Fair Trading (Product Information Standard) Regulations 2005

The central concept is the ABP standard, defined as the “National Standard for the Australian Builders Plate for Recreational Boats” as applied on 21 November 2005, varied as described. The builders plate is the physical label that must contain the information specified in that standard: builder’s name (substituted to the approver’s name and capacity), plus maximum load, maximum persons, buoyancy details, and other safety parameters. The plate must be permanently attached in a clearly visible location.

Vessel takes its meaning from the Western Australian Marine Act 1982 section 3(1), which typically includes any craft used or capable of being used in navigation by water, however propelled or moved. Personal watercraft is defined by reference to the Navigable Waters Regulations 1958 regulation 46, which covers jet‑powered craft designed to be ridden astride, such as jet skis. Note that personal watercraft carrying no more than two persons are entirely exempt from the plate requirement, whereas those carrying three or more can avoid the standard if they voluntarily display the builder’s recommended weight and persons capacity.

Second‑hand vessel is defined functionally: it means a vessel that has been used otherwise than in the course of building or testing, by the builder, for transport for sale, for demonstration to a purchaser, or by the owner builder. This is a narrow definition , a vessel used by a dealer for a weekend trip would likely become second‑hand, but a vessel used only for test runs by the builder remains new for the regulation’s purposes. The exemption for second‑hand vessels removes compliance obligations from resellers and private vendors, but also means that a used vessel buyer receives less safety information than a buyer of a new vessel (unless the seller voluntarily complies).

Owner builder means an individual who builds the vessel for his or her own use. This is important because owner‑built vessels are not automatically exempted; they are subject to the standard unless they fall into one of the other exemption categories. However, an owner builder who later sells the vessel may find that the exemption for second‑hand vessels applies if the vessel has been used by the builder (which is explicitly excluded from the definition of “use” for second‑hand status). That can create a gap: a vessel built by an owner, used by that owner, and then sold may have no plate and no obligation to have one, even though it may be less safe than a plated vessel.

The prescribed body (The National Marine Safety Committee) is designated under regulation 8A for the purposes of section 59(3)(a)(ii) of the Fair Trading Act 2010, which relates to who may apply for an information standard. This status gives the Committee a role in the process of developing or varying the standard, though the regulation itself caps the standard at its 21 November 2005 version (with the two variations). The standard cannot be updated by subsequent versions of the ABP standard without amending the regulation.

Exemption categories form a critical part of the regulatory scheme. They are list‑based and exhaustive; if a vessel type is not listed, the standard applies regardless of size, intended use, or safety profile. The list includes many niche vessel types (submersibles, surf row boats) and also broad categories (sailing vessels with sail as primary means). This creates bright‑line rules for some categories (e.g., all submersibles are exempt) but leaves discretion to the CEO for others (individual exemptions under regulation 9(3)). The exemption for inflatable boats depends on whether they comply with ISO 6185 and carry a European or US plate, effectively granting equivalence to foreign standards.

The regulation directly affects suppliers of recreational vessels in Western Australia: manufacturers, importers, distributors, and dealers who supply new vessels that do not fall within any exemption. “Supply” under the Australian Consumer Law (WA) includes sale, exchange, lease, hire, and hire‑purchase; thus a boat hire business that supplies non‑exempt vessels to customers must ensure each vessel has a compliant builders plate. The regulator (Consumer Protection division of the Department of Mines, Industry Regulation and Safety) can investigate and enforce against suppliers who offer non‑complying vessels.

Builders and owner builders are also affected. A builder (whether a commercial entity or a private individual) who constructs a vessel that will be supplied in WA must either comply with the plate standard or ensure the vessel falls within an exemption. Owner builders who build for their own use must still comply unless the vessel is exempt; if they later sell it, the second‑hand exemption may apply, but that depends on whether the vessel has been “used” (which includes use by the builder). A builder who uses the vessel before sale (even a short period) may shift the vessel into the second‑hand category, removing the plate requirement but also potentially removing a safety information source for the next owner.

