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Published online by Cambridge University Press: 01 January 2025
Smart contracts are designed to be self-executing and self-enforcing. They are written as computer code that can automatically monitor, execute and enforce the performance of the agreed terms. The code of smart contracts exists across a distributed, decentralised blockchain network, controlling the execution and making transactions trackable and irreversible. This article examines the extent to which the Australian Consumer Law unfair contract term provisions can respond to the use of smart contracts. The article finds that the Australian Consumer Law unfair contract term provisions work relatively well to protect smart contract consumers. While some challenges exist and should be properly considered, there seems to be no need to either create entirely new law, modify the existing regime or totally ban smart contracts to protect consumers against unfair contract terms in smart consumer contracts.
1. Competition and Consumer Act 2010 (Cth) sch 2 (‘ACL'). The ACL is a national law and replaced the former Trade Practices Act 1974 (Cth). The ACL applies either as a federal law or as a law of a state or territory. Specifically, States and Territories have enacted legislation applying the ACL as a law of their jurisdiction. See, eg, Fair Trading (Australian Consumer Law) Act 1992 (ACT), as amended by the Fair Trading (Australian Consumer Law) Amendment Act 2010 (ACT); Fair Trading Act 1987 (NSW), as amended by the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW); Consumer Affairs and Fair Trading Act 1990 (NT) as amended by the Consumer Affairs and Fair Trading (National Uniform Legislation) Act (NT); Fair Trading Act 1989 (Qld) as amended by the Fair Trading (Australian Consumer Law) Amendment Act 2010 (Qld); Fair Trading Act 1987 (SA) as amended by the Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 (SA); Australian Consumer Law (Tasmania) Act 2010; Fair Trading Act 1999 (Vic) as amended by the Fair Trading Amendment (Australian Consumer Law) Act 2010 (Vic); Fair Trading Act 2010 (WA).
2. Other important consumer protections provided by the ACL include, but are not limited to, the protections against misleading or deceptive conduct, the protections against unconscionable conduct and consumer guarantees. See ACL (n 1) sch 2 ch 2 pt 2–1, 2–2, ch 3 pt 3–2 div 1.
3. ACL (n 1) sch 2 ss 23–8.
4. Consumer Affairs Australia and New Zealand, Australian Consumer Law Review (Final Report, 2017) 52.
5. Lucas Forbes, ‘Consumer Protection in the Face of Smart Contracts’ (2022) 34(1) Loyola Consumer Law Review 45, 46.
6. Mark Verstraete, ‘The Stakes of Smart Contracts’ (2019) 50(3) Loyola University Chicago Law Journal 743, 750.
7. The concept of a smart contract was initially introduced by a well-known American scientist, a specialist in the field of law and cryptography, Nick Szabo, in 1994. See Nick Szabo, Smart Contracts (Web Page, 1994) <http://www.fon.hum.uva.nl/rob/Courses/InformationInSpeech/CDROM/Literature/LOTwinterschool2006/szabo.best.vwh.net/smart.contracts.html>; Larry A DiMatteo, Michel Cannarsa and Cristina Poncibò, ‘Smart Contracts and Contract Law’ in Larry A DiMatteo, Michel Cannarsa and Cristina Poncibò (eds) The Cambridge Handbook of Smart Contracts, Blockchain Technology and Digital Platforms (Cambridge University Press, 2019) 3, 4.
8. Law Commission of England and Wales, Smart Legal Contracts Advice to Government (Law Com No 401, 25 November 2021) 1 (‘Law Commission’).
9. Gwyneth Iredale, ‘List of Top 50 Companies Using Blockchain Technology’, 101 Blockchains (Web Page, 26 Dec 2020) <https://101blockchains.com/companies-using-blockchain-technology/>. These companies include, for example, HSBC, Barclays, Visa, Ford and Walmart.
10. Law Commission (n 8) 30–5. The Law Commission has identified various use cases for smart legal contracts in various areas and in companies including Aave (decentralised finance); Trakti Ltd (service level agreement monitoring); Propy (real estate transactions); Clyde & Co (parametric insurance); S7 Airlines, Alfa Bank and Gazpromneft-Aero (aviation refuelling).
