Swimming Pool Safety Act 2004 (NT)
northern territory of australia
swimming pool safety act 2004
As in force at 3 March 2023
northern territory of australia
As in force at 3 March 2023
swimming pool safety act 2004
An Act to establish safety standards for certain swimming pools and encourage compliance with those standards, and for related purposes
This Act may be cited as the
This Act comes into operation on the date fixed by the Administrator by notice in the
(1) This Act does not apply in relation to a swimming pool that is situated on an area of land occupied by the Crown, a statutory corporation or a local government council.
(2) Despite subsection (1), this Act applies to a swimming pool on property occupied by the Crown, a statutory corporation or a local government council if that property is used solely as a residential building.
(3) If there is an inconsistency between this Act and another Act, this Act prevails to the extent of the inconsistency.
(1) In this Act, unless the contrary intention appears:
acknowledgment notice means a notice issued under section 21.applicable safety standard , in relation to a swimming pool, means the Community Safety Standard, modified Australian Standard or non-standard safety provision applicable to that swimming pool.applicant means a person who has made an application to the Authority under Part 3 or 4.approved form means a form approved under section 45.Authority means a person appointed under section 38.certified , in relation to a swimming pool, means there is in force a compliance certificate in respect of the swimming pool.child means a person who is under the age of 5 years.Community Safety Standard means the safety standard referred to in section 11.compliance certificate means a certificate issued under section 18(2).construct includes install.declaration of compliance means a declaration referred to in section 20.declaration of proposed compliance means a declaration referred to in section 27.dividing barrier means a swimming pool barrier separating adjoining premises:(a) whether the adjoining premises are wholly or only partly separated by the swimming pool barrier; and
(b) whether or not the swimming pool barrier is on any part of the common boundary of the adjoining premises.
existing swimming pool means a swimming pool the construction of which was completed before 1 January 2003.interim compliance certificate means a certificate issued under section 18(1).large premises means premises of 1.8 hectares or more in area.modified Australian Standard means the safety standard referred to in section 10.new swimming pool means a swimming pool the construction of which is completed on or after 1 January 2003.non-standard safety provision means the provision referred to in section 12.notified , in relation to a swimming pool, means an acknowledgment notice is in force in respect of the swimming pool.occupier , in relation to premises, includes:(a) a person who is for the time being in charge of the premises; and
(b) if there are 2 or more occupiers of the premises – each of the occupiers.
owner , in relation to premises, means the registered owner or registered proprietor within the meaning of theLand Title Act 2000 .perimeter boundary means a fence, wall or other similar structure forming the outer boundary of premises.pool safety adviser means a swimming pool safety adviser appointed under section 40.premises means a lot within the meaning of theLand Title Act 2000 and includes any building or structure on the lot.prescribed fee means a fee prescribed under section 46.provisional acknowledgment notice means a notice issued under section 27(4).provisional compliance certificate means a certificate issued under section 26(4).purchaser’s declaration means a declaration referred to in section 25.Registrar means the person appointed under section 48(4).residential building has the meaning in section 5.Review Committee means the Review Committee established by section 48.small premises means premises of less than 1.8 hectares in area.spa bath means a bath, intended to be emptied after each use, that can inject air bubbles or jets of turbulent water into the water in the bath.spa pool means a water-retaining structure that can inject air bubbles or jets of turbulent water into the water in the structure and includes an excavation, structure or vessel in the nature of a spa pool, flotation tank or tub, but does not include a spa bath.swimming pool has the meaning in section 6.swimming pool barrier has the meaning in section 7.temporary acknowledgment notice means a notice issued under section 28.upgrade , in relation to a swimming pool or swimming pool barrier, includes construct, alter, repair and replace.(2) For this Act, adjoining premises owned by the same person are taken to be one premises.
(3) For this Act, 2 or more swimming pools are taken together to comprise one swimming pool if they are:
(a) situated at the same premises; and
(b) in close proximity to one another.
5 Residential building (1) A residential building is:
(a) a building that is solely or principally used for residential purposes; or
(b) a caravan or mobile home in a caravan park.
(2) A residential building includes any structure (such as a shed or garage) that is ancillary to the building.
