Oliver v Pool Safety Council - [2014] QCAT 276

CITATION:

Oliver v Pool Safety Council [2014] QCAT 276

PARTIES:	Grant Oliver (Applicant)
v
Pool Safety Council (Respondent)

APPLICATION NUMBER:

OCR180-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

31 March 2014

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

11 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Pool Safety Council made on 6 June 2013 that grounds for disciplinary action against Grant Oliver had been established, and a penalty imposed, is set aside.

2. A decision is substituted that a ground for disciplinary action against Grant Oliver is not established.

CATCHWORDS:

Where disciplinary decision made against pool safety inspector – whether grounds for disciplinary action – where a pool safety inspector adopted an innovative solution – where internal corralling was approved – whether an incorrect interpretation of regulatory provisions is grounds for disciplinary action –whether pool safety inspector acted below a proper standard of conduct – where pool safety inspector was found to have acted with care and diligence

Building Act 1975 (Qld), s 246AZ, s 246CY, s 246CZ, Schedule 2

Skomba & Ors v Maroochy Shire Council [2005] QPEC 001

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Grant Oliver represented by Michael Maynard (by leave)

RESPONDENT:

The Pool Safety Council represented by Simon Hart (by leave)

REASONS FOR DECISION

Disciplinary proceedings were brought against Mr Grant Oliver, who is a pool safety inspector. A decision was made by the Pool Safety Council on 6 June 2013 that grounds for disciplinary action against Mr Oliver had been established, and he was required to pay $1,000 to the Pool Safety Council within three months.
Mr Oliver has applied to this Tribunal to review that decision of the Pool Safety Council.
Mr Oliver is employed by Solutions in Engineering. That company was engaged on about 23 April 2012 to inspect a block of units at 2a McIlwraith Street, Moffat Beach, and to advise as to, and to approve suitable pool safety fencing.
The premises were an older block of units with an existing swimming pool that had been built before new pool fence safety provisions came into force on 1 December 2010.
One of the units, which was on the ground floor, had an external door which led into the enclosed communal swimming pool fenced area.
Mr Oliver inspected the premises on 23 April 2012. A “Swimming pool inspection” report was provided to the body corporate by Solutions in Engineering, enclosing a Pool Safety Nonconformity Notice dated 24 April 2012.
The Notice identified nine areas of defect and action that was required. The relevant defect for these proceedings was in regard to the ground floor unit door, and was described as follows:
Inspection Criteria
Was all access to the enclosure through an approved gate only?
Inspector’s comment
Location: Unit door.
Defect: The pool area is accessible from the building via a unit door. Access to an outdoor pool area may only be via a gate that complies with QDC MP 3.4
Action: Please ensure that a corral and gate is installed in front of the door. Alternatively, the door may be bolted or riveted shut, or otherwise permanently sealed, so that it cannot be opened without the use of tools.
By whom: Fence Contractor / Handyman
The occupants of the unit were an elderly couple. Mr Oliver had 25 years experience as a fire safety advisor, and he was concerned as to fire safety aspects for the occupants as well as compliance with pool fencing requirements.
Mr Oliver ultimately proposed and approved a gate arrangement that was installed. The arrangement that was implemented was to fit a glass pool safety gate within the corridor of the unit leading to the external door.
He issued a Pool Safety Certificate in Form 23 on 16 August 2012 certifying that he had inspected the swimming pool and was satisfied that the pool was a complying pool under the Building Act 1975 (Qld).
The Sunshine Coast Council conducted an inspection of the pool enclosure on 20 August 2012 and formed the view that the barrier was non-complying. It issued a report dated 3 September 2012 outlining seven non-compliant issues with an explanation of compliance standards.
The report of the Sunshine Coast City Council provided as to the unit as follows:
Ensure swimming pool has a barrier in accordance with Building Act 1975 (s 232) QDC MP3.4 and AS1926.1-2007
As discussed on-site with Keith Rogers on Tuesday, 28/08/2012 who is the chairperson of the Body Corporate and owner of the unit that direct access from a building is not permitted into the pool enclosure.
At time of my inspection a non complying pool gate has been installed inside the unit in the hallway just prior to the door that opens out into the pool enclosure.
Non complying pool gates are not permitted.
To achieve compliance you are required to:
1.Install a corral and gate outside the door; or
2.Install a complying pool barrier across from the unit over to the rear timber boundary fence; or
3.Permanently secure the door so it is unable to be opened; and
4.Council requires the removal of the locking mechanism and door handles inside and outside)
The Sunshine Coast Council lodged a Complaint in writing dated 3 September 2012 with the Pool Safety Council against Mr Oliver for the issue of the Form 23 Certificate on a non complying swimming pool barrier.
The Pool Safety Council has powers and functions under the Building Act 1975 (Qld) (‘the Act’). After investigating a complaint, it must decide whether or not a ground for disciplinary action is established.
On 13 November 2012 the Pool Safety Council wrote to Mr Oliver as follows:
The PSC has identified the following alleged breaches of the Building Act 1975 based on the information provided in the written complaint.
Section 246AW Giving pool safety certificate and nonconformity notices