11. Law Commission (n 8) 1.
12. Silas Nzuva, ‘Smart Contracts Implementation, Applications, Benefits, and Limitations’ (2019) 9(5) Journal of Information Engineering and Applications 63, 71; Forbes (n 5) 52–4; Matthew McMillan et al, ‘Australia: Smart(er) contracts in 2020’, Mondaq (Web Page, 09 August 2020) <https://www.mondaq.com/australia/new-technology/974460/smarter-contracts-in-2020>; Joshua Fairfield, ‘Smart Contracts, Bitcoin Bots, and Consumer Protection’ (2014) 71(2) Washington and Lee Law Review Online 35, 36; Kevin Werbach and Nicolas Cornell, ‘Contracts Ex Machina’ (2017) 67(2) Duke Law Journal 314, 335.
13. Kelvin FK Low and Eliza Mik, ‘Pause the Blockchain Legal Revolution’ (2020) 69(1) International and Comparative Law Quarterly 135, 158–9.
14. Thibault Schrepel, Smart Contracts and the Digital Single Market Through the Lens of a ‘Law + Technology’ Approach (Publications Office of the European Union, 20 October 2021) 47. Schrepel found that ‘[t]here are between 1 and 25 errors every 1000 lines of code’.
15. Cristina Poncibò and Larry A DiMatteo, ‘Smart Contracts: Contractual and Noncontractual Remedies’ in Larry A DiMatteo, Michel Cannarsa and Cristina Poncibò (eds) The Cambridge Handbook of Smart Contracts, Blockchain Technology and Digital Platforms (Cambridge University Press, 2019) 118, 120–1.
16. Stuart Levi, Alex Lipton and Cristina Vasile, ‘Legal Issues Surrounding the Use of Smart Contracts’ in Josias N Dewey (ed) Blockchain & Cryptocurrency Laws and Regulations 2020 (Global Legal Group, 3rd ed, 2020) 155, 156.
17. McMillan et al (n 12).
18. Verstraete (n 6) 750.
19. Forbes (n 5) 48.
20. Law Commission (n 8) 12–13.
21. Sarah Green, ‘Smart Contracts, Interpretation and Rectification’ [2018] (2) Lloyd's Maritime and Commercial Law Quarterly 234, 238.
22. Tatiana Cutts, ‘Smart Contracts and Consumers’ (2019) 122(2) West Virginia Law Review 389, 392; Forbes (n 5) 48.
23. Verstraete (n 6) 746; Jonathan Zittrain, The Future of the Internet and How to Stop It (Yale University, 2008) 108 (defining and detailing ‘preemption’ as one type of perfect enforcement).
24. Laurence Ingle, ‘Smart Contracts in Consumer Law: Does New Zealand Need to Wise Up?’ (Student/Alumni Paper No 23/2019, Faculty of Law, Victoria University of Wellington, 9 October 2019) 6 <https://ssrn.com/abstract=3466523>; Werbach and Cornell (n 12) 321.
25. Ingle (n 24) 6; Werbach and Cornell (n 12) 321.
26. Law Commission (n 8) 22–3.
27. Ibid 22.
28. Ibid.
29. Ibid 22–3.
30. Ibid.
31. Ibid 23.
32. Ibid.
33. Ibid 30.
34. Nzuva (n 12) 71.
35. Forbes (n 5) 48, 52.
36. Nzuva (n 12) 71; Forbes (n 5) 52.
37. McMillan et al (n 12); Nzuva (n 12) 71.
38. McMillan et al (n 12).
39. Nzuva (n 12) 71; Forbes (n 5) 53; McMillan et al (n 12).
40. Forbes (n 5) 53.
41. Fairfield (n 12) 36; McMillan et al (n 12).
42. Nzuva (n 12) 71.
43. Forbes (n 5) 54.
44. Werbach and Cornell (n 12) 335.
45. Levi, Lipton and Vasile (n 16) 156.
46. Law Commission (n 8) 1.
47. For a discussion on the traditional elements of a legally enforceable contract, see, eg, Andrew Robertson and Jeannie Paterson, Principles of Contract Law (Lawbook, Australia, 6th ed, 2020) 57–136.
48. DiMatteo, Cannarsa and Poncibò (n 7) 10.
49. For a discussion on these interesting questions, please see Law Commission (n 8) 40–3.
50. ‘The Journey’, Comic Book Contracts (Web Page) <https://www.comicbookcontracts.com/our-journey>.
51. Ibid.
52. Robert French, ‘Closing Address, Comic Book Contracts Conference’ (2019) 46(2) University of Western Australia Law Review 268, 271.
