Cawthorn v Citta Hobart Pty Ltd

[2020] TASFC 15

[2020] TASFC 15

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Cawthorn v Citta Hobart Pty Ltd [2020] TASFC 15
PARTIES:	CAWTHORN, David
v
CITTA HOBART PTY LTD
PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD
FILE NO:	FCA 3319/2019
DECISION
APPEALED FROM:	David Cawthorn and Paraquad Association of Tasmania Incorporated v Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd [2019] TASADT10
DELIVERED ON:	23 December 2020
DELIVERED AT:	Hobart
HEARING DATE:	22 April 2020
JUDGMENT OF:	Blow CJ, Wood and Estcourt JJ
CATCHWORDS:

Constitutional Law – Operation and effect of the Commonwealth Constitution – Inconsistency of laws (Constitution, s 109) – Particular cases – Discrimination – Disability discrimination – Access to buildings.

Constitution (Cth), s 109.
Disability Discrimination Act 1992 (Cth), ss 13(3), 13(3A), 31(2)(b).
Disability (Access to Premises – Buildings) Standards 2010 (Cth).
Anti-Discrimination Act 1998 (Tas), s 16(k).
Building Act 2016 (Tas), s 11(1)(b).
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, 266 CLR 428,

Aust Dig Constitutional Law [376]

Human Rights – Grounds of discrimination – Disability or impairment – Other matters – Building access.
Disability Discrimination Act 1992 (Cth), ss 13(3), 13(3A), 31(2)(b).
Disability (Access to Premises – Buildings) Standards 2010 (Cth).
Anti-Discrimination Act 1998 (Tas), s 16(k).
Building Act 2016 (Tas), s 11(1)(b).
Aust Dig Human Rights [22]

REPRESENTATION:

Counsel:

Appellant:	R Merkel QC, S Beckett, L Hilly
Respondents:	C A Scott

Solicitors:

Appellant:	Benedict Bartl
Respondents:	Page Seager Lawyers

Judgment Number:	[2020] TASFC 15
Number of paragraphs:	104

Serial No 15/2020

File	No	FCA
3319/2019

DAVID CAWTHORN v CITTA HOBART PTY LTD,

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

REASONS FOR JUDGMENT	FULL COURT BLOW CJ WOOD J ESTCOURT J 23 December 2020
Orders of the Court

1            Appeal allowed.

2            Orders of the Anti-Discrimination Tribunal set aside.

3            Complaint remitted to the Tribunal to be heard and determined according to law.

Serial No 15/2020

File No FCA 3319/2019

DAVID CAWTHORN v CITTA HOBART PTY LTD,

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

REASONS FOR JUDGMENT FULL COURT
BLOW CJ
23 December 2020

1             Both the Commonwealth Parliament and the Tasmanian Parliament have legislated in relation to discrimination against people with disabilities. This appeal concerns an attempt to rely on the Commonwealth legislation in proceedings brought under the Tasmanian legislation.

2             The appellant, David Cawthorn, has paraplegia and is reliant on a wheelchair for mobility. A major building development known as Parliament Square is being undertaken at the rear of Parliament House in Hobart. The first respondent, Citta Hobart Pty Ltd, is the developer. The second respondent, Parliament Square Hobart Landowner Pty Ltd, owns the land, as its name suggests. When completed, Parliament Square will have three entrances. The respondents propose that one of those entrances will provide access to the site only by way of stairs. The appellant and Paraquad Association of Tasmania Incorporated made a complaint of discrimination in respect of the stairs-only entrance under the Anti-Discrimination Act 1998 (Tas) ("the AD Act"). That complaint was referred to the Anti-Discrimination Tribunal. The respondents argued that they had complied with the applicable Commonwealth legislation, and that that resulted in the Tribunal having no power to make any order adverse to them. The Tribunal held that it had no jurisdiction and dismissed the complaint: David Cawthorn and Paraquad Association of Tasmania Incorporated v Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd [2019] TASADT10. This is an appeal from that decision.

3             The factual details, the relevant legislative provisions, and the parties' contentions are set out in considerable detail in the judgment of Estcourt J, for which I am grateful. I agree with his Honour that the appeal should be allowed and that the matter should go back to the Tribunal for determination, but I respectfully differ as to the reasons for that result.

4 In the Tribunal proceedings, the respondents contended that the design of the development complied with certain "disability standards" that had been formulated under s 31 of the Disability Discrimination Act 1992 (Cth) ("the DD Act"). They contended that as a result the Tribunal had no power to determine the complaint that had been referred to it, and had no option but to dismiss that complaint. The Tribunal accepted that submission. Essentially it reasoned as follows:

• The Tribunal was obliged to consider the extent of its own jurisdiction: Attorney-General (NSW) v Gatsby [2018] NSWCA 254, 99 NSWLR 1, per Leeming JA at [281]; Re Adams and the Tax Agents Board (1976) 12 ALR 239 per Brennan J at 242.

• The respondents' contention as to the jurisdiction of the Tribunal relied on s 34 of the DD Act, a Commonwealth statute.

• When a law of the Commonwealth is the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him, a matter arises under federal law: LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.

• Section 77 of the Constitution exhaustively sets out the bodies that may be vested with federal adjudicative authority, including "any court of a State": s 77(iii).

• The Tribunal is not a court, and therefore cannot exercise federal adjudicative authority: Burns v Corbett [2018] HCA 15, 92 ALJR 423.

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• Determining whether the respondent had a defence based on the DD Act would involve the exercise of federal adjudicative authority unless the suggested defence was "colourable" in the sense of having been asserted for the improper purpose of fabricating a federal issue: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Qantas v Lustig [2015] FCA 253, 228 FCR 148 per Perry J at [87].

• The asserted defence was not colourable in that sense. Therefore the Tribunal, not having federal adjudicative authority, could not make a determination, and was obliged to dismiss the complaint.

5            In my view the Tribunal was wrong to adopt that reasoning. In summary, my reasons for that conclusion are as follows:

• Section 34 of the DD Act, when it applies, operates only to exempt a person from the requirements of the DD Act.

• For the purposes of s 109 of the Constitution, there is no direct inconsistency between s 34 of the DD Act and the relevant provisions of the AD Act.

• Sections 31 to 34 of the DD Act, which relate to disability standards formulated by Commonwealth Ministers, are not intended to cover the field. There is therefore no indirect inconsistency between s 34 and the relevant provisions of the AD Act.

• It follows that no defence based on s 34 of the DD Act is available in proceedings under the AD Act.

• Although the assertion of such a defence was made in good faith, and was therefore not colourable, the suggested defence was misconceived.

• It follows that, in determining the complaint, the Tribunal was not called upon to exercise federal adjudicative authority, and therefore that it had a duty to hear and determine the complaint rather than dismissing it.

The Commonwealth legislation

6            The relevant Commonwealth legislative provisions relating to disability discrimination, and my comments in relation to them, are as follows:

• By virtue of s 23(c) of the DD Act, it is "unlawful for a person to discriminate against another person on the ground of the other person's disability" in relation to "the provision of means of access" to "any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not)".

• By virtue of s 24(c) of the DD Act, it is "unlawful for a person who ... makes facilities available, to discriminate against another person on the ground of the other person's disability ... in the manner in which the first-mentioned person ... makes those facilities available to the other person". In this case, the entrance to which the complaint relates might be regarded as a "facility".

