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Free votes in the New South Wales Parliament

Free votes in the New South Wales Parliament

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Background Paper 10/2014 by Gareth Griffith

The focus of this paper is on free or conscience votes in the NSW Parliament between 1981 and 2013. As such, its purpose is to add to the small but growing body of literature in this field.

A full list of free votes between 1981 and 2013 is set out at Appendix A, which includes all those votes identified occurring in one or both Houses and permitted by one or more of the major parties.

Free votes open up a broad range of issues relevant to parliamentary politics. They differ from other votes in Parliament in terms of the type of issues concerned, involving as they do some of “the most divisive issues of the day”, often attracting “intense lobbying”. In Australia, in particular, where party control is enforced over individual MPs to an unusual extent, where all other votes are “subject to an implicit three-line whip”, free votes can offer rare insights into their personal values and thinking and may even present opportunities for inter-party allegiances, albeit short-lived. [1]

The terms “free vote” and “conscience vote” are often used interchangeably, as indeed they are at certain points in this paper. However, the term “free vote” is preferred for the reason that it less pejorative than “conscience vote”, which suggests that members do not vote according to their conscience as a rule. [2]

Free votes occur when political parties decide that their members are free to vote as they choose on a particular matter, rather than along party lines.[2]

The research undertaken for this paper has traced the first free votes in modern times to the decriminalisation of homosexuality in the early 1980s. As discussed in the literature, the identification of free votes is by no means straightforward. They are not identified as such in Hansard, nor are they identified either in the Assembly’s Votes and Proceedings or in the Council’s Journal. It is also the case that some free votes have been allowed on a matter for one major party but not for others, or for the Coalition parties but not the ALP. Further, most free votes are on Bills, often Private Members’ Bills, but in NSW other issues have also been dealt with in this way, notably votes on the removal of a judge or magistrate under s 53 of the Constitution Act 1902. [2]

The approach adopted in this paper is largely quantitative in nature, focusing on the voting patterns across parties and gender, for example; however, it also attempts to present a more qualitative perspective on the subject by reference to what individual MPs said in the Hansard debates. A general point is that, while the question of “how” individual members voted on conscience issues can be decided clearly enough, understanding “why” they voted a particular way on a specific issue is a far less exact science.[2]

Studies of free votes in comparable Westminster Parliaments have suggested a number of key findings, not all of which are necessarily consistent. The broad conclusion of most studies is that party is “the most important factor in predicting voting behaviour during bills involving conscience issues”. Based on a review of the literature, Lindsey commented in his 2011 study Conscience Voting in New Zealand: “Sometimes, it is the only factor that counts. This has also been found to apply in federal systems at both the state and provincial level”. This finding echoes that of a 2011 Canadian study which concluded:

      Like virtually every other empirical study of free voting, even when confidence is relaxed and MPs are free to vote their consciences, most MPs still vote along party lines.
In her 2013 comparative study of free votes in the Australian, Canadian, New Zealand and UK Parliaments, specifically on the issues of abortion, euthanasia and same-sex unions, Plumb offered a variation on this theme. Using the Rice Index she found that, “although party is a good predictor of voting behaviour on the three issues”, in all jurisdictions differences in levels of intra-party unity could be found across the ideological spectrum, with “centre-right” parties being the least cohesive, followed by centrist parties and with “centre-left” parties tending to show the greatest level of cohesion on the issues studied.[3]

Following a broadly chronological order, some comment is made on all 33 free votes that have been identified from 1981 to 2013. In some cases, notably where free votes were allowed for all major parties and where at least one vote was taken on division at the Second or Third Reading stages in the Legislative Assembly, the analysis is more detailed. The first of these “case studies” refers to the landmark debate on the decriminalisation of homosexuality from the early 1980s; others relate to the issues of human cloning and research involving human embryos, same-sex adoption, the Sydney medically supervised injecting room, surrogacy law and, from 2013, the status of the unborn child under the criminal law. Primarily in the context of these case studies, the analysis of free votes in the NSW Parliament attempts to address these questions:

    · Were the voting patterns along party lines for both Houses?
    · What, if any, was the perceived influence of party leaders?
    · What were the voting patterns based on gender?
    · In NSW is it possible to determine voting patterns based on religious affiliation?
    · If so, is religion a factor influencing some if not all free votes for certain members?
    · At what stage in the parliamentary term were free votes held?[4]

Findings – Government and Private Members’ Bills: Free votes have been recorded in this paper on 14 Government Bills, all of them Labor Government measures, with all of them passing into law. This can be contrasted with the 12 free votes recorded on Private Members’ Bills, three of which were passed into law, with eight others defeated and with the fate of one remaining to be determined (Zoe’s Law Bill 2013 (No 2)).[19.1]

Findings - party leader and residual party loyalty: In NSW, the voting patterns indicate that party loyalty was the decisive influence in certain cases, notably for Labor on the issue of Sydney’s Drug Injecting Centre, upon which the Party presented a united front; on other issues, concerned with same-sex adoption and surrogacy, cloning and human embryo research, as well as Zoe’s law, there was considerable diversity of opinion within the Party, which was allowed to be expressed through the mechanism of the free vote. The same was true of the decriminalisation of homosexuality in the 1980s, where a significant number of Labor members voted against the Bill.

