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This is a Bill, not an Act. For current law, see the Acts databases.
Swimming Pools Amendment Bill 2009
No , 2009
A Bill for
An Act to amend the Swimming Pools Act 1992 to make further provision with
respect to ensuring access to private swimming pools is effectively restricted; and for
other purposes.
Clause 1 Swimming Pools Amendment Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Swimming Pools Amendment Act 2009. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
Page 2
Swimming Pools Amendment Bill 2009
Amendment of Swimming Pools Act 1992 No 49 Schedule 1
Schedule 1 Amendment of Swimming Pools Act 1
1992 No 49 2
[1] Part 1 Preliminary 3
Omit the Introduction to the Part. 4
[2] Section 3 Definitions 5
Omit the section. Insert instead: 6
3 Definitions 7
(1) In this Act: 8
area means: 9
(a) the area of a council within the meaning of the Local 10
Government Act 1993, or 11
(b) the Western Division within the meaning of the Crown 12
Lands Act 1989, or 13
(c) Lord Howe Island. 14
authorised officer means an authorised officer appointed under 15
section 27. 16
barrier means a fence or a wall, and includes: 17
(a) any gate or door set in the fence or wall, and 18
(b) any other structure or thing declared by the regulations to 19
be a barrier for the purposes of this Act. 20
dividing fence has the same meaning as it has in the Dividing 21
Fences Act 1991. 22
exercise a function includes perform a duty. 23
function includes a power, authority and duty. 24
local authority means: 25
(a) in relation to premises that are situated within an area 26
within the meaning of the Local Government Act 1993-- 27
the council of that area, or 28
(b) in relation to premises that are situated within the Western 29
Division within the meaning of the Crown Lands Act 30
1989--the Western Lands Commissioner, or 31
(c) in relation to premises situated on Lord Howe Island--the 32
Lord Howe Island Board. 33
moveable dwelling has the same meaning as it has in the Local 34
Government Act 1993. 35
Page 3
Swimming Pools Amendment Bill 2009
Schedule 1 Amendment of Swimming Pools Act 1992 No 49
occupier of premises includes any person who is for the time 1
being in charge of the premises and, if there are 2 or more 2
occupiers of the premises, includes any one of the occupiers. 3
owner of premises has the same meaning as "owner" has in 4
relation to land in the Local Government Act 1993 and, if there 5
are 2 or more owners of the premises, includes any one of the 6
owners. 7
public authority means a public authority constituted by or under 8
an Act, a local authority, a Government Department or a statutory 9
body representing the Crown. 10
residential building means a building (such as a dwelling-house, 11
residential flat building or boarding-house) that is solely or 12
principally used for residential purposes, and includes any 13
structure (such as a garage or shed) that is ancillary to any such 14
building, but does not include: 15
(a) a building that merely forms part of a complex of buildings 16
(such as a school or recreational centre) that is principally 17
used for non-residential purposes, or 18
(b) a moveable dwelling, a hotel or a motel, or 19
(c) a shed that is ancillary to a swimming pool and the primary 20
purpose of which is to store equipment that is used in 21
connection with the swimming pool (but not a shed of a 22
kind prescribed by the regulations), or 23
(d) a building or structure of a kind prescribed by the 24
regulations. 25
spa pool includes any excavation, structure or vessel in the nature 26
of a spa pool, flotation tank, tub or the like. 27
swimming pool means an excavation, structure or vessel: 28
(a) that is capable of being filled with water to a depth of 300 29
millimetres or more, and 30
(b) that is solely or principally used, or that is designed, 31
manufactured or adapted to be solely or principally used, 32
for the purpose of swimming, wading, paddling or any 33
other human aquatic activity, 34
and includes a spa pool, but does not include a spa bath, anything 35
that is situated within a bathroom or anything declared by the 36
regulations not to be a swimming pool for the purposes of this 37
Act. 38
(2) Diagrams included in Schedule 1 form part of this Act. 39
(3) Notes included in this Act do not form part of this Act. 40
Page 4
Swimming Pools Amendment Bill 2009
Amendment of Swimming Pools Act 1992 No 49 Schedule 1
[3] Section 5 General duties of local authorities regarding swimming pools 1
Insert at the end of section 5 (b): 2
, and 3
(c) to investigate complaints about breaches of this Act in 4
accordance with section 29A. 5
[4] Sections 7 (1), 12, 14, 15 (1), 16 and 23 (3) 6
Omit "10 penalty units" wherever occurring. Insert instead "50 penalty units". 7
[5] Part 2 Access to swimming pools 8
Omit the Introduction to the Part. 9
[6] Section 7 General requirements for outdoor swimming pools 10
Omit the note. Insert instead: 11
Note. Section 7 should be read in conjunction with the other provisions 12
of this Part, in particular sections 8, 9, 10, 18, 19 and 22. 13
[7] Section 8 Exemption for swimming pools constructed before August 14
1990 and existing swimming pools on small properties 15
