Arguably conscience is exercised in almost all significant policy decisions. But when we refer to members of parliament (MP’s) exercising a conscience vote, we mean that an issue is so deep in its moral implications that the MP will not be required to observe the Party’s policy. Instead they can base their vote on their individual conscience or moral principles.
The Labor Party generally insists upon unity. “The Unity of Labor is its strength” is an important maxim of the industrial wing of the Labor movement. But its culture spills over into the political wing as well. The default position is that a Labor MP who does not observe party unity, who crosses the floor to vote against party policy, is liable to be expelled from the Party.
It is only where National Conference, or the parliamentary caucus, creates an exception to this general practice that a conscience vote is permitted. The principle of unity still prevails in once sense because the majority agree to allow the minority a conscience vote on a particular issue.
According to Joe De Bruyn, secretary of the Shop Distributive and Allied Employees Association (SDA) the Labor Party has afforded MP’s a conscience vote often than is generally assumed. He says that conscience votes have been granted on a wide-range of issues, from no-fault divorce to gambling laws and the position of the new Parliament House in the 1980s.
Some hold that conscience votes are undemocratic in relation to the voters in the electorate. The argument here is that MP’s are generally elected on the basis of their party’s policies so voters are cheated if an individual is elected and then follows his or her individual conscience instead of adhering party policy. This argument has some merit. But it is easily overcome where the candidate is clear about their intention in their own comments or electoral material. On the other, hand the practice of some MP’s of “hiding behind” a conscience vote to avoid declaring their position until after they are elected, is anti-democratic.
The Labor Party’s constituion currently allows conscience votes on only two issues- abortion and same sex marriage. These matters can be freely debated at any forum or conference of the Party but any decision reached is not binding on any member of the party.
Should there be other areas where conference allows for a conscience vote?
This article compares the moral arguments for a conscience vote on the issues of abortion, same sex marriage (which I hereafter refer to as “marriage equality”) and any treatment of asylum seekers that breaches the Refugee Convention and the Convention Against Torture.
Whatever view one holds on abortion, it is not difficult to discern the existence of deep moral issues associated with it. Theses issues involve controversies such as when human life begins and the rights of the foetus as against the right of a woman to control her own body. Issues concerning foetal abnormality, risks to the women’s health, unsafe practices that result when abortion is illegal and very late term abortions also raise moral issues.
By way of contrast, apart from the notion that marriage laws should not discriminate against same sex couples on the basis of sexual preference, it is difficult to discern a deep moral issue directly associated with marriage equality.
One might believe homosexual acts are wrong and that, because marriage usually involves sex, a marriage that contemplates homosexual acts occurring within it must also be wrong. Let’s assume, just for the sake of argument, that the notion that homosexual acts are wrong is a deeply held moral position and not a mere prejudice. Even so, the idea that marriage equality is wrong because it contemplates sinful sexual acts creates an obvious inconsistency- we hold rape to be wrong, and rape involves sex. But we do not prohibit rapists from marrying. So wherein lays the distinction?
Let’s also assume it is a deeply held moral position that children have a right to be brought up by their biological father and mother. So what? This view is irrelevant to marriage equality. Same sex couples are already bringing up children. Same sex couples do not require marriage to do so. Further, it is not a requirement upon married couples, whether heterosexual or homosexual, to have children. There are plenty of married couples that do not have them. So marriage cannot be said to be just about having children.
There are also plenty of situations in which a biological parent is no longer involved in bringing up a child who was the product of a heterosexual marriage. Religious freedom is undoubtedly a moral principle. But again, this is irrelevant to the issue of marriage equality. Nobody is going to require religious ministers to marry same sex couples if this is contrary to their religious belief.
In March of this 2015 the United Nations Special Rapportuer on Torture found that Australia’s indefinite detention of asylum seekers on Manus Island, the harsh conditions, the frequent unrest and violence inside the centre and the failure to protect certain vulnerable individuals all amount to breaches the Convention on Torture.
It is also strongly arguable that Australia offshore processing of boat arrivals breaches the Refugee Convention to which Australia is signatory. Offshore processing arguably breaches the Refugee Convention’s prohibitions against expulsion, refoulement and the imposition of penalties based on mode of arrival. Melbourne based QC Julian Burnside has stated that Labor policies have certainly breached the refugee convention.