53. Electronic Transaction Act 1999 (Cth).
54. Ibid s 5 (definition of ‘automated message systems’).
55. Ibid s 8(1).
56. Ibid s 15C(a)–(b).
57. Primavera De Filippi and Samer Hassan point out that ‘smart contracts are actually meant to replace legal contracts. They are no longer regarded as a mere support or enforcement mechanism to existing legal rules, rather, their code is intended to have the effect of law as its primary function’: Primavera De Filippi and Samer Hassan, ‘Blockchain Technology as a Regulatory Technology: From Code Is Law to Law Is Code’, First Monday (Web Page, 5 December 2016) <https://firstmonday.org/ojs/index.php/fm/article/view/7113/5657>; Jay Cassano views that ‘[s]omeday, [smart contracts] may replace lawyers’: Jay Cassano, ‘What Are Smart Contracts? Cryptocurrency’s Killer App’, Fast Company (Web Page, 17 September 2014) <https://www.fastcompany.com/3035723/smart-contracts-could-be-cryptocurrencys-killer-app>; Alexander Savelyev, ‘Contract Law 2.0: «Smart» Contracts as the Beginning of the End of Classic Contract Law’ (Research Paper No WP BRP 71/LAW/2016, National Research University Higher School of Economics, 14 December 2016) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2885241>.
58. ‘If [smart contracts progress] to a point where there is truly no need for third-party enforcement, there would be no need for a state and the attendant costs that many libertarians see as unjustifiable’: Max Raskin, ‘The Law and Legality of Smart Contracts’ (2017) 1(2) Georgetown Law Technology Review 305, 335.
59. DiMatteo, Cannarsa and Poncibò (n 7) 4.
60. Ian Ayres and Robert Gertner, ‘Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules’ (1989) 99 Yale Law Journal 87, 92–4.
61. Verstraete (n 6) 783–4.
62. DiMatteo, Cannarsa and Poncibò (n 7) 11.
63. Verstraete (n 6) 789.
64. DiMatteo, Cannarsa and Poncibò (n 7) 10.
65. Verstraete (n 6) 749.
66. Poncibò and DiMatteo (n 15) 121.
67. ACL (n 1) ss 51–9.
68. Ibid ss 60–2.
69. Ibid ss 54–7.
70. Ibid ss 60–2.
71. Ibid s 64.
72. Under the old Trade Practices Act 1974 (Cth) the notions such as ‘merchantable quality' and 'fitness for purpose' operated as implied terms in contracts with consumers. It means that the onus is then on consumers to claim in contract when an implied term has been breached.
73. Werbach and Cornell (n 12) 363.
74. Ibid.
75. ACL (n 1) s 18
76. Ibid ss 20–1.
77. Ibid ss 51–62.
78. See ACL (n 1) ch 2 pt 2-1, ch 2 pt 2-2, ch 2 pt 2-3, pt 3-2 div 1.
79. ACL (n 1) ss 23–8.
80. See, eg, ACCC, ‘Unfair Contract Terms’, A Guide to the Unfair Contract Law Terms (Guide, 2011) <https://www.accc.gov.au/publications/a-guide-to-the-unfair-contract-terms-law>; Russell V Miller, Miller's Australian Competition & Consumer Law Annotated (Thomson Reuters Australia, 39th ed, 2017) 1569–79; Sirko Harder, ‘Problems in Interpreting the Unfair Contract Terms Provisions of the Australian Consumer Law’ (2011) 34(3) Australian Bar Review 306; Courtney Wall, ‘Unfair Contract Terms Provisions: The Saviour of Retirees?’ (2012) 20(2) Competition and Consumer Law Journal 165; Alexandra Sims, ‘Unfair Contract Terms: A New Dawn in Australia and New Zealand?’ (2013) 39(3) Monash University Law Review 739.
81. ACL (n 1) s 23(1).
82. Ibid s 23(2).
83. Ibid s 23(3).
84. Ibid s 23(1)(b). From 12 November 2016, the prohibition on unfair terms extends to standard form small business contracts. See ACL (n 1) s 23(4).
85. ACCC (n 80) 8.
86. ACL (n 1) s 27(1).
87. Ibid s 27(2).
88. Ibid s 24.
89. Ibid s 24(1).
90. Ibid s 24(4).
91. Ibid s 24(2).
92. Ibid s 24(3).
93. ACCC (n 80) 12.
94. This is different to some other provisions of the ACL such as s 18 which prohibits misleading or deceptive conduct, or ss 20 and 21 which both prohibit unconscionable conduct. See, eg, Alex Bruce, Consumer Protection Law in Australia (LexisNexis Butterworths, 4th ed, 2022) 107–36, 137–76, 177–98.
