Building (Pools) Amendment Bill

E Te Māngai o Te Whare, tēnā koe. Tēnā koutou. It is my privilege to be the first speaker on this, the second reading of the Building (Pools) Amendment Bill. I think it is fair to say that as we come back to Te Whare to debate this bill, we have considerably more information on the table than we did at its first reading. One aspect of the debate that I want to clarify really relates to an exchange that came up between the Minister in charge of this bill, Nick Smith, and me during question time on one occasion, when we had cause to question the motivation of the Minister bringing this set of reforms to the House. When questioned on some of the analysis—some of the assumptions of the Minister—he laid claim in this House to the fact that it was indeed Labour that had set out the process that he was undertaking and, therefore, any questions we were raising were somehow an own goal.

I want to clarify that Shane Jones did initiate a review of the fencing of swimming pools when he held that ministerial portfolio. I read the forward of Minister Jones’ consultation document at that time, and he was very clear. He was clear that the Fencing of Swimming Pools Act had saved lives but that there were more lives to be saved. We were obviously not able to finish that process—there was an election. That work was shelved for years. Nick Smith then came into the role, dumped the process that Shane Jones had undertaken, and rereleased a discussion document that specifically stated that, in fact, his purpose was to reduce compliance costs.

The whole purpose and direction that Nick Smith was setting out in undertaking, again, a process of seeking submissions had a very different flavour from that set out by Shane Jones. I want to correct the record because it is disingenuous to say that what we are debating in this House was instigated, particularly in terms of what it has produced, by the Labour Party when Labour’s primary goal was to reduce further, if possible, the loss of life, and the primary goal of the Government has been something very different. That is not to say that these two things are mutually exclusive, but we would not prioritise one over the other when saving lives should clearly be our main, primary focus.

It is also fair to say that during this debate it has been clear that, since the first reading, some of the claims that have been made by the Government on the way that the bill was first drafted have been patently false. As I have said, the Fencing of Swimming Pools Act (FOSPA) has—there is no question—contributed to a large decrease in the number of accidental drownings in New Zealand, from 100 drownings in the 10 years before FOSPA to 30 drownings in the 10 years that followed through to 2012.

Undoubtedly, it has made an impact, but what the Government claimed was that the bill that it presented to us, which departed from some of the standards as originally first drafted and departed from some of the standards that were established, would reduce further the loss of life, and we voted in good faith for that bill based on the regulatory impact statement. We then heard evidence from WaterSafe Auckland, the Auckland Regional Public Health Service, the New Zealand Paediatric Society, Starship Children’s Health—graphic, graphic submissions around how they questioned whether or not this bill would, in fact, achieve that. In fact, they raised the point that they believed more lives would be lost as a result of these amendments.

In particular, I want to reflect on the fact that the New Zealand Paediatric Society stated that the most effective way to reduce drownings further would be to ensure compliance with the existing standards that were in place—hard-fought standards that were the subject of a huge amount of consultation. Their view is that if you want to reduce drownings, you must check that people are actually complying, because there has not been a drowning in a pool that has been compliant with the Fencing of Swimming Pools Act since it has been in place, and that is a really interesting point. Most of the drownings have, in fact, been when there has been a breakdown in following and complying with that regulation—a broken latch, something that has enabled you to climb over fencing, and other aspects that were outside the control of the Act itself. But, actually, when the Act is followed, it works.

The idea, which this bill originally came to the House and proposed, that we create a longer lead time between inspections by councils, seems completely counterintuitive. The argument was that councils were not consistent and uniform in their inspection regimes, and so the Government proposed that even though a majority of councils inspected every 3 years, we uniformly set the level at 5 years. That struck us as being wrong. Auckland Council, for instance, maintained that it should stick with the 3-yearly inspections, as 65 percent of pools are found to be uncompliant when inspected within that time frame. Imagine what compliance would be like if we pushed it out to 5 years.

We pushed hard at the select committee for the Government to see sense and to create a uniform inspection regime at 3 years given that that is what most councils were advocating for themselves, and I am very, very pleased to say that the Government agreed with that analysis eventually and that that is an amendment that has been made as part of that robust select committee process. We congratulate the Government on that—that was a good step. In fact, that is one of the reasons why we will be voting, at this stage, in favour—

💬 Chris Bishop: Oh, very good.

