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to apply only to instances where the law with the closest and most real connection to the contract is the law of a part of Australia. I turn then to that issue.
Reasons why s 67 does not limit Division 1 of the Australian Consumer Law
90 Contrary to Valve's submission, s 67 does not limit the operation of Division 1 of the Australian Consumer Law by confining its operation only to cases where the closest and most real connection to the contract is the law of a part of Australia. There are four reasons why Valve's submission must be rejected. It is inconsistent with the text of s 67. It is inconsistent with the context of s 67. It is inconsistent with the history and purpose of s 67. And it is inconsistent with the policy of s 67.
(i) The text of s 67 is contrary to Valve's submission
91 The first reason why Valve's submission should not be accepted is that it is inconsistent with the text of s 67. Valve essentially submitted that the concluding words of s 67 should be read as though they contained the words in italics: "the provisions of this Division apply in relation to the supply under the contract despite that term but they do not apply if the law with the closest and most real connection to the contract is other than the law of a part of Australia." Valve submitted that this conclusion arose by construction rather than implication. But this is a false dichotomy. Implications can be part of the process of construction: Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169, 186–188 [22]–[25] (French CJ, Bell and Keane JJ).
92 The submission by Valve must be concerned with an implication into the Australian Consumer Law rather than an express term. Division 1 of Part 3-2 (Chapter 3) of the Australian Consumer Law contrasts with the Insurance Contracts Act where the joint judgment of the majority in Akai described the latter Act as being "so framed that its application to any other particular contract of insurance turns upon the treatment by the Act of the governing law of the contract in question" (432). The Insurance Contracts Act, s 8(1), provided that
the application of this Act extends to contracts of insurance and proposed contracts of insurance the proper law of which is or would be the law of a State or the law of a Territory in which this Act applies or to which this Act extends.
93 There is no express provision in Division 1 of Part 3-2 (Chapter 3) of the Australian Consumer Law which is equivalent to s 8(1). Nor is there a provision such as that contained in s 17(3) of the Contracts Review Act 1980 (NSW) which is otherwise in near-identical form