Importers face a particular burden because imported vessels may not have a builders plate meeting the varied ABP standard. The exemption for vessels imported from New Zealand removes that burden for trans‑Tasman trade, but vessels from other countries must have a plate applied or be modified before supply. The variation that replaces the builder’s name with the approver’s name and capacity is especially relevant for importers, who may need to act as the “person who approved the information” and assume liability for the plate’s accuracy.

Repairers, brokers, and second‑hand dealers are indirectly affected because they may handle vessels that lack plates. While there is no duty to retrospectively plate a second‑hand vessel, the absence of a plate may affect the resale value or raise questions about compliance during marine safety inspections. The regulation does not impose duties on end‑users (owners) to maintain or check plates, but enforcement action is against the supplier, not the owner.

Marine surveyors and certifiers may be engaged to verify compliance or to apply for CEO exemptions. The cost of obtaining an individual exemption (including the time and documentation involved) falls on the applicant, which may be a dealer or owner.

Consumers benefit from the presence of safety information on new vessels, but they also bear the cost indirectly through higher vessel prices. The compliance costs of designing, producing, and attaching plates, as well as record keeping and potential legal advice about exemptions, are passed on. The exemption for second‑hand vessels means buyers of used boats receive no mandated safety information; they must rely on the seller’s voluntary provision or on independent surveys.

The National Marine Safety Committee is the prescribed body that can apply for a product information standard under the Fair Trading Act 2010. This gives it a role in the broader national scheme, though the regulation itself fixes the standard at a 2005 snapshot.

The primary duty is imposed by the product information standard prescribed in regulation 9: a person must not supply in Western Australia a recreational vessel that is not exempt unless the vessel bears a builders plate that complies with the ABP standard as varied. This duty arises under the Australian Consumer Law (WA) Part 3‑4, specifically section 137 which prohibits supplying goods that do not comply with a mandatory product information standard. Contravention is an offence that can attract pecuniary penalties and injunctions.

The duty is strict in the sense that it does not require proof of intent to mislead or harm; the mere supply of a non‑compliant vessel is enough for liability. However, there is a due diligence defence in section 139 of the Australian Consumer Law (WA) for a person who relied on information supplied by another (e.g., from the manufacturer) and had no reason to suspect it was false. This defence may be available to retailers who purchase from reputable wholesalers and receive assurances that the vessel complies.

The duty to affix the plate itself falls on the person who manufactures or assembles the vessel, but the regulation does not specify who must attach it , it is the supplier who must ensure compliance at the point of supply. In practice, the builder will usually attach the plate, but if an importer modifies or re‑labels a vessel, the importer becomes the “person who approved the information” and must ensure the plate is accurate and affixed.

Rights include the right to apply for an individual exemption from the CEO under regulation 9(3). The CEO has broad discretion to exempt a vessel if it meets one of the four grounds (alternative standard, no appropriate standard, similar to exempt type, short‑term use with low risk). The decision is not subject to a merits review mechanism in these regulations, though judicial review might be available for unreasonableness. The exemption application process creates a cost for applicants, but it allows flexibility for unique or low‑risk vessels.

Rights of suppliers also include the right to rely on the list of exemptions in regulation 9(2). If a vessel falls squarely into an exemption category (e.g., it is an amphibious vehicle), no further steps are needed. But the supplier bears the burden of proving the exemption applies; if challenged, the supplier must show, for example, that the vessel meets the definition of “second‑hand vessel” or that a personal watercraft carries no more than two persons.

Rights of consumers are limited: they cannot individually enforce the standard, but they can file complaints with the regulator, which may investigate and issue infringement notices or seek court orders. There is no private right of action for damages under the product information standard provisions, though a consumer who suffers loss from a non‑compliant vessel may have other remedies under the Australian Consumer Law for false or misleading conduct (e.g., if the plate itself contains false information).

