A disability advocate says he feels like he has been "kicked in the guts" after the High Court ruled in favour of the developers of Hobart's $220 million Parliament Square precinct, in a long-running dispute over equal access.
Parliament Square takes up almost a full block of the city and was touted as Tasmania's answer to Federation Square ahead of its construction.
In a dispute that came to be dubbed a "David and Goliath" battle, disability advocate David Cawthorn has been fighting the square's developers, Citta Property Group, for almost six years over the site's accessibility.
While there are two entrances with ramps, accessing them from the Hobart waterfront precinct requires a 35-metre uphill push for people using wheelchairs or prams.
The entrance on the north-eastern corner, closest to the waterfront, only has stair access.
Citta said the development complied with Commonwealth standards requiring 50 per cent of entrances, including the principal pedestrian entrance, to be accessible.
But Mr Cawthorn made a complaint to Equal Opportunity Tasmania in 2016, saying it was discriminatory to not provide access to a public place and seeking the installation of a lift.
The state's anti-discrimination tribunal found it could not hear the matter because it involved constitutional issues.
Mr Cawthorn appealed to the Supreme Court to argue the issue could be heard by the tribunal, which found in his favour.
But Citta took the matter to the High Court and, on Wednesday, the court agreed the state tribunal did not have the power to consider the issue.
Issue of equal access 'has not been addressed'
"I'm really disappointed in the situation," Mr Cawthorn said.
In a statement, Citta Property Group managing director Stephen McMillan welcomed the High Court decision.
"We do not believe Parliament Square has been built in any way to discriminate against people with disability," he said.
"Our application to the High Court sought to resolve what was an untenable conflict between the Federal Premises Standards, the Federal Disability Discrimination Act and the State Anti-Discrimination Act."
Mr Cawthorn said while the developers had won their appeal, the crux of the case had not been dealt with.
"They've only won on a legal technicality, but not actually on the merits on the case about equal access for everyone," he said.
"That's the disappointing thing.
"All we've done is played around with what courts can hear the case."
Developers 'technically complied', but not in fairness
Mr Cawthorn's lawyer, Ben Bartl, said the Tasmanian government had amended legislation so cases like Mr Cawthorn's that raised federal defences or constitutional issues could now be referred to the Magistrate's Court to be heard.
Mr Cawthorn said he was going through the judgement with his pro-bono legal team.
"And I will seriously consider lodging a new complaint, as the equal access issue still has not been addressed.
"It's just not about me. It's about other people in the community, elderly people, parents with prams, people with a disability, trying to get up that hill."
Former disability discrimination commissioner Graeme Innes said the decision was disappointing, and Mr Cawthorn still had not had the merits of his case heard.
"In this case, the [access to premises] standards have worked very poorly for people with disabilities in Tasmania.
"The standards provide that you have to have 50 per cent of entrances accessible, and in general terms in a building, that's not a bad start.
"But for Parliament Square, which is effectively on that Hobart slope, the two entrances they've made accessible are the top two… but if you're down on the foreshore and wanting to come to Parliament Square, you effectively can't, if you can't push up a 35 metre-long hill.
"It seems as though the developers have technically complied. But in terms of fairness, they definitely haven't."
Mr Cawthorn does not have to pay costs.