(3) A residential building does not include the following:
(a) a hotel or motel;
(b) premises (other than a house) at which accommodation is provided for a fee, or under a short term lease, for holiday accommodation;
(c) a house in which the owner of the premises does not normally reside and at which accommodation is provided for a fee, or under a short term lease, for holiday accommodation;
(d) a building that forms part of a complex of buildings that are principally used for non-residential purposes.
6 Swimming pool (1) A swimming pool is an excavation, structure or vessel (including a spa bath outside a building and a spa pool) that:
(a) is capable of being filled with water to a depth of 300 millimetres or more at the deepest point of the swimming pool; and
(b) is used, or is designed, manufactured or adapted to be used, solely or principally for swimming, wading, paddling or another human aquatic activity.
(2) A swimming pool does not include any of the following structures:
(a) a spa bath within a building;
(b) a structure within a bathroom that is within a building;
(c) a structure within a building to which all points of entry consist of doors, gates or windows that are self-closing and self‑latching;
(d) a structure that is exempted by the Regulations from the application of this Act.
(3) A reference in this Act to a swimming pool includes a reference to the swimming pool barrier, unless the contrary intention appears.
(1) A swimming pool barrier is a fence, wall or similar structure intended to form a barrier to a swimming pool and includes a gate or door set in the fence, wall or structure.
(2) A swimming pool barrier also includes the following:
(a) a wall of a building including a window, gate or door set in the wall;
(b) in relation to a spa pool – the lid of the spa pool;
(c) a structure or thing specified by the Regulations to be a swimming pool barrier.
(3) A swimming pool barrier does not include a fence, wall or structure that consists, or part of which consists, solely of a hedge or vegetation.
(1) A new swimming pool at small premises must be certified under section 18(2) as complying with:
(a) the modified Australian Standard; or
(b) the non-standard safety provision.
(2) A new swimming pool at large premises may be, but is not required to be:
(a) certified under section 18(2) as complying with the modified Australian Standard or non-standard safety provision; or
(b) acknowledged under section 21 as having been declared to comply with the Community Safety Standard.
9 Safety standards for existing swimming pools (1) An existing swimming pool at small premises may be, but until the premises are sold or leased is not required to be:
(a) certified under section 18(2) as complying with the modified Australian Standard or the non-standard safety provision; or
(b) acknowledged under section 21 as having been declared to comply with the Community Safety Standard.
(2) An existing swimming pool at large premises may be, but is not required to be:
(a) certified under section 18(2) as complying with the modified Australian Standard or the non-standard safety provision; or
(b) acknowledged under section 21 as having been declared to comply with the Community Safety Standard.
10 Modified Australian Standard (1) The modified Australian Standard for a swimming pool is that:
(a) the swimming pool must be enclosed by a swimming pool barrier that:
(i) surrounds the swimming pool;
(ii) separates the swimming pool from a residential building at the premises where the swimming pool is situated and from all areas of land or buildings adjoining the premises; and
(iii) is designed, constructed, sited and maintained in a manner consistent with the standards prescribed by the Regulations; and
(b) if there is a dividing barrier – the owner of the premises at which the swimming pool is situated must, in accordance with the Regulations, give the owner of the adjoining premises the notice prescribed by the Regulations.
(2) The Authority must ensure that copies of the following are made available for viewing by members of the public:
(a) diagrams illustrating how subsection (1)(a)(i) and (ii) may be applied;
(b) the standards prescribed under subsection (1)(a)(iii).
11 Community Safety Standard (1) The Community Safety Standard for a swimming pool is that:
(a) the swimming pool barrier must be designed, sited, constructed and maintained in a way that prevents (to the extent that is practicable and reasonable in all the circumstances) a child from gaining unsupervised access to the swimming pool; and
(b) if there is a dividing barrier – the owner of the premises at which the swimming pool is situated must, in accordance with the Regulations, give the owner of the adjoining premises the notice prescribed by the Regulations.
(2) If a swimming pool is at premises where access to the swimming pool is prevented only by a perimeter boundary, the swimming pool does not comply with the Community Safety Standard.
(3) The Regulations may prescribe guidelines to assist in the assessment of compliance with the Community Safety Standard.
