Hayward, Benjamin --- "Text, Context, and Purpose': Australian Lawmakers' Adoption of the Cisg, and the Use of Legislative Histories as Aids in Statutory Interpretation" [2024] MelbULawRw 7; (2024) 47(2) Melbourne University Law Review 303

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The United Nations Convention on Contracts for the International Sale of Goods [1] (‘CISG’ or ‘Convention’) — a ‘widespread uniform law’[2] harmonising cross-border sales laws[3] and intending to facilitate trade[4] — has 95 contracting States,[5] including Australia.[6] Its adoption makes it a resounding success,[7] ‘bested’[8] only (in the international commercial law arena) by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.[9] This comparison is apt given that the development of international dispute resolution systems and substantive international commercial law are said to be ‘matched’.[10]

Still, the CISG faces challenges in its application, including in ‘maintaining uniformity’, given the Convention constitutes ‘a living thing in a stream of continuing legal development’.[11] The CISG itself establishes ‘textual uniformity’, though ‘applied uniformity’ depends upon its interpretation:[12] and this is what ‘really matters’ for the Convention’s trade facilitation ambitions.[13] Another challenge arises from merchants’ automatic exclusions of the CISG as their governing law.[14] On this metric, the CISG’s success ‘is less clear’.[15] These challenges are related. One important empirical study (amongst several now addressing the CISG’s application) found that the risk of differing interpretations being given to the CISG in different jurisdictions was one reason for parties opting out of the Convention’s application.[16]

This article examines how the CISG’s Australian adoption via legislation enacted at the state, territory and Commonwealth levels affects its local application, and thus its acceptability to merchants. To that end, I investigate four questions nearly entirely overlooked in the literature to date:[17]

1 Did Australia’s lawmakers understand the CISG’s intended international operation?

2 Are Australia’s CISG legislative histories useful in evidencing that understanding?

3 To what extent have Australian courts drawn upon those legislative histories as interpretative aids?

4 To what extent might they do so in the future, in order to support the CISG’s application and (in turn) its trade facilitation objectives?

Answering these questions is practically important for several reasons. First, Australian courts do not always approach the CISG with an internationalist spirit,[18] despite Australia’s ‘history of constructive CISG scholarship’.[19] Secondly, Australia’s CISG applications not only affect outcomes in particular cases,[20] but also merchants’ contractual performance outside of formal dispute resolution.[21] Thirdly, private international law (which includes the CISG)[22] ‘is increasingly essential to legal practice in Australia’[23] given the increasing internationalisation of business.[24] Fourthly, Australia owes other CISG contracting States public international law obligations to apply the Convention correctly and to its correct extent.[25] Finally, and more generally, my analysis is a useful case study on the use of extrinsic aids in statutory interpretation, amidst our ‘age of statutes’[26] where statutory interpretation is ‘the single most important aspect of legal and judicial work’,[27] and where there is a ‘growing’ use of national uniform legislation.[28] My analysis of extrinsic materials, intended to support the operation of national uniform legislation, is an approach that might be usefully applied in other legal fields.

Part II of this article sets the scene by examining the CISG’s Australian adoption via state, territory and Commonwealth legislation. Part III identifies an interpretative problem emerging from that adoption. Case law shows that some Australian courts consider the CISG’s individual provisions applicable only on a piecemeal basis and only where inconsistent with non-harmonised Australian law.[29] The extent to which statutory interpretation rules allow Australia’s CISG legislative histories [30] to be consulted in resolving this problem is established. Part IV determines the extent to which those histories evidence parliamentary intent to instead give the CISG full local operation. Such full operation is necessary for the CISG to achieve its trade facilitation purposes in Australia,[31] making Part IV’s analysis an essential consideration for courts and lawyers applying the Convention as well as Australian merchants entering into international sales contracts. Part V’s case law analysis considers whether those histories have been used as interpretative aids to date. It finds that they have not. Part VI, concluding, identifies several practical future applications for my analysis in Australia and abroad.

As well as answering the four novel questions identified above, this article makes two additional contributions to the field. First, Appendix 1 and Part IV collate and analyse Australia’s CISG legislative histories in full: a task never before attempted.[32] Secondly, Appendix 2 takes a census of Australia’s current CISG case load. The last time this was attempted was

II Australia’s Statutory CISG Architecture and the Rules Governing Its Interpretation in Australia

Australia’s status as a dualist State means the CISG did not automatically apply upon accession.[34] Local legislation (referred to in this article as ‘Australia’s CISG legislation’, ‘CISG Acts’ and ‘CISG legislation’) was required for the Convention to create private rights and obligations in Australia.[35] Australia participated in the CISG’s drafting at an international level,[36] alongside other nation States and interest groups,[37] via the United Nations Commission on International Trade Law’s (‘UNCITRAL’) treaty-making process that culminated in the 1980 Vienna Diplomatic Conference.[38] Yet it was Australia’s parliaments — collectives of individuals having their own distinct understandings[39] — that were entirely responsible for giving it local effect.

22 November 1984),[40] its ‘principal’[41] local effect flows from state or territory legislation making it ‘part of’ Australian law.[42] Alongside supplementary federal legislation,[43] those Acts came into force on 1 April 1989, coinciding with the CISG’s entry into force for Australia.[44] Relying on national uniform legislation[45] reflects ‘Australian federalism at its best’,[46] but also reflects constitutional sensitivities of the time. Despite the existence of the

Commonwealth’s external affairs power,[47] the Standing Committee of Attorneys-General[48] agreed to use state and territory legislation to give effect to the Convention.[49] This makes practical sense as sales law is otherwise state and territory business,[50] though it was also thought politically expedient (after Commonwealth v Tasmania)[51] to avoid overusing the external affairs power.[52]

In addition to s 66A of the Trade Practices Act 1974 (Cth) (‘TPA’), Australia’s CISG legislation initially comprised the:

Though it was initially intended that later ordinances would extend the CISG’s Australian application to the Cocos (Keeling) Islands, Christmas Island, and the Ashmore and Cartier Islands,[55] this never occurred. Australia’s CISG art 93 declaration regarding those external territories remains in force to this day.[56]

This statutory architecture has been altered three times. First, the Sale of Goods (Vienna Convention) (Amendment) Ordinance 1989 (ACT) amended the Australian Capital Territory’s (‘ACT’) original ordinance to address territory self-government,[57] and to correct ‘a number of typographical errors’ in its reproduction of the CISG.[58] These technical amendments are not relevant for this article’s purposes. However, both Victoria and the Commonwealth also reconsidered their CISG legislation in 2010. This legislative activity is of present interest. The Consumer Affairs Legislation Amendment (Reform) Act 2010 (Vic) repealed the Sale of Goods (Vienna Convention) Act 1987 (Vic), relocating its provisions into pt IV of the Goods Act 1958 (Vic) (‘Goods Act’).[59] Section 68 of the Australian Consumer Law (‘ACL’), which is set out in sch 2 of the Competition and Consumer Act 2010 (Cth),[60] also now supersedes s 66A of the TPA.[61]

Any local adoption of the CISG requires the achievement of ‘a balance ... between the international origin of the Convention and the fact that the CISG is inserted in the general structure of each domestic law’.[67] This balancing exercise raises interesting and very practical questions as to which interpretative rules support the CISG’s Australian application, which in turn directly affect the experiences of Australian lawyers and merchants engaging with the CISG. The CISG’s Australian adoption includes (as CISG art 98 requires) CISG art 7(1): its internal interpretation rule, pursuant to which ‘regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’. This rule requires the CISG’s autonomous interpretation,[68] excluding the operation of ordinary contracting State statutory interpretation rules.[69] The CISG’s own provisions must thus be interpreted ‘independently from any domestic preconception’.[70]

Though existing scholarship has analysed the operative (‘machinery’) provisions contained in Australia’s CISG Acts,[71] that scholarship has not yet addressed their subjection to different interpretative rules. CISG art 7(1) applies to ‘the interpretation of this Convention’: that is, to the CISG itself.[72] Australia’s machinery provisions, giving the CISG effect, are local legislation.[73] Their interpretation therefore involves applying Australia’s ordinary statutory interpretation rules: a proposition entirely consistent with CISG

Australian courts conceptualise applying statutory interpretation rules as involving ‘the duty of a court ... to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’.[74] The ‘familiar incantation’[75] of text, context, and purpose guides this function,[76] with interpretation Acts and common law rules providing further detail.[77] In this article, I address how Australia’s extrinsic materials rules — local statutory interpretation rules — can confirm the CISG’s intended entire operation in Australia, via their application to Australia’s machinery provisions.[78] Extrinsic materials are a ‘useful guide to purpose’;[79] their consultation therefore speaks to the essence of Australia’s statutory interpretation function.

Referencing extrinsic materials is now described[80] as ‘an issue of considerable significance’ as they ‘may resolve an ambiguity or doubt as to meaning’ in a statute.[81] Not all authorities agree,[82] perhaps reflecting the legislative drafters’ joke that ‘we do not read legislation, we write legislation’.[83] This potential nevertheless warrants their careful analysis. In the commercial arbitration context — where Australia’s legislation is also based on international instruments [84] — extrinsic materials have informed the interpretation of the International Arbitration Act 1974 (Cth)[85] and its state-based domestic equivalents.[86]

Australia’s interpretation Acts themselves are not uniform,[87] but nearly all contain extrinsic materials rules. The common law does too, and does not require ‘ambiguity to be established before the materials may be considered’.[88] I focus on Australia’s statutory rules in this article. Since some apply subject to thresholds, I thereby confront the highest hurdle for their use in resolving Part III’s interpretative problem.

Whilst the CISG mainly applies via state and territory law,[89] s 15AB(1) of the Acts Interpretation Act 1901 (Cth) (‘AIA (Cth)’) is an appropriate starting point. This section, which state and territory equivalents are ‘based on’,[90] provides:

Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

Extrinsic materials can therefore be used to confirm legislation’s ordinary meaning at any time,[92] though when used to ‘change an interpretation of legislation which would otherwise have been arrived at’, there must first be ambiguity, obscurity, or the risk of a manifestly absurd or unreasonable result.[93] Section 15AB(2) of the AIA (Cth) non-exhaustively lists extrinsic materials that may be consulted. Australia’s CISG legislative histories comprise explanatory memoranda, second reading speeches and parliamentary debates (falling within the AIA (Cth) ss 15AB(2)(e)–(f), (h)). Recourse to extrinsic materials is also discretionary.[94] That discretion is partly defined by s 15AB(3)(b) of the AIA (Cth), which instructs that ‘regard shall be had’ to ‘the need to avoid prolonging legal ... proceedings without compensating advantage’. The implications of my analysis for the exercise of this discretion are addressed below.

Interpretation Acts in New South Wales (‘NSW’),[95] the Northern Territory (‘NT’),[96] Queensland,[97] South Australia (‘SA’),[98] Tasmania[99] and Western Australia (‘WA’)[100] follow this approach, applying it in substance to those jurisdictions’ CISG machinery provisions. The Interpretation Act 1979 (Norfolk Island) adopts s 15AB of the AIA (Cth) in that territory, rendering the Commonwealth rule directly applicable in Norfolk Island.[101] The ACT and Victorian provisions differ. In these jurisdictions, extrinsic materials can be referred to in all cases, without threshold.[102]

III Determining the CISG’s Extent of Operation in Australia: Where Harmonised and Non-Harmonised Laws Collide

This analysis sets the scene to revisit a previously identified statutory interpretation problem emerging from Australia’s machinery provisions: what is the CISG’s correct extent of operation according to Australian law? Does the CISG apply in Australia in its entirety or only in a piecemeal fashion?

international application and its application as defined by Australian law. Internationally, the CISG is supposed to apply over non-harmonised contracting State law,[103] to the extent of the subject matter scope of CISG

art 4,[104] where its internal application rules are satisfied.[105] External gaps (legal issues outside the scope of CISG art 4)[106] are necessarily resolved via an otherwise applicable law.[107] Internal gaps (within the scope of CISG art 4 but not expressly settled)[108] are, pursuant to CISG art 7(2), filled by reference to general principles (if possible) before resort is had to non-harmonised law.[109] These gaps, and the need to fill them, reflect the fact that the CISG ‘is not a code’.[110]

Nothing described so far in this Part is controversial. Thus, at least in principle, ‘[t]he Goods Act and any other relevant laws will only apply to those contracts or parts of contracts that are not covered by the CISG’.[111] Still, Australia’s machinery provisions (and their interpretation) cast doubt upon this. This is a matter of great practical importance as it is here ‘where the relationship between the convention and national law is regulated’.[112] Should these machinery provisions limit the CISG’s operation, that might violate public international law, whilst still being correct (if normatively undesirable) under Australian law.[113] As Warren CJ explained, in the related international commercial arbitration context and referring to the International Arbitration Act 1974 (Cth):

The issue comes down to a simple proposition, as Lord Devlin once put it extra-curially:

Australia’s force of law and inconsistency provisions (the Goods Act ss 86–7 being representative) are at issue here. The former establishes that ‘[t]he provisions of the Convention have the force of law in Victoria’,[116] which is consistent with the CISG’s intended international operation.[117] The latter, however, muddies the waters: ‘The provisions of the Convention prevail over any other law in force in Victoria to the extent of any inconsistency.’[118] Despite initial parliamentary impressions,[119] a genuine ambiguity arises here.[120] Does the CISG apply to its full extent, or only on a provision-by-provision basis, to the extent that its rules are inconsistent with other state or territory law?[121] The text of these provisions is an insufficient guide to parliamentary intent. On the one hand, Australia’s force of law provisions may give the CISG entire local operation, with the inconsistency provisions clarifying this operation.[122] On the other hand, those inconsistency provisions may qualify Australia’s force of law provisions, leading to the CISG’s piecemeal application.[123]

In these circumstances, Australia’s extrinsic materials threshold requirements (to the extent they apply in some Australian jurisdictions) are met.[124] Explanatory memoranda, second reading speeches and parliamentary debates may thus be referred to for the purpose of identifying the ‘legal meaning of the text’,[125] and thereby Australian parliaments’ intent.[126]

Part V’s review of Australia’s CISG case law discloses three judgments addressing this interpretative problem. In Playcorp Pty Ltd v Taiyo Kogyo Ltd (‘Playcorp’),[127] the Supreme Court of Victoria ‘simply followed the order in the pleadings’,[128] and in doing so considered the non-harmonised Goods Act ss 19(a)–(b) implied terms ‘before’ resorting to the conformity rules in CISG

art 35.[129] Adopting the second interpretation described above, the Court explained:

The Supreme Court of WA cited and endorsed Playcorp in Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [No 3] (‘Aussie Diamond’), describing the CISG’s provisions as applying in Australia ‘insofar as they are relevant’.[131] The Court found it ‘unnecessary’ to apply the CISG at all in that case, as ‘[n]either party ... ha[d] suggested that there [we]re provisions of the Convention which require[d] consideration’, and it was also not suggested that any provisions ‘operate[d] inconsistently’ with the Sale of Goods Act 1895 (WA) (‘Sale of Goods Act (WA)’).[132] The second interpretation again prevailed. Neither case identified the alternative possibility and neither invoked any particular statutory interpretation rules.

Before Playcorp, the Supreme Court of WA also considered that jurisdiction’s machinery provisions in Ginza Pte Ltd v Vista Corporation Pty Ltd (‘Ginza’).[133] The Court in Ginza contemplated both views: explaining that the Western Australian inconsistency provision ‘would appear to mean that, for example, to the extent that the [CISG] makes provision inconsistent with that made by the [Sale of Goods Act (WA)], the provisions of the Convention prevail’,[134] but ultimately concluding that ‘the terms of the Convention would appear to govern all relevant issues to the exclusion of the [Sale of Goods Act (WA)]’.[135] Unlike Playcorp and Aussie Diamond, Ginza therefore correctly understands the CISG’s entire operation in Australia in substance, though it predates those two other problematic decisions. Given that Aussie Diamond was also a Western Australian case, and given that Aussie Diamond’s later appeal did not revisit the CISG’s application,[136] it might fairly be said that Ginza no longer reflects the current state of Western Australian law.

Even if Australia’s CISG application legislation and its interpretation are out of step with international standards, one might still query whether this problem is more apparent than real. If Australian courts apply non-harmonised Australian law because it is not inconsistent with the CISG, should it not be the case that outcomes remain unaffected? And if that is the case, one might ask, how can a genuine problem arise? Whilst posing these rhetorical questions seems to have intuitive appeal, three reasons confirm the practical importance of my analysis.

First, even if case outcomes remain unaffected, this problem adversely impacts the CISG’s trade facilitation purposes.[137] This is particularly true noting the empirical finding described in Part I. Failure to apply the CISG in its entirety undermines its capacity to reduce transaction costs,[138] as merchants no longer engage with the same legal rules across jurisdictions.[139]

Secondly, concluding that outcomes remain unaffected presumes accurate judicial assessments of consistency. This is not always the case,

And thirdly, even if non-harmonised Australian law and the CISG are genuinely consistent, it remains necessary (as a matter of civil procedure) to plead the correct law. Perry Engineering Pty Ltd (rec and mgr apptd) (admin apptd) v Bernold AG illustrates the dangers of not doing so.[142] The Court there refused to assess contract damages, following default judgment, where the Sale of Goods Act 1895 (SA) was relied upon instead of the CISG.[143] That this Court approached the pleadings differently to the courts in Playcorp and Aussie Diamond further illustrates the risks associated with the CISG’s currently uncertain extent of operation in Australia.

Prior scholarship identifies and addresses this interpretative problem, though primarily with reference to the CISG’s international understandings.[144] The role to be played by Australia’s CISG legislative histories (applied to Australia’s machinery provisions) in resolving this problem has never been considered. It is to these extrinsic materials that attention now turns.

IV Australia’s CISG Legislative Histories Examined: A Systematic Content Analysis

Ten Australian jurisdictions have CISG legislation. This legislation’s passage generated the explanatory memoranda, second reading speeches and parliamentary debates comprising the Australian CISG legislative histories under examination.[145] Part III established that these sources can be consulted to help solve the interpretative problem there identified. In this Part, I assess whether courts should do so, via a systematic content analysis. Identifying whether these histories evidence parliamentary intent to apply the CISG in its entirety is relevant to their interpretative utility, and thus to the exercise of judicial discretion to consult them.

Not all Australian jurisdictions have generated all three categories of CISG legislative histories. Appendix 1 identifies the availability of these histories, based upon each jurisdiction’s parliamentary practices, and thereby establishes the parameters of this Part’s analysis.

A Reading Australia’s CISG Legislative Histories via a Systematic Content Analysis

Australia’s CISG legislative histories are voluminous, differ markedly in detail, contain countless observations that are intellectually interesting but irrelevant for present purposes, and evidence the CISG’s intended Australian operation in different ways. For these reasons, their careful review is essential. Consistent with other national uniform legislation research,[146] a systematic content analysis is undertaken in this Part as ‘a beneficial supplement’[147] to my otherwise doctrinal approach.

