Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.26 a.m.], on behalf of Ms Verity Firth: I move:

That this bill be now agreed to in principle.

The Swimming Pools Amendment Bill 2009 was introduced in the Legislative Council on 11 November 2009, and is in the same form. The second reading speech appears at pages 49 to 51 in the Hansard for that day. I commend the bill to the House.

Mr MICHAEL RICHARDSON (Castle Hill) [10.27 a.m.]: I lead for the Liberal-Nationals Coalition on the Swimming Pools Amendment Bill 2009 and, as the Government is aware, we do not oppose it. The legislation, which amends the Swimming Pools Act 1992, purports to reduce the frequency of child drowning deaths by introducing further restrictions to access to private swimming pools. Whilst the Liberal-Nationals strongly support the need to take action to eradicate, or at least reduce, the number of children who lose their lives or who suffer long-term brain injury as a result of swimming pool immersions, we have strong reservations about the bill.

ACTING-SPEAKER (Mr Thomas George): Order! There is too much audible conversation in the Chamber. Hansard is having difficulty hearing the member for Castle Hill.

Mr MICHAEL RICHARDSON: The objects of the bill are as follows. The first is to remove automatic exemptions under the Act in respect of child-resistant barriers for swimming pools constructed or installed after 1 July 2010 on properties with an area of two hectares and over, of less than 230 square metres, and on waterfront properties. As a result, after 1 July 2010 all New South Wales backyard swimming pools, except those pools built before August 1990, will be required to have a four-sided barrier, regardless of the size or location of the property. The second object of the bill is to increase the maximum penalty for offences under the Act. The maximum on-the-spot fine for pool owners whose backyard pool fence fails to meet safety requirements is increased from $220 to $550, with the maximum court-imposed penalty increasing from $1,100 to $5,500.

The other objects of the bill are to permit the regulations to prescribe the circumstances in which an opening in a wall, that is part of a child-resistant barrier, is taken to enable access to be gained to a swimming pool at any time; to require local authorities to investigate complaints about a potential breach of backyard pool safety; to require local authorities to give notice before giving a direction and to enable them to carry out the requirements of such a direction if there is a failure to comply or a significant risk to public safety; and to abolish the Pool Fencing Advisory Committee.

Essentially, the bill aims to ensure that all newly constructed pools are surrounded by a four-sided barrier, a self-closing, self-latching gate and that the pool is separated from the house and adjoining properties and public spaces at all times. Owners of pools on small properties will still be able to use boundary fences and house walls as part of the swimming pool barrier, provided they meet the legislative requirements and the Australian standard—which I think is a big rider. There are specific circumstances, such as the need for disability access, that justify a special exemption granted by the local council under section 22 of the existing Act.

In these cases pool owners will have the option of applying to their local council for a special exemption if they believe the barrier requirements are impractical or unreasonable. These provisions will not change. I note that the bill allows for a delayed commencement for these provisions of 1 July 2010, or six months after enactment of the legislation, to allow for automatic exemptions to apply to pools on properties where a development has been submitted or construction has commenced.

I regret to say that the bill does not focus on the issue of dams on rural properties or properties that directly access a beach. Many owners of rural or beachfront properties will find themselves in the absurd situation—if they are not already in this situation—of having a fully fenced pool while still having an unprotected dam or beach nearby. That makes no sense whatsoever. Clearly, the danger that is faced by children who run across a beach into the water is just as great as that facing them if they fall into a swimming pool. That was recognised in the previous legislation and that is why an exemption was provided for people whose homes were in that position.

The Coalition is deeply concerned about the potential for further child drownings while the current legislation remains in place. However, this legislation focuses on an issue that is fundamental to good government: the extent to which the responsibility of a government to protect its citizens gives it the right to control the backyards of those citizens. It challenges long-held beliefs of both Coalition parties. The Liberal Party ethos includes a belief in the innate worth of the individual and the right to be independent, to own property and to achieve and the need to encourage initiative and personal responsibility. Similarly, The Nationals' core values incorporate a belief in individual achievement, the importance of free choice and a fair go, reward for private enterprise and the need for equity, investment and wealth generation.

Removal of the current exemptions relating to large, very small and waterfront properties regarding child-resistant barriers for swimming pools constructed or installed after 1 July 2010 clearly tramples on the rights of individual homeowners by compelling them to install swimming pool fences in their own backyards. Homeowners would face enormous difficulties fencing swimming pools on small inner-city properties of less than 230 square metres. That is particularly the case where there is a lap pool in a very long and narrow backyard. This legislation demonstrates the difference between this Government's ideals and those of the Coalition. According to the Government, there is no problem with removing individual rights and legislating what an individual can do in his or her own backyard. The bill also allows the entry of bureaucrats into backyards and permits them to arrange for installation of the appropriate fencing if it does not already exist. It must be stated that the watchful eye of government in the form of this legislation cannot be a substitute for the watchful eyes of parents, who have the ultimate responsibility for the care and control of their children and any others who visit their home. Parental supervision is of paramount importance and cannot be abrogated by the passage of this bill.

The latest report of the Child Death Review Team, which covers the period January to December 2008, indicates that there were 10 deaths by drowning in private swimming pools—a reduction of two from the previous year. Of course, a single child death is an absolute tragedy. I cannot think of anything worse than finding one's child floating face down in a swimming pool. That is the reason the previous Government introduced the Swimming Pools Act 1992. I remember when that happened. My predecessor, Tony Packard, spoke at great length about the issue at branch meetings because of the level of angst in the Liberal Party and because of representations he received from his constituents—who were soon to become my constituents. We responded to those concerns in an appropriate fashion, despite considerable opposition from existing pool owners to the legislation.

As I said, there were 10 deaths by drowning in private swimming pools last year, but all occurred when the children accessed the pool without the knowledge of a parent or other carer, and none occurred in an unfenced swimming pool. That begs the question: Why does the Government feel compelled to introduce this legislation? Obviously, children cannot be under the watchful eyes of their parents 24/7, because parents' attention can be diverted for any number of reasons. Despite that, parents cannot hold the Government accountable for the care of their children with regard to swimming pool safety. There are times when all parents need to accept the responsibilities that accompany the role and there is no greater responsibility than that which relates to our children.

When introducing the bill in the Legislative Council, the Parliamentary Secretary stated that the Government would implement additional initiatives to get key pool safety messages across to pool owners and parents. They are under active consideration. Michael Morris, the managing director of the Samuel Morris Foundation, which was established after Michael's son Samuel Morris was left with a hypoxic brain injury and a range of severe disabilities after a near drowning in the family's backyard pool in 2006, has made a written submission regarding the bill. Mr Morris states that amongst the additional requirements he recommends is a requirement for adults in premises with a pool to be trained in cardio pulmonary resuscitation [CPR]. That is an excellent idea. The Swimming Pool and Spa Association of New South Wales, through Chief Executive Officer Spiros Dassakis, highlighted the importance of education and supervision and stated that it is critical that a campaign be undertaken to educate swimming pool owners regarding their responsibilities. Like the Samuel Morris Foundation, the association believes this should include knowledge of CPR. The association also believes that the ability of children to swim is of such importance that mandatory swimming lessons should be included as part of school curricula. I learnt to swim in the first swimming pool installed in a public primary school in New South Wales, at Lindfield Public School.

Mr Peter Draper: What century?

Mr MICHAEL RICHARDSON: In the twentieth century. My father was the president of the parents and citizens association at the time and drove the construction of that swimming pool. I have always been grateful to the school for teaching me to swim. Because ours is an outdoor nation, everybody in Australia should be able to swim.

Mr Barry Collier: Did it have a fence?

Mr MICHAEL RICHARDSON: Of course it had a fence, as one would expect at a school—and that was a long time ago. I trust that the Minister will consider these matters as part of the additional initiatives that will be implemented to disseminate key pool safety messages to pool owners. Other research has revealed that for every child drowning there are three to four hospitalisations as a result of near drownings. Of those hospitalised, 20 per cent will be left with some form of persistent and ongoing disability. In many instances these are brain-related injuries for which there is no cure. One such child is Samuel Morris, and I know that everyone feels for him. Samuel has endured 30 periods of hospitalisation following his near drowning in 2006. Those hospital admissions have included six major surgeries to correct muscular-skeletal problems resulting from his brain injury, in addition to many admissions to resolve respiratory problems and other complications.

The bill incorporates significant increases in the penalties for non-compliance with the legislation. As I said, the maximum court-imposed penalty has been increased from $1,100 to $5,500 and the maximum on-the-spot fine has been increased from $220 to $550. A significant amount of revenue could be raised as a result of the enactment of this legislation. The Coalition believes that rather than using this revenue simply to boost consolidated revenue, as is this Government's wont—in just about every endeavour in this State the Government imposes fines and grabs the money with both hands—it should dedicate it for either children's learn-to-swim campaigns or research into permanent injuries resulting from near drownings, or both. That would be a positive step forward and much good could result. If substantial funds were allocated to research, in years to come other children like Samuel may be able to lead a close to normal life and their parents would not have to carry the enormous burden that has engulfed the Morris family. The Coalition does not oppose the bill. However, as I said, the Coalition has strong reservations about the bill and wonders whether it will achieve the outcome the Government suggests.