95. Consumer Affairs Australia and New Zealand, Australian Consumer Law Review (Final Report, 2017) 54; Consumer Affairs Australia and New Zealand, Australian Consumer Law Review (Issue Paper, 2016) 34; ‘Major Changes to Unfair Contract Term Laws in Australia are Still in Play’, Griffith Hack (Web Page, 29 August 2022) <https://www.griffithhack.com/insights/publications/major-changes-to-unfair-contract-term-laws-in-australia-are-getting-closer/>.
96. Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth).
97. ACL (n 1), ss 23(2)(2A)–(2C), as amended by Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth), pt 1, div 1.
98. Ibid s 224(1)(a)(ii), s 224(3A). Particularly for a corporation, the potential maximum penalty for each unfair term will be the greater of i) AUD$50 million; ii) 3 times the value of the benefit (if the court can determine the value of the benefit); or iii) 30 per cent of the adjusted turnover during the breach turnover period (if the court cannot determine the value of the benefit). Since the new law creates separate contraventions for each unfair contract term, it is possible that a business may breach the prohibition multiple times in a single contract and thus attract multiple penalties.
99. Ibid s 243B(1)(a), ss 243B(2)(a)–(b).
100. See above (n 10).
101. See, eg, ‘Smart Contracts Real Estate is Getting Real’, Hedera (Web Page) <https://hedera.com/learning/smart-contracts/smart-contracts-real-estate>; ‘Smart Contracts in Real Estate: Benefits, Use Cases, and Examples’, Imaginovation (Web Page) <https://imaginovation.net/blog/smart-contracts-in-real-estate/>; ‘The Role of Smart Contracts in Streamlining Real Estate Transactions’, 44 Venture Opportunities (Web Page) <https://www.44.capital/post/the-role-of-smart-contracts-in-streamlining-real-estate-transactions>; Ioannis Karamitsos, Maria Papadaki and Nedaa Al Barghuthi, ‘Design of the Blockchain Smart Contract: A Use Case for Real Estate’ (2018) 9(3) Journal of Information Security 177; Rosa M Garcia-Teruel, ‘Legal Challenges and Opportunities of Blockchain Technology in the Real Estate Sector’ (2020) 12(2) Journal of Property, Planning and Environmental 129.
102. The platform was launched by SMARTR Solutions, a US company based in Seattle, in 2028. The SMARTRealty platform uses smart contract technology to facilitate common real estate transactions such as rental agreements and sales in the American real estate market. See SMARTRealty (Web Page) <https://smartrealty.io/>.
103. The platform was provided by Propy, a US real estate company based in California. Propy’s platform uses smart contracts on blockchain to facilitate the transactions between buyers, sellers and agents. See Propy (Web Page) <https://propy.com/>.
104. The platform was launched by PropertyClub, a US company based in New York. PropertyClub platform uses the blockchain for secure, tokenised property transactions. See PropertyClub (Web Page) <https://propertyclub.nyc/>.
105. RentPeacefully is a blockchain based platform developed in the US which ‘enables Landlord to list properties for rent, successively create an easy, securely and safely Smart Contract and then deploy it to the public Ethereum Network, which will only work once both Parties have signed the agreement with their blockchain private keys’. See RentPeacefully (Web Page) <https://rentpeacefully.com/>.
106. clicktopurchase® is a platform developed in the UK for transacting property sales online. The clicktopurchase® platform facilitates online exchange of properties using blockchain technology. See clicktopurchase® (Web Page) <https://www.clicktopurchase.com/platform-seller/>.
107. ‘TechChrunch Founder Buys House on the Blockchain, Pays with Ethereum’, Trustnodes (Web Page, 30 September 2017) <https://www.trustnodes.com/2017/09/30/techchrunch-founder-buys-house-blockchain-pays-ethereum>.
108. ‘Blockchain Technology Used to Acquire Residential Property’, PBC Today (Web Page, 27 March 2018) <https://www.pbctoday.co.uk/news/digital-construction/blockchain/blockchain-technology-used-to-acquire-residential-property/39859/>.
109. Australia has shown strong interests in utilizing blockchain technology. Many Australian companies have developed solutions, software and technologies to apply blockchain in various fields, for example, 1) DigitalX, which is a blockchain enhanced payment solutions company focused on the global digital payments industry and aims to develop fintech products and services in the mobile bill payments and remittance space, see DigitalX (Web Page) <https://www.digitalx.com/>; 2) PowerLedger, which develop software for its clients and partners that allows consumers and producers to track, trace and trade every kilowatt of energy, see PowerLedger (Web Page) <https://www.powerledger.io/>; 3) Perkable, which develops innovative ways for brands to reward users, see Perkable (Web Page) <www.perkable.co>; and 4) Hillridge Technology, which is a technology start-up company helping farmers in Australia and beyond obtain weather-index protection. The company is aiming at developing a blockchain-based parametric insurance platform for tropical storms, see Hillridge Technology (Web Page) <https://www.hillridge.com.au/>.