(1) A swimming pool that does not comply with the modified Australian Standard or Community Safety Standard may be certified as complying with the non-standard safety provision if:
(a) the Authority is satisfied that:
(i) because of the physical characteristics of the land on which the swimming pool is situated or of the buildings on the land, or the nature of the design and construction of the swimming pool, it is impracticable for the swimming pool to comply with either of those standards or it would be unreasonable to require such compliance; or
(ii) the swimming pool meets a precondition for non-standard enclosure specified in this section; and
(b) the Authority is satisfied that:
(i) access to the swimming pool does not, in all the circumstances, pose an unacceptable risk to a child;
(ii) the owner of the premises is aware of the risks posed to a child by the swimming pool; and
(iii) if there is a dividing barrier – the owner of the premises at which the swimming pool is situated has, in accordance with the Regulations, given the owner of the adjoining premises the notice prescribed by the Regulations.
(2) A swimming pool meets a precondition for non-standard enclosure if any of the following circumstances apply:
(a) the swimming pool is at premises that are less than 300 square metres in area and access to the swimming pool from a residential building at the premises is restricted in accordance with the Community Safety Standard or modified Australian Standard;
(b) the swimming pool is at premises that have frontage to a body of water (including a permanent creek or river, canal, marina, pond, lake, reservoir or estuary or the sea) and access to the swimming pool from a residential building at the premises is restricted in accordance with the Community Safety Standard or modified Australian Standard;
(c) the swimming pool is a spa pool to which access is able to be restricted at all times when the spa pool is not in use and all points of entry to the area immediately surrounding the spa pool consist of doors, gates or windows, that are self-closing and self-latching;
(d) the swimming pool is a spa pool that has a solid lid that is able to be locked in place so as to cover the top of the spa pool at all times when the spa pool is not in use.
(3) A swimming pool meets a precondition for non-standard enclosure if:
(a) the swimming pool barrier consists of louvre windows fitted with security bars, screens or devices that provide an effective barrier; and
(b) the swimming pool barrier does not allow access through an opening that does not have a self-closing and self-latching door or gate.
(4) A swimming pool meets a precondition for non-standard enclosure if the swimming pool, or the premises where it is (or is to be) situated, is a member of a class of swimming pools or class of premises prescribed by the Regulations.
(5) In this section:
residential building only includes a structure such as a garage or shed that is ancillary to a residential building if the structure is itself used for residential purposes.
The Minister may authorise a financial assistance scheme to assist owners of premises at which there are existing swimming pools to upgrade the swimming pool barriers to comply with the Community Safety Standard or modified Australian Standard.
(1) The owner of small premises who intends to have a swimming pool constructed at the premises must, before construction begins, apply to the Authority for an interim compliance certificate.
Maximum penalty: 10 penalty units.
(2) The application must be in the form prescribed by the Regulations, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(3) Before applying for an interim compliance certificate, the owner:
(a) must request the Authority for the advice of a pool safety adviser if the swimming pool is to be constructed to comply with the non-standard safety provision; or
(b) may request the Authority for the advice of a pool safety adviser if the swimming pool is to be constructed to comply with the modified Australian Standard.
15 Obligations if interim compliance certificate issued (1) This section applies only in relation to the construction of a swimming pool to which an interim compliance certificate relates.
(2) Before the contractor begins to construct the swimming pool, the contractor must notify the Authority in the approved form of the date on which construction is to begin.
Maximum penalty: If the offender is a natural person – 10 penalty units.
If the offender is a body corporate – 100 penalty units.
(3) The contractor must ensure the construction of the swimming pool is in accordance with the particulars and conditions (if any) specified in the interim compliance certificate.
Maximum penalty: If the offender is a natural person – 10 penalty units.
If the offender is a body corporate – 100 penalty units.
(4) If the owner issued with the interim compliance certificate constructs the swimming pool, the obligations imposed on the contractor by this section are imposed instead on the owner.
(5) In this section:
contractor means the person engaged to construct the swimming pool.
(1) After the construction at small premises of both a swimming pool and swimming pool barrier, the owner of the premises must apply for a compliance certificate in respect of the swimming pool:
(a) within 7 days after completion of construction; and
(b) before the pool is filled to a depth of 300 millimetres or more at the deepest point of the swimming pool.
Maximum penalty: 10 penalty units.
(2) The application must be in the approved form and contain the information required by the Regulations.
(1) The owner of small premises at which there is an existing swimming pool may apply to the Authority for a compliance certificate if the swimming pool complies with the modified Australian Standard or non-standard safety provision.