A pool safety inspector may give a pool safety certificate for a regulated pool only if the pool safety inspector –
(a)has inspected the pool; and
(b)is reasonably satisfied the pool is a complying pool
It is further alleged you contravened section 3 of the code of conduct for swimming pool safety inspectors by failing to comply with legislative requirements.
In an accompanying attachment “A” it identified the non-conforming issue as ‘Access directly into pool area from building or structure. Breach of MP3.4 Standard modifications 29 and 30’.
In a written response dated 21 November 2012, Mr Oliver argued that no breach of Modification 29 or 30 existed, and explained why the choice was made to corral the pool internally as follows:
External corralling would block the exit and entry route to the pool area which is a concern in an emergency. Further, it would also be within 2 meters of a final exit from the building. Affixing the unit door was the first option; however concerns were raised by the owner that this would block an exit in an emergency to his elderly wife. It was therefore decided that the internal corralling was in the best interest of public safety, and the most appropriate option given the situation. In the recently published guidelines by the pool safety council, on page 13, paragraph 7.3 titled “Fire Safety laws” it states that “there will be some circumstances where the pool safety law may impact upon fire safety measures. In these cases, more detailed analysis is required to develop a solution that accommodates the separate laws.” It is my submission that this is exactly what I did. As such, in no way were the relevant modifications breached, and the allegation ought to be dismissed.
At a meeting held on 6 June 2013, the Pool Safety Council received a report of an investigation by Mr Michael Cumming. It resolved not to proceed with disciplinary action in relation to six of the issues on the basis that there was insufficient evidence to substantiate items 2, 4, 5, and 7 whilst issues 3 and 6 could not be determined as the barrier had since been made compliant.
It decided in respect of Item 1 (the internal gate) that the grounds for disciplinary action had been established, and required Mr Oliver to pay $1,000 to the Pool Safety Council within three months in relation to a breach of s 246AW(1) of the Act and contravention of s 3 of the Code of Conduct.[1]
[1]Information Notice dated 14 June 2013.
This matter has generated a large volume of correspondence between the parties, and numerous, often repetitive, submissions by the parties. In each case the parties are not represented by an independent qualified lawyer, but by knowledgeable industry related persons.
The parties are intimately involved in the pool safety fence industry. They have a vital interest in the interpretation of the several legislative and industry regulation, standards and policies in the area. Those regulatory provisions and policies have been evolving over a lengthy period of time. They have changed from time to time. For example, at one time it was acceptable to affix self-closing mechanisms with a child-proof latch to a door leading to a pool area, then that was later deemed unacceptable.
The regulatory provisions can raise difficult practical applications, particularly where a building was constructed according to existing regulatory provisions, then attempts are made to later make it conform with new regulatory provisions and retrofit an acceptable solution. It some cases it may be practically impossible, or extremely difficult, to comply with the new regulatory provisions in an aesthetically pleasing or economically feasible way. These are matters that daily occupy the participants in the industry.
Issues will regularly arise as to the proper interpretation of the regulatory provisions. Disciplinary proceedings are justified where a properly founded allegation arises that a practitioner has failed to adhere to a proper expected standard of behaviour. That standard may be found in specific legislation or by application of established principles in common law.
In considering whether a proper standard of behaviour has been achieved, it will probably be necessary to look at the various regulatory provisions and consider whether due regard has been had to them.
Disciplinary proceedings are not however a forum for the basic adjudication of the interpretation of industry regulatory provisions.
The issue in this Application is not whether Mr Oliver got the interpretation of the relevant regulatory provisions wrong, but whether he acted below a proper standard of behaviour.
I will necessarily discuss aspects of the pool barrier provisions in this decision, but this decision is not to determine whether “internal corralling” is allowed within the relevant provisions – it is to consider the behaviour of Mr Oliver.
These proceedings are a review of a disciplinary decision of the Pool Safety Council. The legislative basis for the decision is under s 246CY of the Act which relevantly provides:
246CY Decision after investigation or audit completed
(1)After investigating a complaint or conducting an audit, PSC must decide whether or not a ground for disciplinary action against the pool safety inspector is established.
…
(4)If PSC decides a ground for disciplinary action against the pool safety inspector is established, PSC must decide to do 1 or more of the following –
(a)reprimand the pool safety inspector;
(b)impose the conditions it considers appropriate on the pool safety inspector’s licence
(c)direct the pool safety inspector to complete to the satisfaction of PSC the educational courses stated by PSC;
(d)direct the pool safety inspector to report on his or her practice as a pool safety inspector at the times, in the way and to the persons stated by PSC;
(e)require the pool safety inspector to refund some or all of a fee paid for an inspection of a regulated pool;