• By virtue of s 41 of the DD Act, nothing in that Act makes it an offence to do an act that is unlawful because of a provision in ss 15 to 58.

• The only mechanism by which rights conferred by the DD Act may be enforced involves making a complaint to the Australian Human Rights Commission ("the AHRC") pursuant to s 46P of the Australian Human Rights Commission Act 1986. If the complaint is not settled by conciliation, there is a mechanism by which a complainant may commence proceedings in the Federal Court or the Federal Circuit Court under s 46PO(1) of that Act. Under s 46PO(4) of that Act, those courts may make such orders as they think fit, including orders requiring respondents not to continue unlawful discrimination: s 46PO(4)(a).

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• Division 2A of Part 2 of the DD Act relates to "disability standards". It comprises ss 31 to 34 of the DD Act.

• Section 31(1) of the DD Act provides that the Minister "may, by legislative instrument, formulate standards, to be known as disability standards" in relation to any area in which it is unlawful under Part 2 of the DD Act (ss 15 to 58) for a person to discriminate against another person on the ground of a disability of the other person.

• The Disability (Access to Premises – Buildings) Standards 2010 ("the Disability Standards") were formulated pursuant to s 31(1) of the DD Act. In the proceedings before the Tribunal, the respondents contended that the design of Parliament Square complied with the requirements of that instrument. The appellant contended that it did not. In particular, there was a dispute as to whether the entrance to which the complaint related was a "main point of pedestrian entry" for the purposes of provisions in the Disability Standards.

• Section 34 of the DD Act provides that if a person "acts in accordance with a disability standard", Part 2 of that Act (ss 15 to 58), excluding Division 2A of that Part (ss 31 to 34) "does not apply to the person's act". Thus, if the respondents were correct in asserting that the design of Parliament Square complied with the Disability Standards, it was not open to the appellant to complain to the AHRC of discrimination against him contravening ss 23 or 24 of the DD Act.

7            The Commonwealth legislative provisions that are significant to the constitutional issue in this case, and my comments in relation to them, are as follows:

• Section 13(3) of the DD Act provides, "This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act." Thus, it was plainly not the intention of the Commonwealth Parliament that the DD Act was to cover the field in relation to disability discrimination generally.

• However s 13(3A) of the DD Act creates an exception. It provides, "Subsection (3) does not apply in relation to Division 2A of Part 2 (Disability standards)."

• Section 31(2)(b) of the DD Act provides that a disability standard may provide that it "in whole or in part, is or is not intended to affect the operation of a law of a State or Territory". The Disability Standards did not contain any provision as to whether or not there was an intention to affect the operation of State or Territory laws.

The State legislation

8            The significant provisions in Tasmanian legislation that relate to the appellant's complaint of discrimination, and my comments in relation to those provisions, are as follows:

• Section 16(k) of the AD Act provides that a person must not discriminate against another person on the ground of "disability".

• In s 3 of the AD Act, there is a lengthy definition of "disability" that includes, in par (a), a partial loss of the person's bodily functions.

• Section 14 relates to a concept called "direct discrimination". Section 14(2) provides, "Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic." The term "prescribed attribute" is defined so as to include "disability".

• Section 15 of the AD Act relates to a concept called "indirect discrimination". Under s 15(1), indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of

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people who share, or are believed to share, a prescribed attribute, or any of the characteristics

imputed to that attribute, more than a person who is not a member of that group.

• By virtue of s 22(1)(c) of the AD Act, that Act applies to discrimination in connection with the "provision of facilities, goods and services".

• Section 60(1) of the AD Act permits complaints to be made to the Anti-Discrimination Commissioner about discrimination.

• Section 78(1) of the AD Act makes provision for a complaint to be referred to the Anti- Discrimination Tribunal for an inquiry. The complaint by the appellant and Paraquad was referred to the Tribunal pursuant to that provision.

• Under s 89(1) of the AD Act, if the Tribunal finds after an inquiry that a complaint is substantiated, there are various orders that it can make, including an order that the respondent must not continue the discrimination, or "any other order it thinks appropriate": s 89(1)(a) and (h).

• Section 11(1)(b) of the Building Act 2016 provides that a person performing building work "must ensure that the work complies with ... all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act".

• In s 4(1) of the Building Act, "National Construction Code" is defined to mean "the National Construction Code series published by the Australian Building Codes Board, as amended or substituted from time to time". The Australian Building Codes Board exists pursuant to an agreement between the governments of the Commonwealth, the States, and the Territories. It is not a statutory authority. It publishes the National Construction Code. That Code is published in three volumes. I understand that its provisions have been adopted by legislation in every State and Territory. Volumes 1 and 2 of that Code contain the Building Code of Australia ("the BCA"). The BCA contains a Tasmanian appendix.

• Part D3 of the BCA is entitled "Access for People with a Disability". As it applies in Tasmania, it includes a subclause D3.13(b). That subclause, in effect, provides that a requirement of the BCA as to access for people with a disability is satisfied by compliance with "the applications, exceptions and concessions in the Disability (Access to Premises – Buildings) Standards 2010".

9             The Building Act operates independently of the AD Act. There is nothing in either of those Acts to suggest that discrimination against persons with disabilities in relation to the provision of access to public places is permissible for the purposes of the AD Act if the requirements of the Building Act are satisfied. Significantly, ss 43 to 48 of the AD Act create a series of exceptions to the provisions of that Act in relation to disability discrimination, without creating any exception in relation to the Building Act, the National Construction Code, or the BCA. Section 48(a) creates an exception in relation to discrimination on the ground of disability in access to public places, but only "if the provision of access would cause unjustifiable hardship". There is simply no basis for concluding that the provisions of the AD Act are subject to an implied exception in relation to the Building Act.

Section 109 of the Constitution

10 Section 109 of the Constitution provides as follows:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

11 Two approaches, referred to as the "direct inconsistency" and "indirect inconsistency" approaches, have been identified in a series of cases about s 109: Victoria v Commonwealth (1937) 58 CLR 618 at 630; Telstra Corporation Ltd v Worthing [1999] HCA 12, 197 CLR 61 at [28]; Dickson v The Queen [2010] HCA 30, 241 CLR 491 at [13]-[14]; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33, 244 CLR 508 at [39]; Work Health Authority v Outback Ballooning Pty

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Ltd [2019] HCA 2, 266 CLR 428 at [31]. The two approaches were described by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ in the last of those cases at [32] and [33] as follows (omitting footnotes):

"[32] The first approach has regard to when a State law would 'alter, impair or detract from' the operation of the Commonwealth law. This effect is often referred to as a 'direct inconsistency'. Notions of 'altering', 'impairing' or 'detracting from' the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law.

[33] The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say 'completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed'. This is usually referred to as an 'indirect inconsistency'. A Commonwealth law which expresses an intention of this kind is said to 'cover the field' or, perhaps more accurately, to 'cover the subject matter' with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law."

12 When no "disability standards" have been formulated in relation to discrimination in a particular area of activity or conduct, s 13(3) of the DD Act applies, with the result that State and Territory laws operate concurrently with the DD Act, to the extent that they are capable of doing so. No question of inconsistency arises. There are provisions in s 13(4) and (5) of the DD Act to avoid double jeopardy.

