Sir Maurice Byers QC, who acted for the plaintiffs, paraphrasing former Justice Isaac Isaacs argued that the principle that governments are responsible to the citizens who elect them "permeates the Constitution, forming part of the fabric on which the written words of the Constitution are superimposed," and as such, all voters should be entitled to make comment on political issues.

The Commonwealth argued that the laws enhanced rather than diminished the electoral process, because they prevented corruption, and allowed parties which did not have large amounts of money to have access to radio and television broadcasting.

They said that although some freedom of communication could reasonably be implied into the Constitution, the parts of the Act in question did not have the effect of preventing "free and meaningful elections" from taking place, and so the laws were not invalid.

The High Court agreed that the new part IIID of the Broadcasting Act had the effect of limiting the freedoms previously enjoyed by citizens to publicly discuss political matters.

Ultimately the court did not decide on this issue, although Justice Brennan said that he agreed with the Commonwealth's argument that the "free time" was not a form of property.

The court also decided that the relevant laws, contained in Part IIID of the Broadcasting Act, were invalid because there was no reasonable justification for the way they restricted the freedom of political communication.

In dissent, Justice Dawson accepted that the Constitution implied that electors must have sufficient information to make a true choice at election time.

[5] Justice Brennan, not dissimilarly, dissented because whilst accepting an implication of a freedom of political communication, he held that the legislation was tailored to address serious risks to electoral democracy.

One related to corruption, via 'covert influences' on parties through their dependency on private political donations, which risked turning 'public debate into a cloak for bartering away the public interest'.

A third, if lesser risk, related to improving electoral deliberation, since Parliament could reasonably 'make an adverse assessment of the information value of television advertising [whose] brevity tends to trivialize'.

The trend reached a high point in Theophanous v Herald & Weekly Times Ltd,[7] which found that the implied right to freedom of political communication could be used as a defence in a defamation action.