Building (Pools) Amendment Bill

I would like to just reiterate a couple of the points that I was making when this debate was interrupted several weeks ago. This is the second reading of the Building (Pools) Amendment Bill and it was a very good select committee process that saw us sit in a number of places around the country, not just here in Wellington. This is a bill where emotions did run high amongst some of the submitters, for very good reasons, because this is a bill that is designed to ensure the protection of unsupervised young children from drowning in swimming pools and hot tubs and things of that nature.

This bill amends the Building Act 2004 and it repeals the Fencing of Swimming Pools Act 1987 and incorporates that Act into the Building Act. The dedicated safety pool requirements of the Fencing of Swimming Pools Act now become part of the Building Act. That is a sensible step, in my view.

I want to just cover a couple of the main aspects that the bill covers. One is that, under this bill, spa pools and hot tubs with safety covers would no longer require a fence or a barrier around them. That is because those spa pools that have safety covers do provide the adequate and proper protection required for unsupervised children. As a result of this bill, retailers will now be required to inform buyers of the new rules relating to swimming pools and hot tubs.

As a result of the changes made at select committee and recommended to the House, councils will be required to inspect pools every 3 years. It became clear during the submission process that some councils were already doing that; many were not, and some not at all. It was the case that Auckland Council was inspecting every 3 years, but there were a number of councils that did no inspections at all and some that did them on an irregular basis. The original proposal in the bill at first reading was that the mandatory period should be 5 years, but upon hearing some very good submissions from a range of submitters, we have recommended to the House that that period be reduced to 3 years.

The bill also provides for independent inspectors to be able to conduct pool inspections. These would be independent, suitably qualified inspectors who had been approved by the Ministry of Business, Innovation and Employment. It would not preclude councils from maintaining their own inspection regime and own inspection staff, but if councils wanted to contract that role out to independent, suitably qualified inspectors, then that would be available under this bill.

Another major aspect of the bill is that it provides clarity about the rules for installing new pool barriers. The bill extends the definition of fencing to barriers, and it is an area that I think helps the legislation. It will mean that a barrier must be as effective as a current fence, so I think that is a good move. I commend this bill to the House, and I look forward to watching it proceed through the House. Thank you.

For about the last half of the hearing of submissions and the consideration of this bill, I sat on the Local Government and Environment Committee. Can I thank the chair for his chairing of that committee; I thought he did a good job. I have to give a wee flick to officials here, and I suspect my National Party colleagues agree with me on this: the officials were appalling, in their description to submitters and in the commentary on the bill, at explaining what was going down in the legislation. Indeed, I think it took some input from the Opposition, amongst others, to point out the fact that they were not actually doing a very good sales job and, as a consequence, there were lots of people in civil society who had the wrong end of the stick as to what was going down in the legislation.

The effect of the legislation is to codify under the Building Act, as an acceptable solution, the earlier practice under the Fencing of Swimming Pools Act. In broad terms, that was the stated intention of the Government, but it was not well described. There were also a couple of holes in the way in which they were codifying the old Fencing of Swimming Pools Act provisions into this new Building Act means of compliance, which were not well understood. They came through from submissions from the submitters who appeared before the select committee, and most of those things have been sorted out.

One of the changes that was proposed was to make it clearer that there needed to be a consistent inspection regime across the country. As the chair of the select committee, Scott Simpson, has just said, there are varying practices around the country. Some councils were inspecting every 5 years; some were inspecting every 3 years. Some councils, in fact, had very poor inspection regimes and were probably not doing a decent job at any time. So I think the Government is right to try to make that consistent across the country. The proposal for 5 years was pointed out to be flawed, apart from anything else, by some of the councils. The statistics that the Auckland Council provided us showed that after 3-yearly inspections, 65 percent of the pools they were re-inspecting had become non-compliant. Imagine if you left that to 5 years—the level of non-compliance would be even worse, and, of course, that would increase the number of drownings caused by swimming pools.