13 Similarly, no question of inconsistency arises if the Minister formulates a disability standard under s 31 of the DD Act and specifies, pursuant to s 31(2)(b), that that standard is not intended to affect the operation of the laws of the States and Territories.

14           Conversely, if the Minister formulates a disability standard that includes a provision specifying that it is intended to affect the operation of State and Territory laws, then an indirect inconsistency will arise.

15 However this case concerns a third situation, since the Minister formulated disability standards without specifying whether or not it was intended that the operation of State or Territory laws was to be affected. Section 31(1) of the DD Act expressly provides that disability standards constitute a legislative instrument. Because the question whether State or Territory laws were to be affected was left by s 31(1) to the Minister, there can be no suggestion that any State or Territory laws are invalid because of inconsistency with the provisions of the DD Act itself. The question that must arise is whether any particular State or Territory law is invalid because of inconsistency with the Disability Standards.

16 By virtue of s 34 of the DD Act, the result of compliance with a disability standard is that certain provisions of the DD Act do not apply to the conduct of the person who complies with the standards. Those provisions include ss 23(c) and 24(c), which make certain types of conduct unlawful, including discrimination in relation to the provision of means of access to premises, and discrimination in relation to the provision of facilities. However the result of ss 23(c) and 24(c) not applying is only that rights pursuant to the Australian Human Rights Commission Act are unavailable. In simple terms, compliance with a disability standard results in individuals not being able to complain to the AHRC that a person has done something that was made unlawful by the DD Act. It is significant that, when a person complies with a disability standard, the DD Act does not declare that person's conduct to be lawful, but renders inapplicable provisions that would make it unlawful.

17 In my view, when s 34 of the DD Act operates with the result that that Act does not render particular conduct unlawful, no direct inconsistency arises if that conduct is made unlawful by a State

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law unless the Minister has expressly declared that the disability standard was intended to affect the
operation of State and Territory laws generally, or a particular State or Territory law.

18           Further, at least as a general rule, if a Minister formulating disability standards does not say one way or the other in such an instrument whether State or Territory laws are intended to be affected, there can be no basis for inferring that it was his or her intention to cover the field, and leave no room for the operation of State or Territory laws as to disability discrimination. There may be circumstances in which, despite the absence of any ministerial expression of intention, the provisions of a disability standard might warrant an inference that it was intended to cover the field.

19           Counsel for the respondent submitted that such an inference should be drawn in this case. She relied on cl 1.3(b) of the Disability Standards. That clause provides that one of the objects of the disability standards is:

"to give certainty to building certifiers, building developers and building managers that, if access to buildings is provided in accordance with these Standards, the provision of that access, to the extent covered by these Standards, will not be unlawful under the Act."

20           It is significant that that provision ends with the qualifying words "under the Act". If it had simply ended with the words "will not be unlawful", the respondent would have been on much stronger ground. The use of the words "under the Act" gives a strong indication that the Disability Standards were not intended to provide certainty as to what might be required under State legislation.

21           Counsel for the respondent submitted that the Disability Standards created such a detailed and comprehensive regime that an intention to cover the field was evident. She relied on Work Health Authority v Outback Ballooning Pty Ltd (above), in which Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said at [35] that in some cases the detailed nature or scheme of a Commonwealth law "may evince an intention to deal completely and therefore exclusively with the law governing a subject matter". In my view the respondent's submissions on this point must be rejected because of s 13(3) of the DD Act. That is the provision that provides, "This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act." It was expected that there would be parallel comprehensive anti-discrimination regimes created by the Commonwealth and by the States and Territories. In this instance, the comprehensive nature of a Commonwealth regime is not a factor that tends to indicate an intention to cover the field. And the use of the words "under this Act" in cl 1.3(b) of the Disability Standards indicates an intention not to cover the field.

22           The contents of the Disability Standards do not warrant a conclusion that they were intended to cover the field. In simple terms, the result must be that the Disability Standards set out minimum requirements which must be complied with, failing which any person discriminated against may complain to the AHRC and possibly ultimately pursue his or her complaint in the Federal Court or the Federal Circuit Court. However, if those minimum standards are complied with, it does not follow that the access or facilities that the person provides will be sufficient for that person not to be in breach of a State law as to disability discrimination.

23 It follows that, in my view, there is no direct or indirect inconsistency between the provisions of the AD Act relied upon by the appellant in the Tribunal proceedings and any law of the Commonwealth.

The s 24(a) argument

24 The appellant advanced an argument based on s 24(a) of the AD Act. That provision reads as

follows:

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"A person may discriminate against another person if it is reasonably necessary to

comply with —

(a) any law of this State or the Commonwealth ...".

25 It was argued that the respondents were permitted to discriminate against the appellant, within the meaning of the AD Act, because it was necessary for them to do so in order to comply with the Disability Standards. An argument relating to the jurisdiction of the Tribunal was based on that proposition. I do not need to address the rest of that argument. I reject that proposition. The Disability Standards impose minimum requirements. The respondents argued that the design of Parliament Square complied with those minimum standards because disabled access was provided for at two of the three entrances. However it cannot be said that compliance with the Disability Standards made it necessary for the respondents not to provide disabled access at the third entrance, to which these proceedings relate. It follows that s 24(a) has no impact on the rights and liabilities of the parties.

Federal adjudicative authority

26 Because there is no inconsistency between the provisions of the AD Act relied upon by the appellant and any Commonwealth law, a finding as to whether the design of Parliament Square complies with the Disability Standards is unnecessary. A finding that the Disability Standards were complied with would not preclude the Tribunal from making findings of discrimination against the respondents and making consequential orders against them. It is true that the terms of the Disability Standards might be treated by the Tribunal as providing assistance as to what is reasonable, for the purposes of s 15 of the AD Act, by way of the provision of access to the Parliament Square premises. However the Tribunal is not bound to make findings as to whether the Disability Standards have been complied with, and is thus not required to exercise federal adjudicative authority.

27           It follows that the Tribunal erred in law in concluding that the determination of the issues before it required the exercise of federal adjudicative authority, and that it erred in dismissing the complaint. It had a duty to hear and determine the complaint.

Conclusion

28          For these reasons, I would allow the appeal, set aside the orders of the Anti-Discrimination Tribunal, and remit the complaint to it for determination according to law.

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File No FCA 3319/2019

DAVID CAWTHORN v CITTA HOBART PTY LTD,

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

REASONS FOR JUDGMENT FULL COURT
WOOD J
23 December 2020

29          I agree with the Chief Justice. I wish to add a few brief remarks on the discrete issue of whether it should be inferred that the Disability (Access to Premises – Buildings) Standards 2010 under consideration were intended to cover the field. Interestingly, it is argued for both parties that an inference should be drawn, although with different consequences. The appellant's argument is that the Standards apply to the Parliament Square development by virtue of Tasmanian legislation, the Building Act 2016, which requires compliance with the National Construction Code which in turn, implements the substantive aspects of the Disability Standards. The Standards implemented by reason of Tasmanian legislation in this way cover the field but there is no question of an inconsistency under s 109 of the Constitution. The appellant contends that while compliance with the Building Act and the National Construction Code would have the effect of bringing an end to the complaint, the design of the development does not comply with the Standards and so, in this case, that would not be the result. The respondent argues that as the Standards operate as Commonwealth legislation and cover the field, the Anti-Discrimination Act 1998 (Tas) ("AD Act") is invalid because of inconsistency. The detail of the submissions is set out in the judgment of Estcourt J.