Omit section 8 (1) (but not the note to that subsection). Insert instead: 16
(1) This section applies to the following swimming pools: 17
(a) swimming pools the construction or installation of which 18
commenced before 1 August 1990, 19
(b) swimming pools the construction or installation of which 20
commenced before 1 July 2010 and that are situated on 21
premises having an area of less than 230 square metres. 22
[8] Sections 9 (1), 10 (1) and 13 (1) 23
Omit the subsections. Insert instead: 24
(1) This section applies to swimming pools the construction or 25
installation of which commenced before 1 July 2010. 26
[9] Section 12 General requirements for outdoor swimming pools 27
Omit the note. Insert instead: 28
Note. Section 12 should be read in conjunction with the other provisions 29
of this Part, in particular sections 13, 18, 19 and 22. 30
[10] Section 15 Child-resistant barrier must be in good repair 31
Insert "child-resistant" after "effective and safe" in section 15 (1). 32
Page 5
Swimming Pools Amendment Bill 2009
Schedule 1 Amendment of Swimming Pools Act 1992 No 49
[11] Section 17 Warning notices must be erected near swimming pools 1
Omit "1 penalty unit" from section 17 (1). Insert instead "5 penalty units". 2
[12] Section 19 House wall may be used as part of required child-resistant 3
barrier 4
Omit "door, window or other" from section 19 (a). 5
[13] Section 19 (2) 6
Insert at the end of section 19: 7
(2) The regulations may prescribe circumstances in which an 8
opening in a wall is or is not to be regarded as an opening through 9
which access may at any time be gained to a swimming pool for 10
the purposes of subsection (1) (a). 11
[14] Section 23 Local authority may order compliance with Part 12
Insert after section 23 (4): 13
(5) A direction may not be served under this section unless the local 14
authority has, at least 14 days before, served on the owner of the 15
premises a notice of intention to serve the direction. 16
(6) A local authority may serve a direction under this section without 17
serving a notice under subsection (5) if it considers that the safety 18
of a person would be at risk if the requirements of the direction 19
were not carried out as soon as possible. 20
[15] Section 23A 21
Insert after section 23: 22
23A Compliance with direction of local authority 23
(1) An authorised officer, or a person acting under the direction of a 24
local authority, may carry out some or all of the requirements of 25
a direction given by the local authority under section 23 if: 26
(a) the person to whom the direction is given fails to comply 27
with the direction within the time specified in the direction, 28
or 29
(b) the local authority considers that the requirements of the 30
direction need to be carried out urgently as there is a 31
significant risk to public safety. 32
(2) Before any requirement of a direction is carried out under this 33
section, a local authority or authorised officer must serve on the 34
occupier of the premises a notice of intention to carry out the 35
requirement. 36
Page 6
Swimming Pools Amendment Bill 2009
Amendment of Swimming Pools Act 1992 No 49 Schedule 1
(3) An authorised officer, or a person acting under the direction of a 1
local authority, may enter any premises (other than part of any 2
building, or moveable dwelling, used for residential purposes) in 3
order to exercise functions under this section. 4
(4) Before entering premises under this section, a local authority or 5
authorised officer must seek the consent of the occupier of the 6
premises to the entry. 7
(5) If the consent of the occupier of the premises is not able to be 8
obtained, the authorised officer or person acting under the 9
direction of the local authority may only enter the premises: 10
(a) after 24 hours have elapsed since the consent of the 11
occupier was sought, and 12
(b) between 9.00 am and sunset. 13
(6) If an authorised officer, or a person acting under the direction of 14
a local authority, carries out some or all of the requirements of a 15
direction in accordance with this section, the reasonable costs of 16
carrying out those requirements may be recovered as a debt by 17
the local authority in a court of competent jurisdiction from the 18
person to whom the direction was given. 19
[16] Section 25 Defences to offences under Part 20
Renumber the bullet point paragraphs in section 25 (3) (b) as subparagraphs 21
(i) and (ii), respectively. 22
[17] Part 3 Enforcement 23
Omit the Introduction to the Part. 24
[18] Section 27 Authorised officers may be appointed 25
Omit "Local Government and Co-operatives" from section 27 (1) (b). 26
Insert instead "Premier and Cabinet or other officer of the Department 27
designated by the Director-General". 28
[19] Sections 27 (1) and (4) and 38 (1) (b) 29
Omit "inspectors" wherever occurring. Insert instead "authorised officers". 30
[20] Sections 27 (2)(5), 28 (1)(4), 35 (1) and 37 31
Omit "inspector" and "inspector's" wherever occurring. 32
Insert instead "authorised officer" and "authorised officer's", respectively. 33
Page 7
Swimming Pools Amendment Bill 2009
Schedule 1 Amendment of Swimming Pools Act 1992 No 49
[21] Section 27 (2) 1
Omit ", in the form prescribed by the regulations,". 2
[22] Section 27 (6) 3
Insert after section 27 (5): 4