This analysis involved reviewing Australia’s CISG legislative histories in light of the following question: do those histories evidence the CISG’s intended entire operation in each Australian jurisdiction? As Australian parliaments are presumed to legislate consistently with international law,[148] I considered it unlikely that these histories would actually evidence the opposite view. This was an estimation that my review ultimately confirmed, though for the avoidance of doubt, this alternative perspective was actively searched for during my review.

I initially proposed two coding categories to capture relevant evidence of parliamentary intent:

My review quickly disclosed the need to add a third coding category:[149] general evidence of the CISG’s intended entire operation in Australia, comprising reference to Australia’s CISG accession, adoption, implementation etc. Such statements also imply the CISG’s entire operation, since this is what the CISG itself requires (subject only to permitted reservations).[150] However, unlike indirect evidence, this evidence is less specific and thus qualitatively different.

This Part now uses this coding scheme to analyse Australia’s CISG legislative histories and their capacity to assist in resolving the interpretative problem identified in Part III. The states and territories are analysed alphabetically; Commonwealth materials are considered last; and, given the nature of general evidence, only footnotes (rather than explanations) are provided in relation to those relevant sources.

B The ACT

The Sale of Goods (Vienna Convention) Act 1987 (ACT), originally the Sale of Goods (Vienna Convention) Ordinance 1987 (ACT), generated only an explanatory statement.

1 The ACT’s Explanatory Memorandum (Explanatory Statement)

Content categories: General,[151] indirect. No views supporting the CISG’s piecemeal application were expressed.

The ACT’s three-page explanatory statement is lengthy by Australian standards, though its treatment of the ACT’s machinery provisions is descriptive and brief.[152] Its contents mostly summarise the CISG.[153] So far as the ACT’s machinery provisions are concerned, the CISG is described as prevailing ‘in the event of inconsistency’,[154] rather than (as legislated) ‘to the extent of any inconsistency’.[155] This indirectly evidences its intended entire operation in the ACT, since ‘extent’ is a relative term that is more suggestive of the CISG’s piecemeal application.

C Norfolk Island

Norfolk Island’s ‘tiny’ and sometimes ‘forgotten’ status[156] extends, in a legal sense, to its CISG implementation. As Appendix 1 notes, the existence or accessibility of Norfolk Island’s CISG legislative histories remains unknown, despite efforts to clarify that situation.[157] Analysis of these legislative histories (if they do exist) is thus impossible at this time.

D NSW

The Sale of Goods (Vienna Convention) Act 1986 (NSW) generated all three types of CISG legislative histories.[158] Since NSW’s bicameral Parliament generated two second reading speeches, and since those speeches differ, both are addressed.

1 NSW’s Explanatory Memorandum (Explanatory Note)

Content categories: General.[159] No views supporting the CISG’s piecemeal application were expressed.

No direct or indirect evidence of the CISG’s intended entire operation in NSW is provided.

2 NSW’s Second Reading Speeches

Content categories: General,[160] indirect. No views supporting the CISG’s piecemeal application were expressed.

The Legislative Assembly’s second reading speech was delivered by Terence Sheahan (Australian Labor Party (‘ALP’), Attorney-General) on 23 October 1986.[161] Lengthy by Australian standards, it indirectly evidences the CISG’s intended entire operation in NSW via:

These statements presuppose the CISG’s entire operation in NSW. In particular, the benefits identified in the second and third bullet points above can only be realised if the CISG applies in its entirety in NSW. Additional indirect evidence appears where the CISG is described as having the force of law in NSW and prevailing to the extent of inconsistency.[166] The conjunctive ‘and’ suggests inconsistency is not a limitation.

The Legislative Council’s speech was delivered by Jack Hallam (ALP) on 19 November 1986.[167] It identifies the CISG’s capacity to bind Australian traders even without Australia’s accession and notes that the CISG may promote certainty ‘even allowing for possible differences in interpretation ... at local level’.[168] These statements indirectly evidence the CISG’s intended entire operation in NSW by implying that the Convention applies (or at least is meant to apply) the same way in foreign and Australian contexts.

3 NSW’s Parliamentary Debates

Content categories: General,[169] indirect. No views supporting the CISG’s piecemeal application were expressed.

In the Legislative Assembly, only John Dowd (Liberal Party (‘Liberals’)) addressed the CISG.[170] Dowd’s caution that Australia ‘will not find it as easy as some to accede to what is in effect a code of legislation’[171] indirectly evidences the CISG’s intended entire operation in NSW as this difficulty would not arise should the CISG have only piecemeal application. Dowd’s assertions that Australia would be a CISG ‘beneficiary’ and that

which contracts’,[172] similarly assume (and indirectly evidence) the CISG’s entire operation.

Five Legislative Council members addressed the CISG: Robert Rowland Smith (National Party (‘Nationals’)),[173] Jack Hallam,[174] John Hannaford (Liberals),[175] Ronald Dyer (ALP)[176] and Fred Nile (Call to Australia Party).[177] Indirect evidence is provided by Rowland Smith identifying the CISG as

The CISG’s piecemeal application undermines these statements. Hallam’s description of the CISG as enhancing ‘the opportunity for trade between nations’[179] provides indirect evidence: the CISG must apply entirely for this proposition to be true. Similarly, Nile’s description of the NSW machinery provisions as a ‘powerful weapon’[180] makes the most sense if they apply the CISG in full.

E The NT

1 The NT’s Second Reading Speech

Content categories: General,[182] indirect. No views supporting the CISG’s piecemeal application were expressed.

The NT’s second reading speech was delivered by Daryl Manzie (Country Liberal Party (‘CLP’), Attorney-General) on 29 April 1987.[183] It indirectly evidences the CISG’s intended entire operation in the NT via:

2 The NT’s Parliamentary Debates

Content categories: Direct, indirect. No views supporting the CISG’s piecemeal application were expressed.

The NT’s parliamentary debates comprise four members’ contributions: Neil Bell (ALP),[187] Richard Setter (CLP),[188] Noel Padgham-Purich (CLP)[189] and Daryl Manzie.[190] Setter directly evidences the CISG’s intended entire operation in the NT when explaining:

Setter’s explanation that Australia’s CISG legislation will lead to ‘one

arrangements’,[193] Setter and Manzie’s addressing of cross-border contract law differences,[194] and Setter’s explanation of the CISG’s trade facilitation aims:[195] all imply or require the entire operation of the CISG in the NT.

F Queensland

1 Queensland’s Second Reading Speech

Content categories: General,[197] indirect. No views supporting the CISG’s piecemeal application were expressed.

(Nationals, Minister for Justice and Attorney-General) on 19 August 1986,[198] indirectly evidences the CISG’s intended entire operation via the same conjunctive ‘and’, as addressed with respect to NSW and the NT.[199]

2 Queensland’s Parliamentary Debates

Content categories: General,[200] indirect. No views supporting the CISG’s piecemeal application were expressed.

Queensland’s six-page parliamentary debates comprise contributions from Wayne Goss (ALP),[201] William Knox (Liberals),[202] John Innes (Liberals)[203] and Neville Harper.[204] Whilst lengthy, they mostly comprise political posturing, including one particularly pointed personal barb referencing the inconveniences of Parliament sitting late into the evening.[205] Some scepticism of international law was expressed,[206] though Innes recognised that ‘[t]he legislation is important and substantial and it merits some serious consideration’.[207] This was somewhat ironic, since such consideration (even in the context of relatively lengthy debates) did not occur. Reference to the CISG’s uniformity goals,[208] and its capacity to address private international law’s ‘minefield’,[209] nevertheless indirectly evidence the CISG’s intended entire operation in Queensland via presupposition of that fact.

G SA

Whilst SA’s Parliament does not produce explanatory memoranda,[210] its second reading speeches include an explanation of clauses at their conclusion.[211] Given their functional equivalence, they are treated as explanatory memoranda for the purposes of this Part. The Sale of Goods (Vienna

Convention) Act 1986 (SA) is otherwise accompanied by two second reading speeches and two sets of debates. Only SA’s Legislative Council speech and explanation of clauses are addressed here, as its House of Assembly

1 SA’s Explanatory Memorandum Equivalent (Explanation of Clauses)

SA’s explanation of clauses comprises seven short and descriptive sentences addressing its Bill’s six clauses and schedule,[213] and provides no evidence of the CISG’s intended entire operation in SA.

2 SA’s Second Reading Speech

Content categories: General,[214] indirect. No views supporting the CISG’s piecemeal application were expressed.

SA’s second reading speech, delivered by Christopher Sumner (ALP, Attorney-General) on 17 September 1986,[215] indirectly evidences the CISG’s intended entire operation in that jurisdiction by:

3 SA’s Parliamentary Debates

Content categories: General,[218] indirect. No views supporting the CISG’s piecemeal application were expressed.

SA’s Legislative Council debates contain one contribution. Kenneth Griffin (Liberals) relevantly notes ‘we have no say in what is in the convention’, the CISG ‘will facilitate our international trading activity’ and it will bring ‘benefits for our businesses’.[219] These statements indirectly evidence the CISG’s intended entire operation by emphasising its unchangeable international origins and benefits that derive from such entire application in SA.

The House of Assembly’s debates feature contributions from Stephen Baker (Liberals)[220] and Gregory Crafter (ALP).[221] Baker indirectly evidences the CISG’s entire operation in SA by referencing:

The CISG must apply in its entirety if these benefits are to be realised. If the CISG is applied only in a piecemeal fashion in SA, trade would not be promoted in the way envisaged by the Convention, and the difficulties arising out of differing non-harmonised nation State sales laws would persist.

H Tasmania

The Sale of Goods (Vienna Convention) Act 1987 (Tas) generated an explanatory memorandum, two different second reading speeches and two sets of debates. Only the House of Assembly’s debates are addressed, however, as Tasmania’s Legislative Council Hansard merely notes that the Bill was ‘taken through the Committee stage’ in that House of Parliament.[226]

1 Tasmania’s Explanatory Memorandum (Clause Notes)

Tasmania’s explanatory memorandum has single-sentence descriptions of each Bill clause and does not evidence the CISG’s intended entire operation in that jurisdiction.[227]

2 Tasmania’s Second Reading Speeches

Content categories: General, indirect. No views supporting the CISG’s piecemeal application were expressed.

Tasmania’s House of Assembly second reading speech was given by John Bennett (Liberals, Attorney-General) on 24 March 1987.[228] Being similar to SA’s speeches, it provides the same general and indirect evidence cited and described with respect to that jurisdiction.[229] Additional indirect evidence appears in its unique final paragraphs:

The convention is an attempt to establish common provisions between countries of diverse economic, political and legal backgrounds and to bridge differences between national approaches to choice of law. Its provisions constitute a delicate balancing of interests between developed and developing countries and the common law, civil law and socialist legal systems. It is in the interests of Australian commerce that the convention should come into force and provide certainty as to the law applicable to international sales.

The provisions of the convention after it enters into force in respect of Australia have the force of law in this [s]tate by virtue of this legislation.[230]

The first paragraph’s assertions are only true if the CISG applies entirely, and in the same manner, in all contracting States. The second describes the CISG’s force of law in Tasmania without reference to any inconsistency-based qualification.

The Legislative Council’s speech, delivered by Peter McKay (Independent) on 26 March 1987, contains a passage virtually identical to the first paragraph quoted above[231] and thus also indirectly evidences the CISG’s intended entire Tasmanian operation for the same reasons given above. It provides additional indirect evidence by clearly distinguishing the Sale of Goods Act 1896 (Tas) from the CISG as ‘an international law to govern the sale of goods’, addressing ‘problems when a Tasmanian company has bought from or sold to an ... overseas company because two systems of law may become involved’.[232] Since (in McKay’s words) ‘[o]bviously the convention must differ from our domestic law because it is a result of bringing together and rationalising a whole range of world practices’,[233] this distinction and its emphasis on the CISG’s unique rules imply the CISG’s entire local operation.

3 Tasmania’s Parliamentary Debates

Content categories: Indirect. No views supporting the CISG’s piecemeal application were expressed.

Tasmania’s House of Assembly debates comprise contributions from three members: John White (ALP),[234] Robert Brown (Independent)[235] and Michael Weldon (ALP).[236] They indirectly evidence the CISG’s intended entire Tasmanian operation via:

I Victoria

Victoria’s Parliament is unique amongst those in Australia’s states and territories for considering the CISG twice:[240] first in 1987, and secondly in 2010 when the provisions of the Sale of Goods (Vienna Convention) Act 1987 (Vic) were rolled into Victoria’s otherwise non-harmonised Goods Act.[241]

1 Victoria’s Original 1987 Legislation

Victoria’s original Sale of Goods (Vienna Convention) Act 1987 (Vic) was accompanied by all three types of legislative history under consideration. Only the Legislative Council’s second reading speech is addressed here, as the Legislative Assembly’s speech is substantially identical.[242]

(a) Victoria’s 1987 Explanatory Memorandum

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s ‘amazingly brief’[243] 1987 explanatory memorandum comprises one-sentence descriptions of each Bill clause,[244] providing no evidence of the CISG’s intended entire operation in that jurisdiction.

(b) Victoria’s 1987 Second Reading Speech

Content categories: General,[245] indirect. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s 1987 second reading speech was delivered in the Legislative Council on 3 March 1987 by James Kennan (ALP, Attorney-General).[246] Its indirect evidence includes assertions that the Convention ‘provides a standard set of legal principles which govern certain international contracts for the sale of goods’, and that it provides ‘greater certainty’ given ‘most of Australia’s major trading partners were expected to become parties to the convention’.[247] Both comments presuppose the CISG’s entire Victorian operation, in the same way that the CISG applies (or is meant to apply) in its entirety in other international jurisdictions.

Content categories: General,[248] indirect. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s 1987 Legislative Council debates comprise contributions by Bruce Chamberlain (Liberals),[249] James Kennan[250] and William Baxter (Nationals).[251] Kennan’s observation that ‘this is an area in which we want national and international uniformity for the simpler resolution of commercial disputes’[252] indirectly evidences the CISG’s intended entire operation in Victoria by presuming the Convention’s identical operation locally and abroad. There cannot be uniformity within Australia if the CISG applies in a piecemeal fashion, as different state and territory laws might mean different levels of inconsistency with the CISG.

Otherwise, in the Legislative Council, Baxter’s general criticism of United Nations conventions (and emphasis on safeguarding Australia’s ‘sovereignty’)[253] implicates two interesting competing possible meanings. Those comments might at first glance appear suggestive of the CISG’s limited application. However, they might also indirectly evidence the CISG’s intended entire operation in Victoria as this would necessarily have a greater impact on the sovereignty Baxter refers to. In any event, since Baxter clarified that no issue was taken with the CISG,[254] it is not possible to take my analysis of these comments any further.

Victoria’s 1987 Legislative Assembly debates comprise three members’ contributions: Michael John (Liberals),[255] Peter Ross-Edwards (Nationals)[256] and Race Mathews (ALP).[257] Indirect evidence appears in John’s reference to the importance of uniformity in overcoming ‘the complexity and uncertainty of private international law’.[258] It is the CISG’s entire operation in Victoria that secures such uniformity and overcomes this uncertainty. Otherwise, in the Legislative Assembly, Ross-Edwards’ suggestion that ‘[e]ach [s]tate is free to amend [its CISG] legislation from time to time’[259] might (superficially) seem to accommodate limited application of the CISG. However, as the target of this observation (the CISG, Victoria’s machinery provisions, or both) is unclear, this implication cannot fairly be drawn.

2 Victoria’s Relocated 2010 Legislation

The omnibus Consumer Affairs Legislation Amendment (Reform) Act 2010 (Vic) repealed the Sale of Goods (Vienna Convention) Act 1987 (Vic),[260] relocating its provisions into pt IV of the Goods Act.[261] This second parliamentary consideration of Victoria’s CISG legislation is accompanied by all three categories of legislative history under examination. Only the Legislative Assembly’s speech is considered, however, as the Legislative Council’s is substantially identical.[262]

(a) Victoria’s 2010 Explanatory Memorandum

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s 2010 explanatory memorandum merely references the re-enactment of Victoria’s CISG provisions,[263] providing no evidence of the CISG’s intended entire operation in that jurisdiction.

(b) Victoria’s 2010 Second Reading Speech

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s 2010 second reading speech, delivered in the Legislative Assembly on 28 July 2010 by Anthony Robinson (ALP, Minister for Consumer Affairs),[264] addresses the CISG in one paragraph only.[265] Despite Robinson noting that the repealed Act is ‘consolidate[d] ... into the Goods Act’ in order ‘[t]o improve usability for users of Victoria’s mercantile law’[266] — an objective that does have merit[267] — no evidence of the CISG’s intended entire operation in Victoria appears.

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

Victoria’s 2010 Legislative Assembly debates comprise seven members’ contributions, alongside ten in the Legislative Council.[268] CISG comments are few, and ‘evidence zero advancement’ of the Victorian Parliament’s 1987 CISG analysis.[269]

In the Legislative Assembly, Michael O’Brien (Liberals) noted that ‘by necessity [he would] have to be extremely brief in dealing with particular issues’.[270] On the CISG, O’Brien simply referred to the law’s ‘consolidation’.[271] O’Brien otherwise noted that ‘[t]hose provisions are quite involved and detailed, but since there is no substantive change involved in the measures, it is probably better to move on in the limited time available to discuss other matters’.[272] Martin Foley (ALP) referred to the Bill as ‘amend[ing] the Goods Act’, without referencing the CISG.[273] David Hodgett (Liberals) described the Bill as amending the Goods Act and repealing the Sale of Goods (Vienna Convention) Act 1987 (Vic).[274] Otherwise, in the Legislative Council, Susan Pennicuik (Victorian Greens) inaccurately referenced ‘amendments’ to Victoria’s actually repealed CISG Act.[275] None of these contributions evidence

the CISG’s intended entire operation in Victoria, despite Victoria’s Playcorp decision[276] (and its scholarly critique)[277] pre-dating 2010.[278]

Upper House amendments to the Bill necessitating its reconsideration by the Legislative Assembly did not concern the CISG,[279] and thus did not generate any further parliamentary consideration of the Convention.

J WA

The Sale of Goods (Vienna Convention) Act 1986 (WA) is accompanied by second reading speeches and parliamentary debates. Only the Legislative Assembly’s speech is considered here, as WA’s Legislative Council equivalent is substantially identical.[280]

1 WA’s Second Reading Speech

Content categories: General,[281] indirect. No views supporting the CISG’s piecemeal application were expressed.

