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Citta Hobart Pty Ltd & Anor v Cawthorn - Tasmanian Government Intervention

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 3 March 2021

Tags: Disability, Discrimination


Attorney-General, your Government has consistently taken questionable sides in High Court of Australia cases. You have taken legal action against public housing tenants in the past versus Housing Tasmania matter and the protection of Aboriginal heritage in takayna/Tarkine. You have argued for a private development in contravention to your Government's own World Heritage Area Management Plan on a technicality.

You are now siding with a developer discriminating against people with a disability in a court case that is likely to cost more than it would to remedy the problem. Attorney-General, you have argued you are only joining the case to seek clarification on the proper interpretation of Tasmania's laws.

Why have you chosen to intervene on the side of Citta Property Group in a High Court case and not on the side of Mr Cawthorn and in support of your own laws? Why do you need to intervene at all when the court will make a proper interpretation of Tasmania's laws clear, regardless of your intervention? It seems to be your contention that the state should intervene in every case that hinges on an interpretation of Tasmania's laws. If it is not, what makes this case so special? Why are you supporting the side of a corporation that is refusing to provide reasonable access to a public building to people with a disability?



I welcome this opportunity to explain to the House the exact role of the Attorney-General. This particular matter, and indeed many matters which I need to put my name to by way of intervention of High Court matters, does not give me any pleasure at all. It is one of the most difficult parts of the role of the Attorney-General, but there is an apolitical role of the Attorney General and this is one of them.

No more evidence of me acting apolitically is the fact that Mr Cawthorn is actually a personal friend of mine, so it does not give me any great pleasure at all - that is why I said that publicly - but it is critical that the Government ensures Tasmania's laws are interpreted appropriately.

I will not be lectured to by the Greens about the role I carry. I will take advice from the appropriate source as to when it is appropriate to intervene. Ms O'Connor has been in Cabinet and I assume she understood then, and as she would now, the role of the Attorney-General as First Law Officer of the Crown and that I need to exercise both a political and non-political function. This includes the non-political role of needing to intervene in such proceedings to seek clarification from the courts on the proper interpretation of Tasmania's laws, represented by the Office of the Solicitor-General.

Such action is necessary, at the very least, to provide clarification to ensure our laws are interpreted appropriately. Our laws are not flawless. How many times do I come into this place with law reform, because of the need for clarity in the law? That is the whole purpose of matters going to court as well, as is consistent with section 8(c)(1) of the Constitution Act 1924 and the rule of law. I will always exercise the powers of the Attorney-General with the highest standards of integrity and act apolitically when required -

Ms O'Connor - Except when it comes to transgender law reform where you were a disgrace.

Ms ARCHER - Madam Speaker, I actually do take personal umbrage at that. Ms O'Connor said I was a disgrace.

Ms O'Connor - Statement of fact. The way you politicised transgender law reform was appalling and harmful.

Madam SPEAKER - Order, Ms O'Connor. Could you withdraw that comment?

Ms O'CONNOR - Thank you, Madam Speaker. I withdraw it, other than to say it was a statement of fact.

Madam SPEAKER - That is not a withdrawal. I will take a ruling.

Ms O'CONNOR - I withdraw it.

Madam SPEAKER - Thank you.

Ms ARCHER - Clearly from that, Ms O'Connor wants to get personal on these matters.

What was actually disgraceful was the fact that the matter was brought on for debate in this House when I could not be here because my mother had passed away. Do not talk about how disgraceful that whole debate was.

Back to the subject in point - as I said, I take no pleasure on this occasion, and indeed on many occasions, in needing to act apolitically in my role as Attorney-General. I have explained why in this case I needed to intervene for the purpose of clarity and the interpretation of the law.

Dr Woodruff - Why don't you wait to find out what the judgment is? Why are you doing this?

Ms ARCHER - I am not taking sides.

Dr Woodruff - You are taking a side. You are supporting Citta Group.

Ms ARCHER - I have intervened so that the state can argue the case. The decision of the full court may require the Anti-Discrimination Tribunal to exercise federal judicial power which is unconstitutional and it is this issue that needs determining. To be clear, my intervention in this matter is for the sole reason of ensuring that the state's institutions act lawfully.

Whilst not a common practice, these actions are necessary from time to time to ensure our laws are clarified. It is not a reflection on the merits of Mr Cawthorn's case at all. The fundamental principle is that the Crown must obey the law and if there is any doubt about the law, it should seek to ascertain that, if necessary through the courts. That is what I am doing.

The laws of Tasmania apply in the context of the federal system, subject to the Commonwealth Constitution. Like any other administrative tribunal, the jurisdiction of the Anti-Discrimination Tribunal depends on the statute that governs it - in this case, the Anti-Discrimination Act 1998. However, there are principles of constitutional law that limit the reach of the tribunal's jurisdiction. In the present case the question of the limits of the tribunal's jurisdiction arises in the context of the applicants for special leave having raised in their defence before the tribunal that their compliance with the federal law is sufficient to meet their obligations. That question raises a legal controversy about whether the tribunal is required in the present case to make a decision that involves the impermissible exercise of the judicial power of the Commonwealth.

The state does not have legislative power to invest its tribunals with Commonwealth judicial power, so the state considers that there is sufficient doubt about the reasoning of the full court of the Supreme Court to warrant the attention of the High Court of Australia to finally resolve this matter. I reiterate: the object of the intervention in the application for special leave is to encourage that outcome, not to take sides with the applicants for special leave on the particular merits of their case. It never is and it never will be.

Until the matter is finally resolved by the High Court, the tribunal is bound to follow the decision of the full court; if the doubts the state entertains about the full court's decision are correct, the tribunal's jurisdiction to decide the present case and future matters of a similar nature will remain in a state of uncertainty. That is the point and no other on which the state would urge the court's clarification.

Our Government will always remain committed to working with people with disability, their families, their carers, disability providers and the wider community to build a more equitable, inclusive and accessible state for all Tasmanians. Ms O'Connor knows that I support people with disability and this is not the object of the exercise.