Australian Capital Territory Current Acts Australian Capital Territory Current Actsinsert
Part 5A Regulated swimming pools
Division 5A.1 Preliminary
83 Definitions—pt 5A
(1) In this part:
"access point"—
(a) means the portion of a safety barrier that is designed to provide access through the barrier to a regulated swimming pool or the water in the pool; and
(b) includes a door.
"authorised person"—means a person appointed, or taken to be appointed, under section 83P.
compliance certificate , for a regulated swimming pool—see section 83K (1).
exemption certificate , for a regulated swimming pool—see section 83D (6).
"Ministerial exemption" means an exemption that applies to a regulated swimming pool under section 83D.
"occupier", of premises, includes any person who is for the time being in charge of the premises and, if there are 2 or more occupiers of the premises, includes any one of the occupiers.
"owner", of premises, means—
(a) for premises other than common property—the registered proprietor of the lease for the land on which the premises are located; or
(b) for premises that are a unit—the registered proprietor of the lease for the unit; or
(c) for premises that are common property—the owners corporation for the common property.
"safety barrier", for a regulated swimming pool—
(a) means any structure or naturally occurring feature that forms, or forms part of, a continuous perimeter that is effective as a safe child resistant barrier to the pool or the water in the pool; and
(b) includes—
(i) a fence, post, panel, access point, child-resistant doorset, wall, balustrade or part of a building; and
(ii) for a pool that is a spa—a lockable child-resistant structure; and
(iii) if a Ministerial exemption has been granted for the pool—the barrier that restricts access to a swimming pool or water in the pool permitted under the exemption; and
(iv) anything else prescribed by regulation
"safety standards", for a regulated swimming pool—see section 83A.
"standing exemption" means an exemption that applies to a regulated swimming pool under section 83C.
(2) In this section:
"child-resistant doorset" means a safety barrier that comprises a door, door frame, self-closing device and latch.
"common property"—see the Unit Titles Act 2001
"registered proprietor", in relation to a lease, means the person who is registered under the Land Titles Act 1925
as the proprietor of the lease.
"unit"—see the Unit Titles Act 2001
83A Meaning of safety standards —pt 5A
In this part:
"safety standards", for a regulated swimming pool, means the standards prescribed by regulation.
83B Meaning of regulated swimming pool
(1) In this Act:
regulated swimming pool —
(a) means an excavation, structure or vessel that—
(i) can be filled with water to a depth of 300mm or more; and
(ii) is used, designed or manufactured mainly for human aquatic activity; and
(b) includes the following:
(i) a demountable swimming pool;
(ii) a flotation tank or flotation tub not equipped to create bubbles or turbulence into water;
(iii) a spa; but
(c) does not include the following:
(i) a bath in a bathroom;
(ii) a birthing pool used only for waterbirths;
(iii) an ornamental pond;
(iv) a water feature;
(v) a pool at a category 1 facility;
(vi) a pool at short-term accommodation premises;
(vii) an inflatable pool;
(viii) anything else prescribed by regulation.
(2) In this section:
category 1 facility —see the Public Pools Act 2015
"demountable swimming pool" means a swimming pool—
(a) that can be assembled and disassembled by hand, or with hand tools, without damaging the pool's components; or
(b) that—
(i) can be inflated and deflated; and
(ii) has a filtration system.
"inflatable pool" means a pool that—
(a) can be inflated and deflated; but
(b) does not have a filtration system.
"mobile home park"—see the Residential Tenancies Act 1997
, dictionary.
"short-term accommodation premises"—
(a) means premises used to provide short-term accommodation to members of the public as part of a commercial transaction; and
(b) includes the following kinds of accommodation:
(i) backpacker;
(ii) bed and breakfast;
(iii) hotel;
(iv) mobile home park;
(v) motel;
(vi) resort;
(vii) serviced apartment; but
(c) does not include premises that are also used, or able to be used, for residential purposes.
Examples—par (c)
1 premises used as a residential home made available under a home exchange scheme
2 premises able to be used for a residential home made available for short-term rental accommodation
3 an apartment complex that contains a mix of residential apartments and serviced apartments
"spa"—
(a) means an excavation, structure or vessel able to retain water for human immersion and equipped to create water bubbles or water turbulence into the water; and
(b) includes—
(i) a swim spa; and
(ii) a flotation tank or flotation tub equipped to create bubbles or turbulence into water; but
(c) does not include a spa bath in a bathroom.
Division 5A.2 Compliance with safety standards
Subdivision 5A.2.1 Exemptions
83C Standing exemption
A regulated swimming pool is exempt from the safety standards if a circumstance prescribed by regulation applies to the pool.
