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‘It’s like … when you see an injured gazelle like in a mudflat, just sort of flailing around, it was like that except the gazelle is pretending to enjoy the mud bath.”

This is an unlikely picture of Penny Wong, Labor Leader in the Senate and normally the most composed of politicians. It was, however, the view of a recent pannelist on Q and A, a journalist who recalled watching in dismay as she tried to persuade the public she supported traditional family values. But it was largely lost on the media, which often seems blind to this kind of moral ambivalence.

Likewise on the ABC’s Insiders show for Sunday, 4th March - West Australian Senator Joe Bullock’s resignation from politics on a matter of conscience was noted. There was no discussion but the panellists agreed it was ‘a mistake’ for Labor to insist members toe the line on gay marriage. They did not, however, explain why it was a mistake and it did not seem to matter - some members act on their principles, others do not - it is all part of the rich tapestry of political life.

It was a full program, with many interesting issues to discuss, but it was a pity they did not pursue Bullock’s decision and the example it set, or ask why it was forgotten by the press gallery almost as soon as it was learned that a distinguished aboriginal leader, Pat Dodson, had agreed to stand for his seat.

For despite a reluctance to address the issue the role of conscience in politics is important, as is the doctrine of unity and the practice of so-called ‘conscience’ or free votes. In January 2012 Julia Gillard had, as Prime Minister and despite her own views, negotiated a ‘conscience’ vote on same-sex marriage which in July 2015 was extended through the next two government terms. It was part of a deal whereby after 2019 all members must support leader Bill Shorten’s marriage equality.

The deal reflects a party division over a contested philosophical issue - whether same-sex marriage is a basic human right, as had been argued by former Labor heavyweight John Faulkner and by Penny Wong herself - in which case it should not be left to individual choice - or whether it was a matter of private morality like one’s religious beliefs, which should be left to a member’s conscience as a matter of respect and dignity.

However that may be it is not hard to understand why observers see conscience votes as primarily a means to let off steam and maintain loyalty - party members are permitted to defend their views to the public where it will not affect votes, and on matters which are not important enough to insist on unity. In crude and simple terms an issue of conscience is pretty much what the party, guided by the leader’s strategy, says it is.

By contrast, people outside the political world treat acting in good conscience as a matter of integrity and a value in itself, whatever one’s social or political interests or ambitions. In the ordinary, everyday world of personal and community relations it is a matter for respect and honour to be accepted as a person of principle, someone who can be relied on to speak the truth and act on their convictions.

This view got a brief but passionate hearing on the next night, when the ABC’s Q and A program invited panellist Josh Zepps, Australian satirist, radio broadcaster and TV presenter on leading US channels, to comment on the state of politics in the United States.

‘I think it would be a mistake to read too much into (Trump’s) candidacy, other than the fact that Americans are sick and tired of being lied to by politicians. They’re sick and tired of the artifice of politics and, you know, it’s the same here. I remember a few years ago I was watching Q&A and Penny (Wong) … was put in the position of having to defend the Labor Party’s policy, and, as she is talking about how she believes in traditional marriage, it’s like you know in the nature documentary when you see an injured gazelle like in a mudflat, just sort of flailing around, it was like that except the gazelle is pretending to enjoy the mud bath.’

This puzzled host Tony Jones …

‘Josh, there’d be a lot of people asking themselves right now how you got from Donald Trump to Penny Wong . . . . So give us some sort of insight into why it is that Trump is not only winning currently … but he could end up being the Republican candidate for President …’

But Zepps had a point to make …

‘Well, Trump is the lion by the mud pool, Tony, who points out the flailing animals and says, “Why do we even have the mud pool anyway? Look at all these losers who are flailing around in there. Why do we have these rules and consensus? Why can’t we just say what we want to say, do what we want to do?’

The question underlying this anecdote, which links Donald Trump’s success to Australian politics, is whether this institutional dishonesty is where the rot begins. It was, however, the end of the program and was left to hang in the air while the audience filed out. It will remain there until political theorists and commentators are ready to question the doctrine of party unity. Anyone who heard the debate on Senate reform would appreciate the mud bath analogy - most would be dismayed by Labor’s response and depressed by the artificial conformity of opinion.

How then to answer Zepp’s question, given that any answer must begin by acknowledging the case for party unity, since no government is likely to achieve its aims unless members work as a team? It needs the numbers to implement policies. And where these policies are part of its platform there is a duty to keep its promises. These propositions are so obvious they blur the case for a more reflective approach to unity, one which also fits with a defensible theory of political duty.

When we look for such a theory we find only homilies and catchphrases, often misleading. In a recent Radio National Late Night Live program, human rights lawyer Julian Burnside told listeners that democracy means the majority will should prevail, except on ‘big moral questions’. But this ignores the fact that representative democracy is designed to ensure that majority opinion does not prevail; it prevails only where it is the view of those who lead the party in power.

This disconnect between popular theory and constitutional practice should be more obvious given the continuing debate over a plebiscite on gay marriage, because the question at issue is whether this hugely expensive appeal to public opinion is a genuine exception to standard practice (a ‘big moral issue’) or is really inconsistent with that practice.

To maintain clarity on such questions we need to sharpen our sense of what democratic theory says. In its simplest, bare-bones formulation it says only that the representatives of the majority have a better claim to make the rules than any other person or group; it does not say the majority is free to make whatever rules it likes - which would give it the right to outlaw minority parties, execute its leaders and confiscate their property, as has occurred in Egypt in recent years.

In common parlance this bare-bones version is likely to be enhanced by a ‘rich’ concept of democracy which includes laws, practices and institutions to prevent the abuse of power by a ‘tyranny of the majority’. Accordingly, those brought up in a healthy system take it for granted that government must respect free speech, a free press, free association, the right to a fair trial and other constraints on majority will. Such rights defend ‘individualist’ values of fairness and dignity against ‘collectivist’ goals which aim to increase the common good.

Whether such constraints should figure in a bill of rights or be left to the moral sense of the community is a matter on which politicians and nations disagree, but the fact that they are taken seriously must refute any claim that the majority will should prevail as a basic principle. Rights are intrinsically anti-majoritarian claims, just as much as they are anti-utilitarian.

If this brief and crude sketch makes sense we need to look more closely at the distinction between values which impose constraints on goals (and for that reason figure in bills of rights to prevent the abuse of political power) and a commitment to serve the community by the pursuit of public goals. Because such values, including freedom, fairness and dignity, are discussed in terms of the principles they justify, we need a distinction between arguments of public policy - which pursue goals - and arguments of principle, which appeal to the standards governing this pursuit.

The distinction suggests an answer to Josh Zepp’s question which would also accommodate Julian Burnside’s sense that there are ‘moral questions’ which limit the right of the majority to impose its will on citizens.

In simple terms the answer argues for a duty of party unity on matters of policy, as described above, but a right (and indeed a duty) to act on conscience on issues of principle. Any full defence of this claim would, however, require a much more comprehensive treatment.

*Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and and international law.

• Max Atkinson in Comments: I agree with Simon Warriner that there is a real danger Australia will go down the American path and that more independents, especially those with the ability to analyse complex political issues and explain them to the public, will help avoid this risk. I have in mind members like Nick Xenophon and Andrew Wilkie, but would add Greens leader Richard di Natale as exemplary in both respects. I cannot see this happening because the two-party system thrives on polarising public opinion, with each side of politics - aided by the media - exaggerating the crimes and misdemeanours of the other, the result being that most people now vote for the least worst party.