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114 The Australian Consumer Law also introduced a new provision, s 276, in the Part concerned with remedies related to guarantees. Section 276 further complements s 64 by providing as follows, subject to various exceptions which are not relevant in this case:
This Part 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 Part; or
- (b) the exercise of a right a conferred by such a provision; or
- (c) any liability of a person in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 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 Part unless the term does so expressly or is inconsistent with the provision.
(3) This section does not apply to a term of a contract that is a term referred to in section 276A(4).
115 In summary, the history and purpose of s 67 shows that it was included in the Australian Consumer Law as part of an amendment process designed, in part, to make consumers' rights simpler and more transparent. The consumer guarantees no longer had to be implied into a contract. They applied generally to a supply of goods to a consumer. And s 67 was explained as part of a scheme, together with s 64, to ensure that it was not possible to exclude the consumer guarantees by contract. That scheme was further strengthened in the Australian Consumer Law by the addition of s 276 which makes a term of a contract void to the extent that it attempts to modify or exclude a remedy for breach of a consumer guarantee.
(iv) The policy of the Australian Consumer Law is contrary to Valve's submission
116 As I have explained, in Akai the majority of the High Court gave "the policy of the Insurance Contracts Act" as one reason for the refusal to give effect to a jurisdiction clause. The reference by the High Court to the "policy" of the legislation as a matter to be taken into account independently of the express or implied terms of the legislation was not, and is not, new. It was relied upon in various judgments in Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538, 552 (Deane and Gummow JJ) 611 (McHugh J) (referred to by the majority in Akai at 447). More recently, it was relied upon in Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498, 514 [25] (French CJ, Crennan and Kiefel JJ).
