What’s New in the Law?

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

In a landmark decision the High Court, by a 4:3 majority, ruled that Aboriginal Australian’s who don’t hold Australian citizenship are unable to be deported under the Migration Act 1958 (Cth). Both plaintiffs, Mr Love and Mr Thoms were born overseas with one Aboriginal Australian parent. Both were convicted of offences against the Criminal Code (Qld) and facing deportation as unlawful non-citizens. Section 51(xix) of the Constitution, the ‘alien’ power, confers the parliaments right to do so. The key issue for the Court, was whether Aboriginal Australian’s could be considered as ‘aliens’. Gordon J in the majority noted that First Nations People connection to the land was not extinguished as a result of European settlement and therefore they could be ‘aliens’ on their own land.

Lachlan Williams

Treasury Laws Amendment (Consumer Data Right) Bill 2019 (Cth)

New laws passed in 2019 introduced a Consumer Data Right (‘CDR’) to the banking sector. The right enables consumers to direct their bank to share information they hold about them, with other suppliers. It will also give the consumer access to view their own data. All four major banks since July 2019 have been required to publicly share their product data and since February 2020, the four major banks have been required to share their consumer data relating to mortgage accounts. By July 2020 consumer data relating to personal loans will be available. The plan is to phase the CDR across all banks and other sectors moving forward.

COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)

In response to the COVID-19 pandemic, the NSW Government enforced regulatory powers for changes to the Residential Tenancies Act 2010 (NSW). New rules provide tenants relief from eviction if financially disadvantaged from the pandemic. The Act also bestowed temporary regulation making powers for the Electronic Transactions Act 2000 (NSW). The witnessing of legal documents can now take place via real time videoconferencing for up to six months. Whilst only temporary it will be interesting to see if this ‘trial’ may pave the way for future adoption of technology in the legal industry.

Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698

The Full Bench of the Fair Work Commission (‘FWC’), upheld the initial decision of the FWC, ruling that Uber Eats Drivers are independent contractors not employees. Therefore, they are unable to make unfair dismissal claims. Ms Gupta was an Uber Eats driver for 16 months before she was blocked from their app as a result of poor delivery times. Ms Gupta argued that she was an employee as she was unable to set her own rates, form her own business relationships and delegate work. The Full Bench held that she was an independent contractor as she was able to choose her hours of work, accept deliveries using other food delivery apps and she didn’t have to represent the business, e.g. such as wearing a uniform.

Parliamentary Inquiry into Class Actions

Attorney General Christian Porter announced in March 2020 that a parliamentary committee will review the large profits in the litigation funding industry and its impact on justice outcomes. The report will be finished late this year. Mr Porter noted that the median return of members was 51% when litigation funding was involved as opposed to 85% per cent when it was absent. With a rise in class action lawsuits and litigation funding, the results of this inquiry will keep lawyers keenly waiting.

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