Building (Pools) Amendment Bill

It seems timely that as we come to debate this bill a flyer from Safekids arrived in the mail, which a number of MPs may have received. I just want to point out that Safekids have been massive advocates in this space and have repeatedly called on this Parliament to make sure that we do not lessen the current safety provisions that exist, and it has to be said that the fencing of swimming pools, under the Fencing of Swimming Pools Act, has been incredibly successful in reducing the number of drownings. We have gone from 100 drownings in the 10 years before the Fencing of Swimming Pools Act, to 30 in the 10 years to 2012. So no doubt it has had an incredible impact.

What we need to be debating here in this Chamber today—well, the primary consideration for the Labour Party—in the context of debating these parts, has been what we are doing to further reduce the number of deaths and, I want to add, injuries because that was the significant point made by submitters on this bill. So that has been our primary consideration and it was from the point at the very beginning when Shane Jones, originally in Government, began a consultation process on this Act with the view—and I know this because I went back and read the beginning of the consultation document that Shane Jones put out as Minister—the primary goal, of reducing drownings even further.

That is in direct comparison to the discussion document because that process, for reasons I am unsure of, was dumped and restarted by the Hon Dr Nick Smith. When I went and read the beginning of that document, drownings were mentioned but so was a reduction in regulation and regulatory compliance. So there was a different focus. There was an additional focus added at that point, but for us the primary goal has been quite singular.

From Safekids’ perspective—look, it has put out this information on the number of injuries and deaths of children in New Zealand. Over 60 percent of all injuries to under-fives happen in the home, and it does point to the number of drownings—12 percent. It advises that pool owners use gates and stairs at doorways, and have a compliant fence. Safekids’ view of what a compliant fence needs to be and what this bill proposes are quite different, and I do want to talk about that a little bit.

The schedule of this bill does significantly change the way we define what is acceptable as an enclosure around a pool or an immediate pool area. If I could just give a little bit of context at the beginning of this Committee stage debate. When we first started this debate we entered into it in good faith and voted in favour because the Minister told this House, and the regulatory impact statement told this House, that this bill would save lives. Yet when we got to the select committee the overwhelming evidence from submitters was that their view—and they were experts in the field—was the opposite: we were in fact diluting, in their view, a number of the preventative factors that had been in place.

I will concede that there has been considerable change by the select committee on this bill, good change, and I thank the officials and the select committee members for that. One of the most significant changes has been around compliance. If I were to find where that was set out—I believe it was in clause 12 of the bill, in Part 1. The compliance regime for pools, obviously, is managed by local councils. Originally, the first draft of the bill stipulated that we would have certainty around the inspection regime. At the moment it is a bit ad hoc. There are some councils that inspect on a different cycle from others. By and large, though, many councils tend to inspect around the 3-yearly mark, and we know from Auckland Council that that was the case for them, because they came and told us that they inspected pools every 3 years, and that when they did that—I believe it was every 3 years—they found that 65 percent of pools were non-compliant, within a 3-yearly time frame.

The bill, however—I will grant you this—wanted to create uniformity, because some councils were not inspecting that often. So they chose 5 years. For some councils that would have been a lift, but not for everyone. So the select committee took the evidence base that said some councils are inspecting at 3 years and are finding a lack of compliance, and we know that for all of the drownings that have occurred in New Zealand, or I believe at least the majority of them, there have been non-compliant fences. It was not that the law had allowed a loophole that allowed a drowning; it was that there were non-compliant fences, so surely compliance would be the thing that would be most likely to prevent all drownings in pool areas.

So compliance needed to be absolutely at the top of our radar; absolutely. It was put, at the select committee, that perhaps, yes, having a uniform time and inspection cycle was a good thing, but let us lift the bar. Let us not have it at such a large lead time that you could have disintegrated fencing or latches, and so on. So I am very pleased that that was changed at the select committee to 3 years, under I believe what would be roughly around—clause 12 I think is where the inspection regime is. We are absolutely supportive of that.

Other gains that were made by the select committee included broadening the purpose beyond just drowning, to injury. I still vividly remember the paediatricians—I believe it was—who came to the select committee and described some of the injuries, including significant brain injuries. So, yes, we have fixated on death by drowning, but the ramifications for a child who is in a pool for just a few seconds without supervision are absolutely crushing.

The acceptable solution under the Building Act is now the one specified in the schedule to the old Fencing of Swimming Pools Act (FOSPA), which is excellent. The discretion to vary from that solution to another, or to exempt pools, is the same. So it is no wider in breadth, and the test for its application is the same as what we had under FOSPA. I have to say there was really a lack of information out there for a lot of the groups who came to the select committee—that message simply had not got through. I can understand the alarm that they had, and it was rightly placed.

Also the bill now provided that the information provided to councils for spas and other small pools would help them distinguish—because the rules now around a spa being allowed to have a lockable lid is a big change and one where we are going into somewhat uncharted territory.