There have been some critics of the Fencing of Swimming Pools Act, saying that it added an unnecessary regulatory burden to people who own private swimming pools. I disagree with that, and, indeed, the evidence that came to the select committee was that drownings from home swimming pools decreased in the 10 years following the passage of the original Act, from around 100 drownings in the 10 years before the Act came into force to 30 drownings in the 10 years that followed. Every one of those was a tragedy, but those statistics show that there was a 70 percent decrease in children drowning in swimming pools as a consequence of the passage of the original Act. Undoubtedly, that Act has saved many lives.

For those reasons, the Labour Party was determined to try to make some improvements in the bill to get it as close to the Fencing of Swimming Pools Act as was possible and to make sure that any changes from it were justified. It was notable that during the period that elapsed from the original discussion document, which had been put out by Shane Jones some 5 years earlier when he held the ministerial portfolio, the language had changed in the discussion document, which was initially withdrawn by the incoming National Government. Shane Jones’ discussion document focused on child safety; the focus in the subsequent document that came out some 5 years later from Nick Smith placed a lot more emphasis on reducing compliance costs. So we were determined that we would put child safety first. Obviously, compliance costs are relevant—you do not want to over-regulate things—but, first and foremost, this is about reducing drownings.

As my colleague Jacinda Ardern mentioned in her contribution, there is one remaining aspect that worries us, and that is the change to the definition of four-sided fences. There are two parts to this; one part does not worry me, the other part does. Presently, in law, it is arguable under the Fencing of Swimming Pools Act that a natural barrier like a cliff cannot act as a fence on one side of the pool. I actually think that it should. So long as the effect of that natural barrier is the same as a fence, I do not think it matters that it is a natural barrier rather than a fence, so I do not mind the law being clarified to say that natural barriers can be treated like fences.

But the other part of the change does worry me, and that is that instead of having a fence between a house and a pool, you will now be able to have an alarmed door from a room in the house to the pool. That is a change that the Labour Party opposes, because the evidence is that those alarm systems do not work as well as a fence. There are a number of reasons for that. We see it in human nature: people get tired of alarms going off and they disable them. We have had recent occurrences in Dunedin—quite tragic ones—where the fire alarms that are installed by landlords had been disabled by students because they do not like the fire alarm going off when the toast burns, or whatever other reason there is that they are going off. That is human nature. The same thing will happen in respect of alarms on doors. People will get sick of the noise—there might be an alarm that jams or something—and some of them will be turned off.

I think that the evidence of the Auckland Council, that even after 3-yearly inspections 65 percent of the pools had become non-compliant in some way, is evidence that if we introduce another option around alarmed doors we are going to see that be less effective than a fence around a swimming pool. So the Labour Party says that we are supporting this bill at this second reading but that we will be bringing forward a Supplementary Order Paper so that we actually go back to the old Fencing of Swimming Pools Act rule in that regard and require a fence between a house and a pool, not merely an alarmed door. I would hope that this House would give consideration to that at the Committee stage so that we do not have alarms that people can disable.

The other thing we know is that most of the drownings that do occur in respect of fenced swimming pools is when people are distracted. You know people can be distracted. It is another source of error that can occur when a parent is distracted, and I fear that parents or grandparents or friends are going to be shocked when they realise in future years that if we proceed, as is proposed in the bill in its current form, to allow alarmed doors rather than a fence around a pool, we are going to have a worse outcome. That said, I agree with the select committee report that in all other aspects this legislation effectively codifies the old tests and, for that reason, I think that the Labour Party will support it if that other change is made.

I want to very briefly say something about spa pools. Spa pools were caught within the definition of a “pool” under the Fencing of Swimming Pools Act, but it was never enforced. It was always a bit of a nonsense that they were caught up. It was not properly thought through at the time. We have clarified in this bill that a spa pool that has a lockable lid is not a “pool” for the purposes of this legislation, and I think that is a practical step as well.

I rise in support of the Building (Pools) Amendment Bill in this second reading, and I have to pick up from where Mr Parker left off.