(f)require the pool safety inspector to pay to PSC, within a reasonable stated period, a stated amount of not more than the equivalent of 60 penalty units;
(g)suspend the pool safety inspector’s licence for a period of not more than 1 year;
(h)if PSC is satisfied that the pool safety inspector is generally competent and diligent – advise the pool safety inspector it does not intend to take any further action.
The expression “ground for disciplinary action” is defined in Schedule 2 of the Act. There are nine descriptions (a) to (i) of conduct that are included as follows:
Ground for disciplinary action, against a pool safety inspector or former pool safety inspector, includes the following –
(a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing pool safety inspection functions;
(b)conduct that compromises the health or safety of a person;
(c)conduct that is contrary to a function under this Act, including, for example –
(i)disregarding relevant and appropriate matters; and
(ii)acting outside the scope of the pool safety inspector’s powers; and
(iii)acting beyond the scope of the pool safety inspector’s competence; and
(iv)contravening the code of conduct for pool safety inspectors;
(d)seeking, accepting or agreeing to accept a benefit, whether for the benefit of the pool safety inspector or another person, as a reward or inducement to act in contravention of this Act;
(e)failing to comply with an order of the PSC or the tribunal;
(f)accumulating the number of demerit points prescribed under a regulation for this provision in the period prescribed under a regulation;
(g)fraudulent or dishonest behaviour in performing pool safety inspection functions;
(h)other improper or unethical conduct;
(i)conduct that is of a lesser standard than the standard that might be reasonably be expected of the pool safety inspector by the public or the pool safety inspector’s professional peers.
The Pool Safety Council issued an “Information Notice” under s 246CY(2) and (6)(a) of the Act about the decision on 14 June 2013. The Information Notice included “Reasons for the decision”. The only grounds that were referred to were in paragraph 3 as follows:
3.Schedule 2 of the BA defines the grounds on which disciplinary action may be taken. The grounds include conduct that is contrary to a function under the BA including contravening the code of conduct. Section 3 of the code of conduct provides that an inspector must comply with legislative requirements.
The Act has similar provisions in relation to building certifiers. The nature of “professional misconduct” by a private certifier, which has almost identical considerations, was discussed in Schwede v QBSA, Kennedy.[2] The Member commented at paragraph 65 that:
Plainly, professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care; it is conduct that compromises the safety of persons using buildings, the amenity of a property or significantly conflicts with local planning laws; it is unlawful conduct – in the sense of conduct contrary to the Acts regulating the functions of private certifiers; it is corruption in the sense of seeking or taking benefits in return for breaching the regulating Act or seeking to corrupt other private certifiers in the same way; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct.
[2][2009] QCCTB 157.
He concluded at paragraph 69 that:
In the context of the Building Act, I am satisfied that professional misconduct is misconduct of a nature and seriousness that a private certifier in good standing would regard as disgraceful or dishonourable and which warrants severe disciplinary action.
The description of conduct as “disgraceful or dishonourable” reflects a common law approach to these types of provisions. In applying the Act, however, consideration is to be closely had to the wording of the legislative provisions which override any common law approaches.
The code of conduct for swimming pool safety inspectors is provided for by s 246AZ of the Act. The Chief Executive may make the Code of Conduct[3] and the Minister must table it in the legislative assembly.[4]
[3]Building Act s 246AZ(1).
[4]Ibid s 246AZ(2).
Section 3 of the Code of Conduct provides as follows:
An inspector must comply with the legislative requirements that regulate or govern inspectors in the performance of pool safety inspection functions.
Section 3 then goes on to give examples. It is notable that the examples all refer to complying with other Acts (other than the Building Act) that are relevant – the examples given are licences under the Queensland Building Services Authority Act 1991 (Qld); asbestos legislation; and electrical safety legislation.
A pool inspector who makes a decision about the compliance of a barrier that another inspector or authority disagrees with, as an incorrect interpretation of the legislative requirements, will not breach the Code of Conduct simply because the inspector is regarded as not having properly applied the legislative requirements. An incorrect decision is not in itself a breach of the Code of Conduct.
The Code of Conduct is concerned with Pool Inspectors being also aware of the potential impact of other legislation other than the Act, and having regard to that other legislation where appropriate, as well. That intent is clearly shown by the examples cited in s 3 of the Code of Conduct.
A party may seek a review of a disciplinary decision of the Pool Safety Council in this Tribunal pursuant to s 246CZ of the Act. Mr Oliver filed an application for review on 23 September 2013.
On a review hearing I stand in the place of the decision-maker, and conduct a fresh hearing on the merits;[5] and step into the shoes of the decision-maker.[6]
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
[6]Drake v Minister for Education (1979) 46 FLR 409, 24 ALR 577, Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