The Legislative Assembly’s second reading speech was delivered by Keith Wilson (ALP, Minister for Consumer Affairs) on 7 October 1986.[282] Indirect evidence appears via observations that the CISG would remove barriers to trade and provide ‘uniform rules’ for international trade, with the measure being ‘timely ... given the difficulties that Australia is facing in its role as a trading nation’.[283] These statements, and the CISG’s description as containing ‘ground rules for the international sale of goods’,[284] presuppose the CISG’s entire operation in WA.

2 WA’s Parliamentary Debates

Content categories: Indirect. No views supporting the CISG’s piecemeal application were expressed.

WA’s Legislative Assembly debates comprise two members’ contributions: Andrew Mensaros (Liberals)[285] and Keith Wilson.[286] Five members contributed in the Legislative Council: Norman Moore (Liberals),[287] Max Evans (Liberals),[288] Kay Hallahan (ALP),[289] Phillip Pendal (Liberals)[290] and John Williams (Liberals).[291] A Legislative Council amendment, correcting the inadvertent omission of an ‘Act binds the Crown’ clause,[292] necessitated reconsideration of the Bill by the Legislative Assembly, though Hansard merely notes that the amendment was ‘agreed to’ at that later stage.[293]

Mensaros observed that ‘the contents of the Bill ... are really the convention’.[294] Similar observations were made by Moore[295] and Pendal.[296] All gently and indirectly evidence the CISG’s intended entire operation in WA by emphasising the relative importance of the CISG’s text over WA’s machinery provisions. Further indirect evidence comprises Hallahan’s description of the Bill’s ‘main purpose [as] to overcome longstanding uncertainty experienced in the international business community over laws which are applicable to international contracts’, suggesting the ‘lack of understanding and clarity about [international] contracts of sale is to be sorted out’.[297] Without the CISG’s entire operation in WA, this uncertainty cannot be resolved in this way.

K The Commonwealth

Whilst state and territory Acts give the CISG primary local effect, supplementary Commonwealth legislation was required to address the Convention’s relationship with the TPA (now the ACL).[298] This limited legislation was necessary as the CISG and Australia’s consumer laws do not define consumer transactions the same way,[299] making it possible for a sale to be a consumer contract under non-harmonised Australian law but also a non-consumer contract under the CISG.[300] The Commonwealth’s CISG provisions prioritise the Convention over the ACL’s consumer guarantees[301] and the TPA’s prior implied terms.[302] Both cover similar legal ground to the CISG’s seller obligations.[303]

These inconsistency references repeat ‘in essence’ the state and territory approach.[304] Understanding the CISG’s intended Commonwealth operation is of practical importance (despite these provisions’ supplementary character vis-a-vis Australia’s other CISG Acts) as the conformity obligations contained in art 35 of the CISG are subject to party agreement.[305] On the other hand, the consumer guarantees (and the implied terms before them) are and were not.[306]

1 The TPA s 66A: Enacted 1987

Section 66A of the TPA was inserted into the Act by s 3 and sch 1 of the Statute Law (Miscellaneous Provisions) Act 1987 (Cth). It was intended to be enacted earlier in 1987 via the almost identically titled (but distinct) Statute Law (Miscellaneous Provisions) Bill (No 1) 1987 (Cth). That Bill, however, lapsed when an early election was called.[307] Limited legislative histories exist regarding the lapsed Bill and they remain informative. All three types of legislative history under examination here exist for the eventual Act. Only the Senate’s second reading speech for that Act is addressed, as the House of Representatives’ speech is substantially identical.[308] Only the House of Representatives’ second reading speech for the lapsed Bill is considered for the same reason.[309]

(a) The Commonwealth’s 1987 Explanatory Memorandum

Content categories: Direct (Act), direct (Bill). No views supporting the CISG’s piecemeal application were expressed.

The explanatory memorandum of the Statute Law (Miscellaneous Provisions) Act 1987 (Cth) directly evidences the CISG’s intended entire operation at the Commonwealth level vis-a-vis the TPA:

An identically worded passage appears in the lapsed Bill’s explanatory memorandum.[311] Both expressly confirm the CISG’s intended full priority over the TPA’s implied terms.[312]

(b) The Commonwealth’s 1987 Second Reading Speech

Content categories: None (Act), direct (Bill). No views supporting the CISG’s piecemeal application were expressed.

The Statute Law (Miscellaneous Provisions) Act 1987 (Cth)’s second reading speech, delivered in the Senate by Michael Tate (ALP, Minister for Justice) on 24 September 1987,[313] does not reference the CISG.

The lapsed Bill’s speech, however, delivered in the House of Representatives by Lionel Bowen (ALP, Attorney-General) on 30 April 1987,[314] records the same intention to ‘eliminate overlap and possible conflict’[315] referred to above. It therefore also directly evidences the CISG’s intended entire operation at the Commonwealth level.

Content categories: None (Act), direct (Bill). No views supporting the CISG’s piecemeal application were expressed.

debates comprise seven members’ contributions,[316] with ten contributing in the House of Representatives.[317] None address the CISG. House of Representatives amendments required reconsideration in the Senate,[318] though as they did not address the CISG, those subsequent Senate proceedings are irrelevant for present purposes.

House of Representatives debates on the lapsed Bill featured 12 members’ contributions.[319] Michael Maher (ALP) identified the intent, referred to above, to ‘eliminate the overlap and possible conflict’.[320] Once again, this directly evidences the CISG’s intended entire operation at the Commonwealth level.

2 The ACL s 68: Enacted 2010

The TPA was transformed in 2010–11. The Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth) and Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) transitioned the old regime into the present Competition and Consumer Act 2010 (Cth), containing in its sch 2 the ACL, which applies today.[321] The second of these amendment Acts effected the current ACL s 68.[322] All three extrinsic materials categories under examination exist for that Act. Only the House of Representatives’ speech is addressed here, as the Senate’s is substantially identical.[323] Senate amendments requiring reconsideration by the House of Representatives did not address the CISG,[324] rendering those subsequent Senate proceedings presently irrelevant.

(a) The Commonwealth’s 2010 Explanatory Memorandum

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

The 2010 Commonwealth explanatory memorandum addresses the consumer guarantees across 34 pages, including via 21 illustrative examples.[325] The CISG is addressed in just two paragraphs,[326] neither of which evidences the intended scope of operation of s 68 of the ACL.

(b) The Commonwealth’s 2010 Second Reading Speech

Content categories: Indirect. No views supporting the CISG’s piecemeal application were expressed.

The House of Representatives’ second reading speech was delivered by Craig Emerson (ALP, Minister for Competition Policy and Consumer Affairs) on 17 March 2010.[327] It does not specifically address the CISG, but indirectly evidences its intended entire operation at the Commonwealth level by acknowledging that many ACL provisions (s 68 being amongst them, though it is not specifically identified) ‘are substantially the same as those in the [TPA]’.[328] Evidence of the CISG’s intended entire operation relating to the TPA s 66A is effectively (indirectly) incorporated by reference here.

Content categories: None. No views supporting the CISG’s piecemeal application were expressed.

L Interim Conclusion

Australia’s CISG legislative histories do not contain evidence that the CISG was intended to have piecemeal application in any of Australia’s jurisdictions. They therefore do not support the interpretative approach adopted in Playcorp and Aussie Diamond.[331] Instead, numerous jurisdictions’ histories provide general and indirect evidence implying the Convention’s intended entire operation in Australia. In addition, in the NT and at the Commonwealth level, that intent is directly expressed.[332]

Parts II–III identified that these materials may be referred to for the purpose of interpreting Australia’s CISG machinery provisions, and this Part confirms their interpretative utility. The question naturally arising, and now addressed in Part V, is: have Australian judges actually ever referenced these materials?

V Australia’s CISG Case Law: Catalogued and Examined

Local and international commentators routinely observe that only a small number of Australian CISG cases exist.[333] As Appendix 2 confirms, the force of this observation is diminishing over time. However, identifying exactly how many cases there are is both necessary and challenging for present purposes. There is no official repository; Australian cases refer to the CISG using numerous different labels, and different databases catalogue different judgments. At the time of writing, I understand that 51 Australian CISG cases (as the phrase ‘Australian CISG case’ is defined below) exist. This tally comprises all cases currently captured by the Pace Law Albert H Kritzer CISG Database (‘Pace Database’),[334] plus one additional case [335] out of the 36 recorded on CISG-online.[336] Neither database is inherently authoritative;[337] hence the need to cross reference both and independently check their contents against Australian [338] and other international case law databases (including UNCITRAL’s own Case Law on UNCITRAL Texts (‘CLOUT’) database). These exercises failed to disclose any additional Australian CISG cases, noting in particular that CLOUT records only 15 Australian CISG cases which all otherwise appear on the Pace Database.[339]

Australia’s supposedly small CISG case load does not make the Convention unworthy of local analysis.[340] On the contrary, that case load has grown significantly since its last proper audit in 2009[341] and provides essential context for this Part’s purposes: it defines the opportunities that Australian courts have had to consult extrinsic materials in clarifying the Convention’s extent of operation in Australia. However, this exercise is nuanced, necessitating the classification of Australia’s CISG cases so that this context is properly understood. As will appear, many of Australia’s CISG cases are actually of little significance for present purposes.

Australia’s 51 CISG cases are collated in Appendix 2. Appendix 2 presents these cases in chronological order, identifies each case’s internal jurisdiction and provides citations for each in accordance with the Australian Guide to Legal Citation:[342] the latter, important for the purposes of Australian audiences, are often missing on the internationally focused Pace Database. Also unique are Appendix 2’s case categorisations that (consistent with Part IV’s analysis) are coded using a systematic content analysis methodology.[343] Those categorisations are key to this Part’s analysis, as they more specifically confine the limits within which Australia’s courts could have actually considered Australia’s CISG legislative histories to date. In that regard, it can be noted that Australia’s overall tally of 51 CISG cases is misleading in the sense that not all of those cases actually apply the Convention.[344] Appendix 2 categorises Australia’s CISG cases as follows:[345]

Initially, I proposed to use just one coding category for all CISG application cases. However, upon closer analysis, it became apparent that some cases apply the CISG to resolve substantive contract law disputes,[348] whilst others do so where the CISG intersects with other legal issues: including jurisdictional questions [349] and questions concerning Corporations Act 2001 (Cth) statutory demands.[350] Whilst all of these cases do apply the CISG, the second type of case does so indirectly. Though there is no evidence specifically confirming this point, it stands to reason that courts handling cases that only indirectly apply the CISG may be less likely to engage with Australia’s machinery provisions, justifying the use of different coding for these two categories of case. This difference is therefore meaningful in understanding the context referred to above.

Before addressing Appendix 2, several further clarifications are required regarding my usage of the term ‘Australian CISG cases’. First, Australian parties appear in CISG cases before foreign courts and arbitral tribunals.[351] These disputes are not captured in Appendix 2. Since such cases are unlikely to apply Australia’s machinery provisions, they need not be considered further. Secondly, as my coding scheme implies, a low threshold determines whether or not cases are considered ‘Australian CISG cases’ for present purposes. Any case referring to or even just relating to the CISG in any way is included. Thirdly, cases coded as excluding the CISG may not have otherwise actually applied the Convention. For example, arbitral award enforcement cases might cite choice of law clauses excluding the CISG that were contained in the arbitration’s underlying contract, for contextual purposes only.[352] Fourthly, cases are coded as applying the CISG where they recognise it as applicable and attempt to apply its provisions, even if wrongly, according to the Convention’s international understandings.[353] Finally, cases that do not apply the CISG but that should have done so include cases that mention or recognise the Convention’s relevance in the abstract, but fail to apply its provisions in substance.[354]

A careful review of all Australian CISG cases confirms that none have ever referred to Australia’s CISG legislative histories, for any purpose. From the outset, this can be seen as a missed opportunity to resolve Part III’s interpretative problem. Additional conclusions can be drawn, however, by contextualising this missed opportunity against Appendix 2’s coding.

First, Australia’s machinery provisions affect the CISG’s local application. Thus, only cases involving the CISG’s direct or indirect application could possibly have referred to Australia’s CISG legislative histories for the purpose of understanding those machinery provisions.[355] Cases that should have applied the CISG, but did not, might have benefited from consulting those histories. However, by definition, they could not have done so. Thus, only 21 of Australia’s 51 CISG cases (equating to only 18 unique disputes, accounting for appeals) could possibly have referred to Australia’s CISG legislative histories (for the purposes envisaged by this article). Twenty-one missed opportunities are still missed opportunities, but are far fewer than the 51 one might initially presume.

Australian cases respectively.[356] Of Australia’s nine direct application cases, five are Commonwealth, two are from Queensland, and one each are from WA and NSW. Of Australia’s 12 indirect application cases, three are

Commonwealth, three each are from Victoria and WA, two are from NSW and one is from SA. Victoria and WA, having three and four application cases respectively, interestingly emerge as relatively experienced Australian CISG jurisdictions. At the same time, no Australian CISG cases have come from the NT and none address the Commonwealth’s consumer law-related provisions.[357] Since Australia’s CISG Acts, being mirror legislation,[358] can be read on standalone bases,[359] it is unlikely that Victorian or Western Australian courts would refer to NT or Commonwealth legislative histories directly evidencing the CISG’s intended entire operation in those jurisdictions (even though national uniform legislation should be interpreted consistently).[360]

Finally, and interestingly, it appears that Australia’s CISG cases are perceived as having limited precedential value by the profession at large, despite regular cross-citation amongst them.[361] Playcorp and Aussie Diamond sit amongst 32 unreported Australian CISG cases (that number being over 62% of Australia’s total);[362] this may speak to their low perceived value in developing the law.[363] In addition, no Australian CISG case applying the Convention has yet reached the High Court of Australia.[364] The absence of ‘an authoritative, appellate level judgment clearly explaining the CISG’s interaction with Australian domestic law’, identified in 2010 as a ‘missing piece’ of the metaphorical Australian CISG jigsaw puzzle,[365] thus remains to this day.

VI Conclusions: Lessons Learned, and Their Implications for Future Case Law and Law Reform Initiatives in Australia and Abroad

Following Australia’s accession to the CISG, the Convention became part of Australian law.[366] In line with CISG art 7(1), the Convention’s travaux préparatoires (amongst other sources) inform the interpretation of its own provisions.[367] However, the CISG’s local enactment also generated Australian CISG legislative histories: explanatory memoranda, second reading speeches and parliamentary debates.[368] These local extrinsic materials may inform the interpretation of Australia’s machinery provisions, as those provisions exist outside of the Convention itself and are thus matters of ‘local legislative judgment’.[369]

Australian law determines the CISG’s extent of application in Australia, even if that application is incorrect according to the Convention’s international understandings.[370] In that regard, as Part III noted, a statutory interpretation problem arises in Australian jurisdictions. Do Australia’s machinery provisions establish the CISG’s entire application in each Australian jurisdiction? Or does the Convention apply on a provision-by-provision basis, only where its provisions are inconsistent with non-harmonised Australian law? As noted in Part II, Australia’s extrinsic materials rules help ascertain legislative intent. Australia’s CISG legislative histories provide ample evidence of the Convention’s intended entire operation, which may inform the interpretation of Australia’s machinery provisions. Australian courts’ failure to consult these materials to date represents a missed opportunity to resolve Part III’s interpretative problem in a principled way, and to correct the problematic piecemeal interpretation in Playcorp and Aussie Diamond in the process.[371]

Despite this missed opportunity, my research lays the groundwork for future Australian CISG cases to apply the Convention to its full extent. My analysis shows this approach to be correct from both Australian and international perspectives. Future Australian courts addressing the CISG have the discretion to consult Australia’s CISG legislative histories when interpreting Australia’s machinery provisions. In exercising that discretion, they must weigh the ‘advantage’ of doing so against ‘the need to avoid prolonging

legal ... proceedings’.[372] My research removes any practical inconvenience that may have previously existed in collating and analysing Australia’s CISG legislative histories. A strong case can therefore be made for referring to those histories in future litigation. This is especially so given the broader commercial and public international law issues also at play, addressed in Parts I and III. Naturally, my research is limited by its focus on one statutory interpretation rule. This was a necessary concession in the context of an article. It may be that other statutory interpretation rules support the same conclusion:[373] an interesting question left open for future study.

My research has implications for future Australian law reform, as well as litigation. Scholarship has recommended various reforms to Australia’s CISG Acts, including repealing their inconsistency provisions and adopting New Zealand’s legislative model in their place.[374] That model, avoiding reference to inconsistency, clearly displaces New Zealand’s non-harmonised law to the CISG’s subject matter extent.[375] It also correlates with comparatively more internationalist case law in that jurisdiction.[376] My research confirms that this proposal is consistent with Australia’s original parliamentary intentions. On the other hand, should other internal jurisdictions follow Victoria’s lead and fold their existing CISG Acts into their sale of goods Acts, it would be useful for those future amendments’ own legislative histories to emphasise the CISG’s intended entire operation in each relevant jurisdiction. This would have utility even if (as in Victoria) the machinery provisions themselves escape ‘any critical analysis’.[377] Though preparing extrinsic materials is challenging,[378] existing NT and Commonwealth legislative histories prove this can be done.

My analysis has implications for future international legislative initiatives too. Though the CISG currently has 95 contracting States, new States

continue to join,[379] and existing contracting States (outside of Australia) might also feel the need to amend or re-enact their implementing legislation from time to time.[380] With Australia’s legislation continuing to constitute an international model,[381] for better or worse, other jurisdictions can learn from Australia’s CISG experience.

The recent extension of the CISG to the Hong Kong Special Administrative Region (‘SAR’) of the People’s Republic of China is a topical example.[382] Though some uncertainty previously existed as to the CISG’s operation in Hong Kong,[383] legislation now confirms that fact,[384] and Queensland’s CISG Act inspired its form.[385] Australian-style force of law and inconsistency provisions appear in Hong Kong’s CISG Act.[386] Other than confirming a link with Queensland’s CISG Act, Hong Kong’s explanatory memorandum and consultation materials do not clarify those provisions’ intended interaction.[387] My research provides a model for moving beyond those sources and considering other relevant extrinsic materials, should the interaction of Hong Kong’s force of law and inconsistency provisions ever be tested in court.

Sticking with this Hong Kong example,[388] to the extent that its law permits reference to extrinsic materials for statutory interpretation purposes,[389] its courts might refer to the Hong Kong Bar Association’s CISG consultation submission.[390] That submission cautioned against applying a CISG art 95 reservation to the Hong Kong SAR as it ‘would lead to a less expansive application of the Convention ... and that would not be in line with the stated aims of applying the Convention in Hong Kong in the first place’.[391] Hong Kong’s courts might also refer to The Law Society of Hong Kong’s consultation submission, noting that ‘where the CISG is applicable, it will prevail over domestic law unless such issues are not determinable by the CISG provisions’.[392] These materials evidence an understanding, at least amongst Hong Kong’s legal community at large, that the CISG applies in the Hong Kong SAR to its full extent. So far as the Hong Kong Legislative Council’s understanding is concerned, analysis of its Hansard[393] is beyond the scope of this article, though this too would be a productive point of future study.

