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swimming pool is situated must ensure that the swimming pool is at all
times surrounded by a child-resistant barrier:
(a) that separates the swimming pool from any residential building
situated on the premises and from any place (whether public or private)
adjoining the premises, and
(b) that is designed, constructed, installed and maintained in
accordance with the standards prescribed by the regulations.”
In other words, as a pool is required to be separated from the house
by a barrier it cannot of itself be that barrier. I thought the real “pool”
was the water!
However the barrier is, according the 7 (1)(b) required to comply
with standards prescribed by the regulations. The applicable regulation
is Clause 5 (1) which requires compliance with the BCA and the BCA
requirement is compliance with AS1926.1 which permits this very barrier.
So why is this barrier denied to pool owners in NSW? Because, prior
the issuing of the 2013 edition of the BCA someone (one assumes from
the BPB or another government agency) advised the BCA to insert an
“exception” to the application of the Standard that reads “subject to out-
of-ground pool walls ...not being considered effective barriers.”
To my knowledge no-one has been able to find the source of this
variation or exception in the BCA and as it does not have any legislative
back-up it can only have come by way of some interpretation by
someone in that “executive” branch of government in NSW.
As I have demonstrated above, the executive branch of government
does not have the constitutional power to make laws in this
manner or any other so it could be argued that this provision is also
unenforceable at law.
The real issue is that the Executive will continue doing these types of
things until challenged in court over it, and who really wants to end
up with a High Court case over a pool barrier. Certainly I don’t and I
suspect no pool owner wants to either.
So we all sit back and cop this form of bullying from governments
and local councils and they will continue with it. Because not only do
they have the resources to fight any court case but should they lose,
they would simply turn around and do it all the correct way with a
I recently came across this quote but even this does not appear to
work well for our industry.
The High Court said in Lange v ABC (1997):
Under a legal system based on the common law, “everybody is free
to do anything, subject only to the provisions of the law ”, so that one
proceeds “upon an assumption of freedom of speech” and turns to the
law “to discover the established exceptions to it”.
So as citizens of this country, while we must obey and act within
every law, we are not required to do anything that is not required of us
by a law.
If a council, inspector or certifier wants you to install your pool
barrier in a manner that is not specifically required by the relevant Act
and Regulations or where cited therein, by AS1926.1, then you don’t
have to do it.
But remember also that the “law” will likely also include the many
precedents set by the outcome of court cases.
So without specialised and costly legal advice a challenge may not
be worthwhile and one way or another, the bastards and the bullies will
normally win. n
For these informative articles, Cal Stanley draws on his 35 years’ experience
and success in pool construction, having run award-winning Neptune
Pools in Western Australia for three decades, and sitting on many standards
committees and industry body boards. For the past five years he has worked as
a pool consultant and trainer and delivers hydraulics courses for the swimming
pool industry. If you have a question regarding his columns or a have a topic
you think he should delve into, contact him on: firstname.lastname@example.org
February/March 2017 SPLASH! 25
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