I came into the select committee process later. I did not see the full process through, and although the ancillary purpose of this bill was to codify conditions around the fencing of swimming pools and to repeal the Fencing of Swimming Pools Act of 1987, and to amend the Building Act to bring it all into one, from my understanding of where the Local Government and Environment Committee was going, this was a system brought about to protect young people, and people in general, from drowning, and to prevent the injuries sustained from near drownings. So I think it is important to make that clear from the select committee process.

I heard information presented by officials to the select committee that showed that according to evidence from the old Fencing of Swimming Pools Act, the changes did reduce the risk of drowning for young people. It said that 80 percent of young children who drowned were 2 years or younger and that fencing certainly does prevent drowning. Some would say, of course, that that is common sense, but certainly, as a mother of two young children, I can appreciate the fact that when children see water, they get pretty excited, and if you are not keeping an eye on them they could, certainly, unwittingly wander off and find themselves getting into difficulties. So fencing and cordoning off of swimming pools is an important part of our society here in New Zealand, where we are so active in the water.

I think one element that I am really pleased about in respect of this bill is the inspections regime. Obviously, it is being taken now to a 3-yearly basis, to make inspections. Authorities will oversee that, and suitably qualified independent inspectors approved by the Ministry of Business, Innovation and Employment can also make inspections, but I think that that 3-yearly basis is an important time frame to implement. It obviously keeps pool owners on their toes, and if owners are found not to be complying with the regulations, then there is a stepped framework for enforcement, and that includes not only warnings but then infringement notices, and then, ultimately, court prosecutions, if that is needed.

We have already heard, in speeches prior, that one of the practical things about this bill is that it incorporates hot tubs and spas into the regulatory regime, so a spa pool that has a locked, sealed cover when it is not in use is an appropriate barrier to keep people—certainly, little people—out, and that means that it is also easier to enforce. So when a person goes to buy a spa pool, the seller of that spa pool can educate the buyer about the regulations there and then, and make sure that the buyer is aware of those regulations and to make sure that they put them into force.

So I am quite happy with this bill. It brings about some minimum standards. I think it is a good thing that that is being codified in the Building (Pools) Amendment Bill, and I commend this bill to the House.

This Building (Pools) Amendment Bill will lead to a child dying from drowning. Let us not try to use technical language to get around the fact that this bill loosens the rules on the fencing of swimming pools and that all of the evidence is that a child will die as a result of the provisions in this bill. The evidence from the experts is also that for every child drowning, there are nine child near-drowning incidents—near-drowning incidents—that lead to brain injury. So from this bill we can expect children will die and children—many more—will be seriously injured for the rest of their lives. Those are the consequences of this legislation. That is why the Green Party will not be supporting this bill.

The primary reason given by the Government for this legislation is this. It is about “striking a balance between reduced compliance costs for residential pool owners and territorial local authorities … and maintaining child safety”. This Government is pitting the lives of children against some cost savings for people who are rich enough to own a swimming pool and for some local councils. On that balance, striking a balance, the National Government has decided in favour of the pool owners, against the risk to the lives of children who may drown or be seriously injured in a pool accident.

We heard submissions from a large number of experts in child health and well-being who expressed serious concerns about this legislation. The Auckland Regional Public Health Service said that under the previous legislation—the 1987 Act that this legislation is now going to undo—there were 200 lives saved from the fencing of swimming pools and several thousand children were prevented from near-drowning as a result of strong rules and clear rules, around the fencing of pools. The National Government is about to pass legislation that will undo that, and increase that risk.

Water Safety New Zealand estimated that the cost of child drownings and hospitalisations from near-drownings since 2005, in the last 10 years, is around $110 million. That is the cost to the families, and that is the cost to the health system. That is the cost, if you just want to look at it in dirty money terms, like National wants to—saving a bit of cash for a few residential pool owners, and $110 million in the cost to families and the public health purse from changing these rules and making it easier for children to drown.