In conclusion, and returning to the ‘familiar incantation’[394] of text, context, and purpose underpinning statutory interpretation in Australia, Australia’s CISG legislative histories can (and should) assist Australian courts in understanding Australian parliaments’ intentions to apply the CISG to

its full extent. Whilst the CISG’s text is subject to its interpretative rules in

The CISG is ‘truly a law for merchants’.[395] Empirical evidence suggests that its trade facilitation purposes are undercut where its application is affected by local peculiarities.[396] Merchants should not have to second guess the CISG’s application in contracting States.[397] My research confirms they need not in Australia. This confirmation will help better secure the CISG’s applied uniformity in this jurisdiction. Though such uniformity is not itself ‘a panacea’,[398] it supports the CISG’s trade facilitation purposes.[399] Particularly in an era characterised by the potential for COVID-19 related international sales law disputes,[400] my research will promote the CISG’s capacity to benefit the merchants, lawyers and other trade stakeholders it seeks to serve.

VII Appendix 1: Australia’s CISG Legislative Histories by Jurisdiction and Type

Explanatory memorandum	Second reading speech	Parliamentary debates
ACT
Explanatory Statement, Sale of Goods (Vienna Convention) Ordinance 1987 (ACT)	None [401]	None[402]
Norfolk Island
Unknown [403]	Unknown	Unknown
NSW
Explanatory Note, Sale of Goods (Vienna Convention) Bill 1986 (NSW)	Legislative Assembly: • 23 October 1986[404] Legislative Council: • 19 November 1986[405]	Legislative Assembly: • First reading: 23 October 1986[406] • Debates: 11 November 1986[407] • Third reading: 11 November 1986[408] Legislative Council: • First reading: 12 November 1986[409] • Debates: 19 November 1986[410] • Third reading: 20 November 1986[411]
NT
None[412]	29 April 1987[413]	First reading: 29 April 1987[414] Debates: 3 June 1987[415] Third reading: 3 June 1987[416]

Queensland
None[417]	19 August 1986[418]	First reading: 19 August 1986[419] Debates: 2 September 1986[420] Third reading: 2 September 1986[421]
SA
None[422]	Legislative Council: • 17 September 1986[423] House of Assembly: • 25 September 1986[424]	Legislative Council: • First reading: 17 September 1986[425] • Debates: 24 September 1986[426] • Third reading: 24 September 1986[427] House of Assembly: • First reading: 25 September 1986[428] • Debates: 19 November 1986[429] • Third reading: 19 November 1986[430]
Tasmania
Clause Notes, Sale of Goods (Vienna Convention) Bill 1987 (Tas)	House of Assembly: • 24 March 1987[431] Legislative Council: • 26 March 1987[432]	House of Assembly: • First reading: 4 March 1987[433] • Debates: 24 March 1987[434] • Third reading: 24 March 1987[435] Legislative Council: • First reading: 25 March 1987[436] • Debates: 26 March 1987[437] • Third reading: 1 April 1987[438]
Victoria
Explanatory Memorandum, Sale of Goods (Vienna Convention) Bill 1987 (Vic)	Legislative Council: • 3 March 1987[439] Legislative Assembly: • 14 April 1987[440]	Legislative Council: • First reading: 25 February 1987[441] • Debates: 17 March 1987,[442] 9 April 1987[443] • Third reading: 9 April 1987[444] Legislative Assembly: • First reading: 9 April 1987[445] • Debates: 30 April 1987[446] • Third reading: 30 April 1987[447]
Explanatory Memorandum, Consumer Affairs Legislation Amendment (Reform) Bill 2010 (Vic)	Legislative Assembly: • 28 July 2010[448] Legislative Council: • 12 August 2010[449]	Legislative Assembly: • First reading: 27 July 2010[450] • Debates: 11 August 2010,[451] 12 August 2010[452] • Third reading: 12 August 2010[453] Legislative Council: • First reading: 12 August 2010[454] • Debates: 2 September 2010[455] • Third reading: 2 September 2010[456] Legislative Assembly’s consideration of amendments made by the Legislative Council: • 14 September 2010[457] • 16 September 2010[458]
WA
None[459]	Legislative Assembly: • 7 October 1986[460] Legislative Council: • 11 November 1986[461]	Legislative Assembly: • First reading: 7 October 1986[462] • Debates: 11 November 1986[463] • Third reading: 11 November 1986[464] Legislative Council: • First reading: 11 November 1986[465] • Debates: 19 November 1986,[466] 20 November 1986[467] • Third reading: 20 November 1986[468] Legislative Assembly’s consideration of amendments made by the Legislative Council: • 27 November 1986[469]
Commonwealth
Explanatory Memorandum, Statute Law (Miscellaneous Provisions) Bill 1987 (Cth)	Senate: • 24 September 1987[470] House of Representatives: • 25 November 1987[471]	Senate: • First reading: 24 September 1987[472] • Debates: 7 October 1987[473] • Third reading: 7 October 1987[474] House of Representatives: • First reading: 8 October 1987[475] • Debates: 25 November 1987[476] • Third reading: 25 November 1987[477] Senate’s consideration of amendments made by the House of Representatives: • 26 November 1987[478] • 10 December 1987[479]
Lapsed Bill: Explanatory Memorandum, Statute Law (Miscellaneous Provisions) Bill (No 1) 1987 (Cth)	House of Representatives: • 30 April 1987[480] Senate: • 26 May 1987[481]	House of Representatives: • First reading: 30 April 1987[482] • Debates: 11 May 1987[483] • Third reading: 11 May 1987[484] Senate: • First reading: 26 May 1987[485] (no further progress on the lapsed Bill)
Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)	House of Representatives: • 17 March 2010[486] Senate: • 24 June 2010[487]	House of Representatives: • First reading: 17 March 2010[488] • Debates: 22 June
		2010,[489] 23 June 2010[490] • Third reading: 24 June 2010[491] Senate: • First reading: 24 June 2010[492] • Debates: 24 June 2010[493] • Third reading: 24 June 2010[494] House of Representatives’ consideration of amendments made by the Senate: • 24 June 2010[495]

VIII Appendix 2: Australia’s CISG Case Law to Date

Case	Date	Jurisdiction and court	Category
Renard Constructions (ME) Pty Ltd v Minister for Public Works	12 March 1992	NSW: Court of Appeal	CISG mentioned in passing; appeal[496]
Roder Zelt-und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd	28 April 1995	Commonwealth: Federal Court	CISG applied[497]
Roder Zelt-und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd (in liq)	30 November 1995	Commonwealth: Federal Court	CISG mentioned in passing[498]
South Sydney District Rugby League Football Club Ltd v News Ltd	3 November 2000	Commonwealth: Federal Court	CISG mentioned in passing[499]
Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD	17 November 2000	Queensland: Supreme Court	CISG applied[500]
Perry Engineering Pty Ltd (rec and mgr apptd) (admin apptd) v Bernold AG	1 February 2001	SA: Supreme Court	CISG not applied (counsel omission), but should have been[501]
Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD	12 October 2001	Queensland: Court of Appeal	CISG applied; appeal[502]
Ginza Pte Ltd v Vista Corporation Pty Ltd	17 January 2003	WA: Supreme Court	CISG applied[503]
Playcorp Pty Ltd v Taiyo Kogyo Ltd	24 April 2003	Victoria: Supreme Court	CISG not applied, but should have been[504]
Aqua Technics (WA) Pty Ltd v Summit Chemicals Pty Ltd	19 September 2003	WA: Supreme Court	CISG incidental[505]
Summit Chemicals Pty Ltd v Vetrotex Espana SA	27 May 2004	WA: Full Court of the Supreme Court	CISG incidental; appeal[506]
Ualesi v Expeditors International Pty Ltd	20 December 2004	Commonwealth: Federal Court	CISG referred to in passing[507]
South State Food & Beverage Pty Ltd v Kaur	12 May 2005	Commonwealth: Federal Court	CISG incidental[508]
Italian Imported Foods Pty Ltd v Pucci Srl	13 October 2006	NSW: Supreme Court	CISG not applied (procedural reasons), but should have been; appeal[509]
Kingston Estate Wines Pty Ltd v Vetreria Etrusca Srl	12 October 2007	SA: District Court	CISG incidental[510]
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd	13 December 2007	Commonwealth: High Court	CISG referred to in passing; appeal[511]
Vetreria Etrusca Srl v Kingston Estate Wines Pty Ltd	14 March 2008	SA: Supreme Court	CISG not applied, but should have been; appeal[512]
Hannaford v Australian Farmlink Pty Ltd	24 October 2008	Commonwealth: Federal Court	CISG applied[513]
Olivaylle Pty Ltd v Flottweg AG [No 4]	20 May 2009	Commonwealth: Federal Court	CISG excluded[514]
Guang Dong Zhi Gao Australia Pty Ltd v Fortuna Network Pty Ltd	4 November 2009	NSW: Supreme Court	CISG incidental[515]
Franklins Pty Ltd v Metcash Trading Ltd	16 December 2009	NSW: Court of Appeal	CISG referred to in passing; appeal[516]
Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [No 3]	23 June 2010	WA: Supreme Court	CISG not applied, but should have been[517]
Delphic Wholesalers (Aust) Pty Ltd v Agrilex Co Ltd	6 August 2010	Victoria: Supreme Court	CISG incidental[518]
Cortem SpA v Controlmatic Pty Ltd	13 August 2010	Commonwealth: Federal Court	CISG applied[519]
Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd	28 September 2010	Commonwealth: Federal Court	CISG applied[520]
Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd	20 April 2011	Commonwealth: Full Court of the Federal Court	CISG applied; appeal[521]
Olivaylle Pty Ltd (admin apptd) v Flottweg AG [No 6]	17 June 2011	Commonwealth: Federal Court	CISG referred to in passing[522]
Fryer Holdings Pty Ltd (in liq) v Liaoning MEC Group Co Ltd	30 January 2012	NSW: Supreme Court	CISG applied[523]
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd	9 March 2012	WA: Court of Appeal	CISG excluded; appeal[524]
Traxys Europe SA v Balaji Coke Industry Pvt Ltd [No 2]	23 March 2012	Commonwealth: Federal Court	CISG excluded[525]
Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [No 2]	28 March 2012	WA: Court of Appeal	CISG not applied, but should have been; appeal[526]
Casaceli v Natuzzi SpA	29 June 2012	Commonwealth: Federal Court	CISG referred to in passing[527]
Venter v Ilona MY Ltd	24 August 2012	NSW: Supreme Court	CISG excluded[528]
Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd	17 December 2012	Victoria: Supreme Court	CISG incidental[529]
Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd	7 March 2013	Victoria: Supreme Court	CISG incidental; appeal[530]
Severstal Export GmbH v Bhushan Steel Ltd	8 May 2013	NSW: Court of Appeal	CISG incidental; appeal[531]
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd	16 July 2014	Commonwealth: Full Court of the Federal Court	CISG not applied, but related to other CISG cases; appeal[532]
Toll Holdings Ltd v Stewart	15 March 2016	Commonwealth: Federal Court	CISG excluded[533]
Sino Dragon Trading Ltd v Noble Resources International Pte Ltd	13 September 2016	Commonwealth: Federal Court	CISG excluded[534]
Fletcher v Capstone Aluminium SDN BHD; Re McLay Industries Pty Ltd (in liq)	5 December 2016	Commonwealth: Federal Court	CISG incidental[535]
NT Beverages Group Pty Ltd v PT Bromo Tirta Lestari; Re NT Beverages Group Pty Ltd	11 July 2017	Commonwealth: Federal Court	CISG incidental[536]
Valve Corporation v Australian Competition and Consumer Commission	22 December 2017	Commonwealth: Full Court of the Federal Court	CISG excluded; appeal[537]
Re TCL Airconditioner (Zhongshan) Co Ltd [No 2]	1 March 2019	Commonwealth: Federal Court	CISG not applied, but related to other CISG cases[538]
Luo v Windy Hills Australian Game Meats Pty Ltd [No 3]	10 July 2019	NSW: Supreme Court	CISG not applied, but should have been[539]
Dialogue Consulting Pty Ltd v Instagram Inc	22 December 2020	Commonwealth: Federal Court	CISG excluded[540]
Freedom Foods Pty Ltd v Blue Diamond Growers	5 March 2021	Commonwealth: Federal Court	CISG excluded[541]
LLC BryanskAgrostroy v Mackies Asia Pacific Pty Ltd	29 September 2021	Commonwealth: Federal Court	CISG referred to in passing[542]
Epic Games, Inc v Google LLC	4 February 2022	Commonwealth: Federal Court	CISG excluded[543]
Micon Mining & Construction Products GmbH & Co KG v Macmahon Mining Services Pty Ltd	2 June 2022	WA: Court of Appeal	CISG incidental; appeal[544]
Nawaz v Rasier Pacific Pty Ltd	17 June 2022	Commonwealth: Fair Work Commission	CISG excluded[545]
Cha v Insurance Australia Ltd	28 October 2022	NSW: Personal Injury Commission	CISG referred to in passing[546]

IX Addendum

Since this article was originally written, several additional Australian CISG cases have been handed down. None apply the CISG, and none alter the analysis contained in my article. However, following the handing down of Re Sparkling Beverages Pty Ltd [No 2],[547] C P Aquaculture (India) Pvt Ltd v Aqua Star Pty Ltd,[548] UIL (Singapore) Pte Ltd v Wollongong Coal Ltd,[549] Bolin Technology Co, Ltd v BirdDog Technology Ltd,[550] a further instance of Bolin Technology Co Ltd v BirdDog Technology Ltd,[551] and Ezy-Fit Engineering Group Pty Ltd v Microm Nominees Pty Ltd,[552] it is now the case that there are 57 (rather than 51) Australian CISG cases in existence. Following the CISG being adopted by Saudi Arabia (as foreshadowed in footnote 6) and Rwanda, it is also now the case that there are 97 (rather than 95) contracting States to the Convention.[553]

* Associate Professor in the Department of Business Law and Taxation, Monash Business School, Monash University. This article builds upon research previously published: Benjamin Hayward, &#82[1]CISG as the Applicable Law: The Curious Case of Australia’ in Poomintr Sooksripaisarnkit and Sai Ramani Garimella (eds), Contracts for the International Sale of Goods: A Multidisciplinary Perspective (Sweet & Maxwell, 2019) 167; Andrea Anastasi, Benjamin Hayward and Stephanie Peta Brown, ‘An Internationalist Approach to Interpreting Private International Law? Arbitration and Sales Law in Australia’ [2020] MelbULawRw 19; (2020) 44(1) Melbourne University Law Review 1. The author would like to thank Andrea Samardzija, Aleksandar Milenkovic and Ben Awad for their excellent research assistance, as well as Dr Oscar Roos of Deakin Law School for advice in relation to some of the constitutional law aspects of this article. Any errors remain the author’s own. Convention accession statistics and case law statistics given in this article are current as at 4 July 2023.

[1] United Nations Convention on Contracts for the International Sale of Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 January 1988) (‘CISG’).

[3] See Martin Doris, ‘Promising Options, Dead Ends and the Reform of Australian Contract Law’ (2014) 34(1) Legal Studies 24, 38, 41.

[5] This article capitalises ‘State’ when referring to nations and uses the lower case ‘state’ and ‘territory’ when referring to Australia’s internal jurisdictions.

[6] ‘Chapter X: International Trade and Development: United Nations Convention on Contracts for the International Sale of Goods’, United Nations Treaty Collection (Web Page, 2023) <https://web.archive.org/web/20230425115633/https://treaties.un.org/Pages/View‌Detai‌ls.aspx?src=IND&mtdsg_no=X-10&chapter=10&clang=_en> (‘Chapter X: CISG’). Saudi Arabia is poised to become the 96^th contracting State of the CISG (n 1) after its Cabinet approved accession on 20 June 2023: ‘ECZA Relocates HQ to Riyadh’, Argaam (online, 20 June 2023) <https://arg.am/3BBA0E61>, archived at <https://perma.cc/9LCV-YTPE>; ‘Saudi Arabia Accession to “International Sale of Goods” Convention Boosts Trade Growth: Al-Qasabi’, Argaam (online, 23 June 2023) <https://arg.am/3BBA1613>, archived at <https://perma.cc/U6NR-HZJ4>.

[7] Ingeborg Schwenzer, ‘Introduction’ in Ingeborg Schwenzer and Ulrich G Schroeter (eds), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 5^th ed, 2022) 1, 1; Stefan Kröll, Loukas Mistelis and Pilar Perales Viscasillas, ‘Introduction to the CISG’ in Stefan Kröll, Loukas Mistelis and Pilar Perales Viscasillas (eds), UN Convention on Contracts for the International Sale of Goods (CISG): A Commentary (CH Beck, 2^nd ed, 2018) 1, 1.

[9] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959) (‘New York Convention’). At the time of writing, there are 172 contracting States to the New York Convention

(n 9): ‘Chapter XXII: Commercial Arbitration and Mediation: Convention on the Recognition and Enforcement of Foreign Arbitral Awards’, United Nations Treaty Collection (Web Page, 2023) <https://web.archive.org/web/20231002070640/https://treaties.un.org/pages/Vie‌wDetails.aspx?src=IND&mtdsg_no=XXII-1&chapter=22&clang=_en>.

[10] Chief Justice James Allsop, ‘International Commercial Courts: Next Frontier or Latest Trend?’ (Speech, Singapore International Commercial Court Symposium, 10 March 2021). For example, both the CISG (n 1) and the New York Convention (n 9) seek to bridge the common law and civil law divide: ‘International Arbitration and the CISG’,

Arbitral Insights (Reed Smith, 21 June 2023) 0:18:06–0:18:58 <https://reedsmithinterna‌tionalarbitration.podbean.com/e/international-arbitration-and-the-cisg/>.

[14] Benjamin Hayward, ‘CISG Opt-Outs in Australia: Fact or Fiction, and What To Do?’ (Speech, UNCCA UN Day Seminar: 40 Years of CISG, 26 October 2020) 2–4 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3719620>, archived at <https://p‌erma.cc/6VSM-83GM>.

[16] Gustavo Moser, Rethinking Choice of Law in Cross-Border Sales (Eleven International Publishing, 2018) 72–3. For a summary of the other relevant empirical studies, see at 8–32.

