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based on the law of contract": Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) 600 [25.28].
110 The Explanatory Memorandum explained that (at 602 [25.33]):
It may, therefore, come as a surprise to many consumers to learn that, in the event of a dispute with a retailer, they are currently required to enforce their contract rather than seek redress under the law. Many consumers lack sufficiently comprehensive knowledge of the law of contract to know how to enforce their rights, or lack the resources to obtain expert advice to do so.
111 The Explanatory Memorandum explained that the new regime was intended to be simpler. It compared the previous scheme of implications with the new scheme which was described as one in which "If a person supplies goods to a consumer, the following guarantees apply". There was no suggestion that the guarantees would only apply if a person supplied goods to a consumer where the law which is the real and closest connection to the supply is a part of Australia. Given the emphasis on simplicity and clarity, this is unsurprising.
112 With this goal, the Australian Consumer Law maintained the two-part scheme which had existed in the Trade Practices Act. The two sections are ss 64 and 67. As the Explanatory Memorandum that introduced the Australian Consumer Law described these two sections (184 [7.17]):
The guarantees cannot be excluded by contract […section 64]. This ensures that consumers cannot be pressured or tricked into surrendering their rights by agreeing that the guarantees do not apply. It is also not possible to avoid providing consumer guarantees by agreeing that the law of another country applies […section 67].
113 Section 64 (which had previously been s 68 of the Trade Practices Act) provides:
Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
- (a) the application of all or any of the provisions of this Division; or
- (b) the exercise of a right conferred by such a provision; or
- (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
