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105 The extended operation of the Australian Consumer Law by s 5 of the Competition and Consumer Act is a context which also militates against Valve's submission for another reason. One of the few exceptions to the breadth of s 5(1), and a rare instance in which the breadth of the Competition and Consumer Act is constrained by reference to the state of a foreign law, is where a person seeks damages under s 236 of the Australian Consumer Law. In such a case, the consent of the Minister is needed (s 5(3)) but consent will be given unless it is not in the national interest or "the law of the country in which the conduct concerned was engaged in required or specifically authorised the engaging in of the conduct" (s 5(5)). That exception by reference to a foreign law is narrowly confined (only to s 236). Again, this militates against an implication of a broad, unarticulated, foreign law exemption in s 67.
106 Fourthly, the context of s 67 also includes the provisions discussed below: ss 64 and 276. As counsel for the ACCC rightly submitted, those provisions must be read together. When they are read together they establish a legislative scheme to restrict any attempt to reduce the scope of operation of the Division. It would defeat that scheme if s 67 were read as imposing a restriction on the operation of the Division.
(iii) The history and purpose of s 67 is contrary to Valve's submission
107 Prior to 1 January 2011 (when the Australian Consumer Law came into operation) the predecessor legislation to the Australian Consumer Law (the Trade Practices Act 1974 (Cth)) provided for similar consumer guarantees to those contained within Division 1. However, under the Trade Practices Act those consumer guarantees were imposed as statutory implications into a contract.
108 As statutory implications into a contract, a question that might arise would be whether those statutory implications could be excluded by the contract. The Trade Practices Act created a regime in similar terms to the regime of the Insurance Contracts Act considered in Akai. Like the Insurance Contracts Act, that regime was twofold. First, it prevented a term of the contract from excluding or modifying the statutory implied terms. Secondly, it provided in s 67 that the Division would apply notwithstanding a term of the contract that applied a foreign law or that purported to substitute, or had the effect of substituting, other provisions for the operation of the Division.
109 The Australian Consumer Law departed from the scheme of implication of terms into contracts. As the Explanatory Memorandum explained, one of the "features of the current law which contribute to its uncertainty" was that "the existing statutory implied terms regime is