[17] For some existing references addressing Australia’s parliamentary procedures effecting the local operation of the CISG (n 1) in a more general sense, see Benjamin Hayward, ‘CISG as the Applicable Law: The Curious Case of Australia’ in Poomintr Sooksripaisarnkit and Sai Ramani Garimella (eds), Contracts for the International Sale of Goods: A Multidisciplinary Perspective (Sweet & Maxwell, 2019) 167, 171–4 [10.11]–[10.17], 184–5 [10.43] (‘CISG as the Applicable Law’); Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG? Celebrating the 25^th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 298–9 (‘The CISG in Australasia’); Benjamin Hayward and Patricia Perlen, ‘The CISG in Australia: The Jigsaw Puzzle That Doesn’t Quite Fit’ (2011) 15(1) Vindobona Journal of International Commercial Law and Arbitration 119, 125; Benjamin Hayward, ‘The CISG in Australia: The Jigsaw Puzzle Missing a Piece’ (2010) 14(2) Vindobona Journal of International Commercial Law and Arbitration 193, 193, 195, 199, 221–2 (‘The Jigsaw Puzzle Missing a Piece’).

[18] Hayward, ‘CISG as the Applicable Law’ (n 17) 182–5 [10.37]–[10.44]; Bruno Zeller, ‘The CISG and the Common Law: The Australian Experience’ in Ulrich Magnus (ed), CISG vs Regional Sales Law Unification: With a Focus on the New Common European Sales Law (Sellier European Law Publishers, 2012) 57, 57 (‘The CISG and the Common Law’); Anastasi, Hayward and Brown (n 13) 35–44; Lisa Spagnolo, ‘The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers’ [2009] MelbJlIntLaw 10; (2009) 10(1) Melbourne Journal of International Law 141, 167–9 (‘The Last Outpost’); Christopher Kee and Edgardo Muñoz, ‘In Defence of the CISG’ [2009] DeakinLawRw 5; (2009) 14(1) Deakin Law Review 99, 100, 110.

[19] Hayward, ‘CISG as the Applicable Law’ (n 17) 175–7 [10.21]–[10.25].

[20] See Benjamin Hayward, Conflict of Laws and Arbitral Discretion: The Closest Connection Test (Oxford University Press, 2017) 2 [1.02].

[22] See generally Lord Collins and Jonathan Harris (eds), Dicey, Morris and Collins on the Conflict of Laws (Sweet & Maxwell, 16^th ed, 2022) vol 1, 3 [1–001]. Given the internationality requirement in art 1(1) of the CISG (n 1), the Convention’s application inherently involves international contexts.

[24] Even ostensibly local trade can have international dimensions: Sagi Peari, The Foundation of Choice of Law: Choice and Equality (Oxford University Press, 2018) 86–7.

[25] Ben Köhler, ‘For an Independent Development of the CISG beyond Article 7 (2): A Stocktake and a Proposal’ in Zlatan Meškić et al (eds), Balkan Yearbook of European

and International Law 2020 (Springer, 2021) 3, 4, 20, 24–5; Hayward, ‘CISG as the Applicable Law’ (n 17) 171 [10.10], 173 [10.15]; Renaud Sorieul, Emma Hatcher and Cyril Emery, ‘Possible Future Work by UNCITRAL in the Field of Contract Law: Preliminary Thoughts from the Secretariat’ (2013) 58(4) Villanova Law Review 491, 500, 503, 506; Bryan Horrigan, Emmanuel Laryea and Lisa Spagnolo, Submission No 35 to the Attorney-General’s Department (Cth), Improving Australia’s Law and Justice Framework: A Discussion Paper to Explore the Scope for Reforming Australian Contract Law (20 July 2012) 6 [1.3.5] n 13, 30 [7.7] <https://researchmgt.monash.edu/ws/portalfiles/portal/259436322/Submission_035_Contract_Law_Review_Horrigan_Laryea_Spagnolo.pdf>, archived at <https://perma.cc/FV3W-C83V>.

[29] See, eg, Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108, [245] (Hansen J) (‘Playcorp’);

[30] This article uses the term ‘legislative histories’ as a domestic equivalent to travaux préparatoires, as opposed to its alternative usage referring to ‘prior statutory provisions dealing with the same subject matter’: Kath Hall and Claire Macken, Statutory Interpretation: Principles and Context (LexisNexis, 2021) 102 [5.43]. For this article’s purposes, these legislative histories include explanatory memoranda, second reading speeches and parliamentary debates relating to the Australian implementation of the CISG (n 1).

286–7 (Mason CJ and Deane J), 301 (Toohey J), 316 (McHugh J) (‘Teoh’); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1,

32–3 [99] (McHugh and Gummow JJ); CPCF v Minister for Immigration and Border

Protection [2015] HCA 1; (2015) 255 CLR 514, 531 [21] (French CJ), 643–4 [462], 650 [490] (Keane J). See also Lisa Spagnolo, CISG Implementation in Asia and the Pacific (Report, 13 December 2013) 19 (‘CISG Implementation’).

[36] Hayward, ‘CISG as the Applicable Law’ (n 17) 174–5 [10.19]–[10.20]; Horrigan, Laryea and Spagnolo (n 25) 8 [1.6]. With respect to other comparable instruments, cf Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251, 281–2 (Lord Diplock); Bruno Zeller and Camilla Andersen, ‘The Transnational Dimension of Statutory Interpretation: Tragically Overlooked in a Global Commercial Environment’ [2019] (1) Nordic Journal of Commercial Law 5, 7–8.

[37] United Nations Conference on Contracts for the International Sale of Goods: Vienna,

[39] The legislative process may involve ‘multifaceted debate among parliamentarians and other stakeholders with divergent perspectives, responding to diverse and sometimes irreconcilable differences between these stakeholders’: Annette O’Callaghan and Meredith Leigh, ‘Foreword from the Parliamentary Counsel’ in Guzyal Hill, National Uniform Legislation (Springer, 2022) vii, vii. See, eg, Jamieson Murphy, ‘Majority of Nationals Voters Want Much More Climate Action’, The Canberra Times (online, 30 August 2021) <https://ww‌w.‌‌canberratimes.com.au/story/7406237/voters-in-every-electorate-want-acti‌on-on-climate-pol‌‌l-reveals/>, quoting Barnaby Joyce, then Deputy Prime Minister and National Party Leader, who noted (in the climate change context): ‘I’m not a scientist mate, I’m a legislator’.

[40] Jonathan Brown (ed), ‘Australian Practice in International Law 1984–1987’ in DW Greig (ed), The Australian Year Book of International Law (Australian National University, 1991) vol 11, 159, 307.

[42] Roder Zelt-und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd [1995] FCA 1221; (1995) 57 FCR 216, 222 (von Doussa J) (‘Roder’); Lisa Spagnolo, ‘The International Dimensions of Australian Contract Law’ in John Eldridge and Timothy Pilkington (eds), Australian Contract Law in the 21^st Century (Federation Press, 2021) 221, 221.

[44] Ian Govey and Christopher Staker, ‘Vienna Sales Convention Takes Effect in Australia

Next Year’ (1988) 23(5) Australian Law News 19, 19. Australia’s CISG legislation

was passed pre-accession, consistent with Australian treaty practice: ‘Australia’s

Treaty-Making Process’, Department of Foreign Affairs and Trade (Guidance Note) <https://www.dfat.gov.au/international-relations/treaties/treaty-making-process>, archived at <https://perma.cc/YD7R-SSB9>. This best secures Australia’s compliance with the public international law obligations that arise following accession: Hayward, ‘CISG as the Applicable Law’ (n 17) 171 [10.11].

[45] Australia’s CISG legislation does not appear on the Australasian Parliamentary Counsel’s Committee’s list of national uniform legislation: Australasian Parliamentary Counsel’s Committee, Australian National Uniform Law Schemes and Associated Legislation of Participating Jurisdictions (Web Document, November 2020) <https://pcc.gov.au/uniform/‌National%20Uniform%20Legislation%20table%20-%202020%20final.pdf>, archived at <https://per‌‌ma.cc/M4U9-4YMQ>. Nevertheless, Australia’s CISG Acts qualify as they take a common form: Govey and Staker (n 44) 19.

[46] Tim D Castle, ‘50 Years of UNCITRAL: What’s Next?’ [2018] (Spring) Bar News 88, 90.

[50] Lisa Spagnolo, ‘Law Wars: Australian Contract Law Reform vs CISG vs CESL’ (2013) 58(4) Villanova Law Review 623, 623 (‘Law Wars’); David Fairlie, ‘A Commentary on Issues Arising under Articles 1 to 6 of the CISG: With Special Reference to the Position in Australia’ in Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods (Singapore International Arbitration Centre, 2006) 39, 40. See, eg, Sale of Goods Act 1923 (NSW); Goods Act 1958 (Vic) (‘Goods Act’).

[52] See, eg, New South Wales, Parliamentary Debates, Legislative Council, 19 November 1986, 6678 (John P Hannaford) (‘NSW Parliamentary Debates (19 November 1986)’); Queensland, Parliamentary Debates, Legislative Assembly, 2 September 1986, 770–1 (Sir William Knox), 773 (Neville J Harper) (‘Qld Parliamentary Debates (2 September 1986)’); Victoria,

Parliamentary Debates, Legislative Assembly, 30 April 1987, 1759 (Peter Ross-Edwards)

(‘Vic Parliamentary Debates (30 April 1987)’); Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 1986, 4001 (Andrew Mensaros) (‘WA Legislative

Assembly Parliamentary Debates (11 November 1986)’); Western Australia, Parliamentary Debates, Legislative Council, 19 November 1986, 4408 (Norman F Moore) (‘WA Parliamentary Debates (19 November 1986)’); Western Australia, Parliamentary Debates, Legislative

Council, 20 November 1986, 4561 (Phillip G Pendal) (‘WA Parliamentary Debates

[53] Originally the Sale of Goods (Vienna Convention) Ordinance 1987 (ACT), which was restyled as an Act after the Australian Capital Territory attained self-government.

[54] Norfolk Island’s CISG legislation is sometimes overlooked, though trade statistics from around the time of enactment disclose an import and export relationship with New

Zealand: Norfolk Island Report 1986–87 (Parliamentary Paper No 78 of 1988, 1987) 47–51. New Zealand itself adopted the CISG (n 1) in 1994: ‘Chapter X: CISG’ (n 6). Trade between Norfolk Island and the Australian mainland is practically necessary: see Chasing the Light: Norfolk Island (Ray Martin and Max Uechtritz, 2022) 0:39:10–0:39:25 (‘Chasing the Light’). However, it remains intra-Australian trade and is not governed by the CISG (n 1): at art 1(1); E Jayme, ‘Article 1: International Sales Contracts’ in CM Bianca and MJ Bonell (eds), Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Giuffrè, 1987) 27, 30 [2.2].

[55] Attorney-General’s Department (Cth), ‘Review of Developments in International Trade Law’ [1988] (November) Australian International Law News 157, 163.

[57] Sale of Goods (Vienna Convention) (Amendment) Ordinance 1989 (ACT) s 3; Explanatory Statement, Sale of Goods (Vienna Convention) (Amendment) Ordinance 1989 (ACT).

[58] Explanatory Statement, Sale of Goods (Vienna Convention) (Amendment) Ordinance

[59] Sale of Goods (Vienna Convention) Act 1987 (Vic) (‘Sale of Goods (Vienna Convention) Act (Vic)’), as repealed by Consumer Affairs Legislation Amendment (Reform) Act 2010 (Vic) s 20 (‘Consumer Affairs Legislation Amendment Act’); Goods Act (n 50) pt IV, as inserted by Consumer Affairs Legislation Amendment Act (n 59) s 17. See also at s 1(d). Occasional reference to the repealed Sale of Goods (Vienna Convention) Act (Vic) (n 59) persists: see, eg, Bronwyn Lincoln, ‘The UN CISG and Its Implications for Australian Businesses during the COVID-19 Pandemic’, Lexology (Blog Post, 21 May 2020) <https://www.lexology.com/‌library/detail.aspx?g=a1d4b087-0372-4f9f-b591-107406962015>, archived at <https://perma.‌‌cc/R9K4-FSF2>.

[63] Robert French, ‘Australia and International Law’ (2020) 5 Perth International Law

[64] Sale of Goods (Vienna Convention) Act (ACT) (n 62) s 3; Sale of Goods (Vienna Convention) Act (Norfolk Island) (n 62) s 3; Sale of Goods (Vienna Convention) Act (NSW) (n 62) s 3; Sale of Goods (Vienna Convention) Act (NT) (n 62) s 3; Sale of Goods (Vienna Convention) Act (Qld) (n 62) s 3 (definition of ‘Convention’); Sale of Goods (Vienna Convention) Act (SA)

(n 62) s 3; Sale of Goods (Vienna Convention) Act (Tas) (n 62) s 3; Goods Act (n 50) s 85, replacing Sale of Goods (Vienna Convention) Act (Vic) (n 59) s 3; Sale of Goods (Vienna Convention) Act (WA) (n 62) s 3.

[65] Sale of Goods (Vienna Convention) Act (ACT) (n 62) s 5; Sale of Goods (Vienna Convention) Act (Norfolk Island) (n 62) s 5; Sale of Goods (Vienna Convention) Act (NSW) (n 62) s 5; Sale of Goods (Vienna Convention) Act (NT) (n 62) s 5; Sale of Goods (Vienna Convention) Act (Qld) (n 62) s 5; Sale of Goods (Vienna Convention) Act (SA) (n 62) s 4; Sale of Goods (Vienna Convention) Act (Tas) (n 62) s 5; Goods Act (n 50) s 86, replacing Sale of Goods (Vienna Convention) Act (Vic) (n 59) s 5; Sale of Goods (Vienna Convention) Act (WA) (n 62) s 5.

[66] Sale of Goods (Vienna Convention) Act (ACT) (n 62) s 6; Sale of Goods (Vienna Convention) Act (Norfolk Island) (n 62) s 6; Sale of Goods (Vienna Convention) Act (NSW) (n 62) s 6; Sale of Goods (Vienna Convention) Act (NT) (n 62) s 6; Sale of Goods (Vienna Convention) Act (Qld) (n 62) s 6; Sale of Goods (Vienna Convention) Act (SA) (n 62) s 5; Sale of Goods (Vienna Convention) Act (Tas) (n 62) s 6; Goods Act (n 50) s 87, replacing Sale of Goods (Vienna Convention) Act (Vic) (n 59) s 6; Sale of Goods (Vienna Convention) Act (WA) (n 62) s 6.

[67] Pilar Perales Viscasillas, ‘Article 7’ in Stefan Kröll, Loukas Mistelis and Pilar Perales Viscasillas (eds), UN Convention on Contracts for the International Sale of Goods (CISG): A Commentary (CH Beck, 2^nd ed, 2018) 112, 115 [7].

[68] Pascal Hachem, ‘Article 7 CISG: Interpretation of Convention and Gap-Filling’ in Ingeborg Schwenzer and Ulrich G Schroeter (eds), Schlechtriem & Schwenzer: Commentary on the

UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 5^th ed, 2022) 135, 138–9 [8] (‘Article 7 CISG’); ibid 113 [1]; Bruno Zeller, ‘Article 48 CISG:

Confusion or Sound Drafting?’ (2022) 22(1) Internationales Handelsrecht 7, 7–8 [6], 8 [9]; Bruno Zeller, ‘Good Faith: Is It a Contractual Obligation?’ (2003) 15(2) Bond Law Review 215, 217; Bruno Zeller, ‘Determining the Contractual Intent of Parties under the CISG and Common Law: A Comparative Analysis’ (2002) 4(4) European Journal of Law Reform 629, 629 (‘A Comparative Analysis’); Bruno Zeller, ‘The Black Hole: Where Are the Four Corners of the CISG?’ [2002] (7) International Trade and Business Law Annual 251, 251.

[71] See, eg, Hayward, ‘CISG as the Applicable Law’ (n 17) 171–4 [10.09]–[10.17],

182–5 [10.37]–[10.44]; Anastasi, Hayward and Brown (n 13) 35–7; Spagnolo, ‘The Last Outpost’ (n 18) 190–1; Fariba Aghili, ‘A Critical Analysis of the CISG as Australian Law’ (2007) 21(4) Commercial Law Quarterly 15, 20.

[72] Hachem, ‘Article 7 CISG’ (n 68) 137 [6]; Zeller and Andersen (n 36) 11.

384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’). See also

[75] Michael Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1, 11 (‘Choice of Law’).

368 [14] (Kiefel CJ, Nettle and Gordon JJ), 374–5 [37]–[38] (Gageler J), 388–9 [82]–[83],

392 [92] (Edelman J); Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, 539–40 [47] (French CJ, Crennan, Kiefel, Gageler and Keane JJ), quoting Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [24] (French CJ and Hayne J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 31–2 [4]–[5] (French CJ), 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (‘Alcan’); Project Blue Sky (n 74) 368 [19], [21], 374–5 [41] (Brennan CJ), 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J agreeing at 412) (‘CIC Insurance’). See also Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) 33–4 [2.1] (‘Statutory Interpretation’); Alice Lloyd, ‘A Purposive Approach to Interpreting Australia’s Complementary Protection Regime’ [2020] MelbULawRw 7; (2019) 43(2) Melbourne University Law Review 654, 657–8, 669–71; Justice John Middleton, ‘Statutory Interpretation: Mostly Common Sense?’ [2017] MelbULawRw 6; (2016) 40(2) Melbourne University Law Review 626, 632, 655–6; Michael Kirby, ‘The Never-Ending Challenge of Drafting and Interpreting Statutes: A Meditation on the Career of John Finemore QC’ [2012] MelbULawRw 4; (2012) 36(1) Melbourne University Law Review 140, 158–60, 168 (‘The Never-Ending Challenge’); Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ [2011] MelbULawRw 3; (2011) 35(1) Melbourne University Law Review 113, 116, 131–3; Justice Michael Kirby, ‘Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty’ [2006] MelbULawRw 18; (2006) 30(2) Melbourne University Law Review 576, 583–4.

[78] Australia’s CISG legislative histories disclose varying levels of accuracy in understanding

the provisions of the Convention: Hayward, ‘CISG as the Applicable Law’ (n 17)

171–4 [10.09]–[10.17]. Whilst this is an interesting topic, this is a separate issue to those under examination in this article.

[79] Lisa Burton Crawford et al, Public Law and Statutory Interpretation: Principles and Practice (Federation Press, 2^nd ed, 2021) 267.

[83] SydneyLawSchool, ‘Ross Parsons Centre Law & Business Seminar: Common Mistakes in Using National Uniform Legislation’ (YouTube, 26 November 2021) 0:03:21–0:03:31 <https://www.youtube.com/watch?v=NoKmCBfrhHU>.