Mr PETER DRAPER (Tamworth) [10.39 a.m.]: I am very pleased to make a contribution to the Swimming Pools Amendments Bill 2009, which amends the Swimming Pools Act 1992. Although the measures go a long way towards addressing the tragic loss of lives in backyard swimming pools, I must question whether they actually go far enough. I live in the small community of Dungowan where there was a tragedy in the valley several years ago. The Lions Club has now stepped in and pays for the transportation of all the children from the four small public schools in the district who do not know how to swim. They are taken to Tamworth and taught how to swim and there has not been a similar tragedy since, so full credit should be given to the Lions Club movement for being proactive and stepping in when there was a need.

The 2009 National Drowning report compiled by Royal Life Saving Australia contains some really quite shocking statistics: 302 Australians lost their lives through drowning incidents in the 12 months to 30 June 2009, and during that period 41 more people drowned than in the corresponding period in the previous year, increasing the total number of drowning deaths by some 16 per cent. Almost all age groups recorded an increase in the number of deaths against the five-year average. New South Wales had the dubious honour of having the largest number of drowning deaths—83 males and 21 females—and this has prompted urgent calls from the Royal Life Saving Society for increased parental awareness and greater emphasis on swimming and water safety education.

Tragically, in the last year, 32 children aged under four years lost their lives to drowning. Around 125 children were admitted to hospital and 28 of those children were left with a brain injury that will result in disabilities for life. Incredibly, 60 per cent of the drowning deaths occurred in backyard swimming pools, which somewhat contradicts the previous contribution by the member for Castle Hill. This is a shocking situation because it is the one area where proper application of the laws could have saved precious lives. A 2006 New South Wales Health report stated that drowning was the second leading cause of injury-related death in New South Wales of children under 14 years of age. Drowning is responsible for almost 20 per cent of injury-related deaths in that age group. Young children are at highest risk of drowning. Around one in eight drowning deaths were of children under 4 years of age, a rate of 2.3 deaths per 100,000 in this age group. The report showed that the most common locations of drowning of children aged 0 to 4 years in New South Wales during January 1995 to April 2001 were: swimming pools, 42 per cent; bathtubs, 20 per cent; dams, 16 per cent; and lakes or rivers, 15 per cent. These figures clearly show why there is an urgent need for greater control of backyard swimming pools.

The Samuel Morris Foundation, which was established in March 2007, is Australia's first and only charity supporting children disabled by near drowning or other hypoxic brain injuries and targeting child drowning prevention. The foundation points out recent research showing that compliance with legislation regarding swimming pool fencing is very minimal and many recent drowning deaths or near-drowning incidents have occurred due to a failure of the pool gate or fence. The Samuel Morris Foundation has welcomed the Swimming Pools Act amendment that we are debating today as an initiative to improve the safety of domestic swimming pools in our State and is supportive of the changes announced. In particular, the foundation welcomes improvements to requirements for all pools to have four-sided fencing, including the removal of exemptions from the need for fencing, giving local councils the power to effect urgent repairs for safety, increasing the fines for non-compliance, and mandating the investigation by councils of complaints of non-compliance.

The Samuel Morris Foundation believes, however, that there is still significant room for further improvement. Its recommendations include changes mandating compliance for all swimming pools, not just those constructed or installed after 1990, mandatory regular compliance inspections and certification, and mandating CPR requirements for adults in homes with swimming pools. This is a very good idea and one that I strongly support. I am pleased that the Minister has indicated that proposals for pre-1990 pools are being considered. Any change to the Act that omits requirements to bring all pool stock up to the same standard leaves a significant and continuing risk to children in our community.

I believe that consideration should be given to the Samuel Morris Foundation's proposal to mandate CPR requirements for adults with a swimming pool in their yard. Research by the Australian College of Emergency Medicine reveals that only one in 10 community members are trained in CPR. Training all pool owners would significantly increase this ratio and provide potential for lifesaving interventions across a wide range of scenarios within the community.

Of real concern is recent research showing that non-compliance rates for swimming pool fencing are as high as 95 per cent. Not one council that has undertaken a review of compliance has found high compliance rates, with the best samples finding only around 50 per cent compliance. Introducing changes to the requirements for pool fencing without an ongoing inspection or policing program will mean that the non-compliance rates will continue to be high and the legislation will have far less of an impact than it would otherwise have should an inspection process be included. Western Australia has demonstrated that it is possible to introduce an ongoing compliance inspection regime, with costs being as low as $33 per inspection. Every pool in Western Australia is inspected at least once every three years. A cost of $33 every three years is a small price to pay to ensure greater child safety.

The Samuel Morris Foundation has also pointed out that children—indeed all people—injured in motor vehicle accidents are covered by the Lifetime Care Program administered by the Motor Accidents Authority, and all the equipment and services covered by this mandatory insurance scheme are funded from green slip fees, so every motor vehicle owner is paying for this support as well has having to pay for an annual pink slip. Children left disabled by near-drowning incidents in their own backyard have no such support and are reliant on the Program of Appliances for Disabled People, which has been demonstrated to be significantly underfunded in this State and which tells the parents of children disabled by near drowning that they may have to wait for up to two years for basic items of equipment, such as wheelchairs. This often leaves them reliant on organisations such as the Samuel Morris Foundation to fund their equipment. The best way to prevent this inequity is to stop children from dying or becoming disabled by near drowning. I strongly support the legislation, but I ask whether we have gone far enough in our efforts to reduce the number of drownings that take place in swimming pools in our State.

Mr CRAIG BAUMANN (Port Stephens) [10.45 a.m.]: I note that the Swimming Pools Amendment Bill 2009 aims to reduce the number of drowning deaths of children in private swimming pools in New South Wales. Obviously the New South Wales Coalition supports any measure that will prevent these senseless and unnecessary deaths and the severe injuries that can be suffered from a near drowning. I note that a report by the New South Wales Child Death Review Team recorded that 10 children died last year alone by drowning in private swimming pools. Four of those children were one year old, while six were aged between two and four years old. This is an issue that certainly grabbed my attention, given a number of those deaths occurred in the Hunter area. But for every drowning, it is estimated that three to four children are hospitalised, with one in five of those left with some form of permanent disability, often incurable or irreversible brain damage.

I believe that there are impractical elements to this bill, which are evidence of an incompetent Government that invents legislation in reaction to headlines rather than producing worthwhile and effective legislation. The legislation completely ignores the issues of dams and beachfront properties. Living in a regional coastal area, this issue is of great importance to me. There would be a number of properties in my electorate alone where an unfenced dam is just as close to the house or a neighbour's house as the backyard pool. How does the Government expect to legislate against that? Surely it will not propose pool fences around dams. Similarly, what about properties that have a pool in their backyard and a wide expanse of beachfront? And what about rivers where many children in my electorate enjoy cooling off in summer? Will they be fenced off? What about the number of stormwater retention dams in my electorate, which fill with water after heavy rain? As a safety issue, pools must be kept clean enough that you can see the bottom. Dams, rivers and retention ponds are far more dangerous than backyard pools.

I am in no way suggesting that all possible safety measures should not be adopted to prevent the drowning of young children in private swimming pools. They must be. But they must be sensible and logical, and I do not believe that this amendment bill is, in its entirety. There must be an element of individual responsibility in the protection of children. We can legislate that fences must be around every pool, but that does not account for the fact that a person could leave a gate to a pool fence partially open, or leave against the fence a chair or another object that can be climbed, paving the way for a tragedy.

The building industry is probably at the forefront of occupational health and safety, with huge advances in safety and, consequently, much fewer injuries and deaths. No-one in the industry regrets that, but I make the observation that with site inductions, work method statements and so on, people can be lulled into thinking that they are in a safe environment. Those of us of the old school continually manage risk but I suspect that individual responsibility for one's actions is in decline, and if it is allowed to decline too far, injuries will rise. Likewise, the bulletproof safety that this legislation aims for might well lead directly to a misguided sense of safety. The council building and health surveyors who will be responsible for administering these provisions are only human and the legislation is open to interpretation. The legislation would be very difficult to adhere to and it could be interpreted in many different ways. The effect of a child's drowning on a building surveyor who approved the safety fencing, only to be proven wrong by an agile child, will be devastating.

I note that the bill amends the Swimming Pools Act 1992 to remove automatic exemptions that currently allow some pools to be accessed from a house through child-resistant doors. The bill proposes to remove the automatic exemptions in the Act for new pools to be built on very small properties of less than 230 square metres, on large properties of two hectares and over, and on waterfront properties. This aims to ensure that all newly constructed pools are surrounded by a four-sided barrier with a self-closing, self-latching gate, and that the pool is separated from the house and adjoining properties and public spaces at all times.

Owners of pools on small properties will still be able to use boundary fences and house walls as part of the swimming pool barrier, providing they meet the legislative requirements and the Australian standard. There are specific circumstances, such as the need for disability access, that justify a special exemption granted by the local council under section 22 of the existing Act. In these cases, pool owners will have the option of applying to their local council for a special exemption if they believe the barrier requirements are impracticable or unreasonable. These provisions will not change. Health surveyors, who will have to determine special exemptions, will be in the box seat. That is typical from this Government—all care but no responsibility. Health surveyors will be asked to perform miracles, and a large financial impost will be passed on to councils. A trademark of this incompetent State Government is its cost shifting, freely dumping costs, responsibility and liability onto councils without any compensation. A responsible government will have to address these and other cost-shifting issues. The way this legislation stands, with its gaping loopholes, I fear it is as much about revenue raising as it is about protecting children and preventing tragedy.

