Northern Territory Second Reading Speeches

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SWIMMING POOL SAFETY BILL 2004


Madam Speaker, I move that the bill be now read a second time.

Madam Speaker, I take this opportunity to introduce the Swimming Pool Safety Bill 2004 in to the House. This government is strongly committed to improving water safety in the Northern Territory and to reduce the appalling incidents of death through drowning. Water safety must be addressed on a range of fronts: through public education and awareness campaigns; encouraging people to swim; and effective barriers for our pools and spas. Barriers around pools and spas are just one in a complement of measures to ensure pool safety and minimise pool drownings. Fencing provides an important barrier to the pool and gives those who care for children more time to react, providing the safest possible environment for children in and around water.

The Northern Territory has the highest drowning rate in the nation. In the last ten years over 100 Territory families have experienced the trauma of a desperate rush to get health care for a child who had made it in to a backyard pool. That is why we have legislated to protect our youngest and most vulnerable. In response to our at times challenging environment, the Northern Territory has one of the highest ratio of pool ownership in urban centres.
In developing the legislation in 2004, we took in to account that there were already pool fencing requirements in Darwin, Palmerston, Alice Springs and Jabiru. We assumed that a very high percentage of the pool owners would have expected to have a reasonable barrier to their backyard pools and that all of these pools should have been capable of automatic registration under the new legislation. Therefore, when people wanted to sell or let their properties, then the upgrade to the Australian Standard should have required relative minor effort for most. A generous incentive scheme was established to assist people to upgrade.

How wrong we were, Madam Speaker. Less than half the pools in Palmerston actually met the standard that previously applied and, in Darwin, over 80% of pools did not meet the standards that the Darwin City Council said it was applying. Since the infancy of the introduction of this new legislation, councils have been too interested in playing politics rather than be up-front with their knowledge that there was a high rate of non-compliance and confusion in the application of the bylaws. This was recognised as early as 23 November 1994 by the opposition. The then recently elected member for Greatorex, a former member of the Alice Springs Town Council, stated to parliament, and I quote:

However, when it came to take action, the previous government did nothing and let the status quo remain. In July 1996, the Coroner handed down findings in relation to five infant drownings that had occurred in 1995 and 1996. Included in the report’s recommendations was one that suggested that a working party consisting of representatives of the government and local government together with other stakeholders should be convened. That working party convened in November 1996, and met again in August 1997. The Department of Local Government carried out considerable research and the working party held a workshop in November 1997 to finalise recommendations that were presented to government. Two of the key recommendations that were put to the government were:

(a) that there should be over-arching legislation enacted by the Territory for the regulation of swimming pools; and (b) the Territory should have primary responsibility for pool regulation.

The government of the day rejected these recommendations, they trashed the work of the group that was formed as the result of a coronial inquiry, and they whimped out on pool safety. Acting in good faith, many pool owners had thought that their pool fencing was pretty close to the Australian Standard, and they should have no real problem with the new legislation. In fact, in the majority of cases in Darwin and Palmerston, they fell below the previous council standard. So instead of a simple registration process followed by an easy upgrade to Australian Standards, many pool owners faced a difficult and frustrating time that many believed, after all their expense and effort, did not deliver a safe pool.

The result has been the development of strong community concern about the precision and technical requirements of the standards that are being applied. There is no doubt that the Australian Standards are very precise. Starting from scratch with the installation of a new pool, the Australian Standards are relatively simple to apply.

However, when applied to pre-existing back yard pools or spas, that precision often meant pool owners had to undertake works that they believed did not increase the safety of their pool. These issues have muddied the waters and created a debate focussed on fence heights and door latches rather than the bigger issue we are trying to address through pool fencing legislation, which is preventing toddler drownings.

Government wants to focus on pools which have no fencing or perimeter fencing only. The debate to date has largely focussed on pools that are effectively safe and are missing the Australian Standard by a couple of centimetres.

The review, which I will soon discuss, made recommendations about how government could improve the targeting and workability of the legislation. I said when I introduced the Swimming Pool Fencing Act that it should be reviewed after 12 months of operation. During the year, I advised many people and stake holders that if they had concerns about specific provisions, then they should bring them forward so that they could be taken into account when the act was reviewed.