30 The question of whether the Disability Standards covered the field, giving rise to what is referred to as an indirect inconsistency, for the purposes of s 109 of the Constitution, is a matter of construction, with the primary focus on the Commonwealth law in order to determine whether it is intended that it be exhaustive or exclusive with respect to an identified subject matter: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, 266 CLR 428 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [34]. This requires a focus on the Standards and what can be inferred from their content.

31           The contentions relied on the objects clause in 1.3 of the Disability Standards. This clause spells out an objective of providing certainty, and is said to express an intention of exclusivity. I agree with the Chief Justice about the significance of the words in that clause "will not be unlawful under the Act". The words "the Act" are defined in the interpretation section of the Standards to mean the Disability Discrimination Act ("DD Act"). Thus, the object is to provide certainty in the context of that Act only.

32 To the extent the learned Chief Justice relies on s 13(3) of the DD Act, there may be a slight difference in our approaches but, if there is, it is a difference of emphasis rather than of substance.

33           The question is whether the Disability Standards provide for a scheme which is so comprehensive and detailed that an intention can be gleaned from the Standards that the Commonwealth Parliament intended that the Standards should cover the field and provide exclusively or exhaustively with respect to the law on the subject-matter: Work Health Authority v Outback Ballooning Pty Ltd at [35]. Attention was drawn to the content of the Standards and matters such as the comprehensive unjustifiable hardship exemption (Part 4), and the detailed nature of the scheme regarding matters such as performance requirements in Part D and the deemed-to-satisfy provisions, Part D3.

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34 The Standards require compliance, cl D3.1, and exclude conduct as not unlawful due to unjustifiable hardship, cl 4.1(1). While compliance is required, it is not in terms that suggest compliance for a purpose other than the DD Act or suggest unlawfulness beyond the reach of that Act.

35 This is also borne out by a consideration of the terms of the DD Act which suggest that the Disability Standards are intended to apply within the framework of the DD Act and by virtue of key provisions in the DD Act. Section 32 provides that contravention of the Standards is unlawful. The Act does not apply to enable redress if there is compliance with a standard: s 34. It can be seen that the force and effect of the Disability Standards, as well as the protection provided by compliance with the Standards, are tied to the DD Act.

36 It is here I would highlight s 13(3) of the DD Act which provides that the Act is not intended to exclude or limit the operation of a law of State or Territory that is capable of operating concurrently with the DD Act. In my view, it is because the Standards were intended to operate within the framework of the DD Act that s 13(3) of the DD Act has some significance. Put simply, the Standards are tied to an Act which was generally not intended to cover the field in relation to the subject matter of disability discrimination. Of course, that section does not apply to the Disability Standards, because of the exception in s 13(3A), leading to the question in this case of whether the text and content of the Standards imply an intention to cover the field.

37 As I have said, the content of the Standards do not reveal an intention to cover the field. The terms of the Standards do not suggest that they were intended to have a force or life of their own beyond the DD Act. I agree with the Chief Justice that the words in cl 1.3(b) "under this Act" indicates an intention not to cover the field. They impliedly allow for the operation of other laws on the topic. In addition, as I have mentioned, the terms of the Standards do not suggest an intention that they were to operate exclusively and beyond the framework of the DD Act. I agree with the Chief Justice that the contents of the Disability Standards do not warrant a conclusion that they were intended to cover the field.

38 It is perhaps worth pointing out that even if an intention as to exclusivity could be inferred from the content of the Standards, it would not necessarily be the end of the complaint with the result that the Standards would prevail, leaving the AD Act inoperative in this case. There would remain the question, what is the area of exclusive operation covered by the Standards, and does the subject matter of the complaint fall within that area of exclusive operation: see Work Health Authority v Outback Ballooning, Gageler J at [61]-[62] and [84]. It may be argued that the correct inference is that the exclusive area is very narrow and limited to the provision of access to new buildings simpliciter. Here, the complaint extends beyond mere access. The complaint draws in the geographical context of the access, the circumstances such as the popularity of the Salamanca precinct and the steep (unsafe) gradient from that precinct to the disability access. If the circumstances are drawn into consideration as part of the subject-matter of complaint, the conduct may fall outside any exclusive sphere of operation of the Standards.

39 That question has not arisen and does not need to be considered. As explained by the Chief Justice, because the Disability Standards do not cover the field, there is no indirect inconsistency between the provisions of the AD Act relied upon by the appellant in relation to this complaint and any law of the Commonwealth. However, the Disability Standards may be relevant to the Tribunal's consideration as a factor bearing on unreasonableness under s 15 of the AD Act.

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File No FCA 3319/2019

DAVID CAWTHORN v CITTA HOBART PTY LTD AND

PARLIAMENT SQUARE HOBART LANDOWNER PTY LTD

REASONS FOR JUDGMENT FULL COURT ESTCOURT J

23 December 2020

The appeal

40 This appeal, to a single judge of this Court, against a decision of the Anti-Discrimination Tribunal (the Tribunal), was referred to the Full Court of this Court pursuant to r 703(4) of the Supreme Court Rules 2000.

41           The decision below, cited as David Cawthorn and Paraquad Association of Tasmania Incorporated v Citta Hobart Pty Ltd and Parliament Square Hobart Landowner Pty Ltd [2019] TASADT 10, was a decision of the Tribunal delivered on 28 November 2019.

42 On that date, the Tribunal ordered, pursuant to s 99(2)(b) of the Anti-Discrimination Act 1998 (Tas) (the ADA), that the complaint made by the appellant, dated 19 December 2016 was dismissed as against both respondents to it.

43 The appellant, David Cawthorn, has paraplegia and is reliant on a wheelchair for mobility. By complaint dated 19 December 2016 he, and the Paraquad Association of Tasmania, alleged that the first respondent had directly and indirectly discriminated against them, "directly", within the meaning of s 14 of the ADA and, "indirectly" within the meaning of s 15 of that Act. The second respondent was subsequently joined as a party to the Tribunal inquiry.

44           The complaint concerned the development known as Parliament Square which is located on a site bounded by Salamanca Place, Davey Street and Murray Street in Hobart. The entrance to the site at the north-east corner, from Murray Street, as designed and proposed to be constructed by the respondents, provides access by way of stairs. There is another proposed access about 36.5 metres further up Murray Street from the north-east corner, known as the Arch, which provides level access to the site, and there is another level access some 150 metres away on Salamanca Place.

45           The essence of the complaint was that members of the community with spinal cord injuries, including the appellant, who are reliant on using wheelchairs for mobility, are unable to utilise the north-east access as they are unable to climb stairs. They would be required to utilise the access through the Arch which would require that they navigate the uphill slope on Murray Street or alternatively to use the other access on Salamanca Place.

46           This was said to amount to direct discrimination, that is, less favourable treatment, on the basis of disability in connection with the provision of facilities, goods and services. The allegation of indirect discrimination was that the requirement that access to the north-east corner be by way of stairs, amounts to "a condition, requirement or practice" that has the effect of disadvantaging the appellant and other members of the class of people who share his disability.