110. Abraham v Gogetta Equipment Funding [2017] NSWCATCD 22, [69] (‘Abraham’). The Tribunal Member held that ‘the requirement to continue to pay rent despite any defect or breakdown in the vehicle does produce a significant imbalance in the parties’ rights and obligations under contract’.
111. Commissioner for Consumer Protection v Starland Management as director of Rolf Gerard Voulon [2022] WASC 96, [23] (‘Starland Management’). The judge held that the term at issue ‘is unfair because it provides for a penalty that is disproportionate to the consumer's conduct and any harm or loss caused by that conduct. This term falls within the category of terms referred to in s 25(c) of the ACL’.
112. Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149 (‘Carnival’).
113. Australian Competition and Consumer Commission v Servcorp Limited [2018] FCA 1044, [43] (‘Servcorp’). The judge held that ‘Clause 5(d) … is again the type of clause envisaged by s 25(k) of the ACL as an example of a clause that may be unfair. It has the effect of limiting or purporting to limit the counterparty’s right to sue the landlord including in circumstances where the counterparty has a legitimate claim against the landlord. There is no clause … which imposes any reciprocal limitation on the Servcorp Parramatta or Servcorp Melbourne or the landlord who are free to sue the counterparty’.
114. Ibid [42]. The judge held that ‘Clause 5(b) … limits or has the effect of limiting one party’s right to sue another, [and] would cause detriment to the counterparty if it were to be applied or relied on’.
115. See, eg, Abraham (n 110); Starland Management (n 111); Carnival (n 112); Servcorp (n 113).
116. Consumer Affairs Australia and New Zealand (n 4) 52.
117. SMARTRealty (Web Page) <https://smartrealty.io/>. For a specific description of a design of smart contracts in real estate, see, eg, Karamitsos, Papadaki and Barghuthi (n 101) 185–8.
118. Law v MCI Technologies Pty Ltd [2006] VCAT 415, [48] (the Tribunal in Victoria refused to enforce an exclusive Queensland jurisdiction clause in a software licence agreement because the rights conferred by consumer protection legislation in each of those states ‘would be eroded if consumers were compelled to take any legal action arising from the supply of goods to them in an interstate court or tribunal’).
119. ‘WA Building Company Amends Unfair Contracts’, Australian Competition and Consumer Commission (Media Release, 15 December 2017) <https://www.accc.gov.au/media-release/wa-building-company-amends-unfair-contracts>; ‘101 Residential Pty Ltd — s 87B undertaking’, Australian Competition and Consumer Commission (Undertaking Register, 15 December 2017) <https://www.accc.gov.au/public-registers/undertakings-registers/section-87b-undertakings-register/101-residential-pty-ltd-s87b-undertaking> (the ACCC considered that the non-disparagement clauses were likely to be unfair contract terms within the meaning of sections 23 and 24 of the ACL).
120. Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (2015) 239 FCR 33 (‘Chrisco Hampers’) (the Federal Court criticized that the ‘Headstart’ term allowed Chrisco to continue withdrawing funds from the customer’s bank account even after the customer had made full payment of the goods on order. The Court suggested that the clause gave Chrisco rights to withdraw but gave no substantial right to the customer in return. Therefore, the term was unfair because there was a significant imbalance in the parties’ rights).
121. Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224 (‘JJ Richards’) (the Federal Court determined that the automatic renewal clause which renewed the contract for a further term unless customers cancelled 30 days before the end of the term was unfair. The Court took particular issue with the fact that the notice period was limited, JJ Richards was not required, under the contract, to provide a reminder/notice of the automatic renewal clause).
122. Alberto R Salazar V, ‘Unconscionability, Smart Contracts, and Blockchain Technology’ (2021) 9 International Journal on Consumer Law and Practice 74, 83–4.
123. Ibid.
124. Ibid 85.
125. ACL (n 1) s 24(2). For a consideration of terms’ transparency in this manner, see, eg, Malam v Graysonline, Rumbles Removals and Storage [2012] NSWCTTT 197, [57]–[61].