So we had a number of areas where we have had concerns with this bill, but I have to say there was one that really stuck for us and it is set out in Part 2 of the schedule, and I want to bring that up in the bill. That really defines the way that a pool area must be enclosed. It says in the schedule, and there have been some changes here, that where a building forms all or part of an immediate pool area—so imagine that you perhaps have a house form one side of the barrier around a pool area. You might have a fence on three sides and then maybe a ranchslider out into the pool, and this forms all or part of an immediate pool area barrier, so it is not a four-sided fence.

The bill says that the doors between the building and the immediate pool area must not be able to be readily opened by a child and must either emit an audible warning when the door is open, or close automatically after use. What that means is that you could have a ranchslider, for instance, that could be opened but when it is opened an alarm might go off, but you are, to all intents and purposes, in the pool area at that point. There is an alarm ringing but you are in.

Our major concern is that this is not proven as a way to prevent drowning and harm—an audible alarm. It is not proven. We know that a contributing factor to drownings in a pool that might be compliant, the fencing might be compliant, is lack of supervision. So we cannot allow any of our regulation in this area to be reliant on the most fallible thing of all, and that is the constant attention of an adult or of supervision. Because if we rely on that, we know we will fall down. And we are relying on an adult hearing that noise and responding to it.

What it suggests to me is that (a), if a kid is able to pull open a door and get out that door, there is probably no one around in the vicinity, and if you are in a large house, who is to say they will be able to hear that audible alarm; (b), who is to say that alarm does not get triggered every so often and it does not drive everyone in the household crazy, to the point that they disarm the alarm? That is a reasonable assumption because we know that has happened before. There was, I think, evidence from a study in London of smoke alarms installed for free in low socio-economic neighbourhoods. In small flats the alarms went off regularly, so what was the response? They were taken out by the owners. They were just disabled because they drove people nuts. I have the same concern about being reliant on these alarms. So we have a Supplementary Order Paper that basically—

Kia ora, Mr Chair. I rise on behalf of my colleague Ron Mark to take a short call on this bill in the Committee stage. New Zealand First will continue to support the bill. We want to acknowledge—as Jacinda Ardern, the previous speaker, did—the work of the Local Government and Environment Committee and the amendments that have been made.

During my time as a member of the Rodney Local Board of Auckland Council, it was one of the jobs of the local boards in Auckland to actually go round and inspect for exemptions—predominantly around spa pools and spa pool covers, and gates opening in and out, and so on and so forth—so I am aware of the 3-year cycle of inspections that Auckland Council has had. We think that is a very sensible time frame to try to even out across the country, so that all councils will be required to make sure that the regulations and the safety measures that have been put into place are being adhered to and are fully up to speed. We do think that the amendments made, particularly around hot tubs and spa pools, bring the legislation into line with the advances around lockable covers and other mechanisms that are now in place around those particular items.

If I can just take a short moment to talk about the Supplementary Order Papers, the one that Jacinda Ardern referred to, which is Supplementary Order Paper 208—New Zealand First will be supporting that Supplementary Order Paper. We agree with Ms Ardern, and perhaps the concept of an audible alarm is just probably a step too far for us. We share the same concerns.

We like the way Ms Ardern’s Supplementary Order Paper is worded. We see that it is possible for an existing door, or a door on a home that is going to have a pool built on the other side of it—because let us get real. If you are able to walk out of your ranchslider door and straight into a pool enclosure area, more often than not it has been purposely built in that way. We see that it is possible, even if it is a ranchslider, to have some mechanism by which the ranchslider itself can be slammed shut and can have a childproof catch or latch. We think that that can be accommodated in the wording that Ms Ardern has placed here, which reads “(a) doors between the building and the immediate pool area must not be able to be opened by children, and must close and latch automatically after use:”. So we see that that is possible, we think, without causing any undue stress on the homeowners, but it gives us that little bit more protection for what is most valuable to all of us, which is our children.

However, with regard to Supplementary Order Paper 213 from Metiria Turei, unfortunately, we are unable to support that Supplementary Order Paper at this time. We recognise that it addresses the same concerns as Ms Ardern’s Supplementary Order Paper. We feel that Ms Ardern’s amendment to the legislation is more appropriate. It sits more closely with New Zealand First’s attempts to bring the legislation up and modernise it, and to make sure that the safeguards are still in place so that we do not create any opportunities for any further tragedies. So, unfortunately, we will not be supporting Supplementary Order Paper 213.

I will not take up any more time of the Committee, but, as I said, I just wanted to take a quick call on behalf of my colleague Ron Mark to say that New Zealand First will continue to support the bill. We will be supporting Ms Ardern’s Supplementary Order Paper, but, unfortunately, we will not be supporting the Green Party’s. Kia ora.

