The incident highlights two features of Labor's policy on conscience votes, and by implication the importance it gives to free speech. First that its rules, which require members to sign a pledge to support caucus decisions, are designed to prevent free votes across the board - those who disagree face sanctions, quite apart from hurtful charges of disloyalty. Where expedient the leader or caucus may, however, permit a 'free' vote.
The second feature is Simon Crean's reluctance to answer a simple question. He was clearly sensitive to the fact that thoughtful voters might be troubled by the idea that a party member cannot represent the public if he or she disagrees with caucus on a grave issue of moral principle, such as justifying an armed invasion likely to kill and maim thousands of innocent people.
Is the Liberal Party really any better? In theory yes, because conscience votes are not excluded by its constitution or by rules made under its provisions. It can also boast the grandmaster of dissent, with Tasmanian Sir Reginald Wright having crossed the floor 150 times in 28 years as a Senator for Franklin. Wright was a tough and skilful barrister and a popular choice in the public mind for a house of review, known for his hard work in scrutinising complex legislation, and for his success in advancing Tasmanian interests.
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Members of the lower House have no comparable opportunity to establish an independent power base, which makes it that much more impressive - at least to those who believe in Burke's idea that their primary duty is to serve the public - when they dissent from a party view they believe is against the public interest or violates community values.
The problem is made worse for Labor by rules designed to skew voting power to unions, and to exclude employees if they are not union members. The effect over time has been to discourage serious, independent criticism of union practices.
The abuse of power through conspiracies and corrupt practices by union officials, politicians and wealthy speculators in New South Wales, and years earlier in 'WA Inc' has seen these criticisms gain traction and, after the recent Western Australia Senate re-elections, party rules are now a major issue, with a current focus on what Labor leader Bill Shorten might say in a forthcoming speech on reform. But it is unlikely he will say anything about party unity, and unlikely the media will ask him to.
To be fair to Labor, this would be a tough call for a party whose rationale and long history of reform has rested so much on union solidarity and party discipline. But there is also a mindset that dissent must now be avoided; no one, including the press gallery, is likely to point out the difference between an ugly and seemingly endless struggle for party leadership and issues of principle which arise from party policy - it is all grist to the same media mill.
So what about the Liberals? In 'John Howard and the Liberal Tradition' (in Liberals in Power - the Road Ahead, a collection of essays edited by Peter van Onselen, 2008 MUP) George Brandis has written a fascinating account of ideas which have guided the party, at the same time making a persuasive case for a return to liberal principles as espoused by John Stuart Mill in his famous 1859 essay.
His examples show the extent of Mill's influence on Menzies and his Alfred Deakin- inspired predecessors, and the degree to which this triumphed over both pragmatism and conservatism, enabling Menzies' governments to appeal to a wider electorate for a longer time. He discusses how this liberal influence was diluted over time, in part by Howard's idiosyncratic support for a concept of 'social cohesion', seen in a tendency to justify policy by appeal to 'the mainstream'. He concludes:
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The greatest danger… of the rhetoric of the mainstream is that it implicitly condones the marginalisation of minorities or even individuals who are out of step with majority attitudes and prejudices, The rights of every individual are of equal importance in a liberal society; it is surely the role of the leader of a political party created to bring about 'the revival of liberalism in Australia' to stand up for those rights in the face of the hostility of the majority. We have come a very long distance from Menzies' belief that … 'the real test of liberty in any country is the way in which minorities are treated'. But then, John Howard was little given to quoting from John Stuart Mill.
The immediately relevant test of this commitment to an ideal of freedom is the willingness to permit a free vote on same-sex marriage, which also ensures the law on this matter will reflect what the public's representatives believe is right, rather than what party leaders might, for whatever reason, seek to impose.
But the right to a free vote on this issue is only the first step in addressing Amanda Vanstone's 'cherished liberal principle' supporting conscience votes across the board. This would, if taken seriously, rule out penalties for members who abstain or cross the floor or, Heaven forbid, disagree with party leaders. It would not, however, sit well with deputy Liberal Leader Julie Bishop, who argues that caucus has a duty to support its leaders, not vice versa; she criticised former Foreign Minister Bob Carr because he believed party leaders should respect Cabinet and caucus views.
However that may be, the views of Vanstone and Brandis suggest the spirit of Mill is still alive in the Liberal party, and not wholly confined to the world of business, property and entrepreneurs; but it is struggling to be heard and the Attorney-General is a dubious advocate, unable to reconcile his support for liberal principles with opposition to same-sex marriage. It suggests this is as good a time as any for a closer look at Edmund Burke's theory of political duty and the priority it gives to acting on conscience.
The habit of acting on conscience has a prime social value for any community just because it transcends both party and factional politics - it is, finally, the only safeguard against popular interpretations of loyalty which shut out arguments of principle in cases such as the apology, same-sex marriage and the Iraq War.