Political duty versus party unity

We should never put questions of human rights to an opinion poll. Senator Richard di Natale, Facebook, August 2016

This statement by the Greens leader rests on a distinction between values which justify rights and a popular opinion of what these values require. Values are the abstract standards by which we judge opinions as good or bad, right or wrong whereas opinions - however strident or popular - are not a standard of any kind, just another fact about human nature.

Those who treat rights as a matter of counting heads forget they are in essence anti-majoritarian claims. For if rights are required by values such as justice, humanity and human dignity, their rationale must be to uphold these values against popular opinion as well as the policies of those in power - both may be based on prejudice, ignorance or self-interest.

If things were otherwise we would lose our rights whenever public opinion is unfavorable. In politics it would mean a majority could, in the name of democracy, outlaw minority parties, confiscate their property, imprison members and execute leaders, as has occurred in Egypt in recent years.

It follows that to take rights seriously one must argue for them, and for the laws or actions they require, by appealing to the values in point, not to the opinions of other people, however numerous or distinguished. It means that judgments about rights are intrinsically personal - that they cannot be delegated to anyone else, not even a majority.

This feature adds a special dimension to the debate whether the issue of same-sex marriage should be decided by a plebiscite or parliament. It means those who vote, whether as citizens or as representatives, must act on their own judgment and conscience, regardless of popular opinion, doctrines of party unity and the views of party leaders.

Many politicians have a different view. They think democracy means doing what most people want. But this is, surely, a misunderstanding - democratic theory says only that the majority has a stronger right to make the laws than anyone else - it does not say the laws a majority makes are for that reason moral. That will depend on the values of the community and judgments of values are, as noted, inherently personal.

Turning now to this preliminary debate, politics commentator Samantha Maiden, writing in the Hobart Mercury on August 21, summed up the likely effect of Labor's plan to pre-empt the plebiscite by introducing laws in Parliament to legalise same-sex marriage. It will, she explains, be a 'big call'.

"The Coalition holds 76 seats in the 150-seat House of Representatives with Labor, the Greens and the independents commanding 74 votes combined. They would need two Liberal MPs to cross the floor … to pass the legislation, an unlikely quest."

Maiden may well be right, but she assumes no reasonable person could expect Liberals to take a principled stand, rather than vote the party line. This is despite the fact that many believe Parliament should treat this as an important issue of principle, and for the reasons recently invoked by Michael Kirby, a distinguished former High Court Judge, on Fran Kelly's ABC Breakfast Program.

Those who seek to apportion blame for the impasse need to distinguish party unity from the Westminster doctrine of joint cabinet responsibility, to which the Prime Minister is firmly committed. He sees this as requiring ministers, including himself, to defend Cabinet policy, that is, the policy of a consensus or majority. A minister who thinks this policy is wrong and wishes to say so must first resign.

When Turnbull defeated Abbott it was clear he disagreed with many social and economic policies the Cabinet had pursued under Abbott's conservative leadership, and no one outside the discussions knows which if any he promised to continue. What is clear, however, is that he saw himself as bound by the Westminster doctrine to support those policies he could not persuade front-benchers to change.