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Citta Hobart Pty Ltd and Anor v Cawthorn

Cassy O'Connor MP  -  Thursday, 11 November 2021

Tags: Parliament, Disability, Anti-Discrimination Act

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Speaker, I want to talk about a David and Goliath battle which has very significant consequences for anti-discrimination legal frameworks here in Tasmania and around the country. It relates to the precinct in which we work, Parliament Square.

I am going run through a bit of a time line here and then I am going to ask the Attorney General to explain herself and the Government's actions in relation to Citta Hobart Pty Ltd and Anor v Cawthorn which is now before the High Court of Australia.

In 2016, the Premier's Disability Advisory Council asked for a briefing from Treasury on the disability compliance - the access - that would be available in the Parliament Square precinct. PDAC, as it is known, was reassured that the building would be accessible. As it turns out, it was not. On 12 December 2016, disability advocate and pensioner David Cawthorn took a complaint to the Anti-Discrimination Commissioner. It was not until May 2019 that it was referred to the Anti-Discrimination Tribunal. However, a week before the hearing, developer Citta and the owners argued that the Tribunal did not have jurisdiction as it was a matter for Commonwealth law and because there was a conflict under the Constitution. It seems like the Tribunal got frightened and subsequently found it had no jurisdiction. The message was that the Tasmanian Anti-Discrimination Act is not there for people with disability.

In December 2019, David Cawthorn decided to appeal the Anti-Discrimination Tribunal decision to the Supreme Court, despite his legal representatives cautioning him, he would probably have to pay around $100 000 in the event that he lost. David Cawthorn faced bankruptcy, yet he persisted. He did this to defend Tasmania's Anti-Discrimination Act and the people it seeks to protect.

In February 2020, Mr Cawthorn's solicitors wrote to every state and territory Attorney General in Australia and told them that his appeal to the Supreme Court raised a constitutional question and would they be interested in intervening. A letter from the Solicitor General of Tasmania assistant says to Mr Cawthorn's legal representative, Ben Bartl:

Dear Sir,

David Cawthorn v Citta Hobart Pty Ltd and Anor.

On behalf of the Attorney General of Tasmania, I acknowledge receipt of your notice under Section 78(b) of the Judiciary Act of 1903, dated 13 February 2020 in relation to this matter.

The Attorney General does not wish to intervene in the proceedings.

So, the matter goes to the Full Bench of the Supreme Court. Following part hearing of oral submissions before the Full Bench, Mr Cawthorn's solicitors again wrote to state and territory Attorneys General to inform them his appeal raised constitutional questions and would they be interested in intervening. Subsequently, there was another letter written on behalf of the Attorney General, which makes it clear on 15 May 2020, that the Attorney General ‘does not wish to intervene in the proceedings’.

The Full Bench of the Supreme Court - Chief Justice Blow, Justice Wood and Justice Estcourt - found that the Anti-Discrimination Tribunal did have jurisdiction. Despite all the odds being stacked against him including a millionaire property developer and Anti-Discrimination Tribunal decision and the Attorney-General refusing to intervene in support of our Anti-Discrimination Act, David Cawthorn won unanimously; three-nil, with Tasmania's three most senior members of the Supreme Court finding that the Tribunal could hear the case.

What happens next? In February 2021, Citta and Anor, rather than going back to the Tribunal, filed a notice with the High Court seeking special leave to appeal the full bench of the Supreme Court decision. The decision was in favour of the people with disability having a right to have their matters heard in the state Tribunal. What did Citta say? This should send a shiver down the spine of every Tasmanian living with a disability. Citta said it is undertaking a building development in Hobart but it said:

Citta and the landowner contend that the state disability discrimination provisions under which the complaint was made were directly or indirectly inconsistent with this federal scheme and therefore invalid pursuant to section 109 of the Constitution.

The key words there - the state disability discrimination provisions are invalid. That was the argument of the multimillionaire developer and the owner of this building. What happens shortly after the developer and the millionaire lodge the special leave to appeal to the High Court? What do you know? Notice of intervention:

(1) The Attorney-General of Tasmania gives notice of the Attorney-General's intervention in this preceding under section 78A of the Judiciary Act 1903.

(2) The Attorney-General intervenes in support of the position of the applicants.

(3) The Attorney-General of Tasmania is represented by the Solicitor-General of Tasmania.

We have an Attorney-General here on behalf of the Government of Tasmania who would not intervene to support a disability pensioner and defend the Anti-Discrimination Act, but was happy to intervene in support of a developer, a multimillionaire owner of the Parliament Square Precinct and against the interests of Tasmania's Anti-Discrimination Act 1998 and against the interests of the people it seeks to protect.

It is perverse and baffling that Tasmania's Attorney General is backing a corporation and a millionaire owner arguing that the state's disability discrimination provisions are invalid. The consequences for our discrimination protections are significant, they are profound. They relate to disability access to premises, education, transport and insurance.

The Attorney General needs to come in here and explain herself because we have asked questions about this before on behalf of Mr Cawthorn and Tasmanians living with a disability. The explanation she gave was that because there was uncertainty that is why she joined the High Court Appeal. She joined in support of the developer and owner of the Parliament Square Precinct but she would not support Mr Cawthorn or Tasmanians living with disability and Tasmania's Anti-Discrimination Act.

The High Court begins hearing this in February/March next year. This is an outrageous betrayal of Tasmanians with disability and our Act. I call on the Attorney-General to explain herself.