Enforcement of the product information standard operates through the Australian Consumer Law (WA) Part 3‑4, as continued by section 118 of the Fair Trading Act 2010. The relevant offence provision is section 137 of the Australian Consumer Law (WA): a person must not supply goods that do not comply with a mandatory product information standard. Contravention is a criminal offence with maximum penalties as set out in section 151 of that Law. For a body corporate, the maximum penalty is the greater of $10 million, three times the value of the benefit attributable to the offence, or (if that cannot be determined) 10% of the body corporate’s annual turnover during the previous 12 months. For an individual, the maximum penalty is $500,000. These are substantial sums, reflecting the seriousness with which the legislature treats mandatory safety standards.

In addition to criminal penalties, the regulator (the Commissioner for Consumer Protection, acting under the Fair Trading Act 2010) may issue an infringement notice for minor breaches, typically with a set penalty (often a few thousand dollars for an individual). Infringement notices avoid the cost of court proceedings but carry a record of non‑compliance.

The regulator can also seek injunctions to prevent ongoing supply of non‑compliant vessels, and can apply for orders to recall vessels, supply corrective information, or reimburse purchasers. These remedies are available under sections 218‑222 of the Australian Consumer Law (WA) for contraventions of Part 3‑4. A recall order is especially disruptive for a boat dealer: it may require retrieving vessels from showrooms or from purchasers, labelling them, and modifying them at the supplier’s expense.

Because the regulation does not create a separate offence, the penalties and enforcement mechanisms are those applicable generally under the Australian Consumer Law (WA). This means the regulator must prove the offence beyond reasonable doubt in criminal proceedings. Defences include the reasonable reliance defence (section 139) and the defence of mistake of fact. A supplier who can show they reasonably believed a vessel was exempt (e.g., they were misinformed by the builder that it was an “exempt personal watercraft”) may avoid conviction.

There is no reported case law specific to this regulation in the source, and it is likely that enforcement has been limited. The practical likelihood of a regulator targeting small operators or owner builders is low, but the statutory maximum penalties create a risk that should not be ignored, particularly for commercial suppliers dealing in multiple vessels.

The regulation operates as a delegated legislative instrument under the Fair Trading Act 2010 (WA). Section 118 of that Act continued Part 4 of these regulations in force after the commencement of the Australian Consumer Law (WA) in Western Australia. This means that the regulation is treated as a mandatory product information standard under the Australian Consumer Law (WA) Part 3‑4, and enforcement is through that Law, not through the original Fair Trading Act provisions that were repealed. The effect is that any future amendment to the Australian Consumer Law penalty provisions automatically applies to breaches of this regulation, without the need for amending the regulation itself.

The regulation specifically exempts vessels for which a certificate of survey has been issued (or will be submitted for survey) under the W.A. Marine (Surveys and Certificates of Survey) Regulations 1983. That regime imposes its own construction and safety certification requirements for commercial and large vessels, and the legislature has decided that duplicating a builders plate is unnecessary for those craft. Similarly, vessels holding a permit under section 26(2) of the Western Australian Marine Act 1982 (which covers certain foreign‑registered or special purpose vessels) are exempt.

The definition of “vessel” is borrowed from the Western Australian Marine Act 1982, creating consistency between the two regimes. A craft that is a “vessel” under that Act (including non‑displacement craft like hovercraft) is subject to this regulation unless exempted. The definition also ties into the Navigable Waters Regulations 1958 for “personal watercraft”.

The regulation interacts with national and international standards through its equivalence provisions. Inflatable boats can comply with European Directive 94/25/EC or US NMMA standards, provided they meet ISO 6185. This prevents unnecessary duplication for imported craft but creates a potential mismatch: the European or US plate may not contain all the information required by the ABP standard (e.g., the name of the person who approved the information). The regulation does not require that the foreign plate be supplemented, only that it certifies compliance with the relevant directive or handbook. This leaves a gap if the foreign plate lacks key safety parameters that the ABP standard mandates.