47   The respondent's submission to this Court was that before the Tribunal it was contended by

them that: "… the s 109 inconsistency argument put by the respondents contained two elements:

11   No 15/2020

(a)	the direct inconsistency between the ADA and the DDA (in that the ADA made unlawful that which the DDA specifically provided was lawful pursuant to s 34 of the DDA (the DSP defence); and
(b)	the indirect inconsistency between the ADA and the DDA (in that the DDA is intended to cover the field with respect to the subject matter of the DSP)."

48   In written submissions before the Tribunal, the respondents said:

"30	Direct inconsistency focuses on the question of whether the State law would 'alter, impair or detract from' the operation of the Commonwealth law.
31	A direct inconsistency may arise where a Commonwealth law designedly leaves open an 'area of liberty', which a State law 'should not close up'. A State law that proscribes conduct that has been 'left untouched' by a Commonwealth law will 'alter, impair or detract' from the operation of the federal law, giving rise to a direct inconsistency for the purpose of s 109 of the Constitution. It was on that basis that a provision of a State law that rendered 'criminal conduct not caught by, and indeed deliberately excluded from' the conduct rendered criminal by the Commonwealth law was held to be invalid by the High Court in Dickson v The Queen (Dickson).
32	The same is true of the relationship between ss 14, 15 and 16(k) of the State Discrimination Act and the scheme of disability standards created by Division 2A of Part 2 of the Federal Discrimination Act, including the Access Standards. Section 31(1) of the Federal Discrimination Act permits the Minister to formulate disability standards in relation to any area in which it is unlawful under Pt 2 of the Federal Discrimination Act 'for a person to discriminate against another person on the ground of a disability of the other person'. One of the relevant areas under Pt 2 is 'Access to premises' (s 23). It is unlawful for a person to contravene a disability standard (s 32).
32	Critically, however, s 34 provides that '[i]f a person acts in accordance with a disability standard', Pt 2 of the Federal Discrimination Act does not apply to the person's act. Through the mechanism in s 34, the Commonwealth has deliberately excluded certain conduct from being unlawful under the Federal Discrimination Act, being, conduct that complies with the disability standards including the Access Standards. In that way, the effect of s 34 is to leave significant 'areas of liberty', which 'should not be closed up' by State law. In this case, the Respondents contend that they have complied with the Access Standards, thereby engaging the liberty preserved by s 34 of the Federal Discrimination Act.
33	Section 16(k) of the State Discrimination Act cannot be permitted to operate in circumstances where s 34 of the Federal Discrimination Act is engaged. As in Dickson, '[i]n the absence of the operation of s 109 of the Constitution', s 16(k) of the State Discrimination Act will 'alter, impair or detract from the operation of the federal law by proscribing conduct' of the Respondents 'which is left untouched by the federal law'. The case is one of 'direct collision' because 'the State law, if allowed to operate, would impose upon' the Respondents 'obligations greater than those provided by the federal law'.
35	This conclusion is fortified by the fact that a disability standard may provide that the standard, 'in whole or in part, is or is not intended to affect the operation of a law of a State' (s 31 (2)(b)). The inclusion of a provision in the standard that stated that the standard was not intended to affect the operation of State law would likely negate the area of liberty otherwise created by s 34 of the Federal Discrimination Act. The Access Standards do not include such a provision. Nor do they include a provision that it is intended to affect the operation of a law of the State. If such a provision had been included, it would have confirmed the scope of the area of liberty created by s 34 of the Federal Discrimination Act. However, its absence does not remove or narrow the scope

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of the area otherwise created by the natural and ordinary meaning of the

legislative scheme.

…

37       'Indirect' or 'covering the field' inconsistency focuses on whether the Commonwealth law expresses an intention to say 'completely exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed'.

38 Section 13(3) of the Federal Discrimination Act provides that the Federal Discrimination Act is 'not intended to exclude or limit the operation of a law of a State ... that is capable of operating concurrently' with the Federal Discrimination Act. That provision is a legislative indication that the Federal Discrimination Act is not intended to 'cover the field' on the subject matter of the Federal Discrimination Act - that is, it is an indication that the Federal Discrimination Act is not intended to 'deal completely and therefore exhaustively' with that subject matter.

39 However, s 13(3A) states that:

'Subsection (3) does not apply in relation to Division 2A of Part 2
(Disability standards).'

40       The effect of that provision is that the Federal Discrimination Act is intended to exclude the operation of State or Territory laws that are capable of operating concurrently with Div 2A of Pt 2 of the Federal Discrimination Act - i.e. that the Federal Discrimination Act is intended to cover the field and be the only law in relation to disability standards. Put differently, it might be said that the Federal Discrimination Act contains an 'implicit negative proposition that nothing other' than what it provides with respect to the subject matter of Div 2A of Pt 2 is to be the subject of legislation. Thus where a disability standard applies, the federal law expresses an intention that the federal law is to be the only law on the topic.

41 Section 109 of the Constitution therefore operates to exclude and render invalid s 16(k) of the State Discrimination Act insofar as it would operate with respect to any discrimination in relation to access to premises for disabled people to the extent that the conduct complies with a federal disability standard, including the Access Standards."

49 The Tribunal decided that the respondents had raised a "federal matter" by way of the assertion of a defence to the complaint which relied on s 109 of the Constitution, namely alleged inconsistency between the relevant anti-discrimination provisions of the ADA, and provisions of the Disability Discrimination Act 1992 (Cth) (the DDA). In the Tribunal's opinion, federal jurisdiction was invoked by those assertions. It decided that it could not proceed to hear and determine the complaint as it was not conferred with federal judicial power. In those circumstances the Tribunal dismissed the complaint.

50          The appellant filed a notice of appeal to this Court on 19 December 2019. The notice sets out eight grounds. They are as follow:

"1	The Tribunal erred in law in determining that it did not have jurisdiction or authority under the laws of the State of Tasmania to hear and determine the Complaint.
2	The Tribunal erred in law in concluding that in determining the Complaint it was exercising jurisdiction and authority under the Commonwealth Constitution and the laws of the Commonwealth.

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3            The Tribunal erred in law in ordering the dismissal of the Complaint notwithstanding that it had not formed any opinion about:

a	whether the conduct the subject of the Complaint contravened the Act as alleged;
b	whether the Act, or the provisions of the Act relied upon in the Complaint, was a valid law or were valid provisions it was under a duty to apply;
c	whether there was any relevant inconsistency between the Disability Discrimination Act 1992 (Cth) (the DDA) and the Act and, if so, what was the inconsistency;
d	whether, as a consequence of the Orders, the Complainants were impermissibly precluded from making or pursuing their Complaint about the discriminatory conduct alleged by them under either federal law (by reason of s 13(4)(b) of the DDA) or under State law (by reason of the dismissal of the Complaint);
e	whether in all the circumstances the Tribunal ought to adjourn the further hearing of the Complaint for such time as was appropriate to enable the Respondents to seek such relief as they saw fit in a superior court concerning the s 109 of the Commonwealth Constitution issue they were seeking to raise.