83D Ministerial exemption
(1) The owner of premises on which a regulated swimming pool is located (the applicant ) may apply in writing to the Minister for the pool to be exempt from all or part of the safety standards.
(2) On application, the Minister may grant an exemption only if a circumstance prescribed by regulation applies to the regulated swimming pool.
Note 1 The Minister may make guidelines for granting exemptions (see s 83G).
Note 2 A Minister may delegate the Minister's functions under an Act or statutory instrument to anyone else (see Legislation Act
, s 254A).
(3) An exemption may be subject to conditions the Minister considers appropriate.
(4) The Minister may ask the applicant for further information the Minister reasonably needs to consider the application.
(5) In exercising the Minister's functions under this section, the Minister may—
(a) seek advice from an entity the Minister considers suitable to give advice about a matter relevant to the exercise of the functions; and
(b) consider any other relevant information.
(6) If the Minister grants an exemption, the Minister must issue a certificate (an exemption certificate ) to the owner that states—
(a) the extent to which the regulated swimming pool is exempt from the safety standards; and
(b) the grounds for the exemption; and
(c) any condition on the exemption and the reason for the condition; and
(d) the date of issue of the certificate; and
(e) it is an offence for the owner to fail to notify the Minister of a change of circumstances that affects a ground on which the exemption was granted; and
(f) anything else prescribed by regulation.
(7) An exemption certificate for a regulated swimming pool is in force for the period stated in the exemption certificate which must be not longer than 5 years.
83E Variation of Ministerial exemption
(1) This section applies to a regulated swimming pool to which a Ministerial exemption applies.
(2) The owner of premises on which the regulated swimming pool is located (the applicant ) may apply, in writing, to the Minister to vary a condition that applies to the exemption.
(3) On application, the Minister may vary the exemption if the Minister—
(a) has considered any reasons provided by the applicant in the application; and
(b) is satisfied it is appropriate to vary the exemption.
(4) Also, the Minister may vary an exemption on the Minister's own initiative if the Minister—
(a) has given an owner of premises on which the pool is located written notice that—
(i) states how the Minister proposes to vary the exemption; and
(ii) states the reason the Minister proposes to vary the exemption; and
(iii) tells the owner that a written response may be given to the Minister about the matters stated in the notice not later than 28 days after the owner receives the notice; and
(b) has considered any response given in accordance with paragraph (a) (iii); and
(c) is satisfied that it is appropriate to vary the exemption.
(5) A variation of the exemption takes effect—
(a) 90 days after the day notice is given to the owner; or
(b) if another day is stated in the notice—on the stated day.
83F Revocation of exemption
(1) The Minister may revoke a Ministerial exemption that applies to a regulated swimming pool on the Minister's own initiative if satisfied that any of the following apply:
(a) the owner of the premises on which the pool is located has failed to comply with a condition of the exemption;
(b) the owner of the premises knowingly or recklessly used false or misleading information in the application for the exemption, or an application for variation of the exemption;
(c) no circumstance mentioned in section 83D (2) applies to the pool;
(d) there is an immediate and serious risk to the health or safety of a person.
(2) However, the Minister must not revoke an exemption unless the Minister—
(a) has given the owner of the premises written notice that—
(i) states that the Minister proposes to revoke the exemption; and
(ii) states the reason the Minister proposes to revoke the exemption; and
(iii) tells the owner that the owner may give a written response to the Minister about the matters stated in the notice not later than 28 days after the owner receives the notice; and
(b) has considered any response given in accordance with paragraph (a) (iii); and
(c) is satisfied that it is appropriate to revoke the certificate.
(3) Subsection (2) does not apply to a revocation made under subsection (1) (d).
(4) The revocation of the exemption takes effect—
(a) for a revocation under subsection (1) (d)—immediately; or
(b) in any other case—
(i) 90 days after the day notice is given to the owner; or
(ii) if another day is stated in the notice—on the stated day.
83G Minister may make guidelines
(1) The Minister may make guidelines about applications for, and granting of, Ministerial exemptions.
(2) A guideline is a disallowable instrument.
83H Guidance about obligations on owners
(1) The Minister must prepare guidance material about the obligations arising under this part of owners of premises on which a regulated swimming pool is located.
(2) Guidance material is a notifiable instrument.
(3) This section expires on 1 May 2028.
