There is an inconsistency in the disability discrimination laws, the appeal says
A Tasmanian discrimination case concerning the accommodation of people with disabilities has reached the High Court.
Both the Commonwealth and Tasmanian parliaments have anti-discrimination laws to protect people with disabilities, but the matter in Citta Hobart Pty Ltd & Anor v. Cawthorn attempts to rely on the Commonwealth legislation in proceedings brought under Tasmanian laws.
David Cawthorn has paraplegia and needs a wheelchair for mobility. Citta Hobart Pty Ltd is the developer currently building Parliament Square, a major project in the City of Hobart, which sits on the River Derwent on the southern edge of Tasmania.
Parliament Square will have three entrances upon completion. Both the developer and the landowner, Parliament Square Hobart Landowner Pty Ltd, propose that one of those entrances will provide access to the site only by stairs.
Cawthorn and the Paraquad Association of Tasmania Incorporated made a complaint of discrimination in respect of the stairs-only entrance under Tasmania’s Anti-Discrimination Act 1998. Cawthorn alleged direct discrimination under the Act in connection with the provision of facilities, goods and services, and indirect discrimination on the basis that the entrance was “a condition, requirement or practice” that was unreasonable because it would disadvantage him and other people who share his disability.
The complaint was referred to the Anti-Discrimination Tribunal. Both the developer and landowner argued that they had complied with the applicable Commonwealth legislation, resulting in the tribunal having no power to make any order adverse against them.
The tribunal said that since the defense raised a Constitutional matter, it involves the exercise of federal jurisdiction. Thus, it held that it had no jurisdiction and dismissed the complaint.
On appeal, the Full Court of the Supreme Court of Tasmania ruled that the tribunal was incorrect in dismissing the case. The Court then remitted the matter to the tribunal for determination according to law.
By special leave, the developer and the landowner have appealed to the High Court.
The case is awaiting hearing.