The Green Party is opposing this legislation. All of the advice that the Local Government and Environment Committee received from everyone involved in child safety and child health—from paediatricians to Starship Hospital, from doctors to families whose children have died from drowning, as well as the information received about the effects of near-drowning on children and the significant brain injury that occurred—all said that this bill would cause more harm to New Zealand children and that it would put them at much greater risk of drowning or near-drowning. The justification given by the officials, and, therefore, by the Minister for Building and Housing, was that it is more important for there to be some cost savings on behalf of local government than it is for the lives of children to be protected through good quality rules around the fencing of swimming pools. As we know, the Fencing of Swimming Pools Act has actually saved a number of lives over the many years it has been in place, and this bill is a degradation of that legislation, and it increases risk to children. It is expected that more children will drown as a result of this legislation passing through the House.

One of the major issues that was raised by child health advocates—doctors, paediatricians, and similar organisations—was that the rules will, essentially, remove the requirement for childproof fencing around four sides of the pool. It will allow for other kinds of barriers that will be subject to different kinds of looser criteria to be used around pools, but not the fencing—the fencing that, as we know, has actually saved children’s lives. My Supplementary Order Paper (SOP) will reinstate the requirement for four-sided fencing. I do not doubt that others will disagree with that, but I make no apology for putting the lives of children ahead of the need to save some costs for some local councils. Actually, children’s lives are worth much more than that. We should be enacting law in this House that protects children and improves their safety, and this SOP will do that by requiring four-sided fencing around swimming pools.

The other changes that this SOP makes are to the requirement about the use of a building as part of fencing. You could argue, in some circumstances, that the side of a building could be used as a fence because it would restrict access. This bill makes it much easier for the side of a building that has a door or building through which a child can access a pool to be classed as a legitimate barrier for those swimming pools. As we know, we can have alarms and we can have automatic latches—we can have all of these things—but we all know how people live in the summer in this country when the weather is good. Doors and windows are wide open, people are doing things, there are lots and lots and lots of kids around, and if you have a swimming pool, there will be lots and lots of kids playing in the swimming pool. We know how wonderful it is for those kids to be able to play in the pool.

There is no guarantee and there is no regulation that we can put in place to ensure that the doors and windows that open on to a pool area will be kept closed and child safe. There is absolutely no mechanism in the regulation that we can put in place that will ensure that children do not get access to a pool area through a door or a window from the house out to the pool area. Do we believe that children’s safety is paramount? Do we think that it is better for the law to be clear, to be simple, and to be effective? Because if we did, in favour of child safety, then this Committee would support my SOP, which would prevent the side of a building that is against the immediate area of a pool from having any kind of window or door in it. If you have a window or door, you do not have a child-safe barrier to that pool area. Parents will leave the windows and doors open if it is warm. Older kids will leave the windows and doors open, because they are just kids and they cannot be expected to be held responsible. Little kids—babies—will make their way through those windows and doors and into the pool area, and they will be at serious risk of drowning.

We know that that is a risk. We know that there have been examples of children accessing pool areas through windows and doors. We know that there are circumstances where children have drowned, and many, many more have suffered the effects of near-drowning as a result of accessing a pool through an open door or window. We also know that even with fences, the fence latches that are designed for the purpose of being childproof are often left open by adults or by older children in the area so that younger children who are not properly supervised have access to those pools and can drown. Why would we allow for an additional risk by saying that it is OK to have the side of a building as part of the barrier if it has got a door or a window in it? We know that there is a risk. We know what the practices are of families in the summer months. Why would we increase the risk of those families having their children drown?

Let us be responsible legislators. Let us put children’s safety and children’s well-being at the heart of the decisions that we make, and let us make sure that this law will protect children from drowning and injury. I urge this Committee to support my SOP if you believe that putting children at the heart of policy is the most important thing we can be doing, because children will drown as a result of this legislation passing as it is. Thank you.

I want to speak, obviously, in favour of this bill because in terms of what has gone on in the past, in the 10 years before the legislation was enacted, as has been rehearsed in this House many, many times, there were about 100-odd people who died—children mainly—and since the legislation has been in operation only about 30 have died. That is 30 too many. What we in the Labour Party are concerned about is that although we recognise and acknowledge that there are some compliance costs around this and we need to make it as realistic and as pragmatic as possible, at the same time we want to make sure that we are not slipping or reducing in any way the safety standard that has gone on to save about 70-odd lives. What we want to try to do is to make sure that not only those 70 lives are being saved but also the remaining 30 that have been lost in the last 10 years.

For a lot of people who own pools, spa pools, etc., this is a major cost to them. It is a hassle. It is an encumbrance that they do not really need. But, quite frankly, although you may look after your children absolutely every second of the day, anybody who has children knows that you get distracted. You may have more than one child and a child will disappear, and the next thing—it takes only a few minutes before that child finds their way into a swimming pool and, tragically, loses their life.