Mr FRANK TERENZINI (Maitland) [10.51 a.m.]: I am very happy to support the Swimming Pools Amendment Bill 2009. I particularly support the removal of automatic exemptions for all newly constructed swimming pools. The bill proposes removal of the Act's automatic exemptions for new pools to be built on very small properties of less than 230 square metres, on very large properties of two hectares and over, or on waterfront properties, and to ensure that all newly constructed pools are surrounded by a four-sided barrier and a self-closing, self-latching gate that is installed and maintained to the Australian standard. The changes will ensure that pools are kept separate from the house, adjoining properties and public spaces at all times. These proposals have been supported by research that has found that the risk of toddler drowning is significantly less in pools with stronger barrier requirements.

Every death and serious injury resulting from a backyard pool drowning is a tragedy for parents, family, friends, and the community. I appreciate that while there are multiple risks on large properties, such as farms and waterfront properties, pools are attractive to young children and that means we need to ensure pools cannot be accessed by youngsters. I am pleased to follow the member for Tamworth in this debate. He made a very good contribution. He inserted commonsense and rationality into the debate, in contrast to what we have been hearing from the other side. The statistics the member cited are relevant. It is true that drownings in pools with fences have been caused by gates being left ajar or by some other problem, but the available statistics do not enable us to say how many lives have been saved by pool fences.

I am tired of the Opposition's approach to this and similar bills. Opposition members know the bill is a good one and do not oppose it, but they have not come up with any alternative and are always having a go at what we are trying to do. The member for Port Stephens talked about fencing dams. Is he saying that if it rains and a puddle appears, we should fence that as well? What is he trying to say? This bill is designed to increase protection for young toddlers. I cannot imagine what it would be like to walk up to my swimming pool and see my son or daughter face down in the pool. Drownings and injuries are happening where there are no fences and also where fences are not kept properly or the gates are left ajar. I do not know why anyone would say anything negative about a move to increase the safety of toddlers.

There are dams on farms, and beachfront houses are close to a lot of water, but the fact is that young toddlers are attracted to swimming pools. We must maintain some common sense in this debate. Is the member for Port Stephens suggesting that beaches and dams should be fenced in? Of course he is not. Like all members, he knows that we as a community cannot tolerate any deaths of toddlers in pools. These deaths and injuries must be stopped. The removal of exemptions is a commonsense step to make sure our toddlers are kept safe.

People in my electorate have come to me saying, "We have a pool. We are two adults and we do not have kids. Why should we put up a fence for the kids next door who might want to come over?" Everyone in the community has a responsibility to keep our children safe. It is not satisfactory for people to say that because they have no children in their household they do not need a fence and they are responsible people. I do not think that is sound. It is also not sound for people to say they have children, but they are responsible and watch every move their children make. That approach has not always proved successful. We know what children are like, especially toddlers. We have passed the stage of accepting that responsible adults always watch their children closely to make sure they do not fall into a pool. The Government and the community have to take responsibility for ensuring that everything possible is done to prevent young toddlers—who are always attracted to a pool and its clear, luminous blue water, much more than to a dam or a beach—becoming drowning statistics. We need to reaffirm rationality in this debate by acknowledging that this legislation takes a logical step forward by removing exemptions.

There is a clear difference between the risk associated with a dam or a puddle of water, which the member for Port Stephens mentioned, and the risk associated with a swimming pool. Children are particularly attracted to swimming pools. Everyone who has a pool tells me that they put it in for their children. It is important to recognise that many children, especially young kids who do not know any better, will walk up to a pool and jump in. I cannot imagine what it would be like to discover that one of my young children had drowned in a pool or had suffered an injury. But drownings and injuries in pools do happen and it is our responsibility to prevent them. Exemptions are still contained in the Act for exceptional circumstances, and the amending legislation brings welcome changes and creates a good balance. All owners of new pools should make every effort, unless in exceptional circumstances, to make sure that barriers are erected around pools and that everything possible is done to prevent these tragic deaths.

There are beautiful pool fences of high aesthetic quality. If I were putting in a pool I would not hesitate to make sure it had a fence. Fences make pools even more enjoyable. There should not be any cavilling or negativity about this bill whatsoever. Members of the Opposition will always be negative; that is what they do. But we should make this move to ensure that all pools are fenced. We must do our very best to prevent these tragic and unnecessary deaths. I commend the bill to the House.

Mr GEOFF PROVEST (Tweed) [10.59 a.m.]: The Swimming Pools Amendment Bill 2009 is a very important bill and I will raise some relevant points. The bill amends the Swimming Pools Act 1992 and aims to reduce the frequency of child drowning deaths by introducing further restrictions to access to private swimming pools. I assume that I speak for members on both sides of the House when I say that the death of one child by drowning in a swimming pool is one too many. The parents and the community both go through anguish when such deaths occur. We should do everything possible to prevent child deaths in swimming pools.

The objects of the bill are to remove the automatic exemptions under the Act in respect of child-resistant barriers for swimming pools constructed or installed after 1 July 2010 on properties with an area of two hectares and over, properties of less than 230 square metres, and on waterfront properties. As a result, after July 2010 all New South Wales swimming pools except those built before August 1990 will be required to have a four-sided barrier. The bill also increases the maximum penalties under the Act. The maximum on-the-spot fine for pool owners whose backyard pool fences fail to meet the safety requirements is increased from $220 to $550, with the maximum court-imposed penalty increasing from $1,100 to $5,500.

The bill requires local authorities to investigate complaints about a potential breach of backyard pool safety. I am the owner of a pool that is around 11 years old and we went to considerable expense to have it fenced. But it was not a burden at all because we needed to make our pool safe, not only for our children but also for any children in the area. I would like the Parliamentary Secretary when she replies to take up points raised by previous speakers about who will inspect the pools and the frequency with which this will be done. I know from experience with my pool that you need to carry out regular maintenance on the locks and keep an eye on vegetation around the pool to ensure there are no means by which young children can climb over the fence.

I note that the New South Wales Child Death Review Team's latest report, which covers the period from January to December 2008, indicated there were 10 deaths by drowning in private swimming pools, a reduction on the previous year of two drownings. As I said earlier, one death is too many. The age distribution of those children who drowned was four one-year-olds and six children aged two to four. Other research has revealed that for every child drowning there are three to four hospitalisations as a result of near drownings. Of those hospitalised, 20 per cent will be left with some form of persistent and ongoing disability. In many instances these are brain-related injuries for which there is no cure.

Many years ago I was at the scene of a drowning at Sans Souci adjacent to the Georges River Sailing Club. The drowning occurred in an open drain that fed salt water from one channel to another. It was adjacent to a playground. I saw the anguish on the faces of the mother and father and the desperate attempts by some bystanders to carry out cardiopulmonary resuscitation on the child, who unfortunately did not survive. That was about 25 years ago. I also bring to the attention of the House a case that occurred in the Tweed electorate recently. A day care centre was supervising a number of children and for a lengthy period they took the children to a playground that was adjacent to a water feature, a natural lake where there were ducks. That was at Banora Point. Unfortunately, one of the toddlers, who was aged about 20 months, slipped away unbeknown to the carers and as a result a family from the Tweed lost their child. He drowned in the lake. This has been the subject of some recent legal cases and WorkCover has been involved. The net result is that we lost a toddler from the Tweed.

The point I wish to highlight, while not opposing this legislation, is that the council has now fenced that playground because it is adjacent to a waterway. Twenty-five years ago, as I said, I saw another toddler drown in a waterway close to some playground equipment. I am not saying that fencing would prevent all such deaths but I would like the Parliamentary Secretary when she replies to make some reference to councils being obligated to fence playgrounds where they are adjacent to waterways, dams, the ocean, bays and so on. Currently there is a void in this area. I know the Tweed Shire Council has agonised over this matter and I am pleased to say it has taken action and fenced the playground. However, I could nominate another dozen playgrounds adjacent not to swimming pools but to water features that are attractive to young kids, such as dams, because there are ducks and geese and so on. There is no mention of that in the legislation.

I know that from a practical point of view we cannot fence beachfronts and large areas of waterways. In the Tweed there are 31 kilometres of coastline and about 50 or 60 kilometres of creeks and rivers. However, I have seen playgrounds near many of those rivers and on coastal reserves. I think playgrounds are very good: they are very popular with young children. Many of us here have kids or grandkids and we take them to the park to play on the swings and other equipment. It would not involve a significant cost to erect some type of fence or have some supervision of these playgrounds that are adjacent to waterways. I point out that McDonald's fences all its playgrounds. It demonstrates good work practices in doing that as a matter of routine. There are potential hazards in the community around swimming pools. The whole purpose of this amendment, and probably future amendments, is to prevent children drowning.

I would like the Government to consider this proposal in the future. I know there is the potential for another court case involving the 20-month-old toddler who drowned in the Tweed electorate. I am led to believe private action is being taken. The council saw the problem and has fenced that playground. Many of these playgrounds are being used by community-based day care centres to take kids on outings. I know that if my grandkids go past a set of swings they are pretty keen to play on them. Kids are kids and they can run away even with the most stringent supervision. Carers can be momentarily distracted and the kids are off and running.

