Oped senld Dialogue editor 18/9/15
The Building (Pools) Amendment Bill which had its first reading in Parliament on the 16th of September does some necessary streamlining of current child safety law but remains yet another case of children’s interests being misunderstood and subordinated to those of adults. If it is passed in its present form it will erode the hard fought for protection children enjoy under the current legislation and there will be more drownings.
In recent times somewhere between zero and five small children have drowned in home swimming pools each year. This is awful but it is not nearly as bad as it was in the 1970s and 80s. The rising rate of installation of home pools in New Zealand at that time had been accompanied by a rise in the rate of child drownings. In the worst year, 1981, there were 17 drownings triggering a campaign to make pools safer. This led eventually to the passage of a law in 1987 requiring the enclosure of home pools with fences and gates to keep young children out.
It didn’t happen without a good deal of public argument which boiled down to the right of a homeowner to do what he liked on his own property versus an obligation on anyone creating a hazard, wherever it may be, to make it safe. On one side were aggrieved pool owners and elements of the pool supply industry. On the other were the Water Safety Council, the Plunket Society, Parents Centres and the Ministry of Health.
The Fencing of Swimming Pools Act 1987 (FOSPA) was the outcome. Its effect, reinforced no doubt by the publicity surrounding its passage, was to markedly reduce the number of children drowned. Campaigners had always argued that safety requirements for pools belonged in legislation alongside safety requirements for buildings and other structures on a property. Pools were not a special case but should be routinely expected to meet safety standards along with electrical wiring and walls and be inspected accordingly.
Campaigners were happy when, in 1992, pool safety requirements were included in the new Building Act and Building Regulations (Building Code). It was hoped that the angst that remained from the public argument over FOSPA would settle and ongoing attempts to challenge the law would come to an end, honour satisfied. Experience accumulated in adapting safety mechanisms to the wishes of property owners and the circumstances of properties around the country. New kinds of pools became popular, spas, hot tubs and blow-up portables. In 2006 this accumulated wisdom was incorporated into a New Zealand Standard, NZS 8500:2006 prepared by representatives from industry, safety and local government sectors.
Meantime, across the board, regulations were being made less prescriptive, enabling greater creativity but also risking failures such as the leaky building debacle and the Pike River disaster. This movement toward a less prescriptive approach was one of the drivers behind the new Bill. In addition, the duplication and inconsistency from the continuing existence of both the FOSPA and the Building Act provisions needed sorting out. A third issue was the cost to pool owners and local government who administered the inspection process.
So, what is wrong with the Building (Pools) Amendment Bill?
First, it ignores knowledge and experience painstakingly acquired over forty years of trying to keep children safe. I cannot find in the Bill any reference to an acceptable standard such as either the Schedule to the FOSPA or NZS 8500: 2006. Nor is there a requirement for the territorial authority or the CEO of the Ministry of Building, Innovation and Employment (MBIE) to access suitable expertise or to take any action when granting an exemption. This contrasts with the provision in the FOSPA which requires, at least that an exemption would not significantly increase the danger to young children.
Second, the lack of controls on the granting of exemptions leaves a loophole through which it will be easy to pass.
Third, there has been inattention to important details, when they are specified, in constructing a safe barrier. For example, reference is made to the need for a gate to be self-closing but not self-latching and it is not specified that the opening mechanism should be inaccessible to a child of under five
Fourth, the definition of ‘pool’ provides another loophole. It is defined as “normally used for swimming, paddling or bathing” compared with FOSPA which says, “is used or capable of being used for the purpose of swimming, etc….” What it is normally used for is irrelevant to the young child who falls into it.
Fifth, the exemption of certain classes of spa and hot tub from having to have covers when not in use seems to include in-ground and low walled pools.
Sixth, access from the house to the pool must be through a door that is not ‘readily’ opened by a young child. Research shows that some of the children who have drowned in the past have made a determined effort to enter the pool rather than ‘readily’.
Seventh, the interval between inspections of five years is too long. In the past, councils with large numbers of pools such as Auckland have found it necessary to inspect at 3-yearly intervals. It is common experience that gates in particular fall into disrepair and fail to keep small children out.
Some of these faults are just sloppy drafting or lack of child safety knowledge. Others seem to be a deliberate watering down of the protection currently enjoyed by toddlers. These can and should be remedied in the select committee stage of this Bill.
Dr Ian Hassall is a paediatrician and child advocate. He is a former Deputy Medical Director of Plunket and was New Zealand’s first Children’s Commissioner.