Tribunal officially dismisses Louise Elliot ‘inciting hatred’ complaint in wake of constitutional argument

A complaint against councillor Louise Elliott, alleging she incited hatred of trans people at a Parliament Lawns event, has been officially dismissed after she launched a constitutional defence.

Louise Elliot. Picture: Nikki Davis-Jones

A complaint against outspoken Hobart councillor Louise Elliott, which alleged she incited hatred of trans people at a Parliament Lawns event, has been officially dismissed after she launched a fierce defence based on Australia’s constitution.

This week, the Tasmanian Civil and Administrative Tribunal dismissed the complaint after it was withdrawn by complainant Ivy Hindle, and following a complex jurisdictional discussion that came from Ms Elliot raising federal, constitutional defences.

Ms Hindle first lodged the complaint against Ms Elliot on March 1 last year, alleging she “incited hatred, serious contempt or severe ridicule of people who identify as transgender” in a speech given at Parliament Lawns and later in a post uploaded to Ms Elliot’s Twitter account.

While the tribunal did not detail the nature of the allegations, Ms Elliot previously said a person complained after she said “transwomen are transwomen and remain biological men”.

Hobart City Councillor Louise Elliot. Picture: Chris Kidd

In its newly-published decision, the tribunal said following an investigation, the Anti-Discrimination Commissioner referred the complaint to the tribunal.

However, before the matter reached a substantive hearing, Ms Elliot – who said she would take the case to the High Court if necessary – launched a strong constitutional defence.

She argued the Tasmanian Anti-Discrimination Act was in conflict with Commonwealth laws, by infringing the “implied freedom of political communication arising under the constitution”.

Ms Elliot also argued the Tasmanian laws conflicted with the Commonwealth Sex Discrimination Act, and therefore could not apply.

After Ms Elliot began raising the constitutional arguments, Ms Hindle advised the tribunal she wished to withdraw her complaint.

However the tribunal said it didn’t have the power to determine the withdrawal as it didn’t have jurisdiction, given constitutional arguments had been raised.

Deputy president Richard Grueber said given the tribunal didn’t have jurisdiction to dismiss the complaint, it would need to transfer it back to the Magistrates Court of Tasmania to do so.

However, Deputy Chief Magistrate Michael Daly immediately remitted the matter back to the tribunal.

He said the Magistrates Court did not have the power to put itself in the tribunal’s shoes to dismiss the complaint, and found the tribunal itself did have jurisdiction.

Mr Grueber said he was faced with a “dilemma” given it was clear that the tribunal did not in fact have jurisdiction.

He said his only real option was to dismiss the complaint for want of jurisdiction.

He also ordered each of the women to cover their own costs.

In a separate matter, Ms Elliot said she had also had a decision to suspend her for 30 days in January set aside, following an adverse finding in a Hobart City Council code of conduct complaint.

She said she served 16 days of the suspension until she successfully applied for a stay on the remainder, arguing she hadn’t been afforded procedural fairness.

The nature of the complaint has not been revealed.

Ms Elliot said the situation was an example of the “many flaws in the code of conduct framework”.

“I’ll always fight hard for fairness and stick up for what I believe is right,” she said.

The complaint will be considered by a new code of conduct panel.

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Originally published as Tribunal officially dismisses Louise Elliot ‘inciting hatred’ complaint in wake of constitutional argument