The conduct of Mr Oliver

Mr Oliver gave evidence at the hearing. He said that he inspected the unit and concluded that there were only two practical external choices, either (1) affix the external door permanently shut, or (2) create an external corralling around the door with a pool fencing and a pool gate. He said the owner of the unit was unhappy about both of these external choices, as he was concerned for his elderly wife being able to exit the unit safely and quickly, and without impediment, in a wheelchair, and both of these alternates would make that very difficult for her.
There were other possibilities that he considered, such as extending the pool fence across to the pump house and the side timber boundary fencing, but this raised a set of difficult considerations due to different ground levels, and the presence of gardens and vegetation, all of which caused conflict with various aspects of the regulatory provisions.
Mr Oliver then turned his mind to a concept of “internal corralling”. This involved placing a pool gate within the vestibule of the unit leading to the outside door. There are solid brick walls on either side of the vestibule, so this formed a “tunnel” which could only be accessed from within the unit through the pool gate. The clear rationale was that a child who was inside the unit would be prevented by the pool gate from proceeding further along the vestibule and entering the pool area through the outside door.
He said that he then consulted Mr Latcham, another employee of Solutions in Engineering. Mr Latcham was not a qualified lawyer, but was a law student with some four years of study who works for the company in it’s “research department’ assisting its employees in the interpretation of the regulatory provisions.