4            The Tribunal erred in law in not concluding that, or in not forming any opinion about, whether:

a	compliance with the National Construction Code (Building Code of Australia) 2016 (NCC) and the Disability (Access to Premises - Buildings) Standards 2010 (Cth) (DSP) was required under the laws of the State of Tasmania by reason, inter alia, of s 11 of the Building Act 2016 (Tas) (the Building Act) and s 24 of the Act; and
b	by reason of the matters in sub-paragraph (a):

a the Tribunal was exercising jurisdiction under the laws of

Tasmania; and

b there was no relevant inconsistency between the NCC, the DSP
and the Act.

5 The Tribunal erred in law in concluding that s 109 of the Commonwealth Constitution of the Commonwealth was raised as a defence to all of the claims in the Complaint when:

a	s 109 was not a defence to the claims in the Complaint in relation to discrimination in the provision of services or facilities involving access to premises other than buildings to which the DSP do not apply;
b	s 109 was raised only as a contingent defence, the contingency being

that 'if there is any inconsistency between the [Act] and the DDA';

c there was no relevant inconsistency between the Act and the DDA as under s 24 of the Act and s 11 of the Building Act compliance with the NCC and the DSP would not constitute discriminatory conduct under the Act.

6            The Tribunal erred in law in dismissing the Complaint without forming an opinion about the issues raised in ground 5a, 5b or 5c.

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7 The Tribunal erred in law in concluding that the Respondents' reliance on s 109 of the Commonwealth Constitution and s 34 of the DDA resulted in it exercising federal, rather than State, jurisdiction in determining the Complaint.

8 The Tribunal erred in law in not concluding that if, and to the extent that, a defence was raised in reliance upon s 109 of the Commonwealth Constitution it was not a tenable or reasonably arguable defence and as a consequence could not result in the Tribunal not having jurisdiction to determine the Complaint."

The appeal hearing and further submissions

51           On the hearing of the appeal, senior counsel for the appellant, Mr Merkel QC, developed a more extensive argument than was apparent to me from the notice of appeal and the written submissions filed in support of it. He was asked by the Court to file supplementary submissions and he subsequently did so. In those submissions counsel for the appellant frame the precise questions they say arise on the appeal. The first two of those questions are as follow:

"Question 1(a): does the dsp operate as a law of the commonwealth in Tasmania?

Question 1(b): if yes to 1(a), do s 11 of the Building Act 2016 (Tas) (Building Act) and s 24 of the Anti-Discrimination Act 1998 (Tas) (ADA) have the consequence that there can be no inconsistency between that Act and the Disability Discrimination Act 1992 (Cth) (DDA) and the DSP made under that Act for the purposes of s 109 of the constitution?"

52           That is a much more helpful articulation of the key issues that this Court has to determine. I will turn therefore to the appellant's supplementary written submissions, and the respondents' supplementary written submissions in response, with respect to those questions.

Questions 1(A) and 1(B)

53 The appellant says there can be no inconsistency for two reasons. The first reason is that ss 32 and 34 of the DDA and/or the DSP do not operate as "laws of the Commonwealth" in the State of Tasmania. The second reason is that, in any event, s 11 of the Building Act and s 24 of the ADA operate to prevent any such inconsistency.

54 "Simply put", the appellant says, if the DSP only applies as a matter of State law by reason of s 11 of the Building Act, then compliance with the DSP will be a complete defence to the discrimination claim by reason of the combined operation of s 11 of the Building Act and s 24 of the ADA, and the "Commonwealth law limb" of s 24 does not arise as the DSP does not apply as a law of the Commonwealth in Tasmania.

55 Accordingly, the appellant submits that the Tribunal erred when it stated that s 34 implied a federal question of law had been raised, and also erred in considering that the DSP applied as Commonwealth law in Tasmania. Rather, the appellant says, what has occurred is that the DSP applies in Tasmania as State law by reason of s 11 of the Building Act, and compliance with it is a defence to a discrimination claim under State law by reason of s 24 of the ADA.

56 The appellant points out that s 11 of the Building Act requires that all work must comply with the NCC and that cls DP1 and D3.2 of the NCC replicate the DSP in its substantive provisions concerning access by persons with a disability. The same wording and numbering is used as in the DSP. In addition, the appellant notes that the NCC by cls "Tas DP10" and "Tas D3.13", also requires that a building must be accessible in accordance with the requirements of the DSP. Thus, it is said, that in Tasmania the Building Act, and its adoption of the NCC, requires compliance with the DSP.

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57           The appellant says that whether cl D3.2 of the DSP has been complied with is the primary area of dispute between the appellant and the respondents, and notes that expert evidence was filed with the Tribunal on that matter. It is unnecessary for me to descend into the fine details of the standards.

58           Clause DP1 of the DSP provides, amongst other things, a performance requirement that, "access must be provided, to the degree necessary, to enable … people to … approach the building from the road boundary … and … approach the building from any accessible associated building …". Performance requirement DP1 is satisfied by complying with, relevantly, cl D3.2. That clause requires that "an accessway must be provided to a building required to be accessible … from the main points of a pedestrian entry at the allotment boundary; …" (cl D3.2(a)). The appellant says that cl 3.2 has not been complied with and the respondents say that they have. The identical provisions to those in the NCC can be found in the DSP.

59           In those circumstances, the appellant submits that the DSP does not operate as a law of the Commonwealth in Tasmania because it is clear from the text and objects of the DDA, that in enacting the DDA, the legislature intended to enable the minimum requirements of discrimination law to operate at Federal, State and Territorial levels leaving a complainant with the choice of the jurisdiction in which the claim is brought.

60          The appellant's supplementary written submissions set out the following summary of, and commentary on, the text of the DDA upon which he relies for this submission:

"10.1 Sections 5 and 6 of the DDA deal with direct and indirect discrimination in a similar way to ss 14 and 15 of the ADA.

10.2 Section 12 provides that the DDA may operate to the extent, and no more, of its constitutional competence.

10.3 The limitations on that ability to legislate are complemented by allowing State and Territory legislatures to enact their own laws on disability discrimination: s 13(2)-(4). Sub-section 13(4) then provides that a person may not make a claim of discrimination under the DDA if the person has already made a complaint in relation to the same act or omission under State or Territory provisions. This permits the concurrent operation of both the federal and the State or Territory regimes by providing for an election to be made by a complainant. It is significant that s 13(4) is in Part 1 of the DDA and therefore is not subject to the provisions in Part 2 (such as s 34) which concern the operation of the DDA in respect of unlawful conduct actionable under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

10.4 Section 31 provides that the Minister may, by legislative instrument, make disability standards 'in relation to any area in which it is unlawful under this Part [Part 2] for a person to discriminate against another person on the ground of disability'. The Minister may indicate in a standard, whether it is intended to affect a State or Territory law. Section 13(3A) does no more than facilitate this option and, as there is no such indication in the DSP, the provision has no consequence in the current context.

10.5 Section 32 provides that it is 'unlawful' for a person to contravene a disability standard. Section 32 operates in a similar way to other provisions in Part 2 of the DDA which acts as a statement of conduct which is rendered 'unlawful' for the purposes of the DDA. As with the other provisions of Part 2, s 32 provides a description of the 'unlawful conduct' capable of founding a complaint to the Australian Human Rights Commission (AHRC) (which is an obligatory precursor to any proceeding based on unlawful discrimination in the Federal Court or Federal Circuit Court under the DDA).

