Building (Pools) Amendment Bill

I assume that in Part 2 we are now moving into some of the more substantive provisions set out in the schedule—I am assuming we are able to take those provisions, as well, in this debate.

The CHAIRPERSON (Hon Chester Borrows): Yes.

Obviously in Part 2 we are repealing the Fencing of Swimming Pools Act (FOSPA), but I do want to just point out that during the Local Government and Environment Committee stage there was a view that the standard that was set under the FOSPA would be lost. We were advised that the acceptable solution under the Building Act was the one specified in the schedule of the FOSPA, so that all of the work that had been done previously on consultation around standards would not be lost. If I have got that wrong I would certainly ask Minister Smith to correct the record, because I know that was a legitimate concern that has been raised in this debate.

I want to speak a little bit to an area that has been touched on only briefly by some of my colleagues, and that is the way that we are, as a result of this bill, now going to be treating spa pools and hot tubs. Under this legislation we have got three different definitions, if I have got this right. We will have small heated pools—previously we had, separately, spa pools and hot tubs—we will have residential pools, and we will have pools, generally. Hopefully that is intended to try to reduce down some of the confusion, especially for small heated pools. The point I wanted to make, though, is that the definition and some of the ways that small heated pools, as set out in the schedule, will be treated are uncharted territory.

Really, before we have had regulations relating to this that have not been properly enforced, and so now what we are saying is that, essentially, a standard will apply to small heated pools where the top surface of every wall of the pool is at all points not less than 760 millimetres above the adjacent floor or the ground, to inhibit climbing, and that, for those other pools we are able to access more easily, they must be covered with a lockable lid.

There was real debate and discussion about whether or not that in and of itself was going to be sufficient. The concern was that that is fine when it is not in use and when there is not any deterioration of those locks and so on. When they are in use, then obviously you do not have a protection mechanism, because we are now saying that an elevated hot tub with a lockable lid will not have to have any other form of physical barrier around it. The concern there, as was pointed out by submitters, is that the point of distraction could be that, with spa pools and those kinds of pools, they are hot and people often do leave them for periods of time—they might go to get a drink of water; they might go to use the bathroom. There are often times when these pools go unsupervised.

The committee was trying to reach a point of reason where you had enough protections in place, but, for instance, there was acknowledgment that often these pools are raised above the ground as well, and so maybe that does put them in a slightly different category. That is not to say that there are not concerns with this provision. In particular, we heard that there have been drownings where children have accessed underneath covers or where they have accessed a pool when a lockable lid has not been in place. So I think what I wanted to point out at this point is that this was a real source of contention for us. It was not an easy decision, and I think it deserves monitoring.

These provisions—and again there was a bit of debate about this—are not going to be monitored by local councils; the Ministry of Business, Innovation and Employment takes responsibility for these provisions, if I have got that right. I think it is incumbent on us as a Committee to reflect back on whether or not—after a year let us look at what is happening with them. Let us check that we have got this right, because in my mind this provision is a line call.

One thing that is not a line call for us, and we have said this all the way through—I think now we are at the point of this bill where I can expand on this slightly. We are absolutely not supporting this bill if the current schedule remains as it stands, where we allow one side of a pool to be accessed by a door that does not necessarily latch automatically, that could be accessible by a child but just has an alarm on it. That is not acceptable. In our minds that provision opens up a false assumption, a false sense of security for families, that because they are compliant with the law they have created a safe space, that surely there is some research and evidence that suggests that audible alarms stop kids from drowning. There is no such evidence. We do not know that. We know some companies now are producing these alarms; we do not know that they are an acceptable solution where you do not have an automatically latching door or a door that is inaccessible. So that is not acceptable to us.

Let me just cover again what it says. It says in the schedule: “Where a building forms all or part of an immediate pool area barrier,—(a) doors between the building and the immediate pool area must not be able to be readily opened by children,”—so it could be seen to not be readily opened, but still could be—“and must either—(i) emit an audible warning when the door is open; or (ii) close automatically after use:”. There should be no “or”. The door should automatically close. There should be no “or”.

So the way that we have chosen to instead express it is “doors between the building and the immediate pool area must not be able to be opened by children”—must not be able to be opened by children—“and must close and latch automatically after use:”. So you have got the double thing of it being inaccessible, and if it is accessed by an adult or someone who is able to access it, it has an automatic swing on it. That, in our minds, was the only acceptable version where you could have a door that opened into an immediate pool area or pool, because that mimics what we ask fences to do. That mimics what we ask other barriers to do. Why would we have a lesser test for an area that opens automatically to a building than we have for fencing around a pool? That was bottom line for us.

My understanding is that the Government will not be supporting that amendment, so we will not be supporting this bill—bottom line for us. We had hoped that by putting this amendment up that might act as some leverage to ask the Government to see sense on this, because I do not want to see us down the track reading in the newspaper about a family that thought they were compliant with the law and that, surely, will have assumed that the law was to protect them and their children and that had an audible alarm that maybe was not quite audible enough—maybe the battery had powered down; maybe there was a power cut and it did not kick back in; maybe the family was distracted and thought the alarm from a car had gone off instead of their door. Who knows? I do not want to see a drowning occur in this country that occurs within the boundaries of the law.

One of the miraculous things with the Fencing of Swimming Pools Act as it stands is that the drownings that have occurred have occurred in uncompliant pools where, if they had been compliant with the law, a child potentially may not have drowned. That would be a devastating thing for families to know, and the stories that came before the select committee—I would never want any member of this Committee to hear a story of a child who had drowned whom we bore any responsibility for. It was hard enough hearing it from a member of a family who so clearly carried with them that grief. It was absolutely devastating. It is incumbent on us to give people the trust that if they comply and they do what this Committee has suggested, then it will be enough. I do not think this bill, currently, is enough.

We really debated things like if you have a cliff face whether that constitutes a barrier. At the end of the day, the test is that it has to be inaccessible. I certainly see why Metiria has crafted the Supplementary Order Paper that she has, Supplementary Order Paper 213. Well, actually, it looks like we are not going to be supporting this bill anyway for very similar rationale, because it is a real line call to have anything other than a fence form a barrier, and it was one we debated. We, as I say, really drew a line in the sand on this.

One of the issues that I heard a member of the Committee raise was this idea that we have to always be vigilant around water. That is absolutely the case, but that is where we have error. Anyone who is a mother, a father, a grandfather, a grandmother, an aunt knows that 24-hour supervision of a child is exhausting, difficult, and nigh on impossible. So this bill has to be about removing human error and removing the idea that you can be eyes and ears all of the time. It is about an extra layer of protection, and my concern is that we have left too many openings as it stands that need to be closed, and that is what we are asking for.

Part 2 agreed to.

Schedule

The question was put that the amendments set out on Supplementary Order Paper 225 in the name of the Hon Dr Nick Smith to the schedule be agreed to.