The High Court has shown that it is possible to develop rights not explicitly outlined in the Constitution. These rights are known as implied rights. They develop solely from High Court interpretation of the Constitution. At present, there is one implied right in the Constitution. This is the right to freedom of communication on political matters.

Australian Capital Television v Commonwealth (1992) 177 CLR 106 (“Political Advertising case”)

The “Political Advertising case” (1992) saw the initial development of this right. Prior to the case, the “Political Broadcasts and Political Disclosure Act” had been implemented. It banned political advertising on radio and television during state and federal election campaigns. Australian Capital Television challenged the validity of the Act. The High Court ruled that sections 7 and 24 of the Constitution guarantee a right to freedom of speech on political matters and public affairs. These sections establish a representative system of government. The High Court made this ruling on the basis that freedom of speech on political matters is essential for the public to make an informed vote, and therefore essential to fulfill the requirements of representative government.

This right was later confirmed in Theophanous vs. Herald and Weekly Times.

See also:

Constitutional protection of rights

Structural protections

Express rights