I announced the review on 19 December 2003. That was followed up by advertisements in key media outlets on 3 and 6 January 2004. Submissions closed on 21 January 2004. The staff of the Department of Community Development, Sport and Cultural Affairs were in an excellent position to conduct the review. I am in the fortunate position of having many excellent staff within my department and, over the last 12 months, they have had over 13,000 interactions with pool owners. In addition with the 43 submissions to the review, these interactions have been very important in shaping the recommendations in the report.

The Acting Chief Executive of my department has finalised the review, and he provided me with a report dated 2 February 2004. This report, together with government’s response, was publicly released on 12 February 2004.

The key finding of the review is, first and foremost, that a critical assumption underpinning the act is wrong, that the standard of existing pools would closely co-relate with council standards and allow for easy upgrade to the Australian Standard. This lower level of correlation meant the foundation for easy upgrade to the higher standard was not there. The review also found that there remains strong support in the community for effective barriers around backyard swimming pools, however, there is a strong demand for greater flexibility in the application of standards and for pool owners to have greater personal responsibility for determining that their backyard pools or spas are safe.

The Australian Standards were seen as too precise for easy application to many existing pools where the pool is often integral to the lifestyle of residents. While people want pools to be safe, they also want to be allowed to set up their backyard to suit their lifestyle. It is a lot easier to incorporate fencing where a new pool is installed than where there has been a pool for many years.

For a law to be widely applied and enforced, there must be a high level of acceptance by the community. It is the responsibility for us, as law makers, to ensure that the legislation we put forward reflects community values and standards. It is not sensible to try to force the community to do something they have a strong objection to. It has become clear that the current level of standard and method of operation of the current Swimming Pool Fencing Act is not acceptable for existing pools and, in general, unacceptable to the majority of the community.

The review makes a series of recommendations for change to the legislation and its operation. Key recommendations propose: a new standard for pools constructed prior to January 2003 that maintains the principle of ensuring that there is an effective barrier in place for children under five years of age, but allows pool owners to make their own assessment of the level of compliance; maintains the application of the Australian Standards, as modified, to suit Territory conditions to pools constructed since 2003; the move to an essentially advisory role rather than an inspectorial role for pre-2003 pools in the implementation of the revised system; the extension of the grant system to give people more time to upgrade their pools to either the new standard or the modified Australian Standard, with an increased amount available to encourage pool owners to upgrade to the modified Australian Standard; a continual marketing campaign aimed at providing factual information to the community and target groups; the purchaser and vendor of a property will be able to jointly or individually declare there is no pool on a property.

The government has accepted the findings of the review and the Swimming Pool Safety Bill gives effect to the recommendations that have been accepted. The strategy that underpins the Swimming Pool Safety Bill is straightforward. All pools on premises under 1.8 hectares constructed since January 2003 must have barriers that comply with the Australian Standard as modified for use in the Northern Territory. All pools on premises under 1.8 hectares constructed prior to January 2003 must meet either a defined Community Safety Standard or the modified Australian Standard at the time of sale or lease. Pool owners will be able to make a declaration that their pool meets the Community Safety Standard. There will be no automatic inspection, however, pool owners will be able to seek advice from pool safety advisers if they wish. There will be no significant financial incentives provided to those who upgrade to the Community Safety Standard or the modified Australian Standard, and ongoing information and awareness campaigns relating to the maintenance of pool safety standards by pool owners and water safety education and awareness.

The bill before the House proposes a repeal and the replacement of the Swimming Pool Fencing Act. While many of the provisions of the act remain, repeal and replacement will provide a tidier, more easily understood piece of legislation. The draft bill I am presenting today strikes an effective balance between protecting young children and community acceptance of child water safety responsibility. I believe that this approach will generate the community support necessary for it to be effective.

I will now turn to some of the key provisions of the bill. As I indicated before, the overall aim of the legislation is for improved swimming pool fencing standards to give those who care for children more time to react to prevent a child drowning. The legislation will apply to the fencing of outdoor swimming pools and spas in the Territory. The legislation will not apply to public swimming pools, dams or waterways, or to pools located on land occupied by the Crown, statutory corporations, councils, or the Jabiru Town Development Authority unless the property is used solely for residential purposes.

The majority of definitions are similar to those which they replace. The bill will continue to have the same coverage as the act that is being replaced, and the meaning of ‘swimming pool’ remains essentially the same. It should be noted that the definition of ‘swimming pool’ now excludes the pool that is within a building, provided that all points of access to the house have doors, gates or windows that are self-closing and self-latching. The meaning of ‘swimming pool barrier’ now allows for the prescription of things that might be a barrier.