126. ACL (n 1) s 24(3).
127. Law Commission (n 8) 8–9.
128. Ibid.
129. ‘Low-level Languages’, Isaac Computer Science (Web Page) <https://isaaccomputerscience.org/concepts/sys_proglang_low_level>.
130. ‘Translators and Facilities of Languages’, BBC Bitesize (Web Page) <https://www.bbc.co.uk/bitesize/guides/z6x26yc/revision/2>.
131. Law Commission (n 8) 8–9.
132. Alfred V Aho et al, Compilers: Principles, Techniques, and Tools (Pearson Education, 2nd ed, 2006) 1–3.
133. Law Commission (n 8) 158.
134. Ibid 159.
135. Ibid 158–9.
136. ‘Commenting’, Jim's Computer Science (Webpage) <https://www.cs.utah.edu/∼germain/PPS/Topics/commenting.html>.
137. Ibid.
138. ACL (n 1) s 243(a)(1).
139. Ibid s 243(b).
140. Ibid s 243(c).
141. Ibid s 243(e).
142. Forbes (n 5) 59.
143. ACL (n 1) ss 237, 243.
144. Law Commission (n 8) 139.
145. Ibid 212.
146. Ibid 140.
147. Werbach and Cornell (n 12) 377.
148. Fairfield (n 12) 36.
149. Werbach and Cornell (n 12) 372.
150. See above Part II(A).
151. See Nigang Sun, Yuanyi Zhang and Yining Liu, ‘A Privacy-Preserving KYC-Compliant Identity Scheme for Accounts on All Public Blockchains’ (2022) 14(21) Sustainability 14584, 1–18, 16.
152. Sun, Zhang and Liu argue that such a legal requirement may result in ‘[o]vertly strict regulation’: ibid 16.
153. The role of the ACCC in addressing consumers’ concerns in the age of smart contract is further discussed below.
154. Alberto R Salazar V (n 122) 88.
155. In civil proceedings, the unsuccessful party will usually be ordered to pay the legal costs of the successful party. The Australian Government Attorney-General’s Department estimated that the average cost for an individual to undertake a federal court action would be around $74,000–$84,000 in 2007/8. These costs do not include disbursements, which would add an additional $25,000: Australian Government Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Report, 1 September 2009) 40–1; Australian Law Reform Commission, Costs Shifting — Who Pays for Litigation (Report 75, 31 August 1995) [4.1]; Community Law Australia, Unaffordable and out of Reach: The Problem of Access to the Australian Legal System (Report, 16 July 2012) 1–5.
156. Alberto R Salazar V (n 122) 89.
157. Ibid 90.
158. Clive Turner, Roger Gamble and John Trone, Concise Australian Commercial Law (Thomson Reuters, 2020) 246; ‘What we can & can't do for consumers’, Australian Competition and Consumer Commission (Web Page) <https://www.accc.gov.au/about-us/australian-competition-and-consumer-commission/service-charter/what-we-can-cant-do-for-consumers> (‘What we can & can't do for consumers, Australian Competition and Consumer Commission’).
159. The ACCC strongly encourages consumers to report their issues to it. See ‘Problem with a product or service you bought’, Australian Competition and Consumer Commission (Web Page) <https://www.accc.gov.au/consumers/problem-with-a-product-or-service-you-bought>.
160. ‘Compliance and enforcement policy and priorities’, Australian Competition and Consumer Commission (Web Page) <https://www.accc.gov.au/about-us/australian-competition-and-consumer-commission/our-priorities/compliance-and-enforcement-policy-and-priorities>.
161. Ibid.
162. ‘What we can & can't do for consumers’, Australian Competition and Consumer Commission (n 158).
163. Alberto R Salazar V (n 122) 92.
164. See, eg, Niel Patel, ‘Smart Contract Audit Cost | How Much Does a Smart Contract & Solidity Audit Cost’, Make An App (Web Page) <https://makeanapplike.com/smart-contract-audit-cost/>.
165. See Valve Corporation v Australian Competition and Consumer Commission (2017) 258 FCR 190 [96]–[116]; Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647 [53]–[125]. Valve Corporation (an American company) distributed computer games online worldwide. Some Australian consumers were dissatisfied with the products and sought refunds, but Valve insisted its ‘no refund’ policy. Consequently, consumers complained to the ACCC. Valve argued that, among others, the proper law of the contract was Washington State law, and thus, the ACL did not apply. The primary judge found that s 67(b) of the ACL prevented Valve from relying on Washington State law, and thus, the ACL will apply despite that term. The Full Federal Court fully upheld this finding by the primary judge.