As I said, I do not oppose this legislation. We must do everything we can to prevent child drownings. I have a concern about who will inspect the pools. I have seen other people's pools where the fencing maintenance has been let go. I am concerned about the fencing of playgrounds where there is a potential hazard. I guess they could be judged on a scale as to what action needed to be taken to make them safer. I think it should be a requirement of local government to ensure those playgrounds are safe and secure. Once again, I am 100 per cent for the Tweed.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [11.08 a.m.], by leave: I support the Swimming Pools Amendment Bill 2009 and in particular the strengthened compliance measures relating to increased penalties, investigation of complaints and urgent remedial work. It is my belief that a majority of pool owners in New South Wales want to do the right thing when it comes to swimming pool safety. However, it is very easy to miss simple problems such as faulty latches, corroded railings, the small hole under the fence dug by the family dog or even the tree or shrub that has grown near the pool fence.

It is also the case that pool gates are sometimes absentmindedly propped open by pool owners or occupiers not really thinking about the possible consequences of their actions. Sadly, a minority of pool owners or occupiers deliberately flaunt the swimming pool barrier legislative requirements. Each of these examples constitutes a breach of the Act's requirement to ensure that backyard swimming pool barriers are constructed and maintained to the Australian standard. Simple failures such as these can easily lead to a tragedy. There is considerable evidence that the recent spike in backyard swimming pool drowning deaths of very young children is directly related to these issues.

For this reason I support the bill's proposed increase to the maximum court-imposed penalty amounts for offences under the Act from $1,100 to $5,500, as well as a consequent increase to penalty notice amounts prescribed by regulation from $220 to $550. Offences under the Act include failure to provide and maintain a swimming pool barrier to standard and failure to keep gates securely closed when not in use. The proposed increase to penalties serves to remind pool owners and occupiers about their responsibilities. It also serves as a deterrent to the small number of pool owners who wilfully and deliberately ignore the legislative requirements.

At the same time the bill introduces a warning system so that pool owners are usually issued with at least 14 days notice prior to being formally ordered to fix a deficient barrier. I am pleased to see this recognition that many pool owners may be genuinely unaware that their pool may not comply. I am also pleased that council officers will continue to be able to exercise discretion based on the facts of each individual case when issuing directions and fines under the Act. The bill proposes that councils will be required to investigate complaints they receive about possible non-compliance with barrier and other requirements under the Act. This means that any community member who becomes aware of a problem with a swimming pool barrier and reports it to council will have confidence that something will be done.

The many councils already investigating and resolving such complaints are to be commended. Once these amendments are passed, it must be clear that all councils must do so within a reasonable time frame. The bill proposes that councils must commence investigation of a complaint received in writing within 72 hours where practicable. The bill also allows councils to decline to investigate complaints where they are assessed as being vexatious, frivolous or lacking in substance. I imagine that such complaints would be rare but might be made vindictively during ongoing neighbourhood disputes. The proposal to give councils optional powers to enter property and undertake remedial work to rectify deficient pool barriers is an important initiative. It gives local councils effective powers to respond to serious pool safety issues that pose a significant risk to public safety where other mechanisms may not be effective.

For example, it would allow effective action to secure a swimming pool that forms part of a derelict property or allow council to address persistent or wilful non-compliance on a property that has direct access to public land. Swimming pools are an important part of family life for many Australian families. The bill includes significant measures to ensure that families can continue to enjoy their pool safely. The compliance measures in the bill emphasise voluntary compliance but also include strong measures to manage the behaviour of a small minority who would choose to wilfully ignore sensible legislative requirements concerning pool safely. I was rather concerned about the contribution of the member for Castle Hill, who raised concerns, as we all do, about the number of deaths in private pools, all of which he said were fenced. He then drew members' attention—as did the member for Tamworth—to the number of children who survive but suffer irreversible brain damage. The simple motto should be that pool fences save lives.

ACTING-SPEAKER (Mr Thomas George): Order! The member is not speaking in reply, is he?

Mr BARRY COLLIER: No. I am just commenting on the different views of the Labor and Liberal parties as to whether we should interfere in the way that people control their backyards. That is not what this bill is about. This bill is only about saving lives, and I commend it to the House.

Mr RUSSELL TURNER (Orange) [11.14 a.m.]: I speak on the Swimming Pools Amendment Bill 2009 and note that the Coalition supports the bill, with some reservations. The bill, which amends the Swimming Pools Act 1992, aims to reduce child drowning deaths and accidents, many of which unfortunately result in life-threatening brain damage. The bill also introduces further restrictions to access to private swimming pools. The bill will remove automatic exemptions under the Act in respect of child-resistant barriers for swimming pools constructed or installed after 1 July 2010 on properties with an area of more than two hectares or less than 230 squares metres, and on waterfront properties.

After July 2010 all New South Wales backyard swimming pools, except those pools built before August 1990—the Government might enlighten me on why those pools will be exempt; I do not know the number but I am sure many were built before 1990—will be required to have a four-sided barrier regardless of the size or location of the property. The restrictions with respect to those barriers will be tightened. I remember years ago that one of the walls to our pool on the farm was the house. At that time it was not a requirement that the windows with access to outside be sealed. The entire family could open and close those windows. Fortunately, the children did not and we never had any incident. I am not sure whether the windows need to be sealed permanently to prevent access by adults or children in the case of a house wall being a barrier.

The bill will increase the maximum penalty for a number of offences under the Act. The maximum on-the-spot fine for pool owners who fail to meet pool fence safety requirements will increase from $220 to $550, with the maximum court-imposed penalty to increase from $1,100 to $5,500. It appears that local government will have the responsibility of enforcing the new regulations. Will local government receive the revenue raised from the fines or will the money go into consolidated revenue? I am concerned that this is another cost-shifting exercise and that the Government has placed on council additional costs and responsibility.

The bill will permit the regulations to prescribe the circumstances in which an opening in a wall that is part of a child-resistant barrier is taken to enable access to be gained to a swimming pool at any time. It will require local authorities to investigate complaints about a potential breach of backyard pool safety. The bill will also require a local authority to give notice before giving a direction and to enable the authority to carry out the requirements of such a direction if there is a failure to comply or a significant risk to public safety. Council is required to give 14 days notice, which is a satisfactory requirement. As councils are not required to undertake inspections, I assume that a neighbour or some other person would bring to the council's attention their concern that the pool does not meet the requirements.

Sometimes the catches on pool fence gates are not maintained properly and although a gate might appear to be closed the latch might not be in place. Every 12 months I used to oil the catch on the gate of my pool to ensure that it was working. Swimming pool owners must also keep a watchful eye on any trees that are growing in the vicinity of their pools. At the time I bought my property a swimming pool had already been built. It was a couple of years before I realised that the tree providing shade near the steps of the pool could be used by children climbing it to access the pool. My grandchildren were never inclined to do that but many deaths and accidents that occur in backyard swimming pools do not involve the children of a pool owner; rather they involve children from up the road or friends who are visiting for the day.

I am concerned about the additional responsibilities that are being placed on councils. How vigilant will councils be in carrying out these regulations? I was critical of Orange City Council when the Government gave it the power to issue on-the-spot fines for things such as loitering. Councils are reluctant to issue on-the-spot fines, as they do not want to be perceived as Big Brother. I live in a semi-rural area in which there is a plentiful supply of blackberries, St Johns wart and other weeds, but councils are reluctant to issue on-the-spot fines to those who do not comply with weed eradication regulations. I hope that councils are more vigilant in their inspections of pools. I would not object to councils being given the responsibility for inspecting swimming pools every three years as opposed to every year. Not every council receives complaints about faulty swimming pool fences or gates that do not lock. I believe that the vast majority of pool owners would be happy if councils inspected their pools every year or every three years. The Legislation Review Digest notes:

For pools on small properties, owners will still be able to use boundary fences and house walls as part of the swimming pool barrier, providing they meet the legislative requirements and the Australian standard. There are specific circumstances such as the need for disability access that justify a special exemption granted by the local council under section 22 of the existing Act. In these cases, pool owners will have the option of applying to their local council for a special exemption if they believe the barrier requirements are impractical or unreasonable. These provisions will not change ...

Another proposal is to provide councils with optional powers to enter property and undertake remedial work to rectify deficient pool barriers where non-action poses a significant risk to public safety, and where the owner refuses or is unable to do the work. The council must provide notice of intention to do the work.

As I said earlier, some councils might be more vigilant than others. All this legislation does is place more responsibility on councils. In some instances councils could be accused of being Big Brother, especially in rural areas and on farms where pools have to be fenced, with virtually no exemptions. Farm dams and creeks, et cetera, are not required to be fenced, and nor should they be. Mention has been made of the fact that swimming pools, unlike the ocean or other bodies of water, have a certain attraction to, and are a magnet for, children. Pool owners are now required to fence their pools even if they are located on a waterfront property. The bill, which is a step in the right direction, will abolish the Pool Fencing Advisory Committee whose functions will now be carried out by the Water Safety Advisory Council. I support the bill in the knowledge that there will be some non-compliance but, as has been mentioned, if we can prevent one child from drowning or one child from suffering permanent brain damage, we will be moving in the right direction.