All new pools constructed after 1 January 2003 must comply with either the Australian Standards as modified, or a non-standard safety provision, both of which will continue to require the approval of the Pool Safety Authority for new pools. Owners who wish to seek compliance under the non-standard safety provision must first seek approval in advance of construction. Existing pools must be at the Community Safety Standard at the time of sale or lease.

A significant change to the Australian Standards is made in these provisions in that a neighboring property will no longer affect the compliance of a pool owner’s backyard pool or spa. Where a barrier is comprised of a fence shared with a neighbor, there is a requirement that the owners or occupiers of the neighboring property be advised that the shared fence will be utilised as part of the barrier to the pool. A pool owner should only be responsible for their own backyard. Likewise, a neighbor should be responsible for making their own determinations about the safety of their backyards. Pool owners have made it clear over the last 12 months, and through the review process, that they want greater personal responsibility for the safety of their backyards. People who have small children on their premises, or have them visiting, are responsible for taking sensible precautions to ensure that their backyard remains safe. Where the danger next door is a pool, the neighbor will have that brought to their attention.

The implementation of the Community Safety Standard will provide for an effective barrier which must be designed, constructed, sited and maintained to prevent a child obtaining unsupervised access to the pool. This principle will be applied in a manner that is practicable and reasonable in the circumstances. Guidelines for the application of the Community Safety Standard will be specified by regulation. As stated previously, provision made under the current act for non-standard safety provisions will continue to apply.

A financial assistance scheme to assist and encourage existing pool owners to upgrade their barriers to either comply with the Community Safety Standard or the modified Australian Standard will also be prescribed under this bill. It is currently proposed that the government will provide a cash grant of up to 75% of the cost of upgrading or installing a fence to a maximum of $3000 for the Community Safety Standard, and $4000 for the modified Australian Standard. The new grant scheme will provide pool owners with a significant incentive to ensure their pool complies with the new legislation sooner rather than later. Not only is this an extremely generous incentive, it should be noted that the Territory is still the only jurisdiction in Australia to offer financial assistance of any sort to off-set the costs of achieving regulated standards. This clearly highlights our government’s commitment to improving pool safety throughout the Territory.

The government believes that the new grants scheme is the best method to maximise compliance by pool owners with the standards as quickly as possible. In keeping with this, we also intend to reward those who have already done the right thing and upgraded their pools. We will ensure that anyone who received assistance under the earlier registration incentive scheme will be no worse off than if they had waited and received assistance under the Safe Pool Grant Scheme.

In regards to compliance certificates and acknowledgement notices, significant changes have been made to the provisions that previously applied to this area. Essentially, the changes are:

· that the Community Safety Standard will constitute the base minimum standard applicable to pools constructed prior to January 2003;

· compliance with the Community Safety Standard will be assessed by the pool owner and a declaration made in an approved form;

· declarations must be provided to the Pool Safety Authority which will then provide the pool owner with a declaration acknowledgement notice;

· all pools constructed since 1 January 2003 will require a certificate from the authority attesting to compliance with the modified Australian Standards or the non-standard safety provision; and

· there will be a compulsory inspection regime for new pools only.

The new declaration system for owners of pre-exiting backyard pools or spas reflects the community demand for greater responsibility. I note that the opposition appear out of step with the community on this issue.

Mr Dunham: Oh, really?

Mr AH KIT: This is unusual for a conservative party which normally supports the principle of community responsibility. The member for Drysdale has been reported as making comments that the declaration system will increase a pool owner’s liability. This is deceptive and misleading. Under any pool fencing regime individual circumstances have always dictated liability. Pool owners who declare in good faith that their pool complies with the Community Safety Standard will not be any more liable now than they have been in the past under any under inspectorial regime. Any statements to the contrary are reprehensible and made solely to stir up fear in the community.

Madam Speaker, no pool owner should be worried about signing a declaration form if they believe they are acting in good faith. If they are unsure about the effectiveness of their barriers, or not sure if they correctly understand the Community Safety Guidelines, they can seek free advice from a Pool Safety Advisor. With the introduction of the new Community Safety Standard as the base standard pre-exiting pools must meet when selling or leasing, there is no longer a need for pool owners to register their pools against the previous council standard. The process of registration has been replaced by a system of compliance. For all of those people who have registered their pools with the Pool Fencing Unit over the last 12 months, we will advise them what the changes mean to them. For those people who have registered new pools constructed after 1 January 2003 we will refund their registration fee.