So it is for that reason that the Labour Party supports this legislation, but only on the condition that we support the Supplementary Order Paper (SOP) that Jacinda Ardern has put up: SOP 208. That is a very simple amendment that simply says that rather than having an alarm that might occur if a child opens a gate that gives them access to a swimming pool, the gate itself is self-closing and the gate has a lock on it that a child cannot open. You have to ask yourself what is so difficult about putting in an amendment like that—in the form of Jacinda Ardern’s SOP—which would make the safety of swimming pools that much better because they would be more secure. You may not hear the alarm that is being activated. The cost of putting in an alarm might be more expensive. You could think of a thousand reasons why an alarm is a pretty silly idea in terms of keeping a child—an under-4-year-old, an under-3-year-old, or an under-2-year-old—safe. I can think of a lot of good reasons, and a lot of cheap reasons, to have a door that is spring-loaded and locks automatically so that a child cannot reach up and open it—like we see in every kindergarten across the country. In every play centre and preschool education centre across the country, that sort of locking arrangement means that teachers and everybody else—the parents—know that children cannot wander out on to a busy road—

The CHAIRPERSON (Hon Chester Borrows): I am sorry to interrupt the member, and I should have actually raised this a little earlier. This is about Jacinda Ardern’s amendment, which is in Part 2, and we are discussing Part 1.

Well, I come back to the point I started with, which is that the Labour Party supports this legislation. We think that there are some pragmatic changes that can be made that make the compliance for everyday households that much easier. It means, for example, that the territorial authorities will be inspecting these pools on a 3-yearly, rather than a 5-yearly, basis. All of that makes good, solid sense. But I come back to the point I was making, Mr Chair, before you made your little intervention there, to say that all of that is fine, but unless you have the amendment, it really does not make much sense because what we are doing is we are, effectively, opening the door to a lot more problems because children can make their way into a swimming pool environment and fall into the swimming pool.

Thank you for this brief call on the Buildings (Pools) Amendment Bill. Clause 4 of this bill adds a specific responsibility for residential pool safety to the Act, which is great. Clause 5 adds definitions to the Act, and this clause has been heavily amended by the Local Government and Environment Committee. For instance, the select committee recommended replacing the definitions of “spa pool” and “hot tub” in clause 5 with a definition of “small heated pool”. This definition will capture both of those terms, “spa pool” and “hot tub”. Consequently, the committee recommended that all references to “spa pool” and “hot tub” throughout the bill be replaced with “small heated pool”.

Labour’s support for this bill is contingent only on Jacinda Ardern’s Supplementary Order Paper 208 being included in this bill. It is vital that New Zealand does everything that it can to protect our children from hazards such as drowning. We owe it to our kids—the future of our country. We must also observe our obligations under the United Nations Convention on the Rights of the Child to take the appropriate measures to diminish child and infant mortality.

The Fencing of Swimming Pools Act of 1987 was designed to increase the safety of young children by requiring pool owners to fence certain swimming pools. Having proper fencing—which my colleague Jacinda Ardern spoke of earlier on—and ensuring that there is a fence between kids and pools actually stops drowning. Since that Act came into force about 30 or so years ago, the number of young kids drowning has really decreased, and in the last 20 or so years, 56 young children have drowned outside their homes in New Zealand and two-thirds of these drownings have been in swimming pools.

The current bill is said to possibly save up to 10 kids for every 6 years, and because the kinds of pools that we are talking about are by their very nature temporary—some of these pools are just wading pools that are moved around by families—we have too many kids, toddlers, who drown at home. We should ensure that these kids are indeed as safe as possible. It is one of our responsibilities as members of this House.

One of the biggest changes that have been made to this bill coming back from the select committee has been to increase the pool inspection cycle, to require councils to inspect pools on a 3-yearly basis instead of every 5 years. Labour pushed very hard for this change, and it is very pleased that the select committee supported it. Thank you so much.

I just want to make a point before I take a further call, and it is that in the Committee stage we should be talking about what arose in the select committee and the submissions that were made. We should be articulating those in this Committee stage of the debate, and we can be talking about the Supplementary Order Papers that have been put up by other members. In Part 1 we are talking about the Minister’s amendments set out on Supplementary Order Paper 225, Metiria Turei’s amendments set out on Supplementary Order Paper 213, and the submissions that were made before the select committee.

I want to address the issue of why the Local Government and Environment Committee thought that 3-yearly inspections were necessary, rather than 5-yearly inspections. It is an issue that I know vexes at least some voters out there, because I know that my office has had a repeated exchange of correspondence with someone who was somewhat offended that the select committee—and I see members from the National Party are probably in receipt of assiduous representations from the same person, who was somewhat annoyed that select committee members were influenced by advice that was given to us by Auckland Council.