Mr Oliver said that this was the first time he had used “internal corralling”. He satisfied himself that it was a “compliant barrier” within MP3.4.
He said that he took a couple of weeks to make his decision on the internal corralling. He was unsure as to the issue, and sought further advice. He said that “we” took great care, referring to the company. He said that he did not refer it personally to a lawyer, as he referred it to his company’s research department, and he was unaware of what they processes they have. He was aware that the company spoke to the government department (Building Codes Queensland) that relates to the Pool Safety Council, and sought advice on this issue, before he approved the gate.
He was aware that the Pool Safety Council had responded that they do not comment on individual matters.
He said that he was aware that before giving a certificate that he had to be “reasonably satisfied” that it complied with the Act, and said that he was reasonably satisfied. He believed that the barrier was compliant.
He thought that internal corralling would be safer than external corralling. If external corralling were used, an elderly person in a wheelchair would have two gates to grapple with.
Mr Oliver said that after two years of debate over the matter, and the worry it has caused, that he now thinks the preferable course of action at the time of his original decision would have been to require the external door to be affixed closed, as it subsequently was. He still believes that the barrier is compliant, but he can see the point of the Pool Safety Council, and conceded that the location may not have been the best place for the gate.
The recollection of Mr Oliver as to the reasoning process and discussions leading to use of the internal corralling is confirmed by the unit owner Mr Keith Rogers. In a statement, Mr Rogers confirms that external corralling or affixing the door were discussed, but rejected due to concerns with an elderly person exiting the building. Mr Rogers describes the internal corralling as the “final option” and was considered most appropriate as it accommodated both the safety concerns he had for the building as well as the need to restrict access to the pool area via a compliant barrier.

Mr Oliver’s interpretation of the regulatory provisions

The Queensland Development Code includes Mandatory Part (MP) 3.4. That part was modified on 18 July 2012 and Modifications 29 and 30 were implemented. Those modifications were as follows:
29.In addition to the requirements of clause 4.2 and figure 2.1, the access of young children to the pool and to the immediate pool surrounds from a class 1, 2 or 3 building or class 4 part of a building located within the pool area must be restricted by a barrier complying with this part, unless the building is a patio, pergola, verandah, deck, balcony, or the like (of any class) with at least one permanently open side and access is via a compliant barrier (see figure 24 and 25).
30.In addition to the requirements of clause 4.2 and figure 2.1, if a building or structure of any class allows access by young children from outside the pool area to inside the pool area, a barrier complying with this part must be provided to restrict the access (see figure 26).
In relation to modification 29 Mr Oliver points to the words ‘the access of young children to the pool and the immediate pool surrounds…from a class 1,2 or 3 building or class 4 part of a building ... located within the pool area’. His contention is that the internal corralling does prevent a young child from accessing the pool or its surrounds from the building.
In relation to modification 30 he points to the words ‘from outside the pool area to inside the pool area’. His contention is that the effect of the vestibule on the pool side of the internal corral is to make that part of the pool area, which extends into that part of the building.
Clause 4.2 of Australian Standard 1926.2 (2007) provides:
Barriers for outdoor pools shall not permit direct access to the pool area from a class 1, 2 or 3 building or a class 4 part of a building or adjoining properties. Where the wall of a class 1, 2 or 3 building or class 4 part of a building forms part of the barrier, a child-resistant window that complies with AS 1926.1 is permitted.
In relation to Clause 4.2, he points to the words ‘shall not permit direct access to the pool area from … a building’. His contention is that the internal corralling does fulfil the purpose of inhibiting direct access from the pool area to the building, due to the internal pool gate.
These various contentions of Mr Oliver are strongly held and maintained by him. The Pool Safety Council does not agree with these contentions.
The relevant issue for the purposes of this Application is not whether Mr Oliver’s contentions are correct, and would be upheld if they were ever the subject of adjudication (as for example occurred in Skomba[7] where the Planning and Environment Court was considering a development application). The relevant issue is whether those contentions are reasonable and can be validly argued, and whether Mr Oliver is acting properly in formulating and implementing them.
[7]Skomba & Ors v Maroochy Shire Council [2005] QPEC 001.