For pools installed after 1 January 2003, we have always required that the modified Australian Standards be met. This has not changed in this bill. The policy intent remains the same and the modified Australian Standard continues to provide the benchmark for appropriate safety standards within the Territory.

The bill provides for the issue of interim compliance certificates for new pools and requires pool owners and installers not to construct a pool until after an interim certificate is issued. Compliance certificates to the modified Australian Standard will be compulsory for all new pools and pools installed after 1 January 2003. These compliance certificates will only be issued following a satisfactory assessment by a Pool Safety Advisor.

The bill also provides for increased personal responsibility for existing pool owners. Pool owners will be able to declare that their pool barrier complies with the new Community Safety Standard. Upon declaration, a pool owner will receive an acknowledgement notice from the authority, which can be used to allow lease or sale of a property. Pool Safety Advisors will be available to provide free advice and recommendations to assist people in understanding, reaching and maintaining the new Community Safety Standard.

In regard to the sale or residential leasing of premises with swimming pools, as I indicated when I announced this review, we want to make the pool fencing process simpler and workable. Of particular concern previously was the sale, transfer or lease of premises with swimming pools. The following issues have been addressed in this bill:

· inconsistency in application of the law to pools located on common property. That is, unit complexes;

· a provisional compliance certificate will now be sufficient to allow the transfer of title as would be required in the case of a marital split or separation, death in the family or removal of CEO Housing from NT government home loans;

· a provisional compliance certificate will be available to allow a purchaser to assume responsibility for upgrading a pool to the appropriate standard within a set period of time; and

· no-pool inspections to be replaced by a joint declaration to be signed by purchaser and vendor.

As with the current act, the point of sale and residential lease of a property will be retained as triggers for compliance, however existing pool owners will now have the option to comply with either the Community Safety Standard or the modified Australian Standard to satisfy this requirement.

Pools on common properties such as within a unit complex will be required to comply within six months of sale of a unit within the complex. In regards to the obligations related to swimming pools, the bill adopts a long-term approach to increased pool fencing standards and includes provisions to ensure that once achieved, compliance with the relevant standard is maintained.

The bill also provides comfort for councils by ensuring they are not liable if a boundary fence that separates private property and council land is used as part of the barrier. In the administration, there is power to delegate functions under this bill to local governing bodies and others. Whilst this is not planned at this time, it may be considered in the future following the establishment of an effective system.

It should also be noted that this bill refers to Pool Safety Advisors rather than Pool Fencing Inspectors, as in the current act. This name change reflects the different role that staff will undertake in the future, providing a greater emphasis on pool safety advice and education rather than pool fencing direction.

Mr Dunham: They can still kick the doors down.

Mr AH KIT: You can’t help yourself.

Madam Speaker, the bill continues to provide for powers of entry and inspection for Pool Safety Advisors, and these remain balanced with the requirement for a Justice to issue a search warrant. Previous debate concerning the entry and enforcement provisions of the current act has, at times, bordered on the ridiculous. Let me pre-empt such a discussion this time by stating that these are standard provisions common in Northern Territory legislation, which provides for inspector-type functions. For example, Environmental Health or Building Board inspectors. It is important to note that despite the hysteria of the opposition during last year’s committee stage debate, in the 12 months the current act has been operating not once have we had to call upon these provisions.

In regard to reviews and appeals, the appeal process has been reviewed and modified. The Review Committee, established under the current act, will be retained, however, a second tier appeal to the Lands and Mining Tribunal is no longer considered necessary. During the 12 months’ operation of the Swimming Pool Fencing Act 2002, not one appeal was heard by the Review Committee. It is clear that most difficulties can be resolved by administrative processes through the Pool Safety Unit. The Pool Safety Authority, with a further avenue of appeal, open through retention of the Review Committee.

In regard to miscellaneous areas in the bill, regulations will be prescribed under the bill to provide for matters that are necessary for carrying out or giving effect to this act. Initially, this will include detailing the new Community Safety Standard and the new financial scheme, called the Safe Pool Grant. The passage of this bill will result in the repeal and replacement of the Swimming Pool Fencing Act 2002.

We appreciate the substantial nature of the changes proposed in this bill. However, they are both important and necessary to achieve a safer environment for children around backyard swimming pools. A widespread public education and community awareness campaign will be conducted prior to the new laws coming into effect. In addition, there will be an ongoing water safety education and awareness program to ensure the community does not become complacent about issues of water safety.

