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Citta Hobart Pty Ltd and Anor v Cawthorn Follow-up

Cassy O'Connor MP  -  Thursday, 25 November 2021

Tags: Disability, Anti-Discrimination Act


We have here the notice of filing in the High Court of Australia lodged by Citta Hobart Pty Ltd and Anor. Under the facts, showing the matter is one to which section 76B applies, it states:

Citta and landowner contended that the state disability discrimination provisions under which the complaint was made were directly, or indirectly inconsistent with this federal scheme -

That is, the federal disability access scheme.

and therefore invalid.

In your letter to the High Court, it states -

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

The applicants are Citta Hobart Pty Ltd and Parliament Square Hobart Landowners Pty Ltd. Given that you have joined the High Court case in support of the position of the applicants, is it your position that the relevant state discrimination provisions are invalid?



Mr Speaker, can I make it very clear that it would not matter who the appellant was. We are intervening on a matter of law. Appeal cases are on matters of law. It is important that I correct some of what Ms O'Connor has said in this place, particularly in her adjournment speech. It touches on the comment that she has made now. Ms O'Connor suggested in her adjournment speech that the Anti Discrimination Tribunal, and I quote -

Got frightened and subsequently found it had no jurisdiction.

Ms O'Connor - Well, the Full Bench of the Supreme Court sort of agreed.

Ms ARCHER - An odd comment in itself. This is scurrilous. It manifests a lack of understanding about the principal matter in which a tribunal must act. Its first duty is to determine its own jurisdiction -

Dr Woodruff - It has nothing to do with the question.

Mr SPEAKER - Order.

Ms ARCHER - Ms O'Connor referred to the Anti-Discrimination Tribunal. The tribunal's reasons disclosed that that is what it did.

Ms O'CONNOR - Point of order, Mr Speaker, on relevance. I have not asked about the tribunal. What I have asked you is if it is the Attorney General's position that the state's anti discrimination provisions are invalid, which is the applicant's position.

Mr SPEAKER - I do not uphold the point of order. The Attorney-General has the opportunity now to answer the question.

Ms O'Connor - She popped up a straw man.

Mr SPEAKER - Order.

Ms ARCHER - Ms O'Connor, I have answered in a lot of detail this morning why we are intervening in this matter in -

Dr Woodruff - This is a different question.

Ms ARCHER - In relation to the question that Ms O'Connor has now put, I have answered why we have intervened. I have answered that it is in relation to the principle that has arisen as a result of the decision of the Full Court of the Supreme Court. There is an important issue before the High Court and that is whether or not the Full Court's decision requires our state Anti Discrimination Tribunal to exercise federal judicial power, which may be unconstitutional.

Left unanswered our state's tribunal, in particular now our TASCAT, may routinely exceed their jurisdiction bringing about confusion, uncertainty, and disappointment among parties. My intervention in this matter is for the sole reason of ensuring that the state's institutions act lawfully.

Dr Woodruff - Why did you not join with the defendant? That is what no-one can understand.

Mr SPEAKER - Order.

Ms ARCHER - Because the appeal case is the appellant. It is Citta Group. I have just said, Mr Speaker, it would not matter who the appellant was; we are not siding with the Citta Group, we are intervening on a matter of law.

Members interjecting.

Ms O'CONNOR - Point of order, Mr Speaker.

Mr SPEAKER - Ms O'Connor, before you start, please, silence, so I can hear.

Ms O'CONNOR - I believe the Attorney General is at risk of misleading the House because this is a High Court document that says she joined in support of the developer.

Mr SPEAKER - It is not a point of order.

Ms ARCHER - Because the developer is the appellant. It is the same as saying we support the appellant, as in their proceedings, not their case. The proceedings. Can I make that clear? I am really reluctant to say this but I am dumbing it down now. We are not supporting their case. We are supporting the action, that is, the proceedings because they are the appeal proceedings on a matter of law which we need the High Court to rule on so that our state tribunals know that they are not exceeding their jurisdiction or in the event they do exceed their jurisdiction.