(2) The owner of large premises at which there is a new swimming pool or existing swimming pool may apply to the Authority for a compliance certificate if the swimming pool complies with the modified Australian Standard or non-standard safety provision.
(3) The application must be in the form prescribed by the Regulations, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(1) The Authority must issue an interim compliance certificate to an applicant if the Authority is satisfied about all the information contained in the application for the certificate.
(2) The Authority must issue a compliance certificate to an applicant if, following an assessment by a pool safety adviser, the Authority is satisfied that the swimming pool complies with the modified Australian Standard or non-standard safety provision.
(3) The Authority may require the applicant for an interim compliance certificate or compliance certificate to provide further information to the Authority or a pool safety adviser.
(4) If the Authority is not satisfied about a matter in connection with an application for a compliance certificate, the Authority may:
(a) before issuing the certificate, require the applicant to take specified measures to ensure the swimming pool complies with the applicable safety standard; or
(b) refuse to issue a compliance certificate.
(5) An interim compliance certificate or compliance certificate:
(a) must be in the approved form and include the particulars specified by the Regulations; and
(b) may include conditions specified by the Authority.
19 Variation and revocation of certificate (1) The Authority may vary an interim compliance certificate or compliance certificate, in accordance with the Regulations, on application by the holder of the certificate or on its own initiative.
(2) An application for a variation of a certificate must be in the approved form, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(3) The Authority may revoke a compliance certificate only in accordance with the Regulations.
(1) The owner of small premises at which there is an existing swimming pool may lodge with the Authority a declaration of compliance if the swimming pool complies with the Community Safety Standard.
(2) The owner of large premises at which there is an existing swimming pool or a new swimming pool may lodge with the Authority a declaration of compliance if the swimming pool complies with the Community Safety Standard.
(3) The declaration of compliance must be in the form prescribed by the Regulations, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(4) Before lodging a declaration of compliance, the owner may request the Authority for the advice of a pool safety adviser.
(1) If the Authority is satisfied that a declaration of compliance contains all the information required by the Regulations, the Authority must issue an acknowledgment notice to the person who made the declaration.
(2) The acknowledgment notice must be in the approved form and include the particulars specified by the Regulations.
In this Division:
(a) in relation to a units plan – the common property in relation to the plan as defined in section 4(1) of the
Unit Titles Act 1975 ; and(b) in relation to a unit title scheme – the common property of the scheme as defined in section 33(1) of the
Unit Title Schemes Act 2009 .
(a) in relation to a unit plan – a unit of the plan as defined in section 4(1) of the
Unit Titles Act 1975 ; and(b) in relation to a unit title scheme – a unit of the scheme as defined in section 37 of the
Unit Title Schemes Act 2009 .
If there is a swimming pool on common property at small premises comprised of a units plan or unit title scheme, the owner of the common property must ensure the swimming pool is certified or notified:
(a) not later than 6 months after the first transfer of an estate in fee simple in a unit in the units plan or unit title scheme; or
(b) if the first transfer of an estate in fee simple in a unit in the units plan or unit title scheme occurred before the commencement of this Act – not later than 6 months after that commencement.
Maximum penalty: 100 penalty units.
(1) This section does not apply in relation to small premises referred to in section 23.
(2) The Registrar-General must not, under Part 6 of the
Land Title Act 2000 , transfer a fee simple interest in small premises at which there is a swimming pool unless there is:(a) in respect a new swimming pool – a compliance certificate; or
(b) in respect of an existing swimming pool – one of the following:
(i) a compliance certificate or provisional compliance certificate;
(ii) an acknowledgment notice together with a purchaser’s declaration;
(iii) a provisional acknowledgment notice or temporary acknowledgment notice.
(3) In ascertaining whether there is a swimming pool at small premises, the Registrar-General may rely on information provided in a statutory declaration made by any of the following persons:
(a) the owner and purchaser of the premises, jointly or separately;
(b) a legal practitioner;
(c) a real estate agent, business agent or conveyancing agent within the meaning of the
Agents Licensing Act 1979 .
25 Purchaser's declaration A purchaser’s declaration is a declaration in the approved form stating:
(a) the purchaser of the small premises has seen the acknowledgment notice issued in respect of the swimming pool at those premises; and
(b) the purchaser is satisfied the swimming pool complies with the Community Safety Standard.
