Implied rights

  • Implied rights are those which are not specifically stated in the Constitution, but have been found by the HC to have been implied in the Constitution.
  • It is often said that these rights have been intended by the writers of the Constitution to exist, but not explicitly stated in the Constitution.


  • Freedom of political communication (ACT, Theophanous, Lange)
  • Right to legal representation (Dietrich v the Queen 1992)

Freedom of political communication (sometimes termed free speech)

Australian Capital Television v. Commonwealth 1992

  • The C’th legislated that TV and radio stations could not broadcast political content in the last few days of an electoral campaign.
  • HC struck this legislation down, as it was incompatible with implied rights found in the Constitution –
  • s 7 and 24 which stated that Parl must be directly chosen by the people.
  • This implied that people would be free to vote; and therefore politically express ourselves

Theophanous v. Herald and Weekly Times 1994

  • Theophanous, a federal MP, sued the newspaper for defamation: publishing a letter which criticised his performance and capacity as an MP.
  • HC held that the freedom of political communication extended towards discussing the performance of MPs, not just political issues.

Lange v. ABC 1997

  • The High Court overturned its decision in Theophanous, stating that newspapers could be sued for defamation, except when the editor has reasonable evidence to believe what the alleged defamatory material to be true.
  • To classify as political speech, it must be relevant to public opinion and debate, not necessarily about the personal lives of government officials.
  • Lange, then NZ PM, sued the ABC and won. HC held that yes, there was an implied right to political communication, but not when the content was defamatory.

Therefore, there is an implied right to freedom of political communication in the Constitution, stemming from the provisions in the Constitution which allow for responsible and representative government.

Right to legal representation

Dietrich v. the Queen 1992

  • Dietrich was indicted for drug trafficking in the Victorian SC. He could not afford legal representation, but did not want aid from Legal Aid representatives.
  • The SC refused his application to delay the trial until he found suitable representation, and found him guilty.
  • In the HC, the majority found that, if the accused party applies to stay proceedings until legal representation can be granted, it should be granted.
  • The conviction must be overturned if the application is refused, and the trial is deemed unfair.

Hence there is an implied right to legal representation stemming from s 80 and Chapter 3 – as a jury trial assumes that the accused would have adequate representation, as well as to protect the rule of law/natural justice.



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