The Pool Safety Council

The Pool Safety Council argues that the matter is determined by Clause 4.2 of Australian Standard 1926.2 (2007).
The Council submits that “the words ‘direct access to the pool area’ in this context mean access to the pool area without first leaving the building or, as it was put in the Skomba[8] case, without it being necessary to leave the dwelling house in order to open the … gate”.
[8]Ibid.
It notes that the four diagrams with clause 4.2 all show configurations which make it necessary to leave the building before entering the pool area via a compliant gate. It argues that:
The rationale for this requirement is not difficult to surmise – a young child living in a house or ground floor apartment (dwelling) would generally be more likely to have an opportunity to devise and implement a means of opening the gate (e.g. using a chair to reach the latch or a device to trigger the latch, etc) if the gate were accessible from inside the dwelling than if it were outside the dwelling.
In its “Further reasons for decision” dated 10 September 2013, the Pool Safety Council says[9] that:
18.Had Mr Oliver sought the opinion of the PSC, he undoubtedly would have been advised that the configuration of the barrier in this case did not comply with the pool safety standard.
[9]Further reasons for decision at [18].
This contention is at odds with an email sent by a Senior Project Officer Building Codes Queensland to Peter Sams from Solutions in Engineering on 20 September 2013. Solutions in Engineering first asked in an email of 19 September 2013:
We wanted to clarify what advice the pool safety council is able to provide. We were previously advised that whilst the PSC can provide general advice on the content of MP 3.4, they cannot offer detailed advice or specific advice regarding individual site inspections.
Can you please confirm whether this is still the case?
The reply email was as follows:
That’s correct, the pool safety council isn’t able to provide site-specific advice (as we can’t see the property, it’s impossible for us to give determinations of compliance). That being said, we can provide information and advice on the pool safety standard (i.e. AS1926.1-2007, as amended by MP3.4) and associated legislation.
The concern of the Pool Safety Council is indicated in its further reasons where it submitted that:[10]
The PSC wishes to send a strong message to pool safety inspectors that they should take care in interpreting the pool safety standard and should not adopt their own idiosyncratic interpretations. Pool safety inspectors would be wise, in cases where an unusually configured pool barrier is being considered, to seek the opinion of the PSC and possibly also to take advice from a suitably qualified and experienced building certifier.
[10]Ibid, at [16].
Two difficulties arise from the position of the Pool Safety Council. Firstly, it is not contested that Mr Oliver did in fact, through his employer, seek the opinion of the Pool Safety Council in the interpretation of the regulations before approving the gate, and he was not advised that the proposed configuration was not compliant.[11]
[11]A formal concession was made by the Pool Safety Council and handed up in writing at the hearing as follows: “The respondent, Pool Safety Council, concedes that it is not in a position to prove that someone on behalf of the applicant, Mr Oliver, did not telephone Building Codes Queensland seeking advice about the barrier for the swimming pool the subject of these proceedings before the pool safety certificate for the pool was given by Mr Oliver on 16 August 2012”.
Secondly, what if Mr Oliver had caused a building certifier to be engaged, and the building certifier had agreed with his interpretation of the regulatory provisions, and had endorsed the internal corralling as compliant? Would it still be considered that grounds for disciplinary action lay against Mr Oliver?
This is obviously a highly technical area, not helped by there being several sets of legislation, regulation, and standards, and various amendments of them all, that apply at any given time. Different inspectors will at times come to different conclusions as to the proper interpretation.
I note for example, that in the Skomba case, McLaughlan DCJ was considering a “chameleon gate” arrangement where a pool gate was fixed on the outside of a sliding door, and considered similar provisions as to “direct access from the house”. He canvassed the two opposing views of the interpretation of the regulatory provisions and commented that:[12]
On this line of reasoning, the pool area may be accessed from the house but it could not be said that there was “direct access from the house”. The view taken by the Tribunal, on the other hand, was that if one could enter the pool area from the house without entering a space which was neither part of the house nor part of the pool area then this constituted “direct access” from the house to the pool area. Either argument is, I consider, maintainable.”
[12]Skomba, op cit, [11].
The observation of McLaughlan DCJ that either argument is maintainable, is indicative of how experienced and diligent people can legitimately differ in interpretation of the regulatory provisions.
The Pool Safety Council says that it is concerned that pool safety inspectors not adopt an “idiosyncratic interpretation”. What is the meaning of an “idiosyncratic interpretation”? Is it simply one that is novel, or innovative? If an innovative solution that can be found that complies with the regulatory provisions, then where is the concern?
If an inspector approved a barrier without any regard to the regulatory provisions, or one that was patently absurd, and could not be defended on any common-sense interpretation of the regulatory provisions, then such conduct should be disapproved of, and possible disciplinary action taken. However, if there is a sound argument in favour of an innovative interpretation of the regulatory provisions, then the inspector may be acting quite properly.
If, in the view of the relevant authorities, an innovative solution is brought to their attention, which whilst defensible under the current regulatory provisions, does not comply with their policy intent, then the solution is for the regulatory provisions to be amended to clearly resolve the interpretation and any uncertainty, and for the Industry to be advised accordingly. In common language, to do otherwise can be seen as “shooting the messenger”.