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10.6 Section 34 states that Part 2 of the DDA (other than Division 2A) does not apply where a person acts in accordance with a disability standard. Section 34 is only a defence to a claim for unlawful discrimination as described in Part 2 of the DDA, and as pursued through the processes set out in the AHRC Act. It cannot, in terms, be a defence to a claim under State legislation such as the Complaint made in this matter under the ADA. This is also made clear from the objects of the DSP stated in the DSP itself. The DSP is intended to define conduct that will not be 'unlawful' under the DDA. The objects of the DSP include 'to give certainty … that, if access to buildings is provided in accordance with these Standards, the provision of that access, to the extent covered by these Standards, will not be unlawful under the [DDA].' The protection given by compliance with the DSP under s 34 only relates to conduct defined as 'unlawful' by the DDA and does not operate to give that protection under State law…

10.8 Finally, s 125(1) states that, 'This Act does not confer on a person a right of action in respect of the doing of an act that's unlawful under the provision of Part 2, unless a provision of this Act expressly provides otherwise.' The Explanatory Memorandum for s 125 is as follows:

'Clause 125 - Unlawful Act not basis of civil action unless expressly so provided

This Act provides for a mechanism for dealing with complaints about matters which are unlawful under this Act. It is not intended that rights created under this Act give rise to civil actions in the courts.

This clause provides that, notwithstanding that an act is unlawful under the provisions of Part 2, no separate right of action is created unless there is an express provision concerning such actions.

Subclause 2 refers to the offences created under Division 4 of Part 2 and indicates that for the purposes of this clause they are to be regarded as unlawful acts. That essentially means that the only action in relation to those matters is a complaint under this legislation or the prosecution for an offence.'" (Footnotes omitted.)

61 The appellant argues that the text, context and purpose of s 125 makes it clear that there is no correlative duty in respect of the rights conferred in relation to unlawful conduct under the DDA unless the duty is expressly provided for in the DDA and that no provision of the DDA expressly imposes the requisite duty. The submission is that the operation of a provision such as s 125 means that the DDA, including s 32, only gives a right to invoke the procedures, and to obtain the remedies provided for in the AHRC Act, and that s 34 of the DDA provides a defence only to that specific right.

62 Further, the appellant submits that s 41 of the DDA which provides that (except as expressly provided by Div 4 of Pt 2) nothing in the DDA makes it an offence to do an act that is unlawful (such as contravention of the DSP), and also makes it clear that the DDA is carefully tailored to deal with complaints of unlawfulness in respect of the applicable provisions under the DDA, without in any way, directly or indirectly, operating as State law.

63           The appellant submits that a comparable statutory scheme was considered in Re East, ex parte Nguyen (1998) 196 CLR 354, where at 366, [32] the plurality said in respect of the provisions in the Racial Discrimination Act 1975 (Cth):

"The facts alleged by the applicant do not establish any right, duty or liability of any of the parties, and they cannot do so because the Act provides its own, exclusive regime for remedying contraventions. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right."

64 The appellant concludes on this, the first of the reasons it advances as to why there is no s 109
inconsistency, that the essential precondition relied upon by the respondents in their defence for the
operation of s 109, namely, that the DSP applies as "a law of the Commonwealth in Tasmania", is not

17   No 15/2020

satisfied. That is to say, there can be no inconsistency between the ADA and the DDA because "the provisions of the DDA and the DSP relied on as a complete defence are not defences available to the respondents under any law of the Commonwealth".

65 As to the second of the reasons advanced, that is, that, in any event, s 11 of the Building Act and s 24 of the ADA operate to prevent any such inconsistency, the appellant first points out that the ADA prohibits not just the discriminatory provision of services (including access to a place) but discrimination "in connection with" the provision of facilities, goods and services: s 22(1)(c) of the ADA. The appellant says that the definition of services is widely drafted so that it includes services "relating to" access to any place that members of the public are permitted to enter: s 3 of the ADA. In the present case, the appellant submits that the ADA deals with a range of conduct, not just the completed building, but also all of the steps towards its completion, and that the phrase "reasonably necessary to comply", refers to those anterior steps up to the point at which the relevant requirements of the DSP are complied with in the finished building.

66           Referring to the accepted, narrow operation given to s 24 of the ADA by the Tribunal in Cain v The Australian Red Cross Society [2009] TASADT 3 and by the High Court in relation to a not dissimilar provision in Waters v Public Transport Corporation (1991) 173 CLR 349, the appellant submits that both cases considered provisions of a more general standard (a wide statutory power to give directions in Waters and a form for blood donors in Cain), and they are to be contrasted with the operation of s 24 in relation to the specific and mandatory requirements in cl D3.2 of the DSP.

67   The appellant's submission is as follows:

"The DSP was made solely for the purpose of the federal disability discrimination scheme to ensure minimum mandatory standards in the federal jurisdiction. Of course, it was intended that those standards be incorporated in the NCC. But, relevantly for present purposes, if the DSP, as incorporated into the Building Act, is complied with then there is no breach of the ADA. Similarly, at the federal level, where there is compliance with the DSP then there is no 'unlawful discrimination' for the purposes of Part 2 of the DDA and the AHRC Act. On the basis of the analysis in Cain if the Court is satisfied that the compliance required by cl D3.2(a) and (b) is mandatory and specific then s 24 applies with the consequence that conduct complying with that clause will be conduct reasonably necessary to achieve that compliance and will be a complete defence to the discrimination claim.

87 As noted, the DSP are incorporated into the Building Code of Australia (the BCA) as building standards, by cl D3.13. The BCA is incorporated into Tasmanian law via the National Construction Code (the NCC), by operation of s 11 of the Building Act. The NCC is a uniform set of technical provisions for the design and construction of buildings and other structures, and plumbing and drainage systems throughout Australia. It allows for variations in climate and geological or geographic conditions. The NCC is published in three volumes. The BCA is Volume One and Volume Two of the NCC, and the Plumbing Code of Australia (PCA) is Volume Three of the NCC. The "Tasmanian BCA", as it is known, expressly requires compliance with the DSP.

88 Section 11 of the Building Act provides as follows:

"11	All work must comply with Act and National Construction Code
(1)	A person performing building work, plumbing work or demolition work must ensure that the work complies with –

(a) this Act; and

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(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty: In the case of –

(a)	a natural person, a fine not exceeding 100 penalty units; or
(b)	a body corporate, a fine not exceeding 500 penalty units.

(2)	The owner of a building where building work, plumbing work or demolition work is being performed must ensure that the work complies with –
(a) this Act; and
(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty: In the case of –

(a)	a natural person, a fine not exceeding 100 penalty units; or
(b)	a body corporate, a fine not exceeding 500 penalty units.

(3)	A person named on a permit must ensure that all building work, plumbing work or demolition work done under the authority of that permit complies with –
(a) this Act; and
(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty: In the case of –

(a)	a natural person, a fine not exceeding 100 penalty units; or
(b)	a body corporate, a fine not exceeding 500 penalty units.

(4) A building surveyor, as far as is reasonably practicable, is to ensure that all building work and demolition work, in respect of which he or she is engaged as a building surveyor, is performed in accordance with this Act.

Penalty: Fine not exceeding 100 penalty units.