We heard from Mr Neil Price, paediatric surgeon and President of the New Zealand Society of Paediatric Surgeons. He was the one who said that “for every drowning up to 9 children suffer a near drowning [incident].” He said: “These consequences have grave social [costs] and significant financial costs.” He said that the current law reduced the drowning rate from around ten to only three a year, saving seven lives every year since 2002. Every single one of those lives saved by the previous legislation has meant a family has not had to suffer the terrible tragedy of a death, and for many, many hundreds of others not the terrible tragedy of a near-drowning.

We heard from some of these families. They came to the Local Government and Environment Committee and they told us: “Don’t change the law. We lost our child to a drowning. We know what that means for a family. We do not want a single other family to have to suffer that unfairly, unjustly.” And yet the Government just did not hear them. Those families did not exist, for National, because, as Paul Foster-Bell argued, people want to have infinity pools and would rather not have a fence. That is fine for that person; it is not so fine for the child who drowns as a result of changing the law to allow someone to have their little infinity pool that is not marred by the ugliness of a fence.

The Children’s Commissioner came to the select committee. He also argued very strongly for the select committee to make changes to the bill to strengthen the existing law to fence off pools, for the sake of children’s lives. He and others argued that all around the world, including in Australia, the most recent changes to these kinds of laws have been to strengthen the fencing provisions to protect the lives of children. So what does National do? Protecting the lives of children is not as important as reducing some costs for those who are rich enough to own pools, and so it is softening the law and making it easier for children to access swimming pools, without supervision, and to subsequently drown or suffer a serious injury. The Children’s Commissioner also talked about the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory, saying that in all actions concerning children the best interests of the child must be the primary consideration. What is the primary consideration in this legislation? Saving money for some residential pool owners, balanced against children’s lives.

We know that this bill will lead to increased risk for children, and death, and injury. And the purpose of making law, surely, by any Government—particularly regulations like this—should be to improve safety for children: to make it easier for children to live well, live long lives, and to meet their full potential. So how did we end up with a Government that would rather save a few rich people, who can own pools, a little bit of money and still allow for children to be at increased risk?

Plunket has come and said that it is seriously concerned about the impacts of this bill on children’s lives and on families’ lives. They expressed deep, deep concern that the law is changing around fencing to allow for untested, experimental systems to keep children out, because the standard that is being set in this legislation is not a standard about the kind of fence, and the kind of latch on those fences, but a performance-based standard. Children are being used—their lives are being used—as an experiment by this Government. The Government is saying: “You can use any kind you like; you can pretty much do anything you like, as long as we think it might keep children out.” But when those experimental systems fail, it will be a failure that costs a child their life. On what basis would any rational Government decide that it is OK for pool owners to experiment with the kind of fence that they might use, knowing that it is children who will pay the cost with their lives and their livelihoods for that experiment? Because that is what this bill does.

This is really clear from the Water Safety New Zealand submission, which talked about the cost, the risks to lives, about its efforts over many years to prevent New Zealanders from drowning—and, particularly, to prevent New Zealand children from drowning. So much of the work that has gone in to protecting children from exactly this risk is now being undone by a ridiculous, selfish piece of legislation that National has dreamt up, because some rich pool owners want to save a little bit of cash. Shame on you, National.

💬 Hon Member: Ha ha!

You think it is funny? I am sorry, does the Minister—sorry, let us just be clear about this. One of the members of National just laughed at the prospect that children are at risk because of this legislation. That is the kind of National Government we have. Thank you.

I rise on behalf of New Zealand First to indicate that we will be supporting the passage of this bill. I think the points have been pretty well traversed at this point in time. It is always the case when you get one of the late speaking slots that most of the members have covered off the points, but for the record I will state that New Zealand First does accept the logic behind the bill.

I am going to digress just a tad. I do accept that there are some people who think that lowering the compliance costs for pool owners might well be aimed at one particular sector of the community—that is, the people who are fortunate enough to have very flash homes and big flash swimming pools. I am just going to put on record in Hansard the admiration that I have for a gentleman who lives in Carterton who, out of the kindness of his heart, gave a family who are not what you would call a rich, wealthy family a swimming pool for Christmas because they had done things over time to assist him and make his life better.

