Wilkinson v Osborne (1915) 21 CLR 89 per Issacs J at 98. This concept is not limited to criminal activity and may include contracts which are prohibited by other law and those that are unenforceable because either their objects or their performance or underlying purpose is socially undesirable or offend public policy. See Stevens v Keogh (1946) 72 CLR 1 at 28; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 462; Cunningham v Cannon (1983) 1 VR 641; Fitzgerald v F.J. Leonhardt Pty Ltd (1997) 71 ALJR 653; Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd & Ors (1978) 139 CLR 410.
2.
See also MackenJ.O'GradyP. and SappideenC., The Law of Employment, Law Book Company, 4th edn, 1997, pp.87–8.
3.
Abberton v McLeod [1932] WCR 176; Fennelly v Hayes [1932] WCR 197; Tierney v Stafford [1935] WCR 90 and Blencowe v Day [1935] WCR 251; but see Cunningham v Cannon (1983) 1 VR 641.
4.
No such provisions exist in the Workers Rehabilitation and Compensation Act 1988 (Tas), the Workers Rehabilitation and Compensation Act 1986 (SA), Accident Compensation Act 1985 (Vic) and the Queensland WorkCover Act 1996 (Qld). In states other than Western Australia and New South Wales a finding of illegality could still be fatal to a workers compensation claim.
5.
Hardcastle v Smithson (1933) 26 BWCC 152.
6.
Cluff v Finemores Transport Pty Ltd [1972] 1 NSWLR 354.
7.
PhangA., ‘Of Illegality and Presumption: Australian Departures and Possible Approaches’, (1996) 2(1) Journal of Contract Law53.
8.
(1996) AIRC Print 960433 433/96, 10 September 1996.
9.
See in relation to the need for recognition of changes to public attitudes; Westpac Banking Corporation v Bower [1996] ACTSC 21 where the Supreme Court of ACT held that a contract to loan money to a brothel owner on security of a mortgage on premises known to operating as a brothel was enforceable notwithstanding that the bank knew the purpose of the loan. Interestingly the Court held the bank was entitled to possession of the brothel!
10.
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438.
11.
For example, Workers Rehabilitation and Compensation Act 1988 (Tas), s.71, item 12 Loss of Genitals; Workers Rehabiliation and Compensation Act 1986 (SA), Schedule 3, item for loss of genital organs; WorkCover Queensland Regulations 1997 (Qld), Schedule 2 Clause 4(4), item 4606 Loss of sexual function (both impotence and infertility) and item 4607 Loss of genital organs; Workers Compensation Act 1987 (NSW), Division 4, Table Loss of sexual organs, loss of both breasts, loss of one breast, HIV infection and AIDS; Accident Compensation Act 1985 (Vic), s.98 items for total and partial loss of sexual organs, total loss of both breasts, and total loss of one breast.
12.
Skywest Airlines Pty Ltd v Barnett unreported CM (WA) 60/00 20 October 2000.
13.
Malcolm v Roads & Traffic Authority [1995] NSWCC 24 (5 September 1995) affirmed (95040618)4 July 1996; Department of Public Works v Morrow (1986) 5 NSWLR 166; Mansell v Bellorana Hostel [2000] NSWCC 13 (24 March 2000); Waugh v Newcastle Mater Misericordiae Hospital [1996] NSWCC 32 (23 October 1996).
14.
D'Aleo v Ambulance Service of NSW (96040169), 12 December 1996.
15.
See s.67 of the Workers Compensation and Rehabilitation Act 1981 (WA).
16.
These themes sit comfortably with a developing judicial approach towards equality and fair dealing in contractual dealings, exemplified by High Court decision in relation to unconscionability and good faith although the Court has not yet taken the step of implying an obligation of good faith and fair dealing into all contracts. For example Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621, the latter being a case in relation to special disability, and see more recently the High Court on the issue of good faith Royal Botanic Gardens and Domain Trust v South Sydney Council [2002] HCA 5 (14 February 2002).
17.
This has recently received considerable publicity. See the information resources package issued by WorkCover, NSW General Manager, 21 January 2002 launching new occupational health guidelines for the sex industry. See also the Joint publication by WorkCover and NSW Dept of Health, ‘Health and Safety Guidelines for Brothels in NSW’.
18.
See MeretixM., ‘Occupational Health and Safety Concerns in the Legal Nevada Brothels’ (2000) 7Safety at Work15–18.