For personal watercraft designed to carry three or more persons, the regulation provides an alternative: they can avoid the full ABP plate if they display the builder’s recommended weight and persons capacity. This alternative is less onerous than the full standard, but it is voluntary in the sense that the watercraft could choose to comply with the full standard instead. The provision uses the words “if it complies with subregulation (4)”, meaning the watercraft is only exempt if it has the alternative label; otherwise, the full standard applies.

The regulation does not interact with the Competition and Consumer Act 2010 (Cth) directly, but because it is part of the Fair Trading Act 2010, which applies the Australian Consumer Law as a law of Western Australia, it operates within the national framework. A supplier who complies with this regulation may still be liable under the Australian Consumer Law for false or misleading conduct if the plate contains inaccurate information, because the plate is a representation about the vessel’s safety characteristics.

The Fair Trading (Product Information Standard) Regulations 2005 were originally gazetted on 29 June 2005 and commenced that day. They contained Parts 2 and 3, which have since been omitted by operation of section 118 of the Fair Trading Act 2010. The compilation table shows three sets of amendments. The first amendment was the Fair Trading (Product Information Standard) Amendment Regulations 2006, gazetted on 1 September 2006 and commencing 2 September 2006. That amendment inserted Part 4 (Builders plates for recreational vessels), which is the entire substantive content of the current regulations. It also presumably omitted the earlier Part 4? The original 2005 regulations likely contained other product information standards that were either repealed or continued elsewhere; the text does not detail them.

The second amendment was the Fair Trading (Product Information Standard) Amendment Regulations 2007, gazetted 13 March 2007 and commencing the same day. That amendment made two changes: it amended regulation 8 (adding the variation to the ABP standard regarding the name of the person who approved the information, and deleting clauses 3.1 and 3.2), and it inserted regulation 8A (prescribing The National Marine Safety Committee). The 2006 version of regulation 8 did not include these modifications; the original ABP standard was adopted without variation. The 2007 change appears to have been a response to practical problems: the requirement to state the builder’s name may have been difficult for importers or for vessels built by multiple parties, and the deletion of clauses 3.1 and 3.2 removed potentially redundant or unworkable requirements.

The regulations were reprinted as Reprint 1 on 20 July 2007, incorporating all amendments up to that date. No further amendments appear in the compilation table. The Fair Trading Act 2010 came into effect in 2011, and section 118 of that Act explicitly continued Part 4 in force despite the repeal of the predecessor Fair Trading Act under which the regulations were originally made. This ensures continuity: without section 118, Part 4 would have lapsed. The section also provides that the enforcement mechanism shifts to the Australian Consumer Law (WA) Part 3‑4. The regulations themselves have not been amended since 2007, meaning the ABP standard is frozen at its 2005 version. Any subsequent updates to the national standard (if they exist) do not automatically become part of Western Australian law; an amending regulation would be required.

The source text provides no references to any court cases interpreting or applying these regulations. This is consistent with the narrow scope of the regime and the relatively low profile of recreational vessel regulation in Western Australia. It is likely that enforcement has been handled through administrative measures (warning letters, infringement notices) rather than litigation. No reported decisions from the Supreme Court of Western Australia or the State Administrative Tribunal mention these regulations. The absence of case law means that several interpretive questions remain unresolved. For example, the meaning of “vessel of a type that closely resembles a vessel of a type that is not covered by this regulation” in regulation 9(3)(c) has not been judicially considered. The CEO’s discretion on individual exemptions has not been tested in court for unreasonableness or bias.

The regulation might be raised in a broader prosecution under the Australian Consumer Law (WA). A supplier who knowingly sold a non‑compliant vessel and made false claims about its safety could face charges under both the product information standard (absolute liability) and the prohibition on false or misleading representations (section 29). It is possible that a civil penalty proceeding could result in a court interpreting the scope of the “second‑hand vessel” exemption or the definition of “personal watercraft”. But no such proceedings are reported in the source.