(6) An authorised officer (other than a police officer) who is 5
exercising functions conferred by this Act in respect of any 6
premises must, on demand made by any person in or on the 7
premises, produce his or her certificate of identification for 8
inspection by that person. 9
[23] Section 28 Authorised officers may exercise certain powers of entry 10
Omit section 28 (5). 11
[24] Sections 29 and 29A 12
Omit section 29. Insert instead: 13
29 Search warrants 14
(1) An authorised officer may apply to an issuing officer for a search 15
warrant if the applicant has reasonable grounds for believing that 16
a provision of this Act or the regulations has been or is being 17
contravened on premises. 18
(2) An issuing officer to whom an application for a search warrant is 19
made under this section may, if satisfied that there are reasonable 20
grounds for doing so, issue a search warrant authorising an 21
authorised officer named in the warrant, when accompanied by a 22
police officer, and any other person named in the warrant: 23
(a) to enter the premises concerned, and 24
(b) to search the premises for evidence of a contravention of 25
this Act or the regulations. 26
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 27
Responsibilities) Act 2002 applies to a search warrant issued 28
under this section. 29
(4) In this section: 30
issuing officer means an authorised officer within the meaning of 31
the Law Enforcement (Powers and Responsibilities) Act 2002. 32
29A Investigation of complaint 33
(1) This section applies to a complaint made to a local authority in 34
writing that alleges a contravention of this Act. 35
Page 8
Swimming Pools Amendment Bill 2009
Amendment of Swimming Pools Act 1992 No 49 Schedule 1
(2) The local authority must, as far as is practicable, commence 1
investigation of the complaint within 72 hours (or such other 2
period as may be prescribed by the regulations) after it is 3
received. 4
(3) The local authority may investigate the complaint as it thinks fit. 5
(4) An authorised officer may, in accordance with section 28, enter 6
and examine premises for the purposes of investigating the 7
complaint. 8
(5) Before premises are entered under subsection (4), the local 9
authority is to take such steps as are reasonable: 10
(a) to notify the owner or occupier of the premises about the 11
complaint, and 12
(b) to arrange to carry out the examination at a time that is 13
convenient to the owner or occupier. 14
(6) The local authority may decline to investigate a complaint that it 15
considers to be vexatious, misconceived, frivolous or lacking in 16
substance. 17
(7) The local authority is to notify the complainant in writing if it 18
declines to investigate the complaint. 19
[25] Part 4 Miscellaneous 20
Omit the Introduction to the Part. 21
[26] Section 31 Pool Fencing Advisory Committee 22
Omit the section. 23
[27] Section 32 Relationship with other Acts 24
Omit "an existing swimming pool" from section 32 (2). 25
Insert instead "a swimming pool the construction or installation of which 26
commenced before 1 August 1990". 27
[28] Section 34 Service of notices 28
Insert after section 34 (b): 29
(b1) by means of facsimile transmission to the facsimile 30
number of the owner or occupier or by means of email to 31
an email address provided by the owner or occupier as an 32
address for service of notices under this Act, or 33
[29] Section 35 Penalty notices for certain offences 34
Omit "2 penalty units" from section 35 (6). Insert instead "5 penalty units". 35
Page 9
Swimming Pools Amendment Bill 2009
Schedule 1 Amendment of Swimming Pools Act 1992 No 49
[30] Sections 39 and 41 1
Omit the sections. 2
[31] Schedule 1 Diagrams 3
Omit the heading to Part 2. Insert instead: 4
Part 2 Swimming pools constructed before 5
August 1990 and existing swimming pools 6
on small properties 7
[32] Schedule 1, Parts 3 and 4 8
Omit "Swimming pools" from the headings to the Parts. 9
Insert instead "Existing swimming pools". 10
[33] Schedule 3 Savings, transitional and other provisions 11
Omit "(Section 41)". 12
[34] Schedule 3, clause 1 (1) 13
Insert at the end of the subclause: 14
Swimming Pools Amendment Act 2009 15
[35] Schedule 3, clauses 35 and 914 16
Omit the clauses. 17
[36] Schedule 3, Part 3 18
Insert after Part 2: 19
Part 3 Provisions consequent on the enactment 20
of the Swimming Pools Amendment Act 21
2009 22
15 Authorised officers 23
A person who was an inspector in respect of a local authority 24
immediately before the commencement of Schedule 1 [19] to the 25
Swimming Pools Amendment Act 2009 is, on that 26
commencement, taken to have been appointed as an authorised 27
officer by the local authority in accordance with section 27 of the 28
Act. 29
Page 10
Swimming Pools Amendment Bill 2009
Schedule 1 Amendment of Swimming Pools Act 1992 No 49
16 Abolition of Pool Fencing Advisory Committee 1
(1) The Pool Fencing Advisory Committee is abolished. 2
(2) Any person holding office as a member of that Committee 3
immediately before its abolition: 4
(a) ceases to hold office, and 5
(b) is not entitled to any compensation because of the loss of 6
that office. 7
[37] Dictionary 8
Omit the Dictionary. 9
Page 11
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