Surely it must be the right of an MP, as a matter of conscience, to support Australia meeting its international obligations under these Conventions and to oppose any measure where there is a clear argument that the measure breaches one of the Conventions.
Both major parties now routinely argue that off-shore processing is morally justified on the basis of the need to prevent deaths at sea. Arguments that Australia should try to prevent of deaths at sea have a legitimate moral basis. This is so whether or not such policies are being used to give a “human face” to appeasement of voters who oppose boat arrivals for far less charitable reasons.
But neither is policy of stopping the boats to prevent deaths at sea as ethically straightforward as is often assumed. There is a contrary valid view which also has a strong moral basis. As matter of conscience a person could validly conclude that it should be up to asylum seekers themselves to decide whether the risks of sea travel with people smugglers outweigh the risks, including the risk of death, of remaining in the country from which they are fleeing. Indeed in most areas of life we applaud individuals taking responsibility for their own decisions and taking risks to improve their life circumstances or chances of survival.
Some argue that asylum seekers are in no position to weigh up the risks themselves because people smugglers typically provide them with misinformation about the quality of boats that they will have to travel on. This may well be the case. But we can never know the extent of this problem for certain. And it seems certain that some asylum seekers would choose to take the risk anyway. One asylum seeker I know came to Australia by boat. He had been tortured several times in his home country and shot by the police. He was in hiding for a year before fleeing. He comes from a country in which people are still executed in public. He did not have a passport to leave the country so he used his brother’s passport. This was an extremely risky exercise. If his identity was challenged he could have been incarcerated, tortured again or even executed. This asylum seeker was certainly misinformed about the quality of the boat that he would eventually make the final leg of this journey from Indonesia on. But when I asked him whether he would have fled his country anyway he did not hesitate. “Yes I had no choice” was his answer.
If you are still not convinced by this argument then try this thought experiment. According to research, the mass of ordinary Germans knew of the evolving terror of Hitler’s Holocaust. They knew concentration camps were full of Jewish people who had been stigmatised as sub-human and as race-defilers. They knew that these, like other groups and minorities, were being put to death. They knew because the camps and the measures which led up to them had been prominently and proudly reported, step by step, in thousands of officially-inspired German media articles. The only thing many Germans may not have known about was the use of industrial-scale gas chambers. Unusually, no media reports were allowed of this “final solution”.
It follows that if everyday Germans knew about the evolving holocaust, so too would the Jews in Germany who had been in hiding or who had otherwise managed to avoid transportation to the camps. The thought experiment is this: If you were a Jew in Germany who had been in hiding and you had a choice of being transported to a concentration camp or boarding a boat that might sink- what would you choose? And would you want to be able to exercise your own choice on this issue free from “disincentives” being imposed by the Governments of countries to where you may wish to flee?
An amendment should be made to Labor’s constitution to provide for a conscience vote on asylum seekers. It should provide that while matters concerning treatment of asylum seekers and refugees can be freely debated at any forum or conference of the Party, any decision reached, which it can be reasonably argued, is not consistent with Australia’s obligations under the Refugee Convention, or the Convention Against torture is not binding on any member of the party.
In summary, there is a far stronger principled argument in favour of conscience vote on how asylum seekers are treated than there is on marriage equality:
- Nobody is going to live or die if we have marriage equality.
- Nobody is going to be subject to cruel and unusual punishment, or conditions that amount to torture, if there is marriage equality.
- Marriage equality breaches no international law or Convention to which Australia is signatory.
The real reason for Labor having a conscience vote on marriage equality have nothing to do with any profound moral issues of conscience. There are two real reasons. The first is that a group of Labor MP’s, mostly MP’s supported by the SDA, threaten that, whether or not Conference or caucus extend a conscience vote to them, they will cross the floor on the issue, inviting expulsion from the party.
Joe De Bruyn has openly stated that there would be “many” Labor MPs in both houses who would cross the floor if they were forced to support same-sex marriage in Parliament. The question that needs to be posed in relation to this stance is whether it reflects moral conscience or merely constitutes bullying?