There will be some who will inevitably describe this legislation as a back-flip by the government. Me do a back-flip? I would like to see that.

We have listened to the community and responded by bringing our legislation into line with community expectations on pool safety and personal responsibility. There is no question that the pool laws had to be revisited after the experiences of the last 12 months. What I am introducing today is a sensible, more workable legislation. It allows for a greater uniform application of commonsense and provides for more flexibility, while still ensuring that there are effective barriers in place around backyard pools and spas to protect our children.

The principle behind the legislation I am introducing has strong community support. The opposition has indicated that they believe pool fencing is not an issue. The former Leader of the Opposition stated this as recently as 6 February on ABC Stateline program, and I quote: ‘The simple truth is that this government, unlike our predecessors, is not so arrogant as to not admit our mistakes. In the case of pool fencing … Mr Dunham: You were going to quote it. Where is the quote? You said: ‘And I quote’.

Mr AH KIT: Well, you saw the program.

Mr DUNHAM: No. I want to hear the quote. Because we know what you blokes are like at plagiarising.

Madam SPEAKER: Order, order!

Mr AH KIT: You saw the program.

Madam SPEAKER: Keep talking to me, minister.

Mr AH KIT: Yes, Madam Speaker. It is very hard not to pick up on interjections …

Madam SPEAKER: I know it is hard.

Mr AH KIT: … from the rude member for Drysdale because he just cannot help himself. I went through the process this morning and explained some of the history to this, which you find hard because you were sitting in the room as, no doubt, a Cabinet minister, so you have got your grubby hands all over this historical nature of how this legislation has come about. I watched with interest, because it was not the Leader of the Opposition …

Mr BURKE: A point of order, Madam Speaker! We have a convention that has been established in this House that the minister distributes his second reading speech and sticks to the text of that speech.

Madam SPEAKER: Yes. Minister, please stick to your second reading speech.

Mr AH KIT: I will go back to the second reading speech, and I will not be long because I will not pick up on any interjections or be railroaded by the rude member for Drysdale. Yes, I was going to quote, I am not quoting now, I am going back to what the former Leader of the Opposition stated as recently as 6 February on the ABC Stateline program.

The simple truth is that this government, unlike our predecessors, is not so arrogant as to not admit our mistakes. In the case of pool fencing, our objectives were, and remain, ones of protecting our children. This government heeded the call for uniformity and a standard legislation to protect the most vulnerable in our community. While the opposition has argued that swimming pool fencing legislation should lie with local government and there is no need for uniformity, the Darwin City Council itself, in its response to the 1996 inquest, stated:
The CLP has been aware of this issue. In 1994, the member for Katherine, now departed from this Chamber, made comment of this issue during a ministerial statement on child safety in the Northern Territory. He said:
We admit the pathway we chose was wrong. However, that is more than could be said about the opposition when they were on this side of the Chamber. We know from their public comments that they support safer pools for our children, and they know in their hearts that this can only be achieved through a consistent standard applied across the Territory. As I have said before, we admit the pathway we chose was wrong. We have listened to Territorians and acknowledge the frustrations that many have experienced - the kinds of frustrations that have led many to not take any action to improve safety standards at all. For this, we have no hesitation in apologising to the community.

We now seek to engage with them in their support of a greater level of personal responsibility in attaining and maintaining safety around residential pools. We are not walking away from the difficulties of pool fencing legislation as the previous government did for many years, and at the cost of those lives. In fact, in the Department of Local Government Annual Report 1998-99, I wish to bring to the members’ notice that under legislative change they have three dot points. I would like to read them into the Hansard:

· Introduce and implement new animal welfare legislation. · Introduce and implement new legislation relating to swimming pool fencing.

· Introduce amendments to the Local Government Act.

That supports the claims that I have made in the introduction of this bill.

I am pleased to bring this legislation to the Assembly. It is about providing our children with a safer community - something, as I have said before, the opposition never did. I am happy to roll up my sleeves and do the hard work that they did not want to at the time. It is likely that the CLP will, predictably, attempt to play politics with the legislation, to their shame. They know they should have acted on this years ago but did not, and they know it will be legislation that they now cannot turn their backs on. They should actively and constructively engage with the process and support legislation that will save lives.

Madam Speaker, I commend the bill to the House.

Debate adjourned.

 

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