546–7 [35]–[36] (Ward J); Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan)

Buss JA agreeing at 125 [153]), 135 [203]–[205] (Murphy JA) (‘Rizhao Steel’). The United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration, UN Doc A/40/17 (21 June 1985) annex I, as amended by Report of the United Nations Commission on International Trade Law on the Work of Its Thirty-Ninth Session, UN Doc A/61/17 (7 July 2006) annex I (‘Model Law’) contains an equivalent to

CISG (n 1) art 7(1): Model Law (n 85) art 2A(1); Peter Binder, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions (Wolters Kluwer, 4^th ed, 2019) 59. Australia adopted the Model Law (n 85) via s 16(1) of the International Arbitration Act (Cth) (n 84) and the Model Law (n 85) appears in sch 2 of the International Arbitration Act (Cth) (n 84). This, however, does not explain referencing extrinsic materials of Australian origin pertaining to the non-Model Law (n 85) parts of the International Arbitration Act (Cth) (n 84) itself.

[86] Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326,

[35] n 63 (Croft J). Like art 2A(1) of the Model Law (n 85), s 2A(1) of the Commercial

Arbitration Act (Vic) (n 84) is broadly equivalent to art 7(1) of the CISG (n 1), though this does not explain references to extrinsic materials of Australian origin for the same

reasons already identified: see above n 85. It is particularly important, in relation to this legislation, to note that the Commercial Arbitration Act (Vic) (n 84) s 2A(4) confirms the continued operation of the Interpretation of Legislation Act 1984 (Vic) s 35 in relation to the Commercial Arbitration Act (Vic) (n 84).

[88] Hall and Macken (n 30) 93 [5.10]. See also CIC Insurance (n 76) 408 (Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J agreeing at 412), quoted in Crawford et al (n 79) 268; Jacinta Dharmananda, ‘Outside the Text: Inside the Use of Extrinsic Materials in Statutory Interpretation’ (2014) 42(2) Federal Law Review 333, 334–5; Kirby, ‘The Never-Ending Challenge’ (n 76) 163.

[90] Pearce, Statutory Interpretation (n 76) 98 [3.16]. See also Gageler (n 74) 6.

[94] This discretion was a ‘generally agreed’ feature of Australia’s extrinsic materials rules from the time of their very drafting: Dharmananda (n 88) 337.

[97] Acts Interpretation Act 1954 (Qld) s 14B (‘AIA (Qld)’). This provision is structured differently to s 15AB of the AIA (Cth) (n 91) but is substantially to the same effect.

[99] Acts Interpretation Act 1931 (Tas) s 8B. This provision’s structure is similar to s 14B of the AIA (Qld) (n 97) and is likewise to the same effect as s 15AB of the AIA (Cth) (n 91).

[104] Whilst the CISG (n 1) arts 4(a)–(b) specifically identify that validity and property’s passage are beyond the scope of the Convention, the provision’s second sentence’s opening words (‘[i]n particular’) ‘make it clear that the matters set out [in arts 4(a)–(b)] are not the

only matters which fall outside the realm of concern of the Convention’: W Khoo,

‘Article 4: Questions To Be Covered by Convention’ in CM Bianca and MJ Bonell (eds), Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Giuffrè, 1987) 44, 45 [2.4]. Thus, as a result of art 4, the subject matter scope of the CISG (n 1)

[105] CISG (n 1) arts 1–6, 100. See also Shaotang Wang, ‘Baodeli Co, Ltd v Ceiec (Guangdong)’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales

Convention (CISG) (Springer, 2022) vol 1, 293, 298; Peng Wang, Yueshan Liu and Chaolin Zhang, ‘Vishaybc Components Beyschlag Gmbh versus Shanghai Y Hsu Trading Co, Ltd: Dispute Arising from a Sale of Goods Contract’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2022) vol 1, 361, 366.

[106] Larry A DiMatteo, ‘CISG as Basis of a Comprehensive International Sales Law’ (2013) 58(4) Villanova Law Review 691, 691.

[107] Peter Schlechtriem, ‘Requirements of Application and Sphere of Applicability of the CISG’ (2005) 36(4) Victoria University of Wellington Law Review 781, 788. See also Brooke

[110] Bruno Zeller, CISG and the Unification of International Trade Law (Routledge-Cavendish, 2007) 1 (‘CISG and the Unification’); Bruno Zeller, ‘Recent Developments of the CISG: Are Regional Developments the Answer to Harmonisation?’ (2014) 18(1) Vindobona Journal of International Commercial Law and Arbitration 111, 112; Zeller and Andersen (n 36) 15; Bruno Zeller, ‘In or out of the CISG? That Is the Question’ [2013] Australian Mining and Petroleum Law Association Yearbook 410, 413 (‘In or out of the CISG’). See generally Filip De Ly, ‘Sources of International Sales Law: An Eclectic Model’ (2005) 25(1) Journal of Law and Commerce 1.

[111] Bruno Zeller, ‘Is the Sale of Goods (Vienna Convention) Act the Perfect Tool To Manage Cross Border Legal Risks Faced by Australian Firms?’ (1999) 6(3) eLaw Journal: Murdoch University Electronic Journal of Law, [15] <https://www.murdoch.edu.au/elaw/issues/v6n3/‌‌zeller63.html>, archived at <https://perma.cc/MEW9-P9SW> (‘The Perfect Tool’), discussing Goods Act (n 50).

[115] Patrick Devlin, Samples of Lawmaking (Oxford University Press, 1962) 2. See also

[119] Qld Parliamentary Debates (2 September 1986) (n 52) 773 (Neville J Harper).

[121] See generally NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; (2006) 231 CLR 52, 71–2 [61] (Callinan, Heydon and Crennan JJ).

[122] Spagnolo, ‘The Last Outpost’ (n 18) 190–1. See also Zeller, ‘The CISG in Australasia’ (n 17) 303–4; Zeller, ‘A Comparative Analysis’ (n 68) 642; Zeller, ‘In or out of the CISG’ (n 110) 414; Horrigan, Laryea and Spagnolo (n 25) 6 [1.3.5], 8 [1.6], 32 [8.2.1].

[136] A-G (Botswana) v Aussie Diamond Products Pty Ltd [No 2] [2012] WASCA 73 (‘Aussie

[138] See generally Jadranka Petrovic, ‘The Interplay of CISG Cultural, Legal, Historical and Religious Variances and Their Impact on the Treatment of the CISG’ (2016) 20(1)

Vindobona Journal of International Commercial Law and Arbitration 71, 72; Luke Nottage, ‘Who’s Afraid of the Vienna Sales Convention (CISG): A New Zealander’s View from

Australia and Japan’ (2005) 36(4) Victoria University of Wellington Law Review 815, 830;

[139] Zeller, CISG and the Unification (n 110) 3. See also John Goldring, ‘Uniformity, Harmonisation or Restatement of Laws: Desirability and Implementation’ [1995–96] (68) Reform 7, 9.

[140] (1854) 9 Ex 341; 156 ER 145, 151 (Alderson B for the Court). See, eg, Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2001] QCA 433; [2002] 2 Qd R 462, 484 [48] (Williams JA, Davies JA agreeing at 472 [1], Byrne J agreeing at 485 [52]) (‘Downs Appeal’); Delchi Carrier

SpA v Rotorex Corporation[1995] USCA2 1270; , 71 F 3d 1024, 1029 [10, 11] (Winter J for the Court) (2^nd Cir, 1995); Zeller, CISG and the Unification (n 110) 104; Geng Wang, Shu Zhang and Peng Guo, ‘Novelact (Resources) Limited v Xiamen Special Economic Zone International Trade Trust Company’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2022) vol 1, 1, 8; Chaolin Zhang, Shu Zhang and Peng Guo, ‘Sanmei (Japan) Trading Co, Ltd v Fujian Zhangzhou Metals & Minerals Import and Export Co, Ltd’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2022) vol 1, 13, 23–4; Zeller, ‘The CISG in Australasia’ (n 17) 318–19; V Susanne Cook, ‘The UN Convention on Contracts for the International Sale of Goods: A Mandate To Abandon Legal Ethnocentricity’ (1997) 16(2) Journal of Law and Commerce 257, 259–60.

[141] Fryer Holdings Pty Ltd (in liq) v Liaoning MEC Group Co Ltd [2012] NSWSC 18, [16], [19] (McDougall J) (‘Fryer Holdings’); Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] FCAFC 55; (2011) 192 FCR 445, 460 [89] (Keane CJ, Lander and Besanko JJ) (‘Castel Appeal’); Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2010] FCA 1028, [123] (Ryan J) (‘Castel Trial’); Playcorp (n 29) [235], [245] (Hansen J); Zeller, ‘The CISG in Australasia’ (n 17)

320–1; Bruno Zeller, ‘The Duty To Mitigate: A Comparative Analysis between the English Common Law and the CISG’ (2018) 92(3) Australian Law Journal 205, 207 (‘The Duty

To the extent that the plaintiff relies in the statement of claim upon the [Sale of Goods Act 1895 (SA)] and not the provisions of the Act which apply by virtue of the ... Convention, the plaintiff is precluded from pursuing such a course because it is only the provisions of the latter Act which apply.

[144] Spagnolo, ‘The Last Outpost’ (n 18) 190–1; Aghili (n 71) 16, 20–5. See also Castle (n 46) 91; Ken Shiu, ‘The Exclusion of the CISG in Technology Contracts: Fear of the Unknown?’ (2005) 61 (September) Computers and Law 19, 19–20.

[146] See, eg, Hill, National Uniform Legislation (n 28) 12–13; Guzyal Hill, ‘Categories of the “Art of the Impossible”: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation’ (2020) 48(3) Federal Law Review 350, 353–4 (‘Art of the Impossible’).

[147] Maryam Salehijam, ‘The Value of Systematic Content Analysis in Legal Research’ (2018) 23(1–2) Tilburg Law Review 34, 35.

[148] Crawford et al (n 79) 280–1. See, eg, Teoh (n 35) 287 (Mason CJ and Deane J), 315

(McHugh J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 306 (Mason CJ and McHugh J), 348–9 (Dawson J), 360–1 (Toohey J).

[151] Explanatory Statement, Sale of Goods (Vienna Convention) Ordinance 1987 (ACT) 1–2.

[158] See generally Hayward, ‘CISG as the Applicable Law’ (n 17) 172–3 [10.12]–[10.15].

[160] New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 1986,

5374–6 (Terence Sheahan) (‘NSW Parliamentary Debates (23 October 1986)’).

[167] NSW Parliamentary Debates (19 November 1986) (n 52) 6672–4 (Jack R Hallam).

[169] NSW Parliamentary Debates (19 November 1986) (n 52) 6674 (Robert B Rowland Smith).

[170] New South Wales, Parliamentary Debates, Legislative Assembly, 11 November 1986, 6116 (John Dowd) (‘NSW Parliamentary Debates (11 November 1986)’).

[173] NSW Parliamentary Debates (19 November 1986) (n 52) 6674–7 (Robert B Rowland Smith).

[177] Ibid 6679 (Fred J Nile). An additional interjection by Michael Egan (ALP) is irrelevant for present purposes: at 6674 (Michael R Egan).

[182] Northern Territory, Parliamentary Debates, Legislative Assembly, 29 April 1987, 91–2 (Daryl Manzie) (‘NT Parliamentary Debates (29 April 1987)’).

[187] Northern Territory, Parliamentary Debates, Legislative Assembly, 3 June 1987, 585–6

[196] Queensland’s Legislative Council was abolished in 1922: Constitution Act Amendment Act 1922 (Qld) s 2(1).

[197] Queensland, Parliamentary Debates, Legislative Assembly, 19 August 1986, 351 (Neville J Harper) (‘Qld Parliamentary Debates (19 August 1986)’).

[200] Qld Parliamentary Debates (19 August 1986) (n 197) 350–1 (Neville J Harper); Qld Parliamentary Debates (2 September 1986) (n 52) 769 (Wayne Goss).

[201] Qld Parliamentary Debates (2 September 1986) (n 52) 769–70 (Wayne Goss).

[204] Ibid 773–4 (Neville J Harper). Interjections from Terence Mackenroth (ALP): at 770; Patrick Comben (ALP): at 771–2; and Terence Gygar (Liberals): at 773; are irrelevant for present purposes.

[210] Patrick O’Neill, ‘“Was There an EM?”: Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament’ (Research Brief No 15, Parliamentary Library, Parliament of Australia, 23 May 2005) 23.

[212] See South Australia, Parliamentary Debates, House of Assembly, 25 September 1986, 1237–8 (Donald J Hopgood) (‘SA Parliamentary Debates (25 September 1986)’). Cf South Australia, Parliamentary Debates, Legislative Council, 17 September 1986, 912–13 (Christopher J Sumner) (‘SA Parliamentary Debates (17 September 1986)’).

[213] SA Parliamentary Debates (17 September 1986) (n 212) 913 (Christopher J Sumner).

[218] South Australia, Parliamentary Debates, Legislative Council, 24 September 1986, 1133 (Kenneth T Griffin) (‘SA Parliamentary Debates (24 September 1986)’); South Australia, Parliamentary Debates, House of Assembly, 19 November 1986, 2133 (Gregory J Crafter) (‘SA Parliamentary Debates (19 November 1986)’).

[219] SA Parliamentary Debates (24 September 1986) (n 218) 1133 (Kenneth T Griffin).

[220] SA Parliamentary Debates (19 November 1986) (n 218) 2133 (Stephen J Baker).

[223] Ibid. Noting, for the purposes of utmost clarity, that the CISG (n 1) creates private law rights and obligations and is therefore distinct from public law (nation State to nation State) free trade agreements: at art 1(1).

[224] SA Parliamentary Debates (19 November 1986) (n 218) 2133 (Stephen J Baker), discussing SA Parliamentary Debates (17 September 1986) (n 212) 912 (Christopher J Sumner).

[225] SA Parliamentary Debates (19 November 1986) (n 218) 2133 (Stephen J Baker).

[226] Tasmania, Parliamentary Debates, Legislative Council, 26 March 1987, 413 (Peter McKay) (‘Tas Parliamentary Debates (26 March 1987)’).

[228] Tasmania, Parliamentary Debates, House of Assembly, 24 March 1987, 674–5 (John

[241] See generally Hayward, ‘CISG as the Applicable Law’ (n 17) 172–4 [10.12]–[10.17]; Zeller, ‘The CISG in Australasia’ (n 17) 298–9.

[242] Victoria, Parliamentary Debates, Legislative Council, 3 March 1987, 171–2 (James H

[245] Vic Parliamentary Debates (3 March 1987) (n 242) 171–2 (James H Kennan).

[248] Victoria, Parliamentary Debates, Legislative Council, 17 March 1987, 306 (Bruce A Chamberlain), 307 (William R Baxter) (‘Vic Parliamentary Debates (17 March 1987)’); Vic Parliamentary Debates (30 April 1987) (n 52) 1758 (Michael John).

[249] Vic Parliamentary Debates (17 March 1987) (n 248) 306–9 (Bruce A Chamberlain).

[251] Ibid 307–8 (William R Baxter). An interjection from Geoffrey Connard (Liberals): at 307; is irrelevant for present purposes.

[253] Ibid 307–8 (William R Baxter). See generally Hill, National Uniform Legislation (n 28) 50, 122–3; Guzyal Hill, ‘Avoiding a “Catch 22”: Major Lessons from a Meta-Analysis of Reports of the Parliament of Western Australia on Threats to Sovereignty by National Uniform Legislation’ (2021) 33(1) Bond Law Review 37, 40–2; Goldring (n 139) 8; SydneyLawSchool (n 83) 0:30:29–0:39:24.

[254] Vic Parliamentary Debates (17 March 1987) (n 248) 307–8 (William R Baxter).

[255] Vic Parliamentary Debates (30 April 1987) (n 52) 1758–9 (Michael John).

[260] Sale of Goods (Vienna Convention) Act (Vic) (n 59), as repealed by Consumer Affairs Legislation Amendment Act (n 59) s 20.

[261] Consumer Affairs Legislation Amendment Act (n 59) ss 17–19. See Goods Act (n 50) pt IV.

[262] Victoria, Parliamentary Debates, Legislative Assembly, 28 July 2010, 2815–19 (Anthony Robinson) (‘Vic Parliamentary Debates (28 July 2010)’). Cf Victoria, Parliamentary

Debates, Legislative Council, 12 August 2010, 4023–6 (Gavin Jenings) (‘Vic Legislative Council Parliamentary Debates (12 August 2010)’).

Bill 2010 (Vic) 1, 15–16 (‘Explanatory Memorandum, Consumer Affairs Legislation’).

[264] Vic Parliamentary Debates (28 July 2010) (n 262) 2815–19 (Anthony Robinson).

[268] Victoria, Parliamentary Debates, Legislative Assembly, 11 August 2010, 3114–24

[270] Vic Parliamentary Debates (11 August 2010) (n 268) 3114 (Michael O’Brien).

[275] Victoria, Parliamentary Debates, Legislative Council, 2 September 2010, 4451 (Susan Pennicuik) (‘Vic Parliamentary Debates (2 September 2010)’).

[278] Spagnolo, ‘Law Wars’ (n 50) 629. Cf Zeller, ‘The Perfect Tool’ (n 111) [2].

[279] Victoria, Parliamentary Debates, Legislative Assembly, 14 September 2010, 3650 (‘Vic Parliamentary Debates (14 September 2010)’); Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2010, 3878–80 (‘Vic Parliamentary Debates (16 September 2010)’).

[280] Western Australia, Parliamentary Debates, Legislative Assembly, 7 October 1986, 2744–5 (Keith Wilson) (‘WA Parliamentary Debates (7 October 1986)’). Cf Western Australia,

Parliamentary Debates, Legislative Council, 11 November 1986, 3942 (Kay Hallahan) (‘WA Legislative Council Parliamentary Debates (11 November 1986)’).

[285] WA Legislative Assembly Parliamentary Debates (11 November 1986) (n 52) 4000–2

[287] WA Parliamentary Debates (19 November 1986) (n 52) 4407–8 (Norman F Moore); WA Parliamentary Debates (20 November 1986) (n 52) 4560–1 (Norman F Moore).

[288] WA Parliamentary Debates (19 November 1986) (n 52) 4408–9 (Max Evans).

[289] Ibid 4409 (Kay Hallahan); WA Parliamentary Debates (20 November 1986) (n 52)

[290] WA Parliamentary Debates (20 November 1986) (n 52) 4561–2 (Phillip G Pendal).

[291] Ibid 4562 (John Williams). An interjection from Fred McKenzie (ALP): at 4560; is not relevant for present purposes.

[293] Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 1986, 5088 (‘WA Parliamentary Debates (27 November 1986)’).

[294] WA Legislative Assembly Parliamentary Debates (11 November 1986) (n 52) 4001

[295] WA Parliamentary Debates (19 November 1986) (n 52) 4408 (Norman F Moore).

[296] WA Parliamentary Debates (20 November 1986) (n 52) 4562 (Phillip G Pendal).

[298] French (n 63) 11. See ACL (n 60) s 68; Trade Practices Act 1974 (Cth) s 66A (‘TPA’), as repealed by Trade Practices Amendment Act (No 2) (n 61) sch 1.

