A revival of the doctrine of attainder? The statutory illegality defences to liability in tort

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The Sydney Law Review, Vol: 29, Issue: 3, Page: 445-493

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Goudkamp, James
era2012; era2010
article description
Although the defence of illegality to liability in tort has a chequered history throughout the common law world and has been trenchantly criticised by judges and academic commentators alike, the legislatures of New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have seen fit to enact, as part of their tort ‘reform’ packages, far more potent statutory analogues of this defence. This article offers an analysis of these statutory defences and their relationship with the common law defence. It will be argued that the statutory defences blight an already highly unsatisfactory body of law.