Litigation in other Australian jurisdictions involving the ABP standard under their own state laws might provide persuasive authority in Western Australia. The ABP standard is a national document, and courts in New South Wales or Queensland may have considered its requirements. However, the Western Australian regulation’s unique variation (requiring the name of the approver instead of the builder) means that interstate precedents on the plate’s content are not directly applicable.

The lack of litigation suggests that the regulation is not a major source of dispute. However, it also means that the boundaries of the exemption categories are relatively untested. For instance, the distinction between a “rowing shell used for racing or training for racing” (exempt) and a recreational rowing rowboat (not exempt) could be ambiguous, but no court has clarified it. Similarly, what constitutes “solitary use for play” for an aquatic toy may be litigated if a supplier is prosecuted over an inflatable accessory.

Several traps await the unwary supplier or builder. The most significant is that the ABP standard is frozen at 21 November 2005. Any later updates to the national ABP standard (e.g., new requirements for engine cut‑off switches or revised load calculations) do not apply in Western Australia unless the regulation is amended. A supplier who follows the current national version may inadvertently fail to comply with the WA variation, or vice versa. Conversely, a supplier who relies on the 2005 version but the national standard has been updated may face a different safety regime in other states, creating compliance fragmentation.

The variation replacing the builder’s name with the approver’s name is easily missed. Standard ABP plates typically list the builder. A boat builder who uses a generic plate printed with their own company name may be non‑compliant in WA because the plate must state the name of the person who approved the information, which may be a different person (e.g., the dealer who commissioned the build). This is especially relevant for imported vessels where the foreign builder’s name is on the plate; the importer must ensure that the plate is modified or that a secondary plate is attached showing the approver in WA.

The definition of “second‑hand vessel” contains a critical exception: use by the builder is not counted as use for determining second‑hand status. But if the builder (even an owner builder) uses the vessel for personal trips (not just testing), those trips are still “use by the builder” and thus do not make the vessel second‑hand. This means a builder who uses a vessel for a holiday before selling it cannot rely on the second‑hand exemption; the vessel remains new for the regulation and must have a plate. The builder would need to have attached a plate before any such use.

The exemption for vessels partly constructed before Part 4 came into operation (2 September 2006) only applies if the vessel had reached at least keel‑laying or one percent structural mass. A builder who started a vessel after that date but before the amendment (the 2006 amendment inserted Part 4) cannot claim the exemption. The provision is now historical and only relevant for vessels built over 16 years ago, but a vessel that has been under construction for a very long time (e.g., a restoration project) may still be in that category if it was started before September 2006.

Personal watercraft carrying two or fewer persons are entirely exempt. But “personal watercraft” has a specific meaning under the Navigable Waters Regulations 1958, which likely includes jet skis and similar. A craft that looks like a personal watercraft but carries three persons is not automatically exempt; it only escapes the full standard if it displays the alternative label (builder’s recommended weight and persons). Many jet skis from manufacturers already have a capacity plate; this may satisfy the alternative, but the plate must state the specific information required (total weight of persons and equipment, and maximum number of persons). A generic “max weight 250 kg” may not be sufficient if it does not expressly state it is the builder’s recommendation.

Inflatable boats have two routes to exemption. If the boat is a toy (not meeting ISO 6185), it is exempt as an aquatic toy. If it meets ISO 6185, it must have either a European Directive 94/25/EC plate or a US NMMA plate. A boat that meets ISO 6185 but has no such plate is not exempt and must comply with the full ABP standard, even though it may be identical to a boat that does have the European plate. The supplier must verify the actual plate type, not the boat’s design.

Individual CEO exemptions are available but require an application. There is no prescribed form or fee in the regulations, so the CEO has discretion over the process. The applicant must provide enough evidence to satisfy one of the four grounds. The grounds are somewhat subjective: “it would be unreasonable for this regulation to apply” appears in all four. Unreasonableness is a high bar, and an applicant cannot assume it will be granted simply because compliance is inconvenient. The exemption is vessel‑specific, not type‑wide, so each non‑standard vessel would need a separate application.