26 Purchaser may (1) A purchaser of small premises may lodge with the Authority an application for a provisional compliance certificate if:
(a) there is a swimming pool at the premises that is not certified or notified; and
(b) the purchaser proposes to upgrade the swimming pool to comply with the modified Australian Standard or non-standard safety provision.
(2) The application must be in the form prescribed by the Regulations, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(3) Before applying for a provisional compliance certificate, the purchaser may request the Authority for the advice of a pool safety adviser.
(4) The Authority must, in accordance with the Regulations, issue to the purchaser a provisional compliance certificate if the Authority is satisfied about all the information contained in the purchaser’s application.
(5) The purchaser must:
(a) begin and complete the upgrade within the times specified by the Regulations; and
(b) apply for a compliance certificate under section 17 within 7 days after completion of the upgrade.
Maximum penalty: 10 penalty units.
(1) A purchaser of small premises may lodge with the Authority a declaration of proposed compliance if:
(a) there is a swimming pool at the premises that is not certified or notified; and
(b) the purchaser proposes to upgrade the swimming pool to comply with the Community Safety Standard.
(2) The declaration of proposed compliance must be in the form prescribed by the Regulations, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(3) Before making a declaration of proposed compliance, the purchaser may request the Authority to provide the advice of a pool safety adviser.
(4) The Authority must, in accordance with the Regulations, issue to the purchaser a provisional acknowledgment notice if the Authority is satisfied about all the information contained in the declaration of proposed compliance.
(5) The purchaser must:
(a) begin and complete the upgrade within the times specified by the Regulations; and
(b) lodge a declaration of compliance under section 20 within 7 days after completion of the upgrade.
Maximum penalty: 10 penalty units.
(1) A person may apply to the Authority for a temporary acknowledgment notice to facilitate the transfer of the fee simple interest in prescribed small premises at which there is an existing swimming pool that is not certified or notified.
(2) For subsection (1), prescribed small premises are any of the following:
(a) small premises that are part of the estate of a deceased person and the fee simple interest is to be transferred, for no consideration, to a surviving spouse or de facto partner, another surviving relative or a member of the deceased person’s family;
(b) small premises that are part of the property to be transferred in accordance with a property settlement;
(c) small premises in respect of which the fee simple interest is to be transferred to a purchaser who is, immediately before the transfer, a tenant-in-common with the Chief Executive Officer (Housing) under a housing scheme;
(d) small premises prescribed by the Regulations;
(e) small premises in respect of which there is a transfer of the fee simple interest to an immediate family member of the previous registered owner or registered proprietor.
(3) The application must be in the approved form, contain the information required by the Regulations and be accompanied by the prescribed fee (if any).
(4) The Authority must issue a temporary acknowledgment notice to the applicant if the Authority is satisfied about all the information contained in the application.
(5) The temporary acknowledgment notice is revoked by virtue of this section immediately after the transfer of the fee simple interest under the
Land Title Act 2000 .(6) In this section:
Chief Executive Officer (Housing) means the Chief Executive Officer (Housing) established under section 6 of theHousing Act 1982 .housing scheme means a prescribed housing scheme under section 22 of theHousing Act 1982 .immediate family member means:(a) a spouse or de facto partner; or
(b) a parent (including a stepparent) or grandparent; or
(c) a child (including a stepchild) or grandchild; or
(d) a sibling (including a half sibling).
property settlement means a settlement of property under theFamily Law Act 1975 (Cth) or theDe Facto Relationships Act 1991 .
(1) A landlord must not enter into a tenancy agreement in relation to small premises at which there is a swimming pool unless the swimming pool is certified or notified and there is no contravention of section 31 or 32 (as applicable).
Maximum penalty: 10 penalty units.
(2) If a tenancy agreement is entered into in contravention of subsection (1), the landlord must, within a reasonable period after the agreement is entered into, take all reasonable steps to ensure that a compliance certificate or acknowledgment notice may be issued in respect of the swimming pool.
Maximum penalty: 5 penalty units.
(3) In this section:
landlord has the same meaning as in theResidential Tenancies Act 1999 .tenancy agreement has the same meaning as in theResidential Tenancies Act 1999 and includes an agreement to renew or extend a tenancy.
The owner of small premises at which there is a new swimming pool must hold a compliance certificate in respect of the swimming pool.
Maximum penalty: 10 penalty units.