[299] Hayward, ‘CISG as the Applicable Law’ (n 17) 170 [10.06], discussing CISG (n 1) art 2(a); Michael Pryles, ‘An Assessment of the Vienna Sales Convention’ [1989] Australian Mining and Petroleum Law Association Yearbook 337, 339. See also Pascal Hachem, ‘Article 2 CISG: Sales Excluded from Convention’s Scope’ in Ingeborg Schwenzer and Ulrich

G Schroeter (eds), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 5^th ed, 2022) 60, 66–7 [17].

[300] This means the exclusion contained in CISG (n 1) art 2(a) does not apply: Hayward,

‘CISG as the Applicable Law’ (n 17) 179–80 [10.31]–[10.32]; Hayward and Perlen

(n 17) 153–4; Pryles (n 299) 339; Fairlie (n 50) 40. See also ACL (n 60) s 3(1); TPA (n 298)

[303] Other aspects of Australia’s consumer law, including its unfair contract terms regime,

do not overlap with the Convention given the subject matter scope of CISG (n 1) art 4:

Hayward, ‘CISG as the Applicable Law’ (n 17) 178 [10.29]. See, eg, CISG (n 1) art 35; ibid

[306] ACL (n 60) s 64; TPA (n 298) s 68; ibid. This may be why s 66A of the TPA (n 298) was described as ‘a remarkable provision’: Marcus S Jacobs, Katrin Cutbush-Sabine and Philip Bambagiotti, ‘The UN Convention for the International Sale of Goods (CISG) in Australia-To-Date: An Illusive Quest for Global Harmonisation?’ (2002) 17(12) Mealey’s International Arbitration Report 24, 27 [4.7].

[307] Commonwealth, Parliamentary Debates, Senate, 7 October 1987, 782 (Michael Tate) (‘Cth Parliamentary Debates (7 October 1987)’).

[308] Commonwealth, Parliamentary Debates, Senate, 24 September 1987, 617–20 (Michael Tate) (‘Cth Parliamentary Debates (24 September 1987)’). Cf Commonwealth, Parliamentary Debates, House of Representatives, 25 November 1987, 2661–4 (Peter Staples) (‘Cth Parliamentary Debates (25 November 1987)’).

[309] Commonwealth, Parliamentary Debates, House of Representatives, 30 April 1987, 2302–6 (Lionel Bowen) (‘Cth Parliamentary Debates (30 April 1987)’). Cf Commonwealth, Parliamentary Debates, Senate, 26 May 1987, 2908–11 (Gareth Evans) (‘Cth Parliamentary Debates (26 May 1987)’).

[313] Cth Parliamentary Debates (24 September 1987) (n 308) 617–20 (Michael Tate).

[314] Cth Parliamentary Debates (30 April 1987) (n 309) 2302–6 (Lionel Bowen).

[316] Cth Parliamentary Debates (7 October 1987) (n 307) 777–86. Two of these contributions were non-substantive interjections.

[317] Cth Parliamentary Debates (25 November 1987) (n 308) 2664–7, 2693–706. Three of these contributions were non-substantive interjections.

[318] Commonwealth, Parliamentary Debates, Senate, 26 November 1987, 2445 (‘Cth Parliamentary Debates (26 November 1987)’); Commonwealth, Parliamentary Debates, Senate,

10 December 1987, 2877–81 (‘Cth Parliamentary Debates (10 December 1987)’).

[319] Commonwealth, Parliamentary Debates, House of Representatives, 11 May 1987, 2913–35 (‘Cth Parliamentary Debates (11 May 1987)’). One of these contributions was a non-substantive interjection.

[322] ACL (n 60) s 68, as inserted by Trade Practices Amendment Act (No 2) (n 61) sch 1.

[323] Commonwealth, Parliamentary Debates, House of Representatives, 17 March 2010, 2718–24 (Craig Emerson) (‘Cth Parliamentary Debates (17 March 2010)’). Cf Commonwealth, Parliamentary Debates, Senate, 24 June 2010, 4283–8 (Joseph Ludwig) (‘Cth Senate Parliamentary Debates (24 June 2010)’).

[324] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2010, 6621–9 (‘Cth House of Representatives Parliamentary Debates (24 June 2010)’).

[327] Cth Parliamentary Debates (17 March 2010) (n 323) 2718–24 (Craig Emerson).

[329] Commonwealth, Parliamentary Debates, House of Representatives, 23 June 2010, 6470–93 (‘Cth Parliamentary Debates (23 June 2010)’).

[332] See, eg, NT Parliamentary Debates (3 June 1987) (n 187) 587 (Richard Setter); Cth Parliamentary Debates (30 April 1987) (n 309) 2305 (Lionel Bowen).

[333] Jessica Viven-Wilksch, ‘How Long Is Too Long To Determine the Success of a Legal Transplant? International Doctrines and Contract Law in Oceania’ in Vito Breda (ed), Legal Transplants in East Asia and Oceania (Cambridge University Press, 2019) 132, 146–7; Hayward, ‘CISG as the Applicable Law’ (n 17) 181 [10.35]; Fairlie (n 50) 40; Zeller, ‘The CISG in Australasia’ (n 17) 294; Anastasi, Hayward and Brown (n 13) 47; Petrovic (n 138) 84–6; Spagnolo, ‘The Last Outpost’ (n 18) 159–60; Gary F Bell, ‘Harmonisation of Contract Law in Asia: Harmonising Regionally or Adopting Global Harmonisations’ [2005] (December) Singapore Journal of Legal Studies 362, 371; Nottage (n 138) 817, 835–6; Henning Lutz, ‘The CISG and Common Law Courts: Is There Really a Problem?’ (2004) 35(3) Victoria University of Wellington Law Review 711, 714; Zeller, ‘The Perfect Tool’ (n 111) [3]; Attorney-General’s Department (Cth), Improving Australia’s Law and Justice Framework: A Discussion Paper To Explore the Scope for Reforming Australian Contract Law (Discussion Paper, 2012) 15 [5.4]; Justice James Douglas, ‘Australia’s Role in UNCITRAL: Specifically Its Implementation of UNCITRAL Conventions and Model Laws’ (Speech, UQ Trade Law Forum, 2

December 2016) 4 <http://www.austlii.edu.au/au/journals/QldJSchol/2016/26.pdf> , archived at <https://perma.cc/U8N7-RC79>; Horrigan, Laryea and Spagnolo (n 25) 9 [1.7]; UNCITRAL: United Nations Commission on International Trade Law, ‘Topic 3: The CISG as a Backbone of Transnational Commercial Law’ (YouTube, 30 October 2020) 0:35:54–0:36:29 <https://www.youtube.com/watch?v=GidMVLIO6Ig> (‘Topic 3’). See also Peng Guo and Shu Zhang, ‘Is the CISG an Appropriate Option for Australian and Chinese Businesses? A Good Faith Perspective’ (2019) 23(1) Vindobona Journal of International Commercial Law and Arbitration 81, 87; Lisa Spagnolo, ‘A Glimpse through the Kaleidoscope: Choices of Law and the CISG’ (Pt I) (2009) 13(1) Vindobona Journal of International Commercial Law and Arbitration 135, 143–7, which calculates Australia’s (then low) relative case load per million capita and per trillion trade dollar. Informal discussions with Australian lawyers have confirmed to me that there are Australian disputes relating to the CISG (n 1) which have not proceeded to trial: see also Fairlie (n 50) 41.

[334] ‘Search Cases in the CISG Database’, Pace Law Albert H Kritzer CISG Database (Web Page) <https://iicl.law.pace.edu/cisg/search/cases>. Free registration is required to access the Pace Database’s case law search facilities, which includes searching by country. At the time of writing, 49 individual Australian case entries were identified on the Pace Database, with a 50^th case being nested under another as a related proceeding: see ‘Australia May 27, 2004 Supreme Court (Summit Chemicals Pty Ltd v Vetrotex Espana SA)’, Pace Law Albert H Kritzer CISG Database (Web Page) <https://iicl.law.pace.edu/cisg/case/australia-may-27-2004-supreme-court-summit-chemicals-pty-ltd-v-vetrotex-espana-sa>; Aqua Technics (WA) Pty Ltd v Summit Chemicals Pty Ltd [2003] WASC 182 (‘Aqua Technics’).

[336] ‘Search for Cases’, CISG-Online (Web Page) <https://cisg-online.org/search-for-cases>, archived at <https://perma.cc/JAS4-DPDT>. A further case, in addition to the one referred to in this footnote’s accompanying text, appears on CISG-online and does not appear on the Pace Database: ‘Pucci Srl v Italian Imported Foods Pty Ltd’, CISG-Online (Web Page) <https://cisg-online.org/search-for-cases?caseId=9744>, archived at <https://perma.cc/DM‌‌A6-YR8X>. This case is not considered any further, however, as it is a first instance local court decision referred to in an appeal judgment that is not otherwise itself on the public record. That no published judgment exists is confirmed by searching the NSW case law database: ‘Advanced Search’, New South Wales Caselaw (Web Page) <https://www.caselaw.n ‌sw.gov.au/search/advanced>. A request was made to the NSW Local Court Registry to obtain a copy of this judgment in 2021 — that request was acknowledged but was never

[337] The Pace Database’s reputation is long established, including in the Australian context:

see Justice James Douglas, ‘Arbitration of International Sale of Goods Disputes under

the Vienna Convention’ (Speech, Institute of Arbitrators and Mediators Australia National Conference, 2006) 2 <https://archive.sclqld.org.au/judgepub/2007/douglas270506.pdf>; Lutz (n 333) 714. It must be noted, however, that this database has not necessarily been actively updated with respect to Australia since approximately 2015; thus, this database cannot be assumed to be a comprehensive source.

[338] Lutz (n 333) 728. Prior scholarship identified some Pace Database omissions as of 2020, which are now remedied: Anastasi, Hayward and Brown (n 13) 47 n 293. Pace Database updates effected in late 2022 added previously omitted pre-2020 decisions. On the

assumption that the Pace Database is now (save as to the one additional case recorded on CISG-online) complete up to 2020, my own searches of the Lexis Advance, Westlaw AU and AustLII databases have failed to identify any post-2020 Australian CISG cases not currently recorded. The following search terms (exact phrases) were used: ‘CISG’, ‘Vienna Convention’, ‘Vienna Act’, ‘Vienna Contract’, ‘Vienna Sales’, ‘Sales Convention’, ‘Sale of Goods Convention’, ‘UN Sales’, ‘United Nations Sales’, ‘Uniform Sales’, ‘Uniform Contract’, ‘International Contract’, ‘International Sales’ and ‘Done at Vienna’.

[339] ‘Case Law on UNCITRAL Texts (CLOUT)’, United Nations Commission on International Trade Law (Web Page) <https://www.uncitral.org/clout/index.jspx>. The UNILEX database records 12 cases, which also all appear on the Pace Database: ‘Selected Cases by Country’, UNILEX on UNIDROIT Principles & CISG: International Case Law & Bibliography (Web Page) <http://unilex.info/cisg/cases/country/25#country_Australia> , archived at <https://per‌‌ma.cc/PD2H-6UGC>.

[342] Melbourne University Law Review and Melbourne Journal of International Law, Australian Guide to Legal Citation (4^th rev ed, 2021).

[344] Viven-Wilksch (n 333) 147, discussing Playcorp (n 29) [235] (Hansen J), and Aussie Diamond (n 29) [210] (Murphy J).

[345] This coding scheme builds and expands upon categories of Australian CISG cases previously identified in the literature: Hayward, ‘CISG as the Applicable Law’ (n 17) 177 [10.25].

[346] For example, this category includes cases that consider the enforcement of an arbitral

award and where the CISG (n 1) had previously been relevant (in related proceedings): see, eg, Re TCL Airconditioner (Zhongshan) Co Ltd [No 2] [2019] FCA 257; (2019) 369 ALR 192, 194 [10]–[11] (McKerracher J) (‘Re TCL Airconditioner’).

[347] Though CISG (n 1) art 6 confers upon parties the power to ‘exclude the application of this Convention’, it is noted (for the purposes of utmost clarity) that a purported exclusion is not pursuant to that provision where (as is the case in some Australian CISG cases) the law of a non-contracting State is chosen, meaning that the CISG (n 1) would not have applied in any event. See, eg, Lisa Spagnolo, Exclusion of the CISG under Article 6 (CISG Advisory Council Opinion No 16, 30 May 2014) 2 [1] (emphasis added) (‘Exclusion of the CISG’), which states that ‘[w]here the CISG is applicable according to Arts 1–3 CISG, the principle of party

autonomy expressed in Art 6 CISG permits parties to agree to exclude its application’. Duly noting this disclaimer, exclusions are described as being ‘pursuant to’ CISG (n 1) art 6 in this

footnote’s accompanying text in order to identify the source of the parties’ power to exclude in the usual case.

[349] See, eg, Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2012] VSC 548, [57]–[58] (Daly AsJ) (‘Castel VSC’).

[350] See, eg, Fletcher v Capstone Aluminium SDN BHD; Re McLay Industries Pty Ltd (in liq) [2016] FCA 1459, [36] (Greenwood J) (‘Fletcher’), discussing Corporations Act 2001 (Cth).

[351] Spagnolo, ‘The Last Outpost’ (n 18) 148; Horrigan, Laryea and Spagnolo (n 25) 9 [1.7]; ‘Topic 3’ (n 333) 0:36:29–0:36:46. CISG-online records 81 cases worldwide involving

Australian parties: ‘CISG by Jurisdiction’, CISG-Online (Web Page) <https://cisg-online.org/CISG-by-jurisdiction>. See, eg, Yan Shang, ‘Promopen Australia Pty Ltd v Fuyang Import and Export Co Ltd’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2023) vol 2, 77, 77; Charles Caishun Guo, Wenjing Lin and Charlie Xiao-chuan Weng, ‘XXX (Beijing) International Trade Co, Ltd v XX Co, Ltd’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected

Chinese Cases on the UN Sales Convention (CISG) (Springer, 2023) vol 2, 129, 129; Wenjing An, ‘Shanghai Donglin International Trade Co Ltd v Johnson Trading Australia Pty Ltd’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales

[353] See generally Zeller, ‘The Duty To Mitigate’ (n 141) 205; Warren Swain, ‘Contract Codification in Australia: Is It Necessary, Desirable and Possible?’ [2014] SydLawRw 5; (2014) 36(1) Sydney Law Review 131, 137; Zeller, ‘In or out of the CISG’ (n 110) 412. This includes case law evidencing

the homeward trend: see generally Zeller, ‘The CISG and the Common Law’ (n 18) 59, 61–2, 71–5; Bruno Zeller, ‘Analysis of the Cultural Homeward Trend in International Sales Law’ (2021) 10(1) Victoria University Law and Justice Journal 131, 131–5; Bruno Zeller, ‘The Challenge of a Uniform Application of the CISG: Common Problems and Their Solutions’ [2006] MqJlBLaw 14; (2006) 3 Macquarie Journal of Business Law 309, 311–14.

[354] See, eg, Luo v Windy Hills Australian Game Meats Pty [No 3] [2019] NSWSC 862, [77] (Stevenson J) (‘Luo’).

[355] This is a slight analytic simplification as, strictly speaking, the CISG (n 1) governs its own exclusion: at art 6; Pascal Hachem, ‘Article 6 CISG: Exclusion or Derogation by the Parties (Party Autonomy)’ in Ingeborg Schwenzer and Ulrich G Schroeter (eds), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 5^th ed, 2022) 116, 129 [25]; Spagnolo, Exclusion of the CISG

(n 347) 2 [2]. Even so, it remains inappropriate to add the 11 cases Appendix 2 identifies as involving CISG (n 1) exclusions to this total. As noted above, not all of those cases resolved substantive sales law disputes arising under the contracts containing those exclusions. In addition, where the Convention is excluded, the practical necessity to interpret Australia’s machinery provisions disappears in any event.

[357] See below Appendix 2. See also Hayward, ‘CISG as the Applicable Law’ (n 17) 179 [10.30]. This remains the case at the time of writing.

[358] See generally Guzyal Hill, ‘Referred, Applied and Mirror Legislation as Primary Structures of National Uniform Legislation’ (2019) 31(1) Bond Law Review 81, 108–9.

(Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Pyramid Building Society

(in liq) v Terry [1997] HCA 48; (1997) 189 CLR 176, 207 (Kirby J, Toohey J agreeing at 181); Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), quoted in Enterra Pty Ltd v ADI Ltd [2002] NSWSC 700; (2002) 55 NSWLR 521, 522 [5] (Einstein J). See also Hill, National Uniform Legislation (n 28) 145.

[361] See, eg, Aussie Diamond (n 29) [210] (Murphy J), citing Playcorp (n 29) [235]–[245]

[363] Regarding the criteria for reporting judgments in Queensland: see, eg, ‘Reporting

Process’, Incorporated Council of Law Reporting for the State of Queensland (Web

[364] Zeller, ‘The CISG and the Common Law’ (n 18) 59; Petrovic (n 138) 89. This is still

true today: see below Appendix 2. The only High Court of Australia case referring to the CISG (n 1) at all did so only in a dissenting judgment, and only for the purposes of its

comparison with non-harmonised Australian law: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115, 156–7 [108] (Kirby J) (‘Koompahtoo’).

Otherwise, the CISG (n 1) was referred to in passing in argument in the High Court

of Australia in 1995 in litigation unconnected with the CISG (n 1): Transcript of Proceedings, South Australia v Commonwealth [1995] HCATrans 301; Transcript of Proceedings,

Victoria v Commonwealth [1995] HCATrans 302; Transcript of Proceedings, Western

Australia v Commonwealth [1995] HCATrans 303. Whilst Castel Electronics Pty Ltd sought to appeal the Full Court of the Federal Court of Australia’s decision in its dispute with Toshiba Singapore Pte Ltd, the High Court of Australia refused special leave, given the appeal’s insufficient prospects of success: Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] HCASL 208, [5] (Gummow and Kiefel JJ). Even if that intended High Court appeal had been allowed to proceed, it apparently would have focused on factual (rather than legal) issues framed as affecting the provision of natural justice: at [3]–[4]. As one former Chief Justice of the High Court of Australia has explained, ‘it is the need to clarify the law — to formulate the correct principle — that is the decisive consideration in the grant of special leave’: Sir Anthony Mason, ‘The High Court as Gatekeeper’ [2000] MelbULawRw 31; (2000) 24(3) Melbourne University Law Review 784, 786.

[367] See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 31–2.