Dr ANDREW McDONALD (Macquarie Fields—Parliamentary Secretary) [11.26 a.m.]: I speak in support of the Swimming Pools Amendment Bill 2009 and state from personal experience that there is no greater tragedy than the preventable death of a young child. I have had personal experience of telling parents that their child, who had been healthy two hours earlier, was now dead. As members of Parliament we must prevent the dreadful experience of these families whose lives and the lives of their children and grandchildren have been changed forever. Fortunately, there are fewer swimming pool deaths now than there were 15 years ago, but they are still occurring. We must do more to reduce, and hopefully stop, these swimming pool deaths.

The regulation of swimming pools requires a balanced approach between State regulation, community education and individual responsibility. This balance must always be towards child protection. I am pleased that the Opposition supports the bill because it is an important step in offering greater protection to our most vulnerable citizens—our children. For many Australian families backyard swimming pools are places of fun, family bonding, fitness and a time for families to spend together. However, sadly, the backyard pool can also be lethal for very young children. As I have said before in this House, one child drowning in New South Wales is one child too many. Every parent knows that even the youngest child will show amazing ingenuity to get into something that he or she wants or enjoys.

Exploration is an important developmental step in toddlerhood and these toddlers need to be protected by government and by the community. Backyard pools are no different. The stories of parents to whom I have spoken whose children have died are, unfortunately, chillingly familiar and repeatable: They have taken their eyes off their much-loved toddler for the briefest time and it has proved fatal because of a defective latch or because pool fencing was not foolproof. However, swimming pool owners have a responsibility to the greater community.

Children regularly drown in a next-door neighbour's pool. Just because a swimming pool owner does not have toddlers does not mean that his or her pool is safe. This important bill will bring about a consistent and high standard of four-sided pool barrier fencing to surround all newly constructed backyard pools in New South Wales. However, equally important is the Government's commitment to work with the community to raise awareness of pool safety. It is critical for pool owners to be educated about their responsibility to ensure that pool barriers comply with prescribed standards at all times.

A backyard swimming pool can be lethal for children in the wider community, not just those of the owners of the house. Compliance with the prescribed standard must include the ongoing maintenance of the barrier, ensuring gates are always kept closed, and that a child is unable to climb under or over the barrier. From my experience, a regular offender has been the pot plant next to the pool entrance that a child uses to climb over the barrier. It is also necessary that parents and carers of young children understand the importance of supervising their children at all times. Parents must be aware of the risks associated with pools, and how to responde appropriately in the sad event that an accident does happen. Vigilance does not always end in toddlerhood. I have seen an 11-year-old, who was said to be able to swim, nearly drown.

Swimming lessons from under the age of five have been proved in the world literature to be ineffective in preventing drownings. Pool owners need to know how to check that their pool fence complies with legislative requirements. Parents also should learn how to administer cardiopulmonary resuscitation [CPR]. Accidents can, and do, occur even in the most closely supervised situations, such as at parties. A child can slip below the water while family members have their backs turned and can drown in three minutes. Learning the appropriate way to administer CPR is not difficult and it can save lives when accidents occur—and not just around swimming pools. The time delay involved in the carrying out of effective cardiopulmonary resuscitation in a near drowning is a major determinant of a long-term outcome. If CPR is delayed, by the time the patient arrives at hospital it is usually too late. In fact, once the patient arrives at hospital, within 10 minutes of commencing resuscitation, it is then obvious whether there will be a chance of intact survival. If the patient has no heartbeat after 10 minutes of effective resuscitation in hospital, his or her chance of being a long-term survivor without damage is minimal.

The New South Wales Government currently provides more than $5 million over three years and the Federal Government provides more than $38 million over four years to key water safety organisations—including the Royal Life Saving Society, Surf Life Saving Australia and AUSTSWIM—for a range of water safety research, projects and education initiatives. Education initiatives include the Royal Life Saving Society's Keep Watch Toddler Drowning Prevention Program, which includes fact sheets on home pool safety, fencing, supervision and resuscitation, as well as a home pool safety checklist for pool owners.

I strongly support the Government's proposal to explore and implement further education initiatives to provide pool owners and parents with even better access to the latest pool safety information. As I said at the commencement of my contribution, the bill is an important step in making backyard swimming pools safer. We have come a long way since the early 1990s, but we still need to do more. Strengthened community education is critical in ensuring that pool owners and parents understand that they have responsibility for their swimming pools, and that swimming pools can be lethal and are risky for young children in their community. I commend the bill to the House.

Mr JOHN TURNER (Myall Lakes) [11.33 a.m.]: Opposition members have already indicated their support for the Swimming Pools Amendment Bill 2009, and likewise I indicate my support for it. I do not have a swimming pool, but if I did I believe I would go above and beyond the requirements under the Act to ensure the safety of all people in the area. Regrettably, I must address some of the illogical aspects of the bill, which have also been addressed by other speakers. I will keep my contribution brief.

Under the bill, swimming pools on waterfronts will have to be fenced. I am fortunate to have a property on a waterfront. I know a person a few doors up from me who has a swimming pool and he has fenced the pool all round, so there is a tick there. I now deal with the illogical aspects of the bill. I am also fortunate to live in Forster, which has an ocean baths at the end of the beach. I pose the question: Where do those ocean baths fit into the requirements and the regulations? The baths are a public swimming pool in every sense of the term. And right next to the baths is the ocean, so the young children can access the water that way.

When I come to Sydney I stay in a property that has an indoor swimming pool. What will happen with that swimming pool is beyond me. Will the owner be required to erect a fence around that swimming pool, that is, inside the building? With regard to small allotments, the member for Orange said there is a provision in the bill—which I was not aware of until he raised it—under which an existing wall can be used as a fence, provided it is secure. However, a small existing allotment may also have a spa in it, but that spa does not have to be fenced or secured in any way. Tragically, two years ago in my electorate, a young girl drowned in a spa that was adjacent to a swimming pool. There was no requirement that the spa be secured in any way.

I now turn to large allotments, many of which have dams. I am fortunate to have lived on a farm. We used to swim in the dam on the property; that was our recreational area. Under the bill, dams do not have to be fenced. However, if I had put a pool on my property it would have had to be fenced. Again, that is an illogical situation. Perhaps the most illogical aspect of the bill is that pools built before 1990 do not have to comply with the new Act. I imagine that the water in those pools is just as wet and just as deep as it is in pools built after 1990, but for some reason pools built prior to 1990 are exempt from the legislation. Previous speakers have asked that that matter be clarified in reply.

I can remember the angst that was expressed, and rightly so, when the former Coalition Government introduced swimming pool regulations. The regulations included an exemption to enable a wall, provided it was properly secured, through which there might be a door that also had to be properly secured, to act as a fence. I understand the bill provides for a similar exemption but that it has been tightened up considerably. Provided such a wall and door are secure—if it is a fence it will have a gate, and I do not see the difference between a secured gate and a secured door—I believe that that exemption could still apply. I note, however, that that exemption will probably lapse and that an internal fence of four sides will be required.

The final issue I raise is cost shifting to councils, which is another impost on councils. It is a necessary impost, in that council officers are probably the ones who should inspect swimming pools and enforce the regulation. However, councils should be recompensed in this regard, in addition to any fee they might charge the owners of swimming pools. As I said, if I had a swimming pool I would go above and beyond the requirements under the Act, because I could not think of anything more devastating than the loss of a life through inaction on my part, or on the part of someone else, in relation to securing a swimming pool.

Mr JONATHAN O'DEA (Davidson) [11.37 a.m.]: I speak to the Swimming Pools Amendment Bill 2009. I will not speak about the provisions of the bill and what it does because many other speakers have done so. Suffice to say that the Opposition does not oppose the bill. I will make a few comments, first about swimming pools in the area I represent and, secondly, about retrospectivity, which I understand is not now relevant to the bill in that the Minister has reassured us that the provisions of the bill will apply to future pool constructions only.

On the Ku-ring-gai Council side of my electorate, in particular, pool owners are currently being urged by the local council to ensure that fences and gates comply with safety legislation, in light of statistics showing that more than one-quarter of backyard pools checked by council officers in 2008-09 had a safety defect. The Ku-ring-gai Council area, and the Warringah council area to a lesser extent, has a large number of swimming pools. Indeed, almost one-third of homes in the Ku-ring-gai area have a pool, which makes Ku-ring-gai particularly vulnerable to the combination of pools and young children. As the mayor of Kur-ing-gai, Ian Cross, said:

While there is no substitute for adult supervision of young children in backyards and pool areas, child resistant barriers add an important layer of protection and are compulsory by law.

In 2008/09, Council staff inspected 342 properties with swimming pools and 90 of these were found to have defective fences or gates.

The bill contains a number of sensible initiatives in an endeavour to ensure that no family tragedies occur in any council area across New South Wales. Some concerns with the bill that members have raised have merit, but we all want to minimise the incidents of drowning, which is one of the major causes of death of children under five years. Each year, 10 children on average drown in backyard pools in New South Wales and many will suffer brain damage and other serious injuries associated with near-drowning experiences. I shall not comment about the retrospectivity issue as that is now not necessary. However, I highlight that the consultation process could have involved more pool owners. Although the Pool Fencing Advisory Committee will be abolished, many pool owners from the Pool Owners Action Group expressed disappointment at not being consulted. This group has been fairly vocal in monitoring the pool fencing issue for some time.

