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Citta Hobart Pty Ltd and Anor v Cawthorn

Cassy O'Connor MP  -  Thursday, 25 November 2021

Tags: Disability, Anti-Discrimination Act


On the last sitting Thursday, on the adjournment, I asked you to explain why you twice refused to help a disability advocate, David Cawthorn, defend the Anti-Discrimination Act 1998 in the Supreme Court, at potentially huge financial cost to himself, yet once the developer took the Parliament Square dispute and decision to the High Court, you joined in support of the property developer and owner.

You have not taken the opportunity to explain yourself, so we will give you one now. This case, Citta Hobart Pty Ltd & Anor v Cawthorn, has huge implications for state anti-discrimination acts and the people they seek to protect. When we asked you about this matter earlier this year, you pointed to a legal uncertainty as a reason for the state to join as a party to the case in the High Court. However, the question remains: why did you join in support of the developer and Parliament Square's owner, who are arguing the relevant state anti-discrimination provisions are invalid, but not Mr Cawthorn, who has joined us in the Chamber today?



Mr Speaker, I thank the Leader of the Greens for an opportunity to clarify my position, the Government's position and, indeed, the law on this. Clearly Ms O'Connor has not read the annual report of the Solicitor-General, because he set out quite clearly the circumstances in which he gave advice to me, and why this course has been embarked upon.

While I have taken no pleasure - and I acknowledge Mr Cawthorn is here today, who I have said in this Chamber happens to be a friend of mine -

Ms O'Connor - Why did you not explain your position to your friend?

Ms ARCHER - I would really like to be heard in silence for this, because it is an opportunity for me to again put on the record the facts, and the law as well.

I have taken no pleasure in intervening in the case to which Ms O'Connor has referred. As the First Law Officer of the State, sometimes these difficult decisions need to occur, and I act apolitically. That is the role of the First Law Officer of the State. The Solicitor-General is the Second Law Officer of the State, and regularly seeks my instructions to intervene on matters of law.

It is not the case that we are intervening to support the development. I am intervening, based on the Solicitor-General's advice, to clarify an important constitutional point about the powers of state tribunals and the effects of Commonwealth laws. Indeed, the Solicitor-General has said so in his annual report, as I alluded to, and I will detail -

Ms O'Connor - You joined in support of the applicant.

Ms ARCHER - that for the benefit of the House.

Mr SPEAKER - Ms O'Connor, order.

Ms O'Connor - I am worried that the Attorney-General has misled the House.

Ms ARCHER - I have not misled the House. If Ms O'Connor could listen for a change and stop interjecting.

The Government will always remain committed to working with people with disability - I have demonstrated that throughout my entire parliamentary career - as well as their families, their carers, their disability providers and the wider community to build a more equitable, inclusive and accessible state for all Tasmanians.

We have to ensure that our laws in this regard are interpreted correctly so that there is no confusion and so that they are interpreted to the full benefit of those living with a disability. It is critical that our laws are interpreted correctly. Such action has been necessary at the very least to provide clarification to ensure our laws are interpreted correctly. As is consistent with -

Ms O'CONNOR - Point of order, Mr Speaker. Mr Cawthorn is entitled to an answer to understand why the Attorney-General joined in support of the developer and not Mr Cawthorn. That is the question.

Mr SPEAKER - Ms O'Connor, you have put the question to the minister. I do not uphold your point of order. The Attorney General is answering the question and she should be heard in silence.

Dr Woodruff - And she is restating what she has said numerous times.

Ms ARCHER - Dr Woodruff can withdraw that. She just said I am misleading the House. I am not.

Dr Woodruff - I said she has made that statement numerous times. Those were my words.

Mr SPEAKER - Nobody should be interjecting and nobody should be explaining what their interjection was. The Attorney General has the call. I expect the rest of her answer to be heard in silence. The next person who interjects will be asked to leave the Chamber.

