Implied rights
1. The federal law restricting political advertising in the six months before a federal election was found by the High Court to be unconstitutional in 1992 because sections 7 and 24 of the Australian Constitution provide for the election of the upper and lower houses of federal parliament, and the Court found that a freedom of political communication was implied by this. The Court found that a representative government could only be achieved if the people could cast an informed vote; because it was not possible to be informed if political discussion was restricted, the federal statute restricting political advertising in the six months before a federal election was unconstitutional
2. In Kruger v Commonwealth, the High Court considered whether a freedom of movement was tied up in the freedom of political communication.Students might refer to the case brought by Kruger and the other plaintiffs arguing that involuntary detention and removal from ancestral culture infringed on an implied right to freedom of movement flowing from the implied freedom of political communication. Students might suggest that association and movement are inherent in political communication. Interestingly, a minority judgment of three out of seven justices did find in favour; the dissenting judgments of Gaudron, Toohey and McHugh JJ all held that there was an implied right to freedom of movement incidental to the implied freedom of political communication.Arguing against the notion that the implied freedom of political communication extends to a freedom of movement, students might suggest that political communication does not necessarily require association and/or movement.
3. In Kruger v Commonwealth, the High Court decided that the implied freedom of political communication does not extend to a freedom of movement.
4. The composition of the Court changed slightly between the ACTV Case and the Kruger Case (progressive members of the High Court had retired), as had the party in Government in federal parliament (the Labor Government had been replaced by a conservative Liberal National Government). The members of the High Court and the political climate may have impacted on the ability or willingness of the Court to check the power of parliament – the Court took a broader construction in the ACTV Case and then were unwilling to expand this in the Kruger Case.