I am happy to share with the Parliamentary Secretary, the Minister or anyone else a report I am privy to that has just been completed by Emeritus Professor Philip Ley of the University of Sydney entitled, "Does isolation fencing save lives? The case against further retrospective legislation concerning NSW domestic swimming pools." I shall not go into great detail because the proposed legislation is prospective rather than retrospective, but the report questions whether pools fenced on four sides are safer than those fenced on three sides with the back of the house as a secure barrier. Legitimate concerns have been expressed about past suggestions that the back of a house does not constitute a sufficient barrier for children or other people accessing a pool.

Certainly any initiatives should be backed by empirical evidence. The empirical evidence in the report should be considered seriously in this debate and in relation to other effective measures to address pool safety. I shall conclude by making a final request of the Parliamentary Secretary or the Government. I understand that Deputy Coroner MacMahon will be conducting an inquest from 7 to 11 December 2009 into the deaths of eight toddlers aged under five years in backyard swimming pools between 2006 and 2008. I seek confirmation that the inquest will proceed and that the passage of this bill will have no effect on those proceedings. The inquest will play an important role in considering further valuable pool safety measures.

Mr ROB STOKES (Pittwater) [11.43 a.m.]: At the outset I must say that the Swimming Pools Amendment Bill 2009 is an important piece of legislation, and I pay tribute to those who introduced the 1992 legislation. The debates on the initial legislation reveal that there was much community controversy, but the statistics since have shown far fewer toddler deaths in swimming pools. Therefore, I applaud those who had the foresight to introduce the legislation in the face of controversy because it involved a shift in thinking about private property. Not often in this place do we debate legislation that has the real outcome of saving lives. This is one such piece of legislation.

Statistics on toddler drownings in swimming pools remain startling and terrible. In the past financial year Royal Life Saving statistics show that 32 Australian children under the age of four years drowned, 19 of them in swimming pools. I am sure that most members would know family members or friends who have been touched by the tragedy of a child drowning in a backyard swimming pool. Therefore, it is incumbent on us to do everything possible to ensure that the risks are minimised. This legislation aims to do that. I suppose that my opening comments are a general warning to parents of young children: When considering buying a house, think carefully about buying a property with a backyard swimming pool. Backyard swimming pools are wonderful. However, backyards are where Australians like to relax, switch off and enjoy the privacy of our own open space with our families. They are also places where the surroundings can make us turn off to the dangers confronting children. I encourage families with young children to think long and hard about living in properties with backyard swimming pools because of that inbuilt risk. Obviously, buying a residence is a matter of personal choice, but it is important to consider the safety aspects of backyard swimming pools.

The first object of the bill is to increase the maximum penalty for offences under the Act. I believe this provision sends us in the wrong direction completely. We are trying to ensure compliance with swimming pool safety, not be punitive in our approach. We should not be going out of our way to fine people for breaches; the Government should be looking for ways to help people comply with the law. Increasing fines for breaches of the Act is a recipe for creating bad relationships between local government and residents. A local government officer might inspect a swimming pool, find a defect—for example, the resuscitation chart is not visible or is illegible because it has faded—and issue the property owner with a $550 fine. That will hardly inspire good relations with the council; nor will it inspire the owner to buy another chart. A $550 fine is a big whack, and it points us in the wrong direction. Rather than increasing penalties, we should be doing what we can to increase compliance. We are aiming for compliance and safer swimming pools.

The second object of the bill is to remove automatic exemptions under the principal Act in respect of child-resistant barriers for swimming pools constructed or installed after 1 July 2010 on very small, large or waterfront properties. The important point here is the date: the provision applies to pools constructed after 1 July 2010. That sends a message to people to get their pools completed quickly, before 1 July 2010, and they will not have to comply. However, the provision will create a nightmare for council inspection officers because different laws will apply depending on when the pool was built. That will not be immediately obvious to a council officer. It may be difficult for a subsequent owner, or even the original owner, to know when the pool was built and therefore what laws apply. Laws that do not enable people to determine their legal obligations simply are not just. In addition to the provisions governing the size of pools, it is obvious that a pool is quite different from a dam, a river or the sea.

Those of us with small children know that there is something very alluring about the iridescent blue of a swimming pool that fascinates them. Toddlers are not aware of depth, so a pool is far more attractive to them than a beachfront or a river. We need to recognise that to toddlers there is something quite special about pools and we need to ensure that all pools are fenced. Pools are different from dams and natural bodies of water. When people are at the beach, which is open public space, they are likely to be more vigilant. When we are in our backyards we tend to switch off—and that is why fencing is so important.

The third object of the bill is to permit the regulations to prescribe the circumstances in which an opening in a wall is taken to enable access to be gained to a swimming pool at any time. Recently I went on some pool inspections with representatives of Pittwater Council and I witnessed just how complicated the Australian standards and regulations are. Unless pool owners have an engineering degree they will not know whether their pools comply, which is a real problem. Anybody who owns a pool should be able to look quickly at a list to answer this simple question: Does my pool comply? They cannot do that at the moment, and the bill does not address that problem. If ordinary people cannot understand the standards that apply to their pools then the law will not be effective.

The fourth object of the bill is to require a local authority to give notice before giving a direction under the principle Act, and to enable a local authority to carry out the requirements of such a direction if there is a failure to comply or a significant risk to public safety. There are a couple of problems here. Proposed section 23 (4) requires notice to be given to an owner before a direction is given. So a pool owner will be given notice that a direction is about to be issued. But the local authority may serve a direction without serving notice if it considers the safety of a person would be at risk if the requirements of the direction were not carried out as soon as possible. If the direction relates to a defect in a pool fence, I cannot think of an example of how the safety of a person will not be put at risk—that is the purpose of giving a direction under the Swimming Pools Act. If you are giving a direction that does not relate to people's safety, why give it? Every local council will rely on proposed section 23 (6) to cover them. Councils will say, "We are concerned about people's safety so we are issuing this direction". That is a flaw in the legislation.

Proposed section 23A, compliance with the direction of local authority, deals with a person who is given a direction and does not comply with it. The local authority is then given the power to do the work. In my old career I was a lawyer and if I were advising a local council on this provision I would raise some serious concerns. If a local council does the work it presumably assumes liability for any defects in that work. Goodness knows how it will recover its costs for doing the work in the first place. It will potentially expose local authorities to liability if their contractors make a mistake when fixing someone's fence. Fundamentally, if people have a pool they are obliged to fence that pool and make it safe. It is not the role of council to do it for them. The provision puts councils in the weird position of having to go in and do work for a private owner, which is not their role. It exposes them to liability and it shifts costs onto local government, which is not a great idea either.

The fifth object of the bill is to require local authorities to investigate certain complaints. This is where the rubber hits the road in this legislation. The Government can increase all the penalties it wants but nothing will change unless pools are checked or people are able to check their own pools. At present people cannot check their pools because the law is too complicated and difficult to understand and the council inspection regimes are haphazard. Councils receive a fee of $70 for carrying out inspections and they will not recover their costs. Past surveys undertaken by local councils have shown that compliance rates are extremely low. A couple of years ago Newcastle City Council undertook a survey that revealed that less than one-quarter of swimming pools in the Newcastle area complied with the Act. This is the problem. The problem is not that the penalties are not stiff enough; the problem is that people do not know whether their pools are defective—and if they are defective, no-one is checking them. The sixth object of the bill is to abolish the Pool Fencing Advisory Committee. That allows me to segue into mentioning that there is no certification or accreditation for council officers so that they know the Australian standards or regulations in relation to pool safety. [Extension of time agreed to.]

This is a very complex and technical area of regulation. No course is provided at TAFE. There is no way to become a qualified pool safety inspector. The Government needs to address that issue. This is a technical area—one of the problems is that it is too technical—and people do not understand how to make their pools safe or whether there is a problem with their pools. The seventh object of the bill is to make a number of minor and statute law revision amendments. It is fascinating that the principal Act required the regulation to be reviewed within five years. The regulation was reviewed a few months ago and now we are amending the Act. I would have thought the correct way to proceed would be to clarify the principle Act, make any necessary changes to the Act, and then look at the regulation. The Government has done things the other way around and we will now have to change the regulation again. From a drafting point of view, it is a rather strange way to go about things.

In conclusion, I believe the bill represents a missed opportunity for reform, which is a real shame. The Opposition does not oppose the bill because there are some good things in it, but it is a missed opportunity to engage in real reform and make pools safer for small children. The bill should have set up a system for checking pools. It contains no provisions that ensure that pools will be safer. The bill will allow councils to impose bigger fines but that will not work because it will not encourage compliance. It will create a culture of hiding defects or seeking to exclude council inspectors rather than asking, "What is wrong with my pool? What do I need to do to fix it?" When I went on the pool inspections with the Pittwater Council representatives I observed that people want their pools to be safe and they want to know how to fix them if there is a problem. Adopting a punitive approach will not help them.