83I Failure to comply with exemption certificate conditions
(1) A person commits an offence if—
(a) the person is the owner of premises on which a regulated swimming pool is located; and
(b) a Ministerial exemption applies to the pool; and
(c) the person fails to comply with a condition of the exemption.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
83J Failure to notify change of exemption circumstances
(1) A person commits an offence if—
(a) the person is the owner of premises on which a regulated swimming pool is located; and
(b) a Ministerial exemption applies to the pool; and
(c) a change of circumstances happens which affects a ground on which the exemption was granted; and
(d) the person fails to notify the Minister of the change of circumstances within 14 days of the change happening.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
Subdivision 5A.2.2 Compliance certificates
83K Compliance certificates
(1) An authorised person must inspect a regulated swimming pool before giving the owner of the premises on which the pool is located (the owner ) a written certificate (a compliance certificate ) that states the following:
(a) whether or not the pool complies with the safety standards, to the extent it is not subject to a Ministerial exemption;
(b) if the pool is subject to a Ministerial exemption—details of the exemption including any conditions on the exemption;
(c) the date of issue of the certificate;
(d) anything else prescribed by regulation.
(2) If an authorised person is satisfied that the regulated swimming pool complies with the safety standards, the authorised person must as soon as practicable after the inspection give the owner a compliance certificate for the pool.
(3) If an authorised person is satisfied that the regulated swimming pool does not comply with the safety standards but the non-compliance does not create a serious and immediate safety risk, the authorised person must, as soon as practicable but not later than 7 days after the day of inspection, give the owner written notice (a pool rectification notice ) that states the following:
(a) the pool fails to comply with the safety standards and the reasons why it fails to comply;
(b) the steps needed to rectify the failure to comply;
(c) the day (the rectification day ), within 6 months of giving the notice, by which the pool must be rectified to comply;
(d) anything else prescribed by regulation.
(4) If an authorised person is satisfied that the regulated swimming pool does not comply with the safety standards and the non-compliance creates a serious and immediate safety risk, the authorised person must immediately after the inspection give the owner a compliance certificate for the pool.
(5) If an authorised person has given the owner a rectification notice for the pool, the authorised person—
(a) may give the owner a compliance certificate for the pool only after further inspection of the pool; and
(b) if giving a compliance certificate to the owner—must give the certificate as soon as practicable, but not later than 14 days, after the day on which the further inspection happens.
(6) An authorised person must give the construction occupations registrar—
(a) a copy of a pool rectification notice given under subsection (3) within 14 days after the day the notice is given; and
(b) a copy of a compliance certificate given under section (5) (b), but only if the compliance certificate states that the pool does not comply with the safety standards to the extent that the pool is not subject to a Ministerial exemption, within 14 days after the day the certificate is given; and
(c) a copy of a compliance certificate given under subsection (4) within 7 days after the day the certificate is given.
83L Period for which compliance certificate in force
(1) A compliance certificate for a regulated swimming pool is in force for the period beginning on the day the certificate is issued and ending on the earliest of the following:
(a) whichever of the following applies:
(i) for a certificate issued before 1 May 2028—30 April 2032;
(ii) for a certificate issued on or after 1 May 2028—the day 5 years after the period begins;
(b) the day the regulated swimming pool, or the safety barrier for the pool, is substantially altered;
(c) if a Ministerial exemption applies to the regulated swimming pool and the exemption is revoked—the day on which the revocation of the exemption takes effect.
Note The reason for the revocation of a Ministerial exemption affects when the revocation takes effect (see s 83F (4)).
(2) In this section:
"substantially altered"—
(a) in relation to a swimming pool—means at least 50% of the pool is modified, demolished or replaced; and
(b) in relation to a safety barrier for a swimming pool—means the safety barrier is—
(i) demolished or replaced; or
(ii) altered as prescribed by regulation.
83M Failure to lodge compliance certificate etc for regulated swimming pool
(1) A person commits an offence if—
(a) the person is the owner of premises on which a regulated swimming pool is located; and
(b) the pool was built before 1 May 2013; and
(c) the pool is not subject to a standing exemption; and
(d) the person fails to lodge with the construction occupations registrar before 1 June 2028—
(i) a compliance certificate in force for the pool within 30 days after the certificate is given to the person by an authorised person; and
(ii) if the pool has been granted an exemption certificate—the exemption certificate at the same time as the compliance certificate; and
(e) a document required to be lodged under subsection (1) (d) has not been lodged by a previous owner of the premises.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
Division 5A.3 Swimming pool safety
83N Failure to maintain swimming pool safety barrier
(1) A person commits an offence if—
(a) the person is the owner of premises on which a regulated swimming pool is located; and
(b) the person fails to maintain a safety barrier for the pool that is an effective and safe child-resistant barrier.
