Year 10 Human Rights & the Law

Topic: Implied Rights

eg High Court implies the freedom

of political communication
SCENARIO Australian Capital Television Pty Ltd v Commonwealth (1992} 177 CLR 106
In this case, the High Court was required to determine whether the Commonwealth
Parliament's Political Broadcasts and Political Disclosures Act 1991
(Cth] - which banned
individuals and organisations from making political broadcasts and
from advertising
on radio and television during election campaigns - was unfair
and in breach of the
Australian Constitution.
The justices of the High Court ruled that while our Constitution does not expressl
y mention
or protect the right to freedom of speech, it does (in sections 7 and 24)
recognise that the
representative Australian parliamentary system is based on the principle of representative
government
government,
a political system
which requires freedom of political communication. In accordance with
the principle of
in which the people representative government, the parliament must make laws that reflect
the views and values
elect members
of the people. This means that Australians should be able to advertise and
of parliament to discuss their views,
represent them policies and opinions in a public forum (e.g. on television or radio} prior
to an election so that
in government voters can make an informed decision when electing the government.
Once a right is implied by the High Court, it may be made clearer or
confirmed in later
cases. For example, the freedom of political communication implied in the
Australian Capital
Television case was considered again in two High Court cases: Theopha
nous v Herald &
Weekly Times Ltd [1994] 182 CLR 104 and Lange v Australian Broadcasting Corporat
ion (1997)
145 ALR 96. These cases confirmed the existence of the right to political
communication.
The Theophanous case extended the implied right to allow comment
s about members of
parliament and their suitability for office. The Lange case went further,
stating that the right
to freedom of political communication exists at all times, not just
prior to an election. This
right is not a general right to free speech, but only a right to free communi
cation on matters
relating to political issues.