One of the things that he thought he could do to help them was to provide some entertainment and a facility that their children had never been able to enjoy, and probably one that the parents could never have afforded to pay for themselves—a swimming pool. Of course, with that came the obligations of meeting the requirements of the Fencing of Swimming Pools Act. So the compliance issues around pool fencing are not compliance issues reserved for just the wealthy. These are compliance issues that affect ordinary, everyday people—what some people might term a family in the low socio-economic group. I want to take my hat off to that gentleman. I will not name him in the House because he would just be embarrassed, but he knows who he is.

New Zealand First does not have a lot of problems with the issues that were traversed at the Local Government and Environment Committee, and, in fact, we understand them. The six key changes that are being made to existing law lie around child-resistant covers, which were deemed to be an adequate means of restricting access to spa pools and hot tubs. I acknowledge the Labour speaker who pointed out that spa pools and hot tubs were caught up in the legislation. As time has moved on, the design of spa pools by the manufacturers has been such that they have provided a perfectly secure means of providing that protection and safety for children, to stop them drowning in these pools, which makes the legislation somewhat redundant as far as they are concerned.

We particularly like the fact that retailers and manufacturers are now going to be required to inform buyers about their obligations under the Act when they buy these spa pools, these hot tubs, and these portable pools. We like the fact that they will be required to instruct the purchaser as to how to maintain and keep secure the pool that they have purchased and undertake to put on their property, and that, in doing so, they undertake to accept the responsibilities that come with that—that is, the responsibility of keeping that pool safe and, particularly, keeping children safe from any accident that might occur. Those seem to us to be perfectly sensible.

The other thing that is perfectly sensible is getting some rationality, consistency, and standardisation in terms of how the territorial authorities exercise their duties and responsibilities in respect of inspecting and certifying residential pools. This has clearly been an area where territorial authorities all over New Zealand have either struggled, simply not complied, or been somewhat inconsistent across the board. It is interesting, Mr Assistant Speaker Tisch—and you yourself, being from rural New Zealand, provincial New Zealand, know full well that some ratepayers out there actually have their property in two territorial authorities. It is just a matter of luck as to where the swimming pool is placed as to whether you are subject to inspection from, for example, Tararua District Council, or Masterton District Council, or Vicky Verker down in Carterton and South Wairarapa.

If you are a ratepayer who owns two properties—one might be in South Wairarapa and one might be in Carterton—you may well have portable pools in both locations, and to find that you are subject to different inspection criteria and different compliances from two different councils can be somewhat frustrating if you are such an owner. I do not know that there would be many cases such as that, but there will be some, and it is nice to see that we are going to have some consistency applied across the board between territorial authorities due to the passage of this bill.

The bill introduces a graduated enforcement regime, with infringement notices as the preferred tool for compliance, and court prosecutions only in serious breaches. It also allows for barriers other than fences to be used for restricting access to residential pools. It was an interesting conversation, this one, at the select committee. There was some debate as to whether a natural cliff provided adequate protection. Well, I guess if you are a child who has been trained and schooled by the SAS and you know how to shimmy up a sheer face of a cliff and then, having exercised those talents and skills, you are then not able to swim in the pool that you might have fallen into when you got to the top of the cliff—we just do not quite see some of those things as being rational arguments. So if there is a sheer cliff, it will now be considered to be a suitable barrier.

New Zealand First will support this bill through. We will watch for the amendments from the Labour Party members, and we will judge the legislation on the merit of the debate as we go, but we will be supporting the bill.

E Te Mana Whakawā Tuarua, tēnā koe. This is a very sensible, practical, pragmatic, and sound bill from a pragmatic Government, and I agree with the comments made by Major Mark. I completely refute what are, I think, scurrilous and revolting accusations made on this sensitive issue by Metiria Turei.

Debate interrupted.

The House adjourned at 10 p.m.