I suggest that the Government should consider, for example, whether a certificate of compliance under the Swimming Pools Act should be provided to the purchaser as part of the vendor disclosure checks when a property is sold. On average, people sell their houses every seven years. That would ensure a semi-regular check of pools and purchasers would know their pool is safe. To illustrate the complexity of the law, I cite the example of a recent purchase of a property in Pittwater that had a pool area surrounded by a moraya hedge. The vendor obtained a certificate of compliance but subsequently a council inspection declared the woody moraya hedge to be a climbable structure and that the pool area did not comply with the Swimming Pools Act. Nothing had changed between the issuance of the two certificates. That type of inconsistency exposes councils to liability and demonstrates how unnecessarily complex swimming pool laws are.

Legislation needs to be applied consistently across all situations. As several members have already stated, when a pool is built will determine what type of fencing is required or whether fencing is required at all. It proves Dickens' point that the law can be an ass. Law applying to the same danger will have a different set of requirements depending on when the swimming pool area is built, and that seems utterly ridiculous to me. I know that evokes issues of retrospectivity, but surely public safety trumps retrospectivity every time. The Parliament should adopt a consistent and simple approach. Fundamentally people should be able to understand the law and have easy access to the law. They should be able to go out into their backyard and ask themselves whether their pool complies with legislation. There should be an easy reference sheet that they use to check whether their pool fence is safe. At the moment that type of information is not available.

The bill does nothing to provide that for people. In an inspection I did with the Pittwater Council recently, a sculpted sandstone retaining wall was deemed to be technically non-compliant because, by using small sandstone footholds, a child conceivably could scale the sandstone wall and get into the pool. If the wall had been rendered, there would not have been a problem. When determinations rest on standards that are being applied to individual situations, the law becomes very difficult to understand. It leads to confusion, resentment and conflict between councils and citizens. This legislation really does not reach the mark. It makes the regulatory burden more complicated, more rigorous and more punitive, but it does not help to make pools safer. While the Opposition does not oppose the bill, I request that the concerns I have raised be addressed during reply.

Mr MALCOLM KERR (Cronulla) [12.02 p.m.]: My comments on the Swimming Pools Amendment Bill 2009 will be brief because much of what I wanted to say has been said by the member for Pittwater in his very thoughtful and constructive contribution to the debate. Everyone wants to reduce the number of pool deaths caused by drowning but, as the member for Pittwater said, confrontation and complexity are not the way to go about it. By taking a confrontational and punitive approach, the Government will not win the cooperation of pool owners. If the legislation is complex, pool owners will have difficulty in understanding their obligations. If the Government prefers to adopt a punitive approach to obtain substantial revenue by increasing penalties for non-compliance, it should give further consideration to dedicating the funds derived from penalties either to children's learn-to-swim campaigns or to research into permanent injuries resulting from near death. That would be a way forward and a much better approach than the proposals outlined in the bill.

Mr DARYL MAGUIRE (Wagga Wagga) [12.04 p.m.]: I will not discuss all aspects of the Swimming Pools Amendment Bill 2009 because other members have sufficiently canvassed the issues, but I will focus instead on the very important issue of protecting the most vulnerable category of swimming pool death statistics, which is children. In 2008-09, 302 people drowned in Australian waterways. Of those 302 who drowned, 234 were males and 68 were females; 76 of those drownings occurred in rivers, 67 in harbours and oceans, 67 on beaches, 41 in swimming pools, 26 in lakes, dams and lagoons, 12 in bathtubs and spas, and 13 from unknown causes. In New South Wales, in 2008-2009, 104 people—83 males and 21 females—drowned, 93 more than in 2007-08.

A breakdown of the statistics by age reveals that of those aged up to four years, 32 drowned; of those aged 5 to 14, there were 11 deaths; of those aged 15 to 24, there were 38 deaths; of those aged 25 to 34, there were 46 deaths; of those aged 35 to 44, there were 40 deaths; of those aged 45 to 54, there were 40 deaths; of those aged 55 to 64, there were 37 deaths; and in the 65-plus age group there were 57 deaths. Wherever those deaths occurred, in swimming pools, waterways, harbours or oceans, far too many people lost their lives through drowning.

Very proactive campaigns have been undertaken by surf lifesaving associations, governments and others about the benefits of resuscitation and first aid. Warnings have been given to prevent people from frequenting dangerous places, such as rock fishing locations and areas outside the flags on patrolled beaches. A great deal of money has been spent on attempts to educate people not to do those things. Sadly, the deaths continue to increase. Although allowance must be made for population increase as a percentage of the statistics, some of the problem is that many new citizens to Australia come from countries where swimming is not a regular activity. Because Australia is a very desolate, arid and hot nation, Australians frequent beaches, harbours and waterways more often than do others. Some of the reason for the increased deaths from drowning could be that many people who come to Australia may not have had the opportunity to learn to swim. We should send a very strong message to encourage people to take up learn-to-swim courses.

The solution that is always proposed by the Government is that of highlighting and increasing fines instead of embarking on an education campaign. I am rather concerned that highlighting penalties and allowing councils to issue on-the-spot fines during property inspections will become a disincentive for landholders or pool owners. A better approach is to allow council inspectors to visit properties and assess whether the swimming pool area complies. The Department of Fair Trading has issued fines on the spot for minor irregularities instead of issuing a warning or direction, which would have been more appropriate. I would be concerned if this legislation leads to a punitive approach being adopted instead of councils proactively assisting property owners to comply with swimming pool legislation.

I am also concerned that the legislation does not cover the whole field. Spa baths increasingly are being included in the landscaping of modern homes. Swim spas are quite deep and can accommodate up to 12 people. Both spa baths and swim spas are not required to be fenced. I do not believe that when this legislation was drafted any consideration was given to those two categories of pools. While I recognise that props are not allowed during debate, I regard the newspaper clippings in my possession as a reference, which will enable me to show members that properties with swim spas or spa baths are being advertised in the real estate section of the Sydney Morning Herald. Members will note that there is a doorway from the house leading to the spa area, but there is absolutely no protection. Another article refers to spas in the landscape of a property. It can be seen from the photograph that the spa is very large, very deep and unprotected. I do not believe this legislation has taken these circumstances into consideration. In some cases spas can be as large as a small swimming pool. In such circumstances property owners would be concerned to know whether this legislation applies to them.

In relation to the tragedy of drownings, I refer to an article that appeared in yesterday's Daily Telegraph called "A river of tears for children lost", written by Dr Steve Walker, who is part of a medical recovery team. I suggest that all owners of a property with a pool, spa or waterway read the article. It gives an insight into the great tragedy of a drowning and the effect on family members and others from the loss of a child. I also want to highlight the issue of personal responsibility. All of us have a responsibility to monitor children, particularly small children, at all times. From my personal experience, my family had a swimming pool and I was petrified of our children accessing the pool unattended. We took all obvious precautions to ensure that the pool was safe. Yet one day, whilst having a neighbourhood barbeque, we witnessed a two-year-old climb the pool fence unaided and scamper over the fence, which was built to the legal standard, within about two seconds. If we had not been there, the child would have been in the pool within a minute. That highlighted to me that we can build fences and put regulations in place, but personal vigilance is important to protect our children.

An issue that has not been discussed is the availability of new technologies to pool owners—for example, an alarm that can be placed on the surface of the water. When the water is disturbed by a splash from a child falling in, the alarm sends a signal. This device is not expensive. It is not as expensive as other solutions that have been talked about. It is available and on the market. I encourage individuals to look at these new technologies and use them. A swimming pool or a spa on a property or a waterway on a farm presents a danger. In rural and regional New South Wales, sadly, many children drown in dams and tanks. Some of these are fenced, but some are unfenced because they are stock watering points. It is devastating for a farmer to have to deal with the tragedy of a little one lost in a dam. It is devastating for everyone. If this legislation assists in some way, that is a positive step. However, I believe the legislation is incomplete. The Government must do more to ensure a partnership with pool owners and a willingness on behalf of administrators to help pool owners understand the rules. A new initiative has been introduced in Newcastle. In an article headed "Water Safety" Jacqui Jones reports:

An initiative designed to help reduce backyard pool drownings has been launched in Newcastle.

Newcastle City Council is encouraging property owners to list their backyard pools and spas on the organisation's swimming pool register.

Council compliance services manager Deb Alterator said members would be provided with information about state laws to ensure their pool was safe.

In NSW, pool fencing and other approved child-resistant barriers must be installed to all swimming pools and spas, in accordance with legislation and Australian standard.

Penalties for failure to comply range from $220 to $1100.

Council officers can also issue a notice to direct a person to comply with these requirements.

Ms Alterator said the register would give the council a better understanding of the number of pools in the local government area and allow it to pass on information about changes to regulations.

According to the article, councils do not know how many pools are in their local government area. Although the article refers to spas, I do not know whether this legislation covers them. I ask the Parliamentary Secretary to address my concerns in a positive way. I thank the House for the opportunity to make a contribution.

