EXPLANATORY STATEMENT

Consumer Goods (Aquatic Toys) Safety Standard 2020

Overview

The Minister for Housing and Assistant Treasurer (the Minister) has made the Consumer Goods (Aquatic Toys) Safety Standard 2020 (the new safety standard), pursuant to section 104 of the Australian Consumer Law, which is Schedule 2 of the Competition and Consumer Act 2010 (Cth).

The new safety standard comes into effect on the day after it is registered on the Federal Register of Legislation. A transitional period of 24 months will apply during which suppliers may supply aquatic toys which meet either the previous safety standard or the new safety standard. At the end of the transitional period suppliers must comply with the new safety standard.

The purpose of the new safety standard is to maintain a minimum level of safety for the supply of aquatic toys by addressing identified safety hazards. That is, to reduce the likelihood of product failure for inflatable aquatic toys through deflation due to a failure of the valve. And to inform parents and carers that aquatic toys are not a life-saving device and should only be used in shallow water and under supervision.

The safety standard is intended to reduce the risk of serious injury or death to children from drowning while using aquatic toys. Children, in particular young children who cannot swim, may drown if their aquatic toy suddenly deflates when air is released through the air inlet. This hazard would be exacerbated if they were to use the toy unsupervised and relying on its buoyancy as a flotation aid or other life-saving device.

Repealed safety standard

The repealed safety standard for aquatic toys was the Consumer Protection Notice No. 2 of 2009 – Consumer Product Safety Standard: Flotation Toys and Aquatic Toys (Federal Register of Legislation No. F2009L01474).

Under subsection 33(3) of the Acts Interpretation Act 1901 (Cth), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Requirements of the new safety standard

The new safety standard requires the supply of aquatic toys to comply with either of the following standards (with variations):

·        Australian/New Zealand Standard AS/NZS ISO 8124.1:2019 Safety of toys Part 1: Safety aspects related to mechanical and physical properties; or

·         International Standard ISO 8124-1:2018 Safety of toys – Part 1: Safety aspects related to mechanical and physical properties.

The new safety standard includes the following definitions:

aquatic toy means a toy that is designed:

a)    to bear the mass of a child under the age of 14; and

b)    for use in play in shallow water by a child;

whether or not it is inflatable and whether or not it is designed to be worn or otherwise attached to the body.

Australian/New Zealand Standard means the Australian/New Zealand Standard AS/NZS ISO 8124.1:2019 Safety of toys Part 1: Safety aspects related to mechanical and physical properties.

International Standard means the International Standard ISO 8124-1:2018 Safety of toys – Part 1: Safety aspects related to mechanical and physical properties.

Access to Australian and international standards

Where practical, product safety legislative instruments only reference extrinsic material that is readily accessible for free to the public. However, as in the current case, many product safety legislative instruments need to incorporate extrinsic technical standards over which certain bodies have copyright.

The Australian/New Zealand Standard (AS/NZS ISO 8124.1:2019) referenced in this instrument is available for purchase at SAI Global’s website (https://www.saiglobal.com). The International Standard (ISO 8124-1:2018) referenced in this instrument is available for purchase at the International Organization for Standardization’s website (https://www.iso.org).

The Australian Competition and Consumer Commission (ACCC) can make a copy of the standards available for viewing at one of its offices, subject to licensing conditions.

Transitional arrangements

The instrument provides a transitional period of 24 months beginning on the day this instrument commences. During the transitional period suppliers must meet the requirements of either:

·        the Consumer Goods (Aquatic Toys) Safety Standard 2020, or

·        the Consumer Protection Notice No. 2 of 2009 – Consumer Product Safety Standard: Flotation Toys and Aquatic Toys.

After the transitional period, suppliers must meet the requirements of the Consumer Goods (Aquatic Toys) Safety Standard 2020.

Consultation

The ACCC published a combined consultation paper for the five toy standards regulated by existing standards from 1 February to 9 April 2017. The safety standard for aquatic toys is one of the five standards. The paper detailed five policy options for dealing with the mandatory safety standards for toys:

·           Option 1 – Retain the current mandatory safety standards (status quo)

·           Option 2 – Adopt parts of the updated voluntary Australian standards

·           Option 3 – Allow compliance with the updated voluntary Australian standard or trusted overseas standards

·           Option 3a – Allow principles-based compliance with the current voluntary Australian standard and overseas standards

·           Option 4 – Revoke the mandatory safety standards.

The ACCC’s preliminary position outlined in the paper supported Option 3, as this option would provide the greatest net benefit to consumers, suppliers and regulators.

Sixteen submissions were received from retail groups, community groups, industry bodies, child safety advocates and an insurer. Thirteen stakeholders supported allowing compliance with trusted international standards through support for either Option 3 or option 3a. One stakeholder each supported Option 2 and Option 4. The remaining stakeholder did not express a preference.

Following the submission process the ACCC undertook additional consultation, analysis and scrutiny, and reaffirmed that Option 3 is likely to have the greatest net benefit to the Australian community.

The ACCC also determined that there were practical limitations in combining the five children’s toys safety standards into one compendium instrument, and as a result made a separate recommendation for aquatic toys.

Disallowance

This legislative instrument is not subject to disallowance due to section 44 of the Legislation Act 2003 (Cth).

Commencement

The legislative instrument commences on the day after it is registered on the Federal Register of Legislation.

Sunsetting

This legislative instrument is not subject to sunsetting due to section 54 of the Legislation Act 2003 (Cth).

Regulation impact assessment

The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required (OBPR reference ID 25734).