Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/40

 117 In Akai (at 433), the majority explained the policy of the Insurance Contracts Act in the course of describing the relationship between s 8(2) and s 52 of the Insurance Contracts Act (footnotes omitted):

118 At 434, the majority explained that the Insurance Contracts Act was designed to operate upon contracts of insurance which had "the law of a State or a Territory as the proper law". The point being made by the majority in the quotation in the paragraph above was that the legislative regime, which operated on contracts with a proper law of some part of Australian law, was designed to be complete. The legislation operated to ensure that there could be no departure from it. In other words, without s 8(2), the criterion of operation of the Insurance Contracts Act ("the proper law of the contracts") "would give scope to evasion" (443).

119 Like the "legislative intent" of the Insurance Contracts Act underlying ss 52 and 8 to which the High Court referred in Akai, the legislative intent underlying ss 64, 67, and 276 was to comprise a "legislative regime" to ensure that the operation of the provisions in Division 1, Part 3-2 (Chapter 3) are within the reach of the Australian Consumer Law. It was a scheme introduced for reasons including simplicity and clarity. Section 67 is not a redundant part of this regime. And I do not accept Valve's submission that s 67 has no effect unless it is construed as limiting the operation of Division 1. Rather, the section does exactly what it says. It ensures that there can be no possibility of varying the operation of the Division by contractual terms. If there is such a term, s 67 requires that the provisions in the Division "apply in relation to the supply under the contract despite that term".

120 In Kay's Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79; (1964) 116 CLR 124, 143, Kitto J said that:

Where a provision renders an agreement void for non-compliance by the parties or one of them with statutory requirements, especially where the requirements can be seen to embody a specific policy directed against practices which the legislature has deemed oppressive or unjust, a presumption that the agreements in contemplation are only those of which the law of the country is the proper law according to the rules of private international law has no apparent appropriateness to recommend it, and