Parliament Square developer takes staircase stoush against disability advocate to High Court
There are calls for Attorney-General Elise Archer to explain why she chose to intervene in a High Court case “against the interests of Tasmanians with disability”.
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Attorney-General Elise Archer owes the public a better explanation for why she is backing developers trying to avoid adding extra disability access to Parliament Square, the Greens say.
Citta Group last month filed an application with the High Court for leave to appeal against a Supreme Court of Tasmania decision that had ruled in favour of a wheelchair user seeking better access.
David Cawthorn is fighting the developers to modify a Murray Street stairway entrance.
The state government is backing the Citta Group.
Documents with the High Court note that “the Attorney-General intervenes in support of the position of the Applicants”.
Ms Archer said on Wednesday that the case brought her no joy.
“While I have taken no pleasure in intervening in Citta Hobart Pty Ltd & Anor v Cawthorn High Court of Australia, as First Law Officer of the State, sometimes these difficult decisions need to occur,” she said.
“Such action is necessary to, at the very least, provide clarification to ensure our laws are interpreted appropriately.”
Greens leader Cassy O’Connor said the government’s position was hard to fathom.
“Minister Archer needs to explain why she chose to intervene in the High Court case and back the developer’s argument, against the interests of Tasmanians with disability,” she said.
“Why is the State arguing that weaker Federal law should be applied to the State’s Anti-Discrimination Act 1998?
“Surely the Attorney-General of Tasmania should be standing up for the rights of people with disability, and be backing in state law?
“All Tasmanians should be able to access public buildings. It is very difficult to understand why Minister Archer has chosen this path, when she knows of the potential impact on Tasmanians with disability.”
'This sets disability rights back a couple of decades'
ATTORNEY-General Elise Archer says she has taken “no pleasure” intervening in a High Court case against a disability advocate battling for lift access at a $200 million Hobart development.
Ms Archer has taken the side of Parliament Square developer, Citta Hobart, which is fighting a legal challenge to modify its stairway entrance at Murray Street so people with disabilities could have easier access.
David Cawthorn, who has paraplegia and relies on a wheelchair for mobility, says he is “gobsmacked” by the Attorney-General’s move, which he says sets “disability rights back a couple of decades”.
Ms Archer said it had been a difficult decision, but necessary “to seek clarification from the courts on the proper interpretation of Tasmania’s laws”.
She added the Tasmanian government was committed to working with people with disabilities to “build a more equitable, inclusive and accessible state”.
Citta last month filed an application with the High Court for leave to appeal a Supreme Court of Tasmania decision that had ruled in Mr Cawthorn’s favour.
The court ruled there was no inconsistency between relevant federal and state legislation, overturning a decision by the Anti-Discrimination Tribunal not to hear the dispute, based on jurisdictional issues.
That decision meant the tribunal would have been forced to hear Mr Cawthorn’s case this year, but that could all change if the issues are thrashed out before the nation’s highest court of appeal.
If the High Court appeal does progress, it is expected high-profile silk Ron Merkel QC will act on Mr Cawthorn’s behalf.
Mr Cawthorn said he was surprised the Tasmanian government was not acting to defend the Tasmanian legislation or back up the Supreme Court of Tasmania decision.
“We’re all just gobsmacked, we can’t believe they’re not supporting their own state Act, and also three of the top legal minds in the state, saying they’ve got it wrong,” he said.“It’s just bizarre, the amount of money they’re spending on this case, they could have put two lifts in.”
Mr Cawthorn has argued it was unfair wheelchair users should be forced to use another, level access point known as “the arch” further up the hill on Murray Street or a third point about 150m away on Salamanca Place.
The landmark development in the block behind Parliament House includes government office spaces, open public areas, shops, cafes, a luxury Marriott hotel named The Tasman, and three entrances.
Mr Cawthorn first lodged a complaint with the Equal Opportunity Commissioner in 2016 that people with spinal cord injuries who rely on wheelchairs for mobility would be unable to use the access as they were unable to climb stairs.
He said it amounted to “direct discrimination” against people with disabilities.I am the David in this story, and I am supported by the ParaQuad Association of Tasmania Inc.