Conclusion

I am satisfied that Mr Oliver acted at all times with care and diligence in performing his duty as a pool safety inspector. He was attempting to find a solution to a difficult practical situation that caused the least inconvenience and safety risk to an elderly home owner. He took several weeks to consider and research the regulatory environment, and did seek advice from his employer and the Pool Safety Council, before satisfying himself that the particular solution which he approved did conform with the regulatory provisions.
It is open to argument whether the solution that Mr Oliver approved was a correct interpretation of the regulatory provisions. Mr Oliver is now prepared to concede that the argument is complicated and he can see both sides, although he still maintains that his approval was conforming.
I accept that Mr Oliver had valid and maintainable arguments to support his contentions and belief that the barrier which he approved was conforming.
I do not have to, and do not propose to, come to any definitive conclusion as to whether Mr Oliver’s approval of the “internal corralling” was a correct interpretation of the regulatory provisions.
My concern is as to Mr Oliver’s behaviour and conduct as a Pool Safety Inspector, and whether grounds for disciplinary action against him are established.
Paragraph (c) of the definition of “disciplinary grounds” in the Act provides for:
(c)conduct that is contrary to a function under this Act, including, for example –
(i)disregarding relevant and appropriate matters; and
(ii)acting outside the scope of the pool safety inspector’s powers; and
(iii)acting beyond the scope of the pool safety inspector’s competence; and
(iv)contravening the code of conduct for pool safety inspectors;
I do not consider that Mr Oliver breached paragraph (c)(i), (ii) or (iii) of that definition. I do not find any relevant and appropriate matters that he disregarded, and do not consider that he acted outside the scope of his powers or competence.
Paragraph (c)(iv) of the definition is effectively the same as the allegation that he contravened the Code of Conduct. Section 3 of the Code (the relevant section) provides as follows:
An inspector must comply with the legislative requirements that regulate or govern inspectors in the performance of pool safety inspection functions.
I am satisfied that Mr Oliver did comply with the legislative requirements that regulate or govern pool safety inspectors in the performance of pool safety inspection functions. That provision relates to his functions, and is different to his conclusions. Simply because Mr Oliver came to a different conclusion to another competent pool safety inspector does not mean that he has not fulfilled his function properly.
I am not satisfied that any breach of paragraph (c)(iv) or of the Code of Conduct by Mr Oliver is shown.
I am therefore not satisfied that a ground for disciplinary action against Mr Oliver is established, and[13] I set aside the decision of the Pool Safety Council made on 6 June 2013, and substitute a decision that a ground for disciplinary action against Mr Oliver is not established.
[13]Pursuant to Queensland Civil and Administrative Tribunal Act 2009 s 24(1)(b).