(5)

For the purposes of this section, a provision of the National Construction
Code is not an applicable provision in respect of work if –

(a)	the certificate of likely compliance issued in respect of the work was issued before the provision of the National Construction Code was adopted by the State; or
(b)	the building surveyor, or relevant permit authority, for the work certifies in writing that substantial progress had been made in the design of the work before the provision was adopted by the State; or
(c)	if the provision of the National Construction Code applies a standard, or requirement, by reference to a document that is subsequently amended – the building surveyor, or relevant permit authority, for the work certifies that substantial progress had been made in the design of the work before the document so applied was amended.

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(6) Nothing in subsection (5) prevents a person from complying with a provision of the National Construction Code that is not an applicable provision by virtue of that subsection."

89 I do not necessarily accept the appellant's submission that if the DSP only applies as a matter of State law by reason of s 11 of the Building Act, then compliance with the DSP will be a complete defence to the discrimination claim by reason of the combined operation of s 11 of the Building Act and s 24 of the ADA, and that the "Commonwealth law limb" of s 24 does not arise as the DSP does not apply as a law of the Commonwealth in Tasmania.

90           I lean towards the respondents' submission, namely that given that the appellant's suggested construction of s 24 cannot be limited to a law that applies only in a "discrimination context", the effect of it is that mere compliance with any law, regardless of whether that law has anything to do with discrimination, and regardless of whether there are numerous options for compliance with that law, the section will excuse what would otherwise be discriminatory conduct. As submitted by the respondents, in the context of the purpose and objective of the ADA, namely, to prohibit discrimination, such a result ought not readily be accepted.

91           It would be reasonable to accept, particularly in view of s 47 of the DDA, which is a similar provision to s 24 of the ADA, that the essence of s 24 is that there needs to be some form of mandatory and specific requirement under the relevant law of the State or the Commonwealth which "implicates" the discriminatory conduct.

92 In the present case, whilst the respondents do not dispute that the Building Act contains "mandatory and specific" requirements with which developers must comply (and that those requirements include the NCC), they point out that the "action" that is the subject of the complaint to the Tribunal, namely either the installation of the stairs or the failure to install an accessible entrance at the location of the stairs, is not reasonably necessary to comply with either the Building Act and/or the NCC. If there were to be no entry at all at the location of the stairs, the Parliament Square development would still comply with the Building Act and the NCC.

93           It is not necessary for me to decide this question however, because I accept the submission of the appellant that the DSP do not apply in Tasmania "as a law of the Commonwealth", as it is clear from the text and objects of the DDA, that in enacting the DDA the legislature intended to enable "the minimum requirements of discrimination law" to operate harmoniously at Federal, State and Territorial levels, leaving a complainant with the choice of the jurisdiction in which the claim is brought.

94           In particular I am persuaded by the submission made on behalf of the appellant that ss 13(2)- (4) of the DDA allow State and Territory legislatures to enact their own laws on disability discrimination, with s 13(4)(b) providing that a person may not make a claim of discrimination under the DDA if the person has already made a complaint in relation to the same act or omission under State or Territory provisions. Importantly, by its terms, s 13(4)(a) anticipates that State legislation may deal with a matter dealt with by the DDA, "including a matter dealt with by a disability standard."

95           It is to my mind correct therefore, to say, as the appellant does, that this legislative scheme permits the concurrent operation of both the federal and the State or Territory regimes by providing for an election to be made by a complainant. The appellant has demonstrated this in my view by the careful analysis by his counsel of the text and purpose of the DDA which I have set out above.

96 Again, in particular, it is significant in my view, that s 13(4) is in Pt 1 of the DDA and therefore is not subject to the provisions in Pt 2 (such as s 34) which concern the operation of the DDA in respect of unlawful conduct actionable under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). I say this, conscious of the point made by the respondents that s 13(4)(b)

26   No 15/2020

of the DDA expressly refers to a complaint alleging that an act or omission is unlawful under a provision of Pt 2 of the DDA. If, as submitted by the respondents, that section means that where a disability standard applies, the federal law expresses an intention that the federal law is to be the only law on the topic, that edict must be seen to have been met by a law of the State, such as s 11 of the Building Act, which picks up and adopts the federal standard in its terms.

97 Equally significant is the implication that the operation of s 125 of the DDA, including s 32, which provides that it is unlawful for a person to contravene a disability standard, only gives a right to invoke the procedures, and to obtain the remedies provided for in the AHRC Act, and thus, s 34 of the DDA provides a defence only to that specific right.

98           I do not accept the respondents' submission that, to the extent that the DSP contains provisions that are more favourable to the respondents (for example, the unjustifiable hardship provisions in s 29A of the DDA), then "the defence that would be relied upon through the vehicle of s 24 ADA (s 11 of the BA, the NCC and the DSP) is ultimately still sourced in the DSP, which is a federal law and thus, invokes Federal jurisdiction".

99           In my view, if a federal law has been applied in Tasmania by being picked up and adopted in its terms by State legislation, then its source may be federal, but its nature has changed. I might have been disposed to the respondents' argument that the DSP remained coloured by its origin, were it not for my acceptance of the appellant's submission that the DDA provides for the concurrent operation of both the DDA and the ADA with a complainant having an election as to venue.

100   I note that nothing in the Explanatory Memorandum to the Disability Discrimination Bill

1992 (Cth), suggests otherwise. The note to cl 13 is as follows:

"Clause 13 - Operation of State and Territory Laws

This provision is designed to ensure that State and Territory legislation operating in this area can continue to operate concurrently with this legislation after it becomes law.

Essentially the way this is done is set out in sub clauses (4) and (5) whereby, under sub clause (4), if a person has made, for example, a complaint under State or Territory law about a particular matter they will not be able to make a complaint under this Act about the same matter. A person will have to make a choice between State /Territory law and Commonwealth law.

Sub clause (5) provides that if a person is prosecuted under a State or Territory law for a particular matter then they cannot be prosecuted again under this Act for the same matter."

101 Finally, whilst it follows from the foregoing, that I do not accept the respondents' submission that "the ADA, by not containing the same defence, makes unlawful that which the DDA provides is specifically not unlawful. In other words, it nullifies the defence contained in the DDA", I should add that to the extent to which it may be intended to be a separate submission, I do not accept, for the same reasons, the respondents' contention that the effect of s 34 of the DDA is to leave significant "areas of liberty", which "should not be closed up" by State law and that the respondents "have complied with the Access Standards, thereby engaging the liberty preserved by s 34 of the Federal Discrimination Act."

Disposition

102 It follows from all that I have said, that I do not accept the respondents' submission that s 109
of the Constitution operates in this case to exclude and render invalid s 16(k) of the ADA (which

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prohibits discrimination against another person on the ground of disability. The DSP is not, in my
view, in the relevant sense, a federal law

103 And it follows that, in my view, the Tribunal erred in determining that it had no jurisdiction to determine the complaint. The Tribunal was obliged to consider its own jurisdiction and it ought to have determined that it had jurisdiction to hear the complaint as the ADA operated independently of the DDA and s 34 of the DDA provided no defence to a complaint of discrimination otherwise than in proceedings before the AHRC instituted in reliance on Pt 2 of the DDA.

104         I find it unnecessary to consider any of the other numerous arguments advanced by the appellant. Grounds 1, 2, 4, 5, 7 and 8 should succeed and I would allow the appeal. I would remit the matter to the Tribunal to hear and determine in accordance with law. I would hear the parties as to the terms of the orders.