Admittedly, the evidence at this stage is relatively sparse for comparable Parliaments, but tentatively at least, it can be suggested that the level of intra-party unity on the “centre-left” tends to be relatively low on certain issues in NSW; as low as 0.2 in the Assembly on same-sex adoption, with 40% of Labor members voting against the Private Member’s Bill. However, the level of unity tends to be higher where Labor Government Bills are under consideration, although even on some of these occasions around one in four or one in five Labor members voted against the measure.

Across all parties, it is probably right to say that Premier Wran’s 1984 Private Member’s Bill decriminalising homosexuality was the one clear occasion where the party leader appears to have exercised a discernible influence on the vote. Less clear is the influence of Barry O’Farrell on the Same-sex Marriage Bill 2013, although with this Private Member’s Bill being defeated by a close margin of two votes that influence may have proved decisive.

Consistent with the comparative finding that “centre-right” parties tend to be the least cohesive, a high level of voting diversity is found in the NSW Liberal Party, on most if not all issues considered in this paper. Of the main case studies presented in the paper, the greatest degree of unity recorded was on Zoe’s Law Bill (No 2), at which time the Liberals were in Government. In that case, the Party leader, Barry O’Farrell, voted with the majority of his party colleagues on behalf of the Bill, although that is not to make a case for the influence of party leadership on voting behaviour. Liberal Party voting on key free votes is summarised below.

The National Party’s voting patterns have been recorded and tend towards a similar pattern to Labor’s, except that the weight of votes falls more on the socially conservative side of the political divide. On some issues there was unanimity, but not on all, with a diversity of opinion expressed, for example, in respect to surrogacy, cloning and human embryo research, less so on same-sex adoption and Zoe’s Law.

Of the minor parties, the largest numerically in this State are the NSW Greens, which up until 2011 only had representation in the Legislative Council; the 2011 election brought their numbers up to five in the Upper House. Consistent with voting patterns observed in other jurisdictions, on all free votes canvassed in this paper the NSW Greens voted in unison in the Upper House. The same applies to the Christian Democrats, under the leadership of the Reverend Fred Nile, as it does to the Shooters and Fishers Party.[19.2]

Findings – gender: The voting patterns recorded in this paper indicate that, on certain issues at least, a discernible gender difference existed, notably in respect to most same-sex equality and reproduction and human life issues, including Zoe’s Law Bill (No 2). This gender difference tended to be more clearly expressed in the Upper House, which may suggest that, without a geographical constituency to represent, some female Council members, on the conservative side of politics in particular, may have felt less constrained when exercising a free vote. But that is purely speculative.[19.4]

Findings – religion: There are clearly times when voting on free votes has been influenced by personal religious belief. This is obviously the case in respect to the Christian Democrats in the Upper House, but also for other members in both Houses with strongly held religious views. One might say that this is the very point of a free vote; that members are called upon to deliberate and decide on difficult moral and social issues guided by a range of factors and influences, not least personal convictions of a moral and/or religious nature. It is what gives free votes their special quality, taking members outside the machinery of party politics and standing them squarely on their own moral ground.[19.5]

Findings – parliamentary terms: The most interesting free votes discussed in this paper from the perspective of their timing in parliamentary terms are those from 1984 and 2010. Wran’s Private Member’s Bill was brought in at the very start of a new Parliament, basically to clear the decks of a divisive issue that had been the subject of three contentious Bills in the previous Parliament. Conversely, the three Labor Government Bills from 2010 upon which all major parties allowed a free vote were introduced at the very end of a Parliament and, perhaps more tellingly, towards the predicted end of a long period of Labor power beginning in 1995.[19.6]

Findings – free votes and parliamentary democracy: It is clear that “conscience issues” provide members with an opportunity to step outside their party roles, thereby tending to lend to parliamentary debate more personal colour and intellectual interest than is usual. With free votes there is more occasion and inclination to listen to the views of others, to acknowledge and even accommodate arguments which a member may not agree with at first.

Important as that perspective on free votes may be, the argument can also be made that they should not be looked upon as panaceas for whatever ills are perceived to beset parliamentary democracy. The predictability of voting created by the party system is fundamental to a functioning political system founded on the principle of responsible government; the advantages that attend that system as a rule deserve proper appreciation. Free votes are exceptions to the rule, agreed to primarily for party political convenience. Viewed in that light they can be seen as something of a “safety valve”, permitting contentious issues to be dealt with without fracturing party discipline, worthy and interesting in themselves, but also an adjunct to the party political system they operate within.[19.7]