—to make sure. Hold fire, Chris Bishop. We want to make sure that we support the majority amendments that were made at the select committee and acknowledge the progress that was made. But our support at the third reading is contingent on successfully making further amendments to the bill at the Committee stage, particularly around the dilution around four-sided fencing.

Currently, all of the evidence says that the best way to stop drownings is to have a complete four-sided fence. The Government has made an amendment that will allow the entry to a home—for instance, the door to a home; a door between the home and the pool—to act as a fourth side, instead of a fence, and people can use, for instance, a monitored alarm that will sound if someone exits through that door, into the pool area. Alarms are unproven when it comes to ensuring safety. We need only look at what has happened in jurisdictions where they have done some analysis around fire safety. If an alarm becomes annoying to people, they disable it. It is easily done. One of the primary causes of some of our accidental drownings is the fact that people are distracted, and if a parent is distracted when supervising a pool area, they are less likely to hear an alarm. So if you have already got that primary cause in place, the likelihood they are going to hear an alarm is also diluted, and then you lose all your protection.

We should not allow our legislation to be based where human frailty can enter, because this is where our safety and our regulations fall down. Significant evidence would suggest that alarms are unproven internationally. There are lots of reasons they can fail. We do not support them, over and above the other mechanisms that have been proven. So we will be seeking an amendment to remove the use of alarms as a substitute for the current standard, which works.

I want to acknowledge the other gains that the select committee made. It broadened the purpose of the Act, beyond drownings, to injury, which was an important point. The Building Act, of course, gave the impression that rather than having defined standards that were moving to this acceptable solution, it embeds, actually, that the acceptable solution is the one that is actually specified in the standards in the Fencing of Swimming Pools Act. Why did officials not make that clear to submitters? There was so much confusion around that point, but we hope that we have clarified that at the select committee.

The bill also provides greater information now to councils re spa pools. Again, we are now reliant on spa pools having lockable lids. There are still some question marks for us over that, over whether that is going to be an acceptable solution. We do know there have been drownings in spa pools. But, for us, the main point was that there are elements of this bill that dilute what we have, and we are keen to remove those parts of the bill. We are supporting it for now, but our third reading support will be contingent on our amendments being successful. I really would like to bring the attention of members across the House to our hope that our amendments will have their support.

It is not usual for the Government chair of a select committee to quote from a Labour Party minority view on the committee’s report back, but I am compelled, having heard the address from the member Jacinda Ardern, who has just resumed her seat. The Labour Party’s minority view, as part of the committee’s report back says: “… we are pleased that the submission process has worked to remove many of the defects submitters were concerned about. While some submitters will be disappointed that other barriers (rather than fences) remain permitted, the system overall will be more effective than less.” That really sums up the good work that has occurred on this bill at the select committee.

The bill that has been reported back to the House for its second reading is significantly different from the bill that was introduced for its first reading. We did a lot of good work at the select committee. We heard a lot of very good submissions from a number of very good submitters. I was impressed by the calibre of those submissions. But this is a bill that, effectively, repeals the Fencing of Swimming Pools Act of 1987 and moves those provisions into the Building Act. It does not actually create a situation that is of great concern, other than changing that piece of legislation into a more consistent, broader piece of legislation.

There are three quick points that I want to make while I have the floor. One is that spa pools and hot tubs with safety covers will no longer require a fence. This is a practical solution that means that it will impact upon the vast majority of owners of spa pools and hot tubs that already have lockable covers. The vast majority of those pools are not currently fenced. They are difficult for local authorities to identify because many of these pools are portable.

Secondly, retailers will now be required to inform people who buy spa pools and portable pools of the safety rules, to help people understand how to use these pools legally and safely.

💬 Hon Simon Bridges: Knowledge is power.

That is right. Knowledge is power. Thirdly, councils will now be required to inspect pools every 3 years instead of every—

Debate interrupted.

The House adjourned at 10 p.m.