DAVID CAWTHORN: 'My Goliathan battle for inclusion'
February 24, 2021
FOR almost 4½ 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, and I am supported by the ParaQuad Association of Tasmania Inc.
Our case is about ensuring equal access to Parliament Square, the $200million-plus public plaza being developed behind Parliament House.
We want a lift installed near a flight of stairs so that people using wheelchairs, families with prams and older people do not have to fight their way up a steep incline on Murray St or have to push an extra 250m around the front of Parliament House and up Salamanca Place to access the public plaza with its open spaces and amenities.
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 finding that the Anti-Discrimination Tribunal must hear the case.
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 last week the Tasmanian Attorney-General, who has a long, 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 core of the case dealt with by the tribunal. Rather, it is supporting the multimillion-dollar developer and Parliament Square’s multimillionaire 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.
The background is that the federal government developed disability standards for access to premises.
In the case before the High Court, the developer is arguing that federal standards knock out the state Act.
We have argued all along that they don’t and the Supreme Court said we are right. The development does not comply with the standards and we want the Tasmanian Tribunal to decide.
An important consideration for me, as the person making a complaint, is the imbalance of financial power.
In her recent annual report, Anti-Discrimination Commissioner Sarah Bolt, said the developer’s challenge set a dangerous precedent because complainants will have no avenue to have their complaints heard and that “creates a real barrier to access to justice”.
It beggars belief that our state is acting against the advice of its own discrimination law officer and against anti-discrimination law: a law people with disability use to ensure their rights to equality.
It is incomprehensible the State of Tasmania would argue for a weakened discrimination law.
Can the Tasmanian Government honestly say they support the rights of people like me with a disability and continue to support this Goliath-like action?
David Cawthorn is a disability advocate and the respondent in the High Court case of Citta Hobart Pty Ltd and Anor v Cawthorn.
Parliament Square developer takes staircase stoush against disability advocate to High Court
By Amber Wilson
THE developer of Parliament Square is taking its battle against a disability advocate – who wants a lift installed at the Murray Street entrance – all the way to the nation’s highest court.
Citta Property Group announced on Friday it had filed an application with the High Court of Australia for leave to appeal a decision handed down by Tasmania’s Supreme Court in December.
On Christmas Eve last year, the full court of the Supreme Court ruled in favour of David Cawthorn, who has paraplegia, overturning a decision by the Anti-Discrimination Tribunal not to hear the dispute.
The appeal decision meant the tribunal would be forced to hear Mr Cawthorn’s case – with the hearing expected to be set down for mid-2021.
But that could all now change, with Citta hoping to argue its case before the highest legal authority in the country and the ultimate court of appeal.
Citta managing director Stephen McMillan said Parliament Square – a $200 million project that is nearing completion – had been designed in accordance with the National Construction Code and federal disability access standards.
“We do not believe Parliament Square has been built in a way that discriminates against people with disability,” Mr McMillan said in a statement.
“Of the three access points to Parliament Square, it is only one which is being complained about in the anti-discrimination complaint.
“The other two access points specifically accommodate disability access.”
The entrance in question – opposite the Executive Building – provides access only by way of a staircase, which Mr Cawthorn has argued amounts to “direct discrimination” against people with disabilities.
If the case does play out in the High Court, it is expected to address a matter of law Citta describes as an “untenable conflict” between federal disability legislation and Tasmania’s Anti-Discrimination Act.
Mr Cawthorn said news of Citta’s High Court bid was frustrating and disappointing.
“We just want a fair fight, not an uphill battle with this,” he said.
“We have guessed, with what they’ve spent in legal fees, they could have put two lifts in.”
Mr Cawthorn said if the High Court heard the appeal, it was expected high-profile silk Ron Merkel QC would represent him.
Mr Cawthorn’s lawyer Ben Bartl said it was disappointing the developers had not accepted the decision of Tasmania’s Supreme Court.
“We believe the Supreme Court’s decision was correct, and we look forward to fighting this David and Goliath battle in the High Court,” he said.
Mr Cawthorn has argued it was unfair wheelchair users should be forced to use another, level access point known as “the arch” further up the hill, or a third point about 150m away on Salamanca Place.
The landmark project in the block behind Parliament House includes government office spaces, open public areas, shops, cafes, a luxury Marriott hotel named The Tasman, and three entrances.
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