Ms ARCHER - Thank you, Mr Speaker. As is consistent with section 8(c)(i) of the Constitution Act 1924 and the rule of law, I will always exercise the powers of Attorney General with the high standards of integrity and act apolitically when required.

I intervened in an application to the High Court of Australia by Citta for special leave to appeal a decision of the Full Court of the Supreme Court of Tasmania. The High Court has granted Citta leave to appeal. In doing so, the court noted that the appeal raised an important question of national significance and that Citta case was reasonably arguable. Accordingly, I am intervening in the appeal proper.

There is an important issue currently before the High Court. That is, whether the full court's decision of our Supreme Court requires our state Anti-Discrimination Tribunal to exercise federal judicial power, which may be unconstitutional. I will repeat that: which may be unconstitutional. Left unanswered, state tribunals may routinely exceed their jurisdiction, bringing about confusion, uncertainty and disappointment amongst parties before them as well as increased appeals.

There are important constitutional issues involved in this appeal which, as the High Court has noted, are of national significance. Often many states intervene on the same proceedings for this purpose so that they can get clarity for their own jurisdictions.

By granting Citta leave to appeal, the High Court has recognised the importance of this issue to the fabric of our federation and the Commonwealth Constitution. My intervention in this matter is for the sole reason of ensuring that the state's institutions act lawfully. I am not, the Government is not, siding with any particular party. It is a point of law.

Ms O'CONNOR - Point of order, Mr Speaker. There is a document that says the Attorney General is joining in support of the developer. So, we need some clarity here.

Mr SPEAKER - On the point of order, again, silence.

Ms ARCHER - There are plaintiffs and defendants to an action. There are appellants and respondents. If a document has referred to me joining with Citta, it is purely in name only. It is not that we are supporting the developer. I have made it very clear that my intervention in this matter is for the sole reason for the ensuring that the state's institutions act lawfully. I am sorry I am taking up time, Mr Speaker, but it is important I get this on the record.

The state is not taking sides with respect to the merits of the case. Nor is the state attacking any of the provisions of our Anti-Discrimination Act 1998. The state's interest is limited to the important question of the correctness of the Full Court of the Supreme Court's decision by reference to the Commonwealth Constitution. The Solicitor-General's own annual report notes this.

I note there was a cheap shot by the Leader of the Greens in her adjournment speech. That is why I have not come in here and said this because I have answered these questions in question time before. I do, and I will refer to the Solicitor-General, an independent and eminently qualified legal practitioner, an independent statutory officer. He said in his annual report:

The Attorney-General accepted my advice to intervene in the special leave application in this matter as a result of concerns that the judgment of the full court of the Supreme Court did not appear to accord with the constitutional principle that a state is unable to invest the judicial power of the Commonwealth in a body which is not a court, in this case, the Anti-Discrimination Tribunal.

As was pointed out in the High Court, the case is of national significance. The special leave application has been allowed and so the matter will go on appeal to the High Court during the next reporting period. I mention the case to clarify two matters that have been misrepresented in the public domain.

This is my final point and I still quote the Solicitor-General.

The first is that the state's case does not involve an attack on the validity of the Anti-Discrimination Act. The second is that the state's case does not attack the merits of the cases advanced by either party. The state's concern is that until the Full Court's decision is authoritatively ruled on by the High Court, state tribunals would be left in the difficult position in which they are bound to follow a decision of the Supreme Court which may lead them into error and occasion inconvenience and expense to the parties.

They are the facts. Ms O'Connor either has not read that annual report of the Solicitor General, a dereliction of her duty as a member of this place, or chose to ignore it. I hope she has read it and that she simply has not understood the exact principles there.

The issue in respect of which we are intervening became apparent the first time when the Full Court of the Supreme Court published the reason for its decision. Until then there was no occasion to intervene in the proceedings before the Anti-Discrimination Tribunal or the Supreme Court or the Full Court. We are talking also about a time when it was the then attorney-general, Dr Vanessa Goodwin.