The regulation does not require retrospective plating of second‑hand vessels. This creates a perverse incentive: a supplier who acquires a new vessel and uses it briefly before selling it may avoid the plate requirement by claiming it is now second‑hand. However, as noted, use by the builder does not count as use for that purpose, so a commercial builder cannot turn a new boat into a used boat by taking it for a spin. But a dealer who purchases an unplated vessel from a builder, uses it for a demonstration (which is also excluded from “use” for second‑hand status), may find it is still new and non‑compliant.

Compliance begins with determining whether a vessel is subject to the standard. The supplier should first check if the vessel falls within any of the 20 exemption categories in regulation 9(2). This is a factual inquiry: is it a vessel with a certificate of survey? Is it imported from New Zealand? Is it an amphibious vehicle? For each category, the supplier must have supporting documentation. For example, to rely on the second‑hand exemption, evidence of prior use (e.g., registration records, bills of sale) should be retained. For the racing exemption, evidence that the vessel was built exclusively for racing (e.g., a builder’s certificate) is prudent. If the vessel is a personal watercraft carrying three or more persons, the supplier must ensure the alternative label (subregulation 4) is attached: the total weight of persons and equipment (in kg) and the maximum number of persons, both as recommended by the builder. This label must be written on or attached to the craft in a clearly visible place. It does not need to be a permanent plate, but it should be durable enough to remain legible during normal use.

If the vessel is not exempted, the supplier must ensure that it bears a builders plate that complies with the ABP standard as varied. The plate must be permanently attached in a clearly visible location. The content must include: the name of the person who approved the information (not the builder’s name) and the capacity in which that person approved it (e.g., “importer”, “manufacturer”, “dealer”). The other content requirements of the 2005 ABP standard (maximum load, buoyancy, etc.) still apply. The standard is not reproduced in the regulation, so the supplier must obtain a copy of the “National Standard for the Australian Builders Plate for Recreational Boats” as in force on 21 November 2005. This can be obtained from The National Marine Safety Committee (now likely the Australian Maritime Safety Authority or state marine agencies). The variation deleting clauses 3.1 and 3.2 must be applied; those clauses are omitted entirely.

For imported vessels, the supplier should check whether the existing plate can be modified or supplemented. If the plate already contains all required information except the builder’s name is wrong, a supplementary label or a new plate with the approver’s name and capacity will be needed. The regulation does not prohibit covering or altering the existing plate, but the final plate must be legible and permanent.

For vessels that do not fit clearly into an exemption, the supplier may apply to the CEO (the chief executive officer under the Western Australian Marine Act 1982 , likely the Director of the Department of Transport’s marine division) for an individual exemption. The application should set out which ground under regulation 9(3) applies, with supporting evidence. Ground (a) requires showing that the vessel complies with another appropriate safety standard and that applying this regulation would be unreasonable. Ground (b) is for vessels of a type lacking appropriate safety standards. Ground (c) is for vessels closely resembling an exempted type. Ground (d) is for short‑term use with low risk. The CEO’s decision is final, subject to judicial review. There is no timeline in the regulation for the CEO’s response, so early application is advisable.

Suppliers should maintain compliance records: copies of exemption confirmations, documentation of exemption categories relied upon, and certificates of compliance from manufacturers. These records should be kept for at least the period during which the vessel is held for supply (likely the limitation period for prosecution, which is generally three years for summary offences under the Fines, Penalties and Infringement Notices Enforcement Act 1994).

Finally, because the regulation is part of the Australian Consumer Law (WA), a defence of reasonable reliance on information from another person (section 139) is available. If a supplier obtains an assurance from a manufacturer that the vessel complies, and has no reason to doubt it, that may be a defence. But reliance must be reasonable; a supplier who knows that the manufacturer is unreliable cannot rely on it. Therefore, suppliers should audit their supply chain, request written compliance certificates, and conduct random checks where feasible. Failure to do so could result in liability even if the manufacturer was at fault.