Some Australians seem uncertain if they should vote “Yes” or “No” in the upcoming referendum on whether to include recognition of an Indigenous Voice to Parliament in the Constitution. Both options are being promoted and the arguments for and against each are being articulated and debated.

Recently, I heard Father Frank Brennan SJ, a prominent Australian legal expert, address the question of how to vote. He provided an excellent analysis of the situation before us but, I’ll confess, he left me more uncertain than I had been before listening to him.

Father Brennan’s principal criticism involves the inclusion in the referendum question of the following phrase: “The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples”. Such wording, Brennan argued, would allow the Voice to consult, not just with Parliament and parliamentarians, but also with “Executive Government”, which would include a broad range of public servants.

He proposed that the term “Executive Government” should be deleted and replaced with ”Ministers of State”. Such wording, he argued, would be more consistent with the principles on which our Australian democracy is based and would reduce the risk of resulting litigation about what is necessary to fulfil the Voice’s requirement of government consultation with Indigenous communities.

That said, Father Brennan made it very clear he supported a “Yes” vote. He explained that by proposing a change to the referendum question, his goal was simply to eliminate unnecessary risks entailed by a “Yes” vote. But what if there is no change to the wording of the referendum question as it now stands? How should one vote then?

Until hearing Father Brennan speak, I had intended to vote “Yes”. I left the lecture with new doubts as to whether that was as clearly the right choice as I had felt it was. As the debate continues, I suspect that many Australians of good will could find themselves in a similar dilemma.

So far, much of the analysis and advocacy of both the “Yes” and “No” votes has been based on legal analysis. Because I am a bioethicist, I wondered whether an ethical analysis might help us clarify our thinking. After all, our decision is not — or at least, it should not be — simply a political one: Which side are you on?

Our decision is profoundly ethical and needs to be based on conscience.

Ethical presumptions

Certain basic presumptions are important in ethical analysis and our choice of one of those presumptions, rather than another, can determine the outcome. We may give rational reasons for our choice, but it is also informed by many, often unconscious, human ways of knowing — these include moral intuition, examined emotions (as opposed to mere emotionalism), common sense, and imagination (to help us to anticipate the consequences of our choice).

Reason is an important, but chronologically secondary, verification mechanism to ensure we have made the right choice. It needs to be distinguished from rationalisation, or the attempt to justify one’s stance with logical reasons when these are not appropriate. We also need to be aware of our innate biases or prejudices, which might affect our decisions.

In an ethical analysis of the Voice to Parliament, there are four basic presumptions from which to choose — and which should be chosen is itself an ethical question. These are:

  • “No, I will not support the Voice”;
  • “Yes, I will support the Voice”;
  • “No, I will not support the Voice, unless …” (certain conditions are met — such as a change to the referendum question, or greater detail is given on the parameters governing the exercise of the Voice);
  • “Yes, I will support the Voice, but not if …” (and, again, certain conditions are articulated).

When the right answer to a particular question is clearly, “Yes, this is ethical” or “No, this is unethical”, we do not have an ethical problem. We can adopt either a “Yes” or a “No” unconditional basic presumption.

Usually with ethical issues, however, we must choose between “Yes, but …” and “No, unless …” presumptions. That choice can matter. The person relying on the exception has the burden of proving that, on the balance of probabilities, the required conditions for the exception to apply are fulfilled. This means that, when there is equal doubt with regard to whether they are fulfilled the basic presumption, either the “Yes” or the “No” governs. In other words, in such a situation a “Yes” vote will be called for under a “Yes, but …” presumption, and a “No” vote under a “No, unless …” presumption, in response to the same factual circumstances.

Deciding whether to vote ‘Yes’ or ‘No’

If we support the Voice to Parliament and are happy with the question as it stands, then we will vote “Yes”. If we oppose the Voice in any form, as the National Party does, we will vote “No”. From an ethical perspective, it would have been preferable for the Nationals to allow a conscience vote — indeed, this is true for all political parties. Parties do not have a conscience; individual party members of Parliament do and, as some are doing, should exercise it, even at a cost to themselves. We need to keep in mind that an individual’s conscience is the last safeguard against the abuse of power by those to whom we have entrusted it.

However, what if we support the Voice, but not in the definition that is being put to the Australian people in the referendum — how do we vote?

There is a major difference between, on the one hand, supporting the Voice and, on the other, purporting to support it but arguing for it to be defined in such a way that it will be ineffective to achieve its goals. I believe there is a danger that this is true of the stance taken by Opposition leader Peter Dutton, of rejecting the inclusion of the Voice to Parliament in the Constitution, but supporting regional legislation to provide for an Indigenous Voice.

We might need both a national Voice and a regional Voice, but the latter should be decided only after the creation of a national Voice.