The second reason for the conscience vote on marriage equality is that a minority of members of the Liberal Party favour the measure and want a free vote. A conscience vote in the Labor Party maximises pressure on the Liberal Party room to also allow a conscience vote. And the Liberals allowing a conscience vote is actually the best way of maximising the chances of the measure passing through the parliament. There are two intriguing ironies here:
- The SDA insistence on a conscience vote for Labor MP’s on marriage equality increases pressure on the Liberals to allow one and thereby actually enhances the prospects of the measure passing parliament; and
- The “in-principle” arguments for a conscience vote on marriage equality are so weak that they can provide fuel for anybody who wishes to mount a principled argument for a conscience vote based on support for the Refugee Convention and the Convention against Torture.
Labor hard heads will argue there should be no conscience vote for Labor MPs on treatment of asylum seekers because it opens a “Pandora’s box”. They will argue that if Labor allows a conscience vote one this issue it will spread to other areas and all party discipline will be lost.
The contrary argument, which has been advanced by Anthony Albanese, is that it might not be such a bad thing if there were more conscience votes in the ALP. But in any case, the life and death issues associated with seeking asylum and, even more particularly, the moral imperative of upholding international laws and conventions are sufficient to distinguish the asylum seeker issue from other more ordinary policy controversies.
Labor’s Federal leadership will likely secure support from July’s National Conference to facilitate its desire to go to the next election with policies that are as tough as the Coalition’s on asylum seekers. It will probably even want the platform to be flexible enough to facilitate Labor copying Abbott’s “turn round the boats” policy.
Others in the Party will support amendments in favour of a return to on-shore processing and reduced periods of detention.
But in all likelihood the best that supporters of refugees are likely to achieve from the forthcoming national conference is a commitment to improving conditions in off- shore detention centres and support for regional processing- which is easy to say but may be challenging to achieve in practice.
A key issue in relation to conditions in detention centres is how the centres are to be monitored, especially following the debacle associated with passage of Border Security Bill, supported by Labor, which aims to muzzle potential whistle blowers. You can read more on this here.
The platform is likely to support “independent monitoring”. But the question is whether the monitor will have co-coercive investigatory powers and report publically on conditions in the detention centres and whether there will be a mandatory duty to disclose sexual and other abuses.
Persons making statements to the monitor must be exempt from prosecution under the Border Security Act irrespective of whether or not the technical procedural requirements of the whistle blowers legislation are met.
Of course such measures assume a desire by Government to create more humane conditions in the centres, when, at least by some, the existence of poor conditions is regarded as part and parcel of the effort to deter boat arrivals.
A conscience vote for Labor MP’s on treatment of asylum seekers is also a policy long shot. But it is worth the argument. Securing it would at least allow a cohort of Labor MPs to advocate more strongly in favour of more humane treatment of refugees.
It will have the side benefit of making the arguments against marriage equality appear for they are- prejudices and trifles. And really, who is going to mount a convincing argument against the principle that Labor MP’s should not be permitted to support the Conventions which Australia is actually obliged to support?
Politically, it is true that a conscience vote for Labor MP’s on asylum seekers may open a small window for attacks on Labor by the Coalition. The Coalition would argue that such a policy demonstrates that Labor cannot be relied upon to take a tough stance on “stopping the boats”.
On the other hand, a conscience vote may stem some resignations from the party over the asylum seeker issue and some of the bleeding of votes to the Greens. Labor MP’s in electorates where the Greens are the main opponents would likely be at the forefront of those taking up the conscience vote. And in most instances, they would do so consistent with the views of a majority of voters in those particular electorates. This is democratic.
Most importantly, unlike the conscience vote on marriage equality, a conscience vote on treatment of asylum seekers would be based in some sound and discernible moral, as opposed to purely political, principles.
Footnotes  http://www.smh.com.au/federal-politics/political-news/binding-vote-for-labor-mps-on-samesex-marriage-foolish-says-union-heavyweight-joe-de-bruyn-20150427-1mu1nt.html  http://hrlc.org.au/un-finds-australias-treatment-of-asylum-seekers-violates-the-convention-against-torture/ http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/AsylumSeekers  http://www.theguardian.com/uk/2001/feb/17/johnezard  http://www.smh.com.au/federal-politics/political-news/binding-vote-for-labor-mps-on-samesex-marriage-foolish-says-union-heavyweight-joe-de-bruyn-20150427-1mu1nt.html  http://www.southcoastregister.com.au/story/3055023/bill-shorten-signals-harder-line-from-labor-on-asylum-policy-and-boat-turn-backs/?cs=7