[373] For example, the preamble to the Sale of Goods (Vienna Convention) Act (Vic) (n 59) referred to it being ‘agreed’ (amongst the Australian jurisdictions) to give the CISG (n 1)

‘the force of law’, without any reference to an inconsistency qualification. This

preamble could also be used as an aid in understanding the Victorian Parliament’s legislative intent at that time: Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 15–16 (Gibbs CJ),

23 (Mason J); Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1905) 3 CLR 444, 451 (Griffith CJ), 458–9 (O’Connor J). See generally Pearce, Statutory Interpretation (n 76) 191–2 [4.62].

[374] Hayward, ‘CISG as the Applicable Law’ (n 17) 186–7 [10.48], discussing Contract and Commercial Law Act 2017 (NZ) s 205 (‘Contract and Commercial Law Act’); Anastasi,

Hayward and Brown (n 13) 51–2. See also Nottage (n 138) 817, 841, 844; Horrigan, Laryea and Spagnolo (n 25) 26 [6.6], 32 [8.2.1].

[375] Kellie Ewing, ‘The United Nations Convention on the International Sale of Goods: What Are New Zealand Traders Missing out on?’ (2008) 1(3) New Zealand Law Students’ Journal 431, 433.

[376] See, eg, Smallmon v Transport Sales Ltd (High Court of New Zealand, French J, 30 July 2010) [88], affd [2011] NZCA 340; [2012] 2 NZLR 109, 121 [39], [41] (Stevens J for the Court). See also Zeller,

(n 13) 45–6; Zeller and Andersen (n 36) 17–18; Zeller, ‘In or out of the CISG’ (n 110)

[377] Hayward, ‘CISG as the Applicable Law’ (n 17) 173 [10.17], discussing Explanatory Memorandum, Consumer Affairs Legislation (n 263) 15–17.

[379] ‘Topic 3’ (n 333) 0:14:42–0:15:50. See also Spagnolo, CISG Implementation (n 35) 49–50; Angelo Chianale, ‘The CISG as a Model Law: A Comparative Law Approach’ [2016] (1) Singapore Journal of Legal Studies 29, 33, 42. It has been argued that Pakistan should join the community of CISG (n 1) contracting States: Bruno Zeller and Sarmad Ali, ‘Should Pakistan Adopt the United Nations Convention on Contracts for the International Sale of Goods?’ (2017) 7(1) Victoria University Law and Justice Journal 67, 67–8. Saudi Arabia is expected to soon become the 96^th contracting State of the CISG (n 1): see above n 6.

[380] See, eg, Sale of Goods (United Nations Convention) Act 1994 (NZ), as repealed by Contract and Commercial Law Act (n 374) s 345(1)(j). This was later superseded by the Contract

and Commercial Law Act (n 374) ss 202–6. Notably, force of law and inconsistency

provisions exist in Singapore and Canada’s relatively longstanding CISG Acts: Sale of Goods (United Nations Convention) Act 1995 (Singapore, 2020 rev ed) ss 3–4 (‘Singapore Act’); International Sale of Goods Contracts Convention Act, SC 1991, c 13, ss 4, 6 (‘Canada Act’).

[381] Department of Justice of Hong Kong, Proposed Application of the United Nations

Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region (Consultation Paper, March 2021) 4 [11] n 15 (‘Proposed Application Report’) <https://www.legco.gov.hk/yr20-21/english/panels/ajls/papers/ajls20210322cb4-648-3‌‌-e.pdf>, archived at <https://perma.cc/48ZN-TV33>; Sale of Goods (United Nations

Convention) Ordinance (Hong Kong) cap 641, ss 1–5, sch (‘Hong Kong Ordinance’);

Muna Ndulo, The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980): Explanatory Documentation Prepared for Commonwealth Jurisdictions (Commonwealth Secretariat, 1991) 36–8.

[383] See generally Spagnolo, CISG Implementation (n 35) 55; Xiaojun Chen, ‘Dahua Umbrella (HK) Co, Ltd v Lee In Hwan’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2023) vol 2, 277, 280–1; Xiaojun Chen, ‘Possehl (HK) Ltd v China Metals and Minerals Import and Export (Shenzhen)

Corporation’ in Peng Guo, Haicong Zuo and Shu Zhang (eds), Selected Chinese Cases on the UN Sales Convention (CISG) (Springer, 2022) vol 1, 397, 400–1; Bruno Zeller, ‘Facilitating Regional Economic Integration: ASEAN, ATIGA and the CISG’ in Ingeborg Schwenzer

and Lisa Spagnolo (eds), Towards Uniformity: The 2^nd Annual MAA Schlechtriem CISG

Conference (Eleven International Publishing, 2011) 255, 258–9; Ulrich G Schroeter, ‘The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods’ (2004) 16(2) Pace International Law Review 307, 309; ‘Topic 3’ (n 333) 0:13:46–0:14:42, 1:28:58–1:31:44.

[385] Proposed Application Report (n 381) 4 [11] n 15. The Sale of Goods (Vienna Convention) Act (Qld) (n 62) was cited alongside the Singapore Act (n 380) and Canada Act (n 380), both

[387] See, eg, Explanatory Memorandum, Sale of Goods (United Nations Convention) Bill (Hong Kong) [6]–[7]; Department of Justice of Hong Kong, Proposed Application of the United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region (Consultation Paper, 2020) 179 [5]–[6] <https://www.gov.hk/en/‌residents/government/publication/consultation/docs/2020/CISG.pdf>, archived at <https://per‌‌ma.cc/VE3V-8SLL>.

[388] For clarity, Hong Kong is not itself a CISG (n 1) contracting State. Hong Kong is an SAR of the People’s Republic of China, which is a contracting State: see ‘Chapter X: CISG’ (n 6).

[389] Extrinsic materials might be consulted via Hong Kong’s ‘[g]eneral principles of interpretation’, pursuant to which ‘[a]n Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit’: Interpretation and General Clauses Ordinance (Hong Kong) cap 1, s 19. See also Department of Justice of Hong Kong, ‘Interpretation and General Clauses Ordinance (Chapter 1): Interpretation and General Clauses (Amendment) Bill 1999’ (Legislative Council Brief No LP 5019/6, February 1999) 2 [6], 3 [11], [13] <https://www.legco.gov.hk/yr98-99/english/bc/bc69/general/52_brf.‌pdf>, archived at <https://perma.cc/D3XD-PXRZ>; Law Reform Commission of Hong Kong, Extrinsic Materials as an Aid to Statutory Interpretation (Report, March 1997) 169–71 [9.57]–[9.63] <https://www.hkreform.gov.hk/en/docs/rstatutory-e.pdf>, archived at <https:‌‌//perma.cc/Q7FN-PB6N>.

[390] Hong Kong Bar Association, Consultation Paper on the Proposed Application of the United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region (Submissions, 3 August 2020) <https://www.hkba.org/uploads/DOJ%‌20-%20Proposed%20application%20of%20the%20United%20Nations%20Convention%20fo‌r%20Intl%20Sales%20of%20Goods%20to%20HKSAR%20(3%20Aug%202020).pdf>.

[392] The Law Society of Hong Kong, Consultation Paper on the Proposed Application of the United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region (Submissions, 27 October 2020) 3 [7] <https://www.hklawsoc.‌‌org.hk/-/media/hkls/pub_e/news/submissions/20201027.pdf>, archived at <https://perma.cc‌‌/E988-TNHZ>. The submission refers to the concept of inconsistency in a way that does not diminish this prior observation: at 4 [11].

[393] See generally Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, ‘Database on Official Record of Proceedings’, Library (Web Page, 2024) <https://app.legco.gov.hk/HansardDB/english/Search.aspx>.

[395] Viven-Wilksch (n 333) 138. See also Troy Keily and Benjamin Hayward, ‘Good News for Japanese Trade’ (2010) 84(6) Law Institute Journal 48, 48; Nottage (n 138) 827–30.

[397] Just as they should not need to second guess the application of the New York Convention

(n 9) in the (related) international commercial arbitration space: see Albert Jan van den Berg (ed), Yearbook Commercial Arbitration: Volume XLII (Wolters Kluwer, 2017) 526, 528, discussing Fluor Transworld Services Inc v Petrixo Oil (Court of Cassation of Dubai, Appeal No 384 of 2016, 19 June 2016), Fluor Transworld Services Inc v Petrixo Oil (Court of Appeal of Dubai, Appeal No 52 of 2016, 28 September 2016). For the profession’s response to these proceedings’ initial holding that the United Kingdom was not a contracting State of the New York Convention (n 9), and the Court of Cassation’s correction of that error, respectively, see Gordon Blanke, ‘Dubai Court of Appeal Questions UK NYC Membership: Investors Keep Calm ... and Carry On!’, Kluwer Arbitration Blog (Blog Post, 6 May 2016) <https://arbi‌trationblog.kluwerarbitration.com/2016/05/06/dubai-court-of-appeal-question‌s-uk-nyc-memb‌‌ership-investors-keep-calm-and-carry-on/>, archived at <https://perma.cc/7‌RZR-DLXS>; Gordon Blanke, ‘Back on Track: Dubai Court of Cassation Affirms Enforceability of UK Award under NYC’, Kluwer Arbitration Blog (Blog Post, 1 August 2016) <https://arbitrati‌‌onblog.kluwerarbitration.com/2016/08/01/back-track-dubai-court-cassatio‌n-affirms-enforc‌‌eability-uk-award-nyc/>, archived at <https://perma.cc/A7EX-VU25>.

[398] Hill, ‘Art of the Impossible’ (n 146) 351. See also Goldring (n 139) 12.

[400] See generally Lok Kan So, Poomintr Sooksripaisarnkit and Sai Ramani Garimella, ‘COVID-19 in the Context of the CISG: Reconsidering the Concept of Hardship and Force Majeure’ in Zlatan Meškić et al (eds), Balkan Yearbook of European and International Law 2020 (Springer, 2021) 105, 105–6; Laura Maria Franciosi, ‘The Effects of COVID-19 on International Contracts: A Comparative Overview’ (2020) 51(3) Victoria University of Wellington Law Review 413, 414; Lincoln (n 59).

[401] No second reading speech exists with respect to the ACT’s CISG legislation as it was initially passed as an ordinance (delegated legislation passed by the Governor-General) before self-government in the territory: Seat of Government (Administration) Act 1910 (Cth) s 12; ‘How Laws Are Made’, Legislative Assembly for the Australian Capital Territory (Web Page) <https://www.parliament.act.gov.au/visit-and-learn/resources/factsheets/how-laws-are-made>, archived at <https://perma.cc/Q26Q-JKG3>. Correspondence with the Office of the Official Secretary to the Governor-General in 2021 confirmed that no materials of this nature were held by that office.

[402] No parliamentary debates exist with respect to the ACT’s CISG legislation, for the same reasons previously identified: see above n 401.

[403] I have been unable to identify whether or not any Norfolk Island CISG legislative histories exist, and if they do, whether they remain accessible today. Norfolk Island’s website contains incomplete scans of its historic Legislative Assembly minutes and Hansard: ‘Norfolk Island Legislative Assembly: Minutes’, Norfolk Island Regional Council (Web Page) <https:‌/‌‌/norfolkisland.gov.nf/historical-information/norfolk-island-legislative-assembly-minutes>, archived at <https://perma.cc/U8YG-JC58>; ‘Legislative Assembly Hansards’, Norfolk Island Regional Council (Web Page) <https://norfolkisland.gov.nf/historical-information/legislati‌‌ve-assembly-hansards>, archived at <https://perma.cc/BTD2-PDRF>. Records relating to the fourth Legislative Assembly, which may pertain to the Sale of Goods (Vienna Convention) Act (Norfolk Island) (n 62), are missing. Communications with the Norfolk Island Library in 2021, seeking to confirm the existence and accessibility of these materials, failed to yield definitive answers.

[404] NSW Parliamentary Debates (23 October 1986) (n 160) 5374–6 (Terence Sheahan).

[405] NSW Parliamentary Debates (19 November 1986) (n 52) 6672–4 (Jack R Hallam).

[409] New South Wales, Parliamentary Debates, Legislative Council, 12 November 1986, 6125.

[411] New South Wales, Parliamentary Debates, Legislative Council, 20 November 1986, 6859.

[412] Explanatory statements for NT Bills have been generated since 2005: O’Neill (n 210) 23.

[417] Queensland did not start issuing explanatory notes for Bills until around 1990: O’Neill (n 210) 23.

[418] Qld Parliamentary Debates (19 August 1986) (n 197) 351 (Neville J Harper).

[422] South Australian legislative practice includes explanations of clauses at the end of second reading speeches and does not generate separate explanatory memoranda: O’Neill (n 210) 23. SA’s explanation of clauses is treated as functionally equivalent to an explanatory memorandum for the purposes of Part IV.

[423] SA Parliamentary Debates (17 September 1986) (n 212) 912–13 (Christopher J Sumner).

[424] SA Parliamentary Debates (25 September 1986) (n 212) 1237–8 (Donald J Hopgood).

[431] Tas Parliamentary Debates (24 March 1987) (n 228) 674–5 (John Bennett).

[436] Tasmania, Parliamentary Debates, Legislative Council, 25 March 1987, 333.

[438] Tasmania, Parliamentary Debates, Legislative Council, 1 April 1987, 475.

[439] Vic Parliamentary Debates (3 March 1987) (n 242) 171–2 (James H Kennan).

[440] Vic Parliamentary Debates (14 April 1987) (n 242) 1220–1 (Race Mathews).

[441] Victoria, Parliamentary Debates, Legislative Council, 25 February 1987, 80.

[443] Victoria, Parliamentary Debates, Legislative Council, 9 April 1987, 850–1.

[445] Victoria, Parliamentary Debates, Legislative Assembly, 9 April 1987, 1181.

[448] Vic Parliamentary Debates (28 July 2010) (n 262) 2815–19 (Anthony Robinson). This

second reading speech is preceded by a statement of compatibility addressing the

ss 28(1)–(2): Vic Parliamentary Debates (28 July 2010) (n 262) 2813–15 (Anthony Robinson). That statement of compatibility is not relevant for the purposes of this article’s analysis.

[449] Vic Legislative Council Parliamentary Debates (12 August 2010) (n 262) 4023–6 (Gavin Jennings). As in the Legislative Assembly, this second reading speech is preceded by a statement of compatibility, which is not relevant for the purposes of this article’s analysis:

[450] Victoria, Parliamentary Debates, Legislative Assembly, 27 July 2010, 2641.

[452] Victoria, Parliamentary Debates, Legislative Assembly, 12 August 2010, 3232.

[454] Vic Legislative Council Parliamentary Debates (12 August 2010) (n 262) 4021.

[455] Vic Parliamentary Debates (2 September 2010) (n 275) 4448–54, 4459–69.

[459] While the Parliament of WA did produce explanatory memoranda at the time it enacted its CISG legislation, it did not produce an explanatory memorandum for the Sale of Goods (Vienna Convention) Bill 1986 (WA).

[460] WA Parliamentary Debates (7 October 1986) (n 280) 2744–5 (Keith Wilson).

[461] WA Legislative Council Parliamentary Debates (11 November 1986) (n 280) 3942 (Kay Hallahan).

[463] WA Legislative Assembly Parliamentary Debates (11 November 1986) (n 52) 4000–2.

[465] WA Legislative Council Parliamentary Debates (11 November 1986) (n 280) 3941.

[470] Cth Parliamentary Debates (24 September 1987) (n 308) 617–20 (Michael Tate).

[471] Cth Parliamentary Debates (25 November 1987) (n 308) 2661–4 (Peter Staples).

[472] Cth Parliamentary Debates (24 September 1987) (n 308) 617. See also Commonwealth, Parliamentary Debates, Senate, 23 September 1987, 524 (Gareth Evans).

[475] Commonwealth, Parliamentary Debates, House of Representatives, 8 October 1987, 1030.

[476] Cth Parliamentary Debates (25 November 1987) (n 308) 2664–7, 2693–706.

[480] Cth Parliamentary Debates (30 April 1987) (n 309) 2302–6 (Lionel Bowen).

[481] Cth Parliamentary Debates (26 May 1987) (n 309) 2908–11 (Gareth Evans).

[486] Cth Parliamentary Debates (17 March 2010) (n 323) 2718–24 (Craig Emerson).

[487] Cth Senate Parliamentary Debates (24 June 2010) (n 323) 4283–8 (Joseph Ludwig).

[488] Cth Parliamentary Debates (17 March 2010) (n 323) 2718. See also Commonwealth,

[489] Commonwealth, Parliamentary Debates, House of Representatives, 22 June 2010, 6132.

[491] Cth House of Representatives Parliamentary Debates (24 June 2010) (n 324) 6521.

[495] Cth House of Representatives Parliamentary Debates (24 June 2010) (n 324) 6621–9. See also ibid 4435.

[502] Downs Appeal (n 140) 482–3 [41]–[42], 484 [46], 484–5 [48]–[50] (Williams JA, Davies JA agreeing at 472 [1], Byrne J agreeing at 485 [52]).

[509] [2006] NSWSC 1060, [14]–[19] (Malpass AsJ). This is the appeal from the unpublished and unavailable first instance decision referred to in Part V: see above n 336.

[520] Castel Trial (n 141) [53]–[54], [121]–[123], [166]–[167], [174]–[176] (Ryan J).

[521] Castel Appeal (n 141) 456 [60]–[61], 457 [63]–[64], 460 [88]–[91], 490–5 [301]–[332]

[526] Aussie Diamond Appeal (n 136) [13] (Martin CJ, Buss JA agreeing at [164], Newnes JA agreeing at [165]).

[547] [2023] VSC 419. Here, non-harmonised contract law was at issue, though the Convention was referred to in passages quoted by the Court from secondary sources: see, eg, at [130] n 53 (Connock J), quoting JW Carter, Contract Law in Australia (LexisNexis Butterworths, 7^th ed, 2018) 48–9 [3-07].

[548] [2023] VCC 2134. In this case, the Convention was not applied to a dispute between Australian and Indian parties, though there would have been a strong argument for its application pursuant to art 1(1)(b): at [182]–[183] (Judge Macnamara).

[549] [2023] FCA 1578. This dispute concerned legal professional privilege, with the Court noting that the Convention was relevant to the parties’ underlying dispute: at [4] (Beach J).

[550] [2024] FCA 129. This case involved an application for an anti-anti-suit injunction, with the Court noting that argument in the underlying dispute implicated the Convention: at [10] (Stewart J).

[551] [2024] FCA 286. This case is a continuation of the dispute in above n 550, revisiting the anti-anti-suit injunction issue as well as addressing a forum non conveniens claim. It again

referred to the Convention as being implicated in the parties’ underlying dispute: at [28] (Anderson J).

and rejected one party’s argument that the Convention (particularly art 35) applied:

[553] ‘Chapter X: International Trade and Development: United Nations Convention on Contracts for the International Sale of Goods’, United Nations Treaty Collection

(Web Page, 2024) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=X-10&chapter=10&clang=_en>, archived at <https://perma.cc/V54C-JAC4>.

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