Perhaps Dutton is trying to appease voters on both sides. Perhaps it would be more honest of him simply to oppose the Voice, if that, as it seems to be, is his stance. On the other hand, he might genuinely hold a belief — which, I would argue, is a seriously ethically mistaken one — that enshrining the Voice in the Constitution is so dangerous and so unwise that it is inherently wrong: it could never be ethically justified to accept it. I would still contend that, whatever his reasons for opposing the Voice, ethically, he should allow a conscience vote.

It is also worth noting that the existence of opposition to a proposal that raises ethical issues can improve the decisions reached, because it requires us to look more closely at all aspects of what we are proposing. From an ethical perspective, it was a wise decision of the federal government to fund both sides of the Voice debate. As well as that being fair, we know that people are most likely to make good ethical decisions when they have heard all sides of the argument.

Some Indigenous people are opposing the Voice and promoting a “No” vote because they believe the Voice does not go far enough with respect to giving them rights. I would suggest that in the Voice debate an incremental approach is beneficial and, therefore, preferable for many reasons — including ethical ones. This means the “doesn’t go far enough” argument should be met by a “Yes” vote, not a “No”.

‘A world of competing sorrows’

If we support a Voice to Parliament, but not its current definition in the referendum question, we face what is called in bioethics “a world of competing sorrows” — which is to say, a situation where there is no “no harm” option and we must choose on whom to inflict the harm. In short, a “world of competing sorrows” arises when our decision involves allocating harm to one person or group in order to protect another person or group.

One ethical principle that guides this allocation of harm is a preferential option in favour of the weakest, most vulnerable most in need person or group. I believe that in the Voice referendum, this is Indigenous Australians. Therefore, ethically, we have a primary obligation to ask, first, which vote would be best for them and inflict the least harm on them. We need to listen to them in determining this. Only secondarily, we should ask which decision, compatible with fulfilling that primary obligation, will do the least harm overall.

Considering the consequences

I am concerned that some people will take advantage of the uncertainty surrounding how we should vote to cause serious disruption and harm both before and after the referendum, whichever way the vote goes. Probably, however, the “Yes” vote is preferable from this perspective. Such situations can be dealt with as events unfold. In comparison, a “No” vote would cause immediate and irreparable harm — not only to Indigenous Australians, but to Australian society as a whole, including its commitment to the “common good” and store of “social capital”.

An argument against voting “Yes” to the Voice is that litigation would result. But that is not necessarily a harm. Arguing our case in court can clarify our disagreements, advance our understanding, and help us to make better decisions.

It would, moreover, be preferable to vote “Yes” to avoid the serious harms that a “No” vote would inflict on our First Nations people, not least on account of the rejection and powerlessness they would experience. It would also be a cause of major harm to the Australian population, as a whole. This would include serious damage to the culture and Zeitgeist — what we call in ethics the “ethical tone” of our society. The “ethical tone” of a society is not set by how it treats its most privileged, powerful, or wealthy members, but by how it treats its weakest, most in need, most vulnerable ones.

I would propose that a “Yes” vote is so essential to moving forward to a more just and equitable Australian society with respect to Aboriginal and Torres Strait Islander peoples, that even if it involves risks and harms, those risks and harms are of secondary importance. This would mean we should adopt an unconditional “Yes” basic presumption, while working, as Father Brennan is, to eliminate or at least reduce those risks and harms.

Utilitarian and principle-based ethical analysis

A utilitarian ethical analysis requires that we assess the benefits, risks, and harms of voting “Yes” or “No” to the Voice when determining which stance should prevail. I believe the risks and harms of voting “No” far outweigh any potential risks and harms of voting “Yes”, and, accordingly, that any benefits of voting “No” are far outweighed by the benefits of voting “Yes”. From a utilitarian ethical perspective, I suggest this means we should choose to vote “Yes”.

Likewise, we reach the same conclusion on what ethics requires on a principle-based analysis. Justice, fairness, reparation, taking responsibility, promoting reconciliation, not doing harm, non-maleficence, cultural recognition and preservation, benefit to Australia as a whole, and so on — all such principles call for a “Yes” vote.

For over two centuries, Aboriginal and Torres Strait Islander people have not had a “fair go” — much less a fair hearing. The Voice could begin to remedy these failures. They must have a Voice in decision-making that affects them: Audi Alteram Partem, “hear the other side”, is a foundational principle of natural justice. Moreover, implementing both symbolic and practical respect for them requires that we recognise them in our nation’s foundational document, the Australian Constitution.

This article has been republished from ABC Religion & Ethics with permission.

Margaret Somerville is based in Sydney, Australia, where she is Professor of Bioethics at the University of Notre Dame Australia School of Medicine. At McGill University, in Montreal, Canada, she is Samuel...