The council, which does inspect 3-yearly, said to us that already some 65 percent of pools are found to be uncompliant when inspected within the 3-year period, with the presumption being that if they were inspected less regularly—if it was 5 years, for example—the number of pools that are non-compliant would be even higher. Therefore, the select committee was convinced that there should be a 3-yearly inspection rather than a 5-yearly inspection, and we thought that we should make it clear that all councils had to do that 3-yearly inspection because there was some variation in practice around the country.

I have to say that the person who has been contacting my office to complain about that has not provided any other, better evidence that I have been able to think would trump the evidence that we were given at the select committee by the Auckland Council. Given that the councillors live in a city that they think is warm enough to have a lot of pools—although as a visitor to Auckland, I struggle with that reputation, at least for the last few months, when you have not needed a pool; you just need a bucket and it catches plenty of rain—I was convinced at the select committee that 3 years was the appropriate point.

Metiria Turei’s amendment—as I understand it, Metiria, and I have not read the detail of the wording—but from your concerns at the select committee, am I to take it that this is the use of natural barriers?

💬 Metiria Turei: Natural barriers and the ability to use a wall that has a door or a window.

Right. Yes. Well, I do not share Metiria Turei’s view on this, and I respect Metiria Turei as an MP. I accept that you are well-meaning in respect of this Supplementary Order Paper 216, but if the purpose of a barrier is to stop children being able to get into a pool and be drowned, it does not concern me whether that barrier is a natural barrier, a wall, or a fence, so long as the effect of it is the same and that is to stop children drowning. So I am actually in favour of the amendment that is proposed in that regard by this bill to say that rather than necessarily having to have a fence at the top of a cliff, a cliff will do if a child cannot climb up the cliff and into the pool, because the child is still not going to drown. That is why I do not support that particular Supplementary Order Paper 216.

I was convinced by the advice from officials to the Local Government and Environment Committee that, as drafted, we were protecting children from drowning because those natural barriers in those situations are just as effective as a fence. I think that is probably the only thing I have to say at this time.

I am very happy to take a call on the Building (Pools) Amendment Bill. I want to exercise a note of caution because of the definition that this bill contains dealing with swimming pools. The definition, which is contained in amended section 7 of the Building Act, set out in clause 5(a) in Part 1, defines a swimming pool as “(i) any excavation or structure of a kind normally used for swimming, paddling, or bathing; or (ii) any product (other than an ordinary home bath) that is designed or modified to be used for swimming, wading, paddling, or bathing; but (b) does not include an artificial lake”. The point that I want to stress at the outset is that any body of water has the potential to be a place where someone can drown and I know this from personal experience.

My parents will share a terrible story, which could have been even more terrible, about my brother splashing in a bucket of water when he was an infant and the handle on the bucket of water came down on the back of his neck. The handle had been standing up, he was splashing around in a bucket of water—which you can just imagine; an infant toddler splashing in a bucket of water—and the handle came down on the back of his neck. A bucket would not be captured by the definition of a pool, but would certainly have a depth of potentially more than 400 millimetres, because buckets are typically taller than that. So a body of water as small as a bucket could be enough to drown an infant and that is the point that I want to make.

When we are talking about a pool—actually, some of the biggest risks of drowning for infants are when they are left unsupervised with any body of water whether it be a paddling pool, a bucket, a baby bath, or a bath. In all of those things they can drown in them. Therefore, there is always going to be an element of education required around that to make sure that parents know that even in the home bath you cannot leave a baby or a toddler unsupervised. They are just as likely to drown if left unsupervised in the bath at home as they are if they are left unsupervised in a paddling pool. We do need to make sure that we are communicating about that, and so I particularly support new section 162D in new Subpart 7A of Part 2 of the Building Act, inserted by clause 7, which requires the manufacturers and retailers of any such products to actually notify people around what the requirements are. So if you are buying a paddling pool, then, actually, you should be notified what the requirements around the paddling pool are.

The question that I have got for the Minister in charge of the bill, Dr Nick Smith, and for the Government is in respect of the situation around temporary paddling pools. This is the sort of thing that does get raised with members of Parliament all the time. The idea is this: if you get one of those inflatable paddling pools and you blow it up in your backyard, and your kids—or grandkids is probably more likely to be the case in my family—are splashing around in the paddling pool, always under adult supervision, then when it is finished the paddling pool gets drained, it gets folded up, and it gets put away, where do the fencing requirements sit there? Are we expecting people who are using a paddling pool for a hot sunny afternoon to be putting a fence around it or would it be more appropriate to say that there must be supervision? There is no question that a paddling pool should not be left unattended and unsecured, but in the case of a temporary pool would it be sufficient to simply say that there has to be adult supervision for the period of time that that pool has water in it?

💬 Hon Ruth Dyson: And in Upper Hutt you’d only bring it out 1 day a year.

