Some observers would be surprised to see Senator George Brandis in conflict with leaders of ethnic and religious communities – including Greek, Arabic, indigenous and Jewish – because he insists on re-writing Section 18c of the Racial Discrimination Act, the law prohibiting racial remarks.

Experienced politicians avoid unnecessary fights, and this was not a serious issue prior to the conviction of Andrew Bolt for comments which were essentially defamatory.

The Council of Australian Jewry, in particular, supports 18c to deter potential Holocaust deniers like Fredrick Toben, who was successfully prosecuted under this section in 2009. But Senator Brandis appeals to an argument of principle, citing the value of free speech, to draw a line between incitement to racial hatred and intimidation on the one hand, and remarks which offend abuse and humiliate.

In order to understand this one has to clarify what the section means in practice, and consider examples which might be overlooked in the debate. In its present form 18c makes it an offence for an aboriginal or a refugee from Asia or the Middle-East to say ‘f… off you white bastard’, no matter how justified the sense of grievance, or the fact that this is essentially abuse, with no intention or risk of inciting racial hatred. To prosecute in such a case would be a travesty.

One might also ask why 18c should not be extended to include hate speech which invokes the language of religious and homophobic intolerance, which also express deep-seated prejudice, adding this flavour to common abuse.Use of the criminal law in these cases has, however, been rejected in favour of less draconic ways of encouraging civic values, including education, public shaming and the law of civil wrongs.

The latter provides remedies, including punitive damages, where abusive conduct involves physical contact, however slight; it allows actions for slander, intimidation and harassment, as well as for the reckless or intentional infliction of emotional stress or shock by actions likely to and actually causing psychological injury.

But the fact this is a moral issue about the scope of the criminal law (and not about whether racial abuse is wrong) was lost when Brandis, in an unfortunate turn of phrase, spoke of the ‘right to be a bigot’; it was largely lost back in 2009 when no senior Liberal would condemn Andrew Bolt, an influential commentator, for articles which implied that light-skinned people who identified as Aboriginal did so for personal gain.

Whether or not one agrees with the Attorney-General – and polling suggests a strong majority do not – his argument for freedom of speech supports those journalists who say he has been pushing for a free vote on same-sex marriage (although he himself opposes reform of the Marriage Act). It is, after all, the same principle. So far, however, he has been reluctant to express an opinion outside the party room.

These two examples show how hard it is to judge the Liberal Party’s commitment to liberal principles – which in practice means how much they count against conservative views and the politics of pragmatism, such as avoiding dissension at any cost. But in a strong opinion piece in The Age on January 30, 2012 former Howard minister Amanda Vanstone spoke for this liberal ideal; she accused then Opposition Leader Tony Abbott of stifling debate on same-sex marriage; she also said he should allow MPs a free vote when the matter came before Parliament.

‘One of the things that really aggravates members of Parliament is when a leader announces, through the media, a decision that has been made after Parliament has risen … As there is no party-room meeting over the break, the leader’s announcement and policy position gets all the airplay and permeates the public mind. MPs who disagree with the decision rightly see the timing as a tactic to weaken them …. He should say he will look at the issue if and when it comes to Parliament. And he should give the party room the conscience vote that should never have been given away.’

Vanstone added that to refuse conscience votes was against Liberal Party tradition, which ‘prides itself on the right of members to follow their conscience’ … it is ‘a cherished Liberal principle.’ History suggests she is right; but before looking at why this principle has in recent years been more honoured in the breach, with only a handful of conscience votes in eleven years of Howard’s reign, it is useful to look at Labor’s position, which is far more repressive.

In late 2002 the SMH reported that ALP leader Simon Crean had rejected a conscience vote on Iraq, that MPs Tanya Plibersek and Harry Quick would vote according to their conscience on this ‘life and death matter’, and that ‘it took eight questions at a doorstop interview’ before Crean would clarify that members were bound by caucus. ‘Left-wing leaders’, it noted, ‘were playing down the refusal of a conscience vote … but … it could become a source of … concern if Labor leaders backed a unilateral US strike on Iraq.’

Labor, in the end, refused to support the war on the technical legal ground that the ‘second resolution’ failed to get UN Security Council assent. But we also know that no Labor (or Liberal) member would support a motion for a Senate Committee to examine the evidence alleged to support US claims of WMD, a major source of public disquiet at the time, as well as ‘left-wing’ Labor concern.

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.

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:

“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.