Maximum penalty: 30 penalty units.
(2) For subsection (1) (b) a safety barrier is an effective and safe child-resistant barrier if the barrier—
(a) complies with the safety standards for a regulated swimming pool; or
(b) if the swimming pool is subject to a Ministerial exemption—complies with the safety standards to the extent the pool is not exempt from the standards; or
(c) complies with a requirement prescribed by regulation.
(3) An offence against this section is a strict liability offence.
(4) It is a defence to a prosecution against this section if the defendant proves that the regulated swimming pool is subject to a standing exemption.
Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code
, s 59).
83O Failure to close swimming pool safety barrier
(1) A person commits an offence if—
(a) the person is the occupier of premises on which a regulated swimming pool is located; and
(b) the person fails to ensure all access points for the pool's safety barrier—
(i) are securely closed when they are not in use; or
(ii) for a spa with a safety barrier that is a lockable child-resistant structure—the structure is securely fitted and locked when the spa is not in use.
Maximum penalty: 30 penalty units.
(2) An offence against this section is a strict liability offence.
Division 5A.4 Administration
83P Authorised person
(1) The director-general may appoint a person as an authorised person for this part.
(2) A person must not be appointed under subsection (1) unless the director-general is satisfied that the person is competent to exercise the functions of an authorised person under this part.
(3) A regulation may prescribe matters that the director-general must consider in relation to a person's competency for subsection (2) (a).
(4) A regulation may prescribe—
(a) a class of person taken to be appointed as an authorised person under this section; and
(b) the terms of appointment for the class of person.
Note Power to make a regulation includes power to make different provision in relation to different matters or different classes of matters and to make a regulation that applies differently by reference to stated exceptions or factors (see Legislation Act
, s 48).
(5) An appointment under subsection (1)—
(a) must be for a term of not longer than 5 years; and
(b) is a notifiable instrument.
(6) An authorised person has the following functions:
(a) assessing whether regulated swimming pools comply with the safety standards;
(b) issuing compliance certificates and pool rectification notices for regulated swimming pools;
(c) any other function under this part or prescribed by regulation.
(7) An authorised person must exercise the person's functions in accordance with—
(a) if the person is appointed under subsection (1)—the instrument of appointment; and
(b) however appointed—any directions the director-general gives the person.
(8) In this section:
"pool rectification notice"—see section 83K (3).
83Q Identity cards
(1) The director-general must issue an authorised person with an identity card that states the person is an authorised person for this part, and shows—
(a) a recent photograph of the person; and
(b) the name of the person; and
(c) the date of issue of the card; and
(d) the date of expiry for the card; and
(e) anything else prescribed by regulation.
(2) A person commits an offence if—
(a) the person stops being an authorised person; and
(b) the person does not return the person's identity card to the director-general within 7 days after the person stops being an authorised person.
Maximum penalty: 1 penalty unit.
(3) Subsection (2) does not apply to a person if the person's identity card is—
(a) lost or stolen; or
(b) destroyed by someone else.
Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code
, s 58).
(4) An offence against subsection (2) is a strict liability offence.
83R Person pretending to be authorised person
(1) A person commits an offence if the person—
(a) is not an authorised person; and
(b) carries out a function of an authorised person; and
(c) is reckless as to whether the person is appointed as an authorised person.
Maximum penalty: 60 penalty units.
(2) A person commits an offence if the person—
(a) is not an authorised person; and
(b) carries out a function of an authorised person.
Maximum penalty: 30 penalty units.
(3) Strict liability applies to—
(a) subsection (1) (a) and (b); and
(b) subsection (2) (a) and (b).
Division 5A.5 Miscellaneous
83S Criminal liability of executive members of owners corporation
(1) An executive member of an owners corporation is taken to commit an offence against this part if—
(a) the corporation commits an offence against this part (a relevant offence ); and
(b) the member was reckless about whether the relevant offence would be committed; and
(c) the member was in a position to influence the conduct of the corporation in relation to the commission of the relevant offence; and
(d) the member failed to take reasonable steps to prevent the commission of the relevant offence.
Maximum penalty: The maximum penalty that may be imposed for the commission of the offence by an individual.
(2) Subsection (1) does not apply if the owners corporation would have a defence to a prosecution for the relevant offence.
Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code
, s 58).
(3) This section applies whether or not the owners corporation is prosecuted for, or convicted of, the relevant offence.
(4) In this section:
"executive member", of an owners corporation—see the Unit Titles (Management) Act 2011
, dictionary.