When Parliament and the Courts Disagree

Parliamentary sovereignty

Parliament is the supreme law-maker. A validly enacted Queensland Act overrides the common law and earlier statutes, and courts cannot strike it down merely because they consider it unwise or unfair. The court's role is to interpret and apply the law, not to substitute its policy view.

Judicial review

Judicial review operates in two ways here:

1. Statutory interpretation. Courts construe broad discretions consistently with common law rights and presumptions. A discretion is rarely truly 'uncontrolled' - the phrase 'reasonably believes' imports an objective standard, and the purpose of the Act (protecting infrastructure) confines what can count as a relevant consideration.
2. Constitutional limits. The implied freedom of political communication is a limit on Commonwealth legislative power. It does not apply directly to a State Act in the same way, although State laws can be invalid if they burden the Commonwealth's system of representative government. That argument is therefore weaker than the first.

Assessing the arguments

• Uncontrolled discretion - reasonably strong. 'Reasonably believes' requires an objective basis, and the failure to give reasons makes the belief hard to test. A court would likely read the section as requiring the officer to consider the assembly's purpose, the likelihood of actual disruption, and less restrictive alternatives.
• Implied freedom - weaker. The group would need to show the law effectively burdens communication about government or political matters and that the burden is not reasonably appropriate and adapted to a legitimate end. Public safety and infrastructure protection are legitimate ends, so the argument is unlikely to succeed outright.

Conclusion. The first argument is the more promising route; the second is legally available but harder to sustain.

If the court finds s 13 misapplied (not invalid)

The Act remains valid. The court would quash the refusal and remit the matter, or order that the permit be granted. The group's practical remedy is a lawful permit, and the police must reconsider according to the court's interpretation.

If the court finds s 13 invalid

This is unusual. A State court cannot invalidate a State Act for policy reasons. It could only do so if the Act exceeded the State's constitutional power or was inconsistent with Commonwealth law under s 109 of the Constitution. Assuming no such inconsistency, the more likely outcome is a reading down - the court interprets s 13 narrowly so it operates within power, rather than striking it out.

Parliament's options

• Amend the Act to insert express criteria, a requirement to give reasons, and a review right to the Queensland Civil and Administrative Tribunal. This is the cleanest response and shows Parliament responding to judicial interpretation.
• Restore the original position by legislating to reverse the court's interpretation. Parliamentary sovereignty permits this, but it carries political cost and may attract further challenge.
• Do nothing, accepting the narrowed interpretation.

The group's options

• Seek internal review or tribunal review if the amended or interpreted provision permits it.
• Pursue judicial review of the original decision on administrative law grounds (relevant considerations, failure to give reasons where required, unreasonableness).
• Lobby Parliament for amendment, and use the media and public debate - the political rather than legal route.

Key point. The case illustrates that Parliament and the courts are in a continuing dialogue: courts interpret, Parliament can respond, and the final word on policy rests with Parliament, subject only to constitutional limits.