In Upper Hutt we would have it out almost every day of the summer, I would have to say to Ruth Dyson. [Interruption] That is right. That is right. It would be very regularly used. I raise this point because this is important. This is the sort of thing that the members of the public are likely to raise with us—this idea that restrictions have gone mad when you have got to put up a fence around a temporary paddling pool that is there only for a matter of hours.

So the question that I have got for the Government is—and it is not clear from the bill; I have just sat down and read through the bill, and it is not clear from the bill—where those temporary paddling pools are concerned, what the rules around those would be. I can certainly support quite restrictive requirements around permanent swimming pools, but the ones around temporary paddling pools, I think, we do have to have an element of common sense when it comes to that. So I am interested in the Government’s view on that.

The other point that I want to make is on the new restrictions around spa pools or hot tubs—those with lockable childproof lids. I actually think that if Parliament is going to go down the road of saying that they should be exempt from the fencing requirements, we also then need to look at the enforcement requirements around using those lids. I lived in a house that had a spa pool with one of the lockable lids in the backyard. The whole of the backyard was also fenced, but the pool itself was not fenced. But, hand on heart, I could not say that the pool was always locked. The lid would have always been closed, but I cannot say that if a child had got into the backyard they would not have been able to open it. Although there was a locking mechanism, the locking mechanism was not always used. Simply putting a sign on it is not necessarily going to deal with that, but there is a degree of responsibility required for pool owners, so that if they are going to exempt themselves from the fencing requirements and put a lockable childproof lid on their pool, there does need to actually be a requirement to use it, and some sanction if you do not use it and something were to happen.

I am interested in hearing more about that because, again, I could not see from the bill—particularly because spa pools and hot tubs are exempted from the inspection requirements—how on earth the use of a lockable lid would be enforced. A spa pool could certainly be, again, a place where a child could quite easily drown.

I just wanted to respond, just in brief, to the comments from the Hon David Parker. I accept that my Supplementary Order Paper 213 does take the bill backwards a step and that the bill is deliberate in removing the requirement for four-sided fencing and instead replacing that very clear and simple requirement with more of a performance-based standard. I would just reiterate that, for example, Water Safety New Zealand, which has spent decades trying to improve water safety for all New Zealanders, and particularly children, was strongly opposed to the removal of the fencing requirement and replacing it instead with some performance-based standard. It said that there was no public policy rationale for making that change except for that already described by the officials, which was to reduce compliance costs for pool owners and for the councils.

But from the point of view of child safety, it is a retrograde step to replace a simple and clear conception of what fencing around a pool is—what it actually is in people’s own minds and in the normal daily conversation about that—with a performance-based standard that says you can have all sorts of different kinds of things, as long as they have the same effect. Given that we know that there was already very poor monitoring of pool fencing by councils, and across the country there is this disparity between councils about whether or not they know where the pools are, whether they are undertaking regular inspections, and whether they are applying the rules properly or not, and given that we know that many of the drownings that have occurred have been as a result of degraded fencing infrastructure—so, degraded latches, degraded fencing, and failure to comply with the very simple legislation that is already in place—this bill now allows more and more options for pool owners to use that may well not meet any kind of performance-based standard. That might not provide any degree of real protection for children at all, and the councils are relying, then, on their own interpretation of the law—and the law is softened to give them lots more options—and on the enforcement procedures of local councils, which we know are already unable to enforce the current law, as simple and clear as it is. So why, then, would we put in place legislation that actually entrenches in the law the very risks that failure to comply with the previous law has created in terms of the risk for children of drowning?

There really is no rationale for that—I mean, there is no explanation for why this is a better system. The only excuse I heard from National during the select committee process was that people with infinity pools did not like the way fences looked. That is not a justification for putting more and more children at risk.

So I get that there will be members of this Parliament who do not want to support my Supplementary Order Paper because it actually puts in place—re-establishes—the clear fencing rules that this bill has been designed to remove, but there is no rationale for that policy change, and there certainly is no evidence to show that a performance-based approach is going to provide the same degree of safety that the current fencing rules provide, let alone a greater degree of safety. If we have a choice, surely, providing the greater safety is the choice we should make. Thank you.

Tēnā koe, Mr Chair. Otirā, e ngā mema o Te Whare nei, tēnā tātou katoa. Thank you, Mr Chair. It is a pleasure to take a call on the Building (Pools) Amendment Bill in the Committee stage. I want to focus my contribution particularly on clause 6 of the bill, and perhaps the Minister in the chair, Nathan Guy, could give some clarity around clause 6.

Clause 6, particularly clause 6A, which amends section 11 of the Building Act, talks about enforcing compliance with manufacturer and retailer notice. No issue there, but when you read the particular clause there, it states that the Ministry of Business, Innovation and Employment (MBIE), particularly the chief executive, will be the person responsible for ensuring that anybody who manufactures, sells, or offers for sale any pool product designed for swimming, wading, or bathing supplies a notice summarising the responsibility of owners, pool operators, and occupiers in terms of restricting access. So, as I read it, we have got enforcement of the manufacturing and the retail notice as the responsibility of the chief executive of the Ministry of Business, Innovation and Employment.

