David and Goliath Battle for Inclusion

by David Cawthorn

David Cawthorn is a disability advocate and the respondent in the High Court case of Citta Hobart Pty Ltd and Anor v Cawthorn. David’s complaint is supported by the ParaQuad Association of Tasmania with legal support from the Hobart Community Legal Service and a number of barristers.

The following article was originally published in The Mercury newspaper on 24 February 2021.

For almost four and half years, a David and Goliath battle has been fought through the legal system, from Tasmania’s Anti-Discrimination Tribunal to the Supreme Court to the Full Court of the Supreme Court and now the High Court of Australia. I am the David in this story.

At its core, the case is about ensuring equal access to Parliament Square, the $200M+ public plaza being developed behind Parliament House in Hobart. While there are two accessible entrances to the Square off Murray St and Salamanca Place, anyone coming from the Hobart waterfront to the Square would have to travel a considerable distance up these steep roads to get to them because the closest (and lowest) entry point has only a flight of stairs. We want a lift installed at this flight of stairs so that people using wheelchairs, families with prams and older people do not have to fight their way up the steep incline on Murray St or have to push an extra 250 metres around Parliament House and up Salamanca Place to access the public plaza with its open spaces and amenities.

My original complaint under state anti-discrimination law was about access to a public space and not about access to any particular building. The complaint did not resolve through conciliation so was referred to the Tasmanian Anti-discrimination Tribunal for determination. In support of my case, two Access Consultants had both prepared detailed reports and were both due to fly into Hobart to give evidence.

However, just before the Tribunal was due to hear the case, the developer argued that the Federal Premises Standards override the State Act (and therefore knock out the complaint made under that Act) and that the development as a whole complied with those Standards.

We have argued that compliance with the Premises Standards does not prohibit a state Tribunal from hearing a complaint about access to a public space and even if the Premises Standards do apply, the development does not comply with those Standards.

The Tribunal accepted the developer’s argument, deciding it could not make a determination on my complaint. We appealed to the Supreme Court which found that the Tribunal should hear the complaint and make a determination.

But the heart of the case is unlikely to be heard for some time yet, with the developer and owner appealing to the High Court against the Tasmanian Supreme Court’s decision which was 3-0 in my favour.

It is extraordinary enough in the 21st Century to have to fight for the installation of a lift for me and other people with mobility disabilities. But recently the Tasmanian Attorney-General, who has a long and proud history of supporting people with disability, intervened in the High Court on behalf of the State.

To my surprise, the State is not defending the Tasmanian Act or even our Supreme Court’s decision. It is not defending equal access for all Tasmanians and it is not defending my right to have the case dealt with by the Tasmanian Tribunal. Rather, it is supporting the multi-million-dollar developer and Parliament Square’s multi-millionaire owners. Alarmingly, the State of Tasmania will be arguing before the High Court of Australia that Tasmania’s bedrock protections in the Anti-Discrimination Act 1998 (Tas) should be weakened.

An important consideration for me, as the person with disability making a complaint, is the imbalance of financial power and the risk to me of having to stump up the respondents’ legal costs which could run to tens or hundreds of thousands of dollars.

In her most recent Annual Report, Tasmanian Anti-Discrimination Commissioner Sarah Bolt said the developer’s challenge set a dangerous precedent because some complainants “will have no avenue to have their complaints heard” and that it “creates a real barrier to access to justice”. It beggars belief that our Attorney-General is acting against the advice of the State’s discrimination law officer and against its own anti-discrimination law: a law that people with disability use to ensure their rights to equality.

It is simply incomprehensible that the State Government of Tasmania would support the position of the developer which would result in a weakened State discrimination law.

This case has far wider implications for the future operation of state and territory anti-discrimination laws. If the High Court agrees with the developer, the access door will be closed to many because of the difficulties facing discrimination complainants under the federal system.