Mrs JUDY HOPWOOD (Hornsby) [12.15 p.m.]: I will make a brief contribution to the Swimming Pools Amendment Bill 2009, which amends the Swimming Pools Act 1992 to make further provision with respect to ensuring access to private swimming pools is effectively restricted, and for other purposes. The object of the bill is:

(a) to increase the maximum penalty for offences under that Act,

(b) to remove automatic exemptions under that Act in respect of child-resistant barriers for swimming pools constructed or installed after 1 July 2010 on very small, large or waterfront properties,

(c) to permit the regulations to prescribe the circumstances in which an opening in a wall (that is part of a child-resistant barrier) is taken to enable access to be gained to a swimming pool at any time,

(d) to require a local authority to give notice before giving a direction under that Act and to enable a local authority to carry out the requirements of such a direction if there is a failure to comply or a significant risk to public safety,

(e) to require local authorities to investigate certain complaints,

(f) to abolish the Pool Fencing Advisory Committee,

(g) to make a number of minor and statute law revision amendments.

Many of my constituents have raised concerns about swimming pool safety. Ken and Carol Turnidge, who have grandchildren, have raised this issue with me on many occasions over many years. They are concerned about children when visiting friends or wider family members being exposed to pools that may not be fenced properly or may be deemed to be unsafe. Many others have raised this concern with me and I have endeavoured to keep them up to date on the progress of pool safety regulations. Pool owners and parents and carers of children are warned to take every measure to ensure that pools are safe and that they are trained in resuscitation techniques.

I have two daughters aged 22 and 25. We have lived in Mount Colah since they were little girls. Our property is on a sandstone slab. A number of times we considered building a pool on our property, but the cost was exorbitant because it involved digging through solid rock. We chose not to install a pool. We have wonderful neighbours, Walter and Carolyn Penzias, who allowed our children to swim in their completely fenced pool. Although we did not have direct responsibility for a pool, it is everyone's responsibility to know their neighbourhood. Parents and carers of children, who may wander and succumb to the allure of a pool, must know the location of pools in their neighbourhood. Nothing could be worse than a person coming home and finding a child floating in their pool, particularly if they have not taken the necessary safety measures and erected proper fencing.

The drowning death of a child is a silent death. I agree with the member for Pittwater that children are attracted to the beautiful, luminous blue water. There is something about it that attracts them. Friends of mine had a terrible experience when their daughter, who was then aged under two, almost drowned. Their daughter simply slipped into the pool. They were sitting beside the pool and suddenly realised that their daughter had stepped off the edge of the pool and was in the water. To this day I can visualise exactly what emotions went through the father, who jumped into the pool. He could see his daughter in the deep end of the pool in the grounds of their home. He could see her eyes, which were absolutely wide, just staring ahead, expressing the fact that she was under two years, could not swim and was in the deep end of the pool. He had many thoughts flashing through his mind as he jumped in and retrieved his daughter from the pool. If the child had stepped into the pool unnoticed it could have been a tragedy.

That shows that these tragedies occur very quickly and silently. Even if people are within the bounds of a fenced pool a tragedy can still occur, as our friends the Keys realised all those years ago. I emphasise the importance of personal responsibility. It is absolutely imperative. It does not matter how a pool is fenced and what mechanisms are in place; parents must know where their child is at all times. They cannot assume that someone else is looking after their child, particularly if there is a pool in the immediate vicinity. Personal responsibility is important. People must also take measures to ensure that their pool is safe, and obviously that entails fencing. Knowledge of cardiopulmonary resuscitation [CPR] is also important. I emphasise that people should undertake a first-aid course and retake the course regularly to ensure that their knowledge is up to date should they need to perform resuscitation on someone.

That applies not only to children. For example, an older person in a pool might get into difficulties if they have a heart attack while swimming. One does not know what circumstances will occur in relation to a pool. The example of the 12-year-old girl who saved her little brother from a pool in the past week or so is a specific example of the importance of knowledge of CPR. That little boy would not be alive had it not been for his sister's knowledge. So it is vital that people understand and can perform CPR, and that the necessary information is attached to the pool fence, as it was in this case. The member for Pittwater raised concern about pool fencing and this legislation, and I will not reiterate his concerns. However, on his behalf, I express thanks and appreciation for the work of Kate Tusynski and Darren Greenow of Pittwater Council, who helped him immeasurably in terms of understanding the rules governing pools and the difficulties councils often face in ensuring that pools in local government areas comply with the rules set down by councils and in legislation. In conclusion, the Coalition does not oppose this legislation but we ask the Government to take note of all the concerns raised.

Ms LYLEA McMAHON (Shellharbour—Parliamentary Secretary) [12.23 p.m.], in reply: I thank the members representing the electorates of Castle Hill, Tamworth, Port Stephens, Maitland, Tweed, Miranda, Orange, Macquarie Fields, Davidson, Pittwater, Cronulla, Wagga Wagga and Hornsby for participating in this debate. I also thank those who have participated in the consultation processes that formed part of the Swimming Pools Amendment Bill 2009. In particular, I thank water safety advocate groups such as Royal Life Saving Society New South Wales, the local government sector, swimming pool industry groups, State government agencies and individuals, including pool owners who provided comments on the reforms. I will address some of the comments made by members in this debate.

The position of the member for Castle Hill that a beach or river poses the same risk as a swimming pool simply does not stack up. The only purpose for having a backyard pool is to swim. Swimming pools are much more attractive to young children than a river or a beach. This is why drowning in pools is the leading cause of drowning deaths of young children aged up to five years. The member's comments about allowing some pools to retain automatic exemptions is completely unacceptable. The Government believes that, whether people live in Kirribilli or Kellyville, laws relating to swimming pool fences should meet the same high standard. The member's argument that statistics show that children have not drowned in unfenced pools completely misses the point of this legislation. As he well knows, statistics cannot demonstrate the number of pool drownings or near fatal immersions that properly installed pool fences can achieve.

I thank the member for Tamworth for his contribution to this debate. I appreciate his concerns that call for further regulation in this area. While these concerns are appreciated, we must always balance regulation with appropriate levels of personal responsibility. I note that the member for Wagga Wagga and the member for Hornsby advocated the importance of people taking personal responsibility. I note the comments of the member for Port Stephens. However, like other members opposite, he seems to have missed altogether the point of these changes. These laws are designed to consistently apply a safe standard of pool fencing regardless of the size or location of the property on which they are located. They are not about revenue raising; they are about reducing the risk of child drownings and near fatal immersions.

The member's point in relation to building standards fails to acknowledge that this Government has already put in place in regulations the Australian standard for pool fencing. This is the highest standard of fencing and introduced non-climbable zones and mesh areas into all new pool fences. The comments of the member for Tweed on fencing around playgrounds is not relevant to this legislation. These changes are directed at backyard pools, which are, as I said, the leading location in drowning deaths of children up to five years old. The Government supports the minimisation of all risks for young children. However, in relation to the examples raised by the member, the decisions should be made by local councils. I thank the member for Orange for his comments on the bill. To clarify the bill for him, these changes will affect only newly constructed pools. The Government is still considering possible reforms to bring existing pools into line with Australian standards.

In relation to comments by the member for Orange, to make the legislation clearer and more understandable the bill removes the reference to access via doors or windows. In regard to concerns about the cost for councils arising from these changes, in its current form this legislation already requires councils to follow up complaints about swimming pools. These changes ensure that councils follow up on complaints within 72 hours. The changes have been discussed with the Local Government and Shires Associations, which is happy with these changes.

As to the issues raised by the member for Davidson, this bill was developed following a detailed open consultation process and feedback was received from pool owners, councils and safety advocates. I note the member's comments in relation to three-sided fencing. Evidence has demonstrated that four-sided fencing that isolates a pool from a house helps to significantly reduce the risk of pool drownings. I can confirm that the Coroner's inquest into backyard drownings will continue.

I thank the member for Pittwater for his contribution and I note his comments in relation to fining people for breaches. The Government has recognised that this is an issue and this bill will require councils to issue a warning prior to enforcing a fine. Pool owners will be given a warning and an opportunity to rectify the situation. This will encourage them to comply rather than pay a fine. Whilst the comments in relation to transitional arrangements in the bill are noted, I can advise that the Government is continuing its consideration of acquiring existing pools to comply with the requirements under this Act. As the member for Pittwater correctly pointed out, pool owners can seek an inspection by council—the cost of which is capped at $70—to ensure that they meet the relevant standard. The member's comments in relation to this bill completely miss the point that, ultimately, individual pool owners play a significant role in ensuring that their pool fence is safe.

I welcome the comments of the member for Cronulla. The issues he raised have been dealt with elsewhere in my reply. However, I note his comments in relation to public safety campaigns. The Government continues to support pool safety in a number of ways. Free swimming lessons are provided to schoolchildren in New South Wales and cardiopulmonary resuscitation is also taught as part of a school's personal development, health and physical education curriculum. The Government also continues to provide significant support to the Royal Life Saving Society lifesavers in their efforts to reduce the risk of drowning.

I thank the member for Wagga Wagga for his comments. However, this debate would have been greatly assisted if he and other members opposite had read the bill and understood the legislation. Requirements for spa baths are different from those for pools. Spas are required to be fixed with a lockable cover when not in use. This is a much more sensible approach than fencing. I thank the member for Hornsby for her comments, and I believe I have responded elsewhere in my reply to all the issues she raised. The Rees Government is committed to enhancing the safety of young children around backyard swimming pools, and these amendments, together with appropriate backyard pool safety education, are the best means of achieving this. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and returned to the Legislative Council without amendment.

ACTING-SPEAKER (Mr Matthew Morris): Order! Government business having concluded, the House will now proceed to General Business Orders of the Day (Committee reports).