Then we go to clause 6B, which amends section 12 of the Building Act, and which identifies that the responsibility of ensuring pool barrier requirements sits with the territorial authority. So if I could just paint that picture: manufacturer notice is MBIE, but ensuring compliance with pool barrier requirements sits with the territorial authority. Then we come down to the “waivers and modifications”, and in there is clause 6C, which inserts new section 67A and amends section 188 of the Building Act. When I read this particular clause, it allows territorial authorities and the chief executive of the Ministry of Business, Innovation and Employment the right to grant waivers and modifications of the pool barrier requirements as set out in clause 7, which inserts new subpart 7A of Part 2.

I guess the question I have is obviously one of coordination between territorial authorities and MBIE, given that we have got one chief executive of a substantive ministry and, of course, we have got numerous numbers of territorial authorities. So it just, for me, raised a question around ensuring that—for want of a better word, bureaucracy, or defining each other’s role—we do not end up having a tragedy of a loss of a young life simply because the left hand is not coordinating, or speaking well, with the right hand.

I do want to come back to other parts of the bill, but it was important that I just address clause 6 in terms of defining the respective roles between the Ministry of Business, Innovation and Employment and the territorial authorities to ensure that if we are going to waive pool barrier requirements, there is a coordination between those particular organisations. It is a question that I just put on the floor, and the Minister might be able to respond. Thank you very much.

When this bill first came to the House, I raised some concerns, and the concerns emanated from the stated purpose of this bill. The stated purpose of this bill, and I will read it, is as follows: “will amend the Building Act 2004 and repeal the Fencing of Swimming Pools Act 1987”—but here is what I want to emphasise—“to reduce the compliance burden currently imposed on pool owners and territorial authorities in relation to residential pools while maintaining child safety.” I stated then that those were conflicting purposes—to reduce compliance on pool owners and still maintain child safety. It still concerns me.

I am pleased that my colleagues have said that our support for this bill is contingent on the Government supporting Labour’s Supplementary Order Paper 208 in the name of Jacinda Ardern, the reason being that right throughout the bill—and I am glad to see that the Local Government and Environment Committee has made some significant changes. We were told from the outset, in the regulatory impact statement, that this bill would save more lives, but I know that my colleagues would have heard evidence from the submitters, from their experiences, that would have challenged that regulatory impact statement by the Government. In fact, the New Zealand Society of Paediatric Surgeons stated that the only thing that will improve the current rate of drownings in pools in New Zealand is improved compliance. That is more compliance, rather than less, and yet throughout the bill it is riddled with an emphasis on reducing compliance, or the burden, of pool owners.

I want to come to what my colleague Meka Whaitiri has raised earlier, and that is new clauses 6A, 6B, and 6C, which give specific responsibilities around pool safety to the chief executive, the building consent authority, and the territorial authority. The question I ask is: are we now making the territorial authority and chief executive responsible for any mishaps that occur? If so, great, but the responsibility must also fall squarely on the pool owner.

Once upon a time, I was on the Manukau City Council, the greatest council in all of New Zealand—three terms—

💬 David Shearer: We abolished it.

—well, this Government abolished it—and the officials who dealt with swimming pools during my time emphasised that this legislation was so stringent that it was really about saving the lives of children. In fact, one time I asked an official what sort of depth could a child drown in, and I will never forget it, because he said a child could drown in a puddle of water outside. I imagine that would be a baby. If unattended, a child could easily fall—and he said it did not need to be very deep, but a child could drown.

I still have concerns, and I am really glad that we are saying that we will support this bill if the Government supports Jacinda Ardern’s Supplementary Order Paper, because we are trying to install more safety in this. But the original purpose of the Government was not about child safety but about removing some of the burden on pool owners. I see that the select committee did work and did try to make some changes in the legislation, and one of the things that I am glad it has managed to convince the Government to change is the inspection regime, from 5 years to 3 years. Auckland Council, in its submission, said that if you leave it for too long—it has practical evidence that that actually enables owners to allow their pools and the safety of those pools to deteriorate. In fact, Auckland Council maintains that the regime should continue with 3-yearly inspections, as 65 percent of pools are found to be non-compliant when inspected within this time frame.

Although the select committee has made some amendments that have taken us back to the original legislation in terms of stringency around the protection of lives of children, it just seems to me—why did we do this in the first place? What was it? If we were already saving lives under the old legislation, what is it that we are now trying to do—to provide more opportunities for young people and children to drown? I just do not get it. I do not get it, and I am not quite sure what the Government’s intentions were, other than what the stated purpose was: to remove the burden on pool owners. I have heard some pool owners say look, it is their pool, so why should local government interfere?

But that then begs the question: what if a child does drown there? Whom do we hold responsible? The fine is $5,000. What does that mean? Is that the value that we place on a child’s life? I know that that is not the case, but I am trying to say to this House and to this Government, which has brought this bill through: what is it that we are trying to do here? If we have saved lives with the old legislation, what on earth are we trying to do with the new legislation, particularly with the stated aim and the fact that the select committee has had to push to make further changes? We still have not got them, and that is the reason we are saying that we will support this bill, provided the Government supports the Supplementary Order Paper that will be discussed later on.

The CHAIRPERSON (Hon Chester Borrows): Which is in the following part.

That is right, that is right—in the following part—and therefore I have not made any mention of the contents of that Supplementary Order Paper, other than to make reference that, although there have been some good changes here, this is not a complete bill. It does not give me confidence at all. Certainly, for those organisations that are working to promote safety in waters—I do not think that they are confident with this particular bill. Despite the changes that the select committee has attempted to make to improve the legislation, I do not think that we are confident enough to go ahead unless the Government tells us—and we will debate that Supplementary Order Paper in the next while.

I want to also then turn to the—I cannot see the clause, but there is a clause there where the chief executive officer decides who is the pool person who inspects the pools. Hopefully, that means that the chief executive of the Government department—we are now giving him some sense of authority that, by appointing the pool inspector, the public will have confidence that it is a legitimate, specialist person with the skills, a person who is professional in that duty. But, again, what about the pool owner? Do we hold the pool owner responsible to ensure that the work is carried out proficiently and carried out safely, and that, at the end of the day, there is safety for the children in that household? I simply say that although the select committee has made some good changes to move this bill towards making sure that there is safety for all children, it begs the question of why we are then repealing the old legislation. What it ought to be doing, really, is improving the old legislation, not repealing the old legislation.

I maintain that there are not sufficient safety clauses to give people the confidence that young people and children are going to be protected, particularly if there are pools in the household that they live in. Without the support of this Government on the Supplementary Order Paper in the name of Jacinda Ardern—of which I will not discuss the content until we come to the next part—we will not be supporting this bill.

I move, That the question be now put.

Tēnā koe, Mr Chair. Thank you very much. I think that Mr Sio’s question—he asked why we should be repealing the Fencing of Swimming Pools Act—is a very good one. As some of the submitters said, this was one of the most successful child safety laws that we have had in New Zealand, and that is because it sent a very clear message to pool owners and to the swimming pool industry that pools needed to be fenced to protect young children. In clause 6C of this bill, new section 67A is inserted into the Building Act, and there is the introduction of a test that will allow swimming pool owners, potentially, to apply to local authorities and to get a waiver or a modification if that territorial authority, having regard to all the circumstances, is satisfied that the modification, and I quote from the bill, “would not significantly increase the danger to children under 5 years of age.”

So rather than having that clear message to everybody that pools need to be properly fenced, we now have the potential for these waivers and modifications, leading to considerable uncertainty and to arguments by pool owners with the local authority that their fencing is adequate. So it is moving, as Metiria Turei said, to a system of performance, which does not provide the certainty that the current legislation does.

We had submitters like Water Safety New Zealand estimating that it is not just the tragedies that the current law averts but also the major cost of over $100 million, since 2005, of protecting children from hospitalisations from near drowning. So there is a major financial benefit to the existing legislation as well as its simplicity and the strong message it sends to make sure that pools are properly fenced to avoid drownings. So that is one of the reasons that the Green Party is opposing this bill—because of this uncertainty and inconsistency, and the lack of clarity that will be created with this new provision that allows for waivers and modifications if it does not “significantly increase the danger to children”, whatever that means.

The existing law talks about protecting young children; this bill changes it to “children under 5 years of age”. We all know that children over 5 and young toddlers are equally at risk of drowning, so, again, it is a weakening of the legislation—a weakening and an undermining of child safety. We should not even be having that discussion or encouraging local authorities to have discussions about whether things significantly increase the risk to children under 5 years. We should be ensuring that our law protects those children, and that is another reason for Metiria Turei’s Supplementary Order Paper 213.

There was a lot of information that came to the Local Government and Environment Committee—Australian research—about the need for, and the benefits of, having four-sided fencing. Four-sided fencing is ensuring that there are no windows or doors in any building that abuts the pool area that can give children access to the pool. That is why her Supplementary Order Paper is important—because it will ensure that where a building does form part or all of an immediate pool area, there must be no windows, doors, or other openings to that immediate pool area that can allow children to get through and potentially be at risk of drowning.

This bill is weakening currently very successful legislation that has averted a number of child drownings and is replacing it with a test that is likely to lead to significant uncertainty and lack of clarity. It also imposes extra costs on local authorities, and for all of these reasons, the Green Party is opposing the bill.

I move, That the question be now put.