The owner of premises at which there is a certified swimming pool must ensure that:
(a) the swimming pool and swimming pool barrier (if any) are the same, and in substantially the same condition, as on the date on which the compliance certificate in respect of the swimming pool was issued or, if applicable, varied; and
(b) the conditions (if any) on which the swimming pool is certified are complied with.
Maximum penalty: 10 penalty units.
The owner of premises at which there is a notified swimming pool must ensure the swimming pool and swimming pool barrier (if any) are the same, and in substantially the same condition, as specified in the declaration of compliance made by the owner.
Maximum penalty: 10 penalty units.
(1) The owner and occupier of premises at which there is a certified swimming pool or notified swimming pool must ensure that all gates, doors, windows and other structures that provide access to the swimming pool are kept securely closed at all times when they are not in actual use.
Maximum penalty: 10 penalty units.
(2) It is a defence to a charge of committing an offence against subsection (1) if the owner of the premises establishes that he or she:
(a) was not the occupier of the premises when the alleged offence occurred;
(b) took all reasonable steps to ensure that the alleged offence would not occur; and
(c) was not aware of, and could not reasonably have been expected to be aware of, the facts giving rise to the alleged offence.
34 Occupier to notify owner if swimming pool barrier The occupier of premises at which there is a certified swimming pool or notified swimming pool must notify the owner of the premises of any maintenance required to a swimming pool barrier at the premises to enable the owner of the premises to comply with this Act.
Maximum penalty: 5 penalty units.
(1) The owner of premises at which there is a swimming pool that is not certified or notified must, if the premises adjoin a public place, ensure there is a barrier at the premises that prevents a child from gaining unsupervised access to the swimming pool from the public place.
Maximum penalty: 10 penalty units.
(2) In this section:
barrier means a fence, wall or similar structure and includes a gate or door set in the fence, wall or structure.
If there is a fence, wall or similar barrier separating premises from land maintained by a local government council, and the fence, wall or barrier forms a swimming pool barrier for a swimming pool at the premises:
(a) the council has no obligation to maintain the fence, wall or barrier to comply with the Community Safety Standard, modified Australian Standard or non-standard safety provision or to maintain the land to assist such compliance; and
(b) the council is not liable for a personal injury caused because the fence, wall or barrier did not comply with the Community Safety Standard, modified Australian Standard or non‑standard safety provision.
(1) The Authority may issue a written order to a person if the Authority is satisfied the person is contravening a provision of this Act as specified in the order.
(2) The order may require the person to whom it is directed to take specified measures, within a specified reasonable time, to ensure compliance with the provision.
(3) An order is of no effect to the extent that it purports to require measures to be taken:
(a) in respect of a certified or notified swimming pool – that are more onerous than those required by the applicable safety standard; or
(b) in respect of a barrier referred to in section 35 – that are more onerous than are, in all the circumstances, practicable and reasonable to prevent a child from gaining unsupervised access to the swimming pool.
(4) A person must comply with an order directed to the person.
Maximum penalty: 5 penalty units.
(5) The issuing of an order relating to a contravention of section 30, 31 or 32 imposes a restriction on dealings with the land comprising the premises to which the order relates and enables the Minister to lodge with the Registrar-General a memorandum under section 35(1) of the
Land Title Act 2000 in respect of the land.
(1) The Minister may, by notice in the
Gazette , appoint a person to be the Swimming Pool Safety Authority.(2) The Minister may, by notice in the
Gazette , appoint:(a) a person, nominated by the local government council of a local government area specified in the notice, to be the Swimming Pool Safety Authority for that local government area; or
(b) a person to be the Swimming Pool Safety Authority for an area specified in the notice.
(3) If a person is appointed under subsection (2) for an area, the person appointed under subsection (1) is not the Swimming Pool Safety Authority in respect of the area but may direct a pool safety adviser appointed under section 40(1) to exercise the pool safety adviser’s powers, or perform the pool safety adviser’s functions, in relation to the area.
(1) The Minister may, in writing, delegate to a person a power or function of the Minister under this Act.
(2) The Authority may, in writing, delegate to a person a power or function of the Authority under this Act.
(3) A delegation under subsection (1) or (2) may be limited to the exercise of a power, or the performance of a function, in respect of an area specified in the delegation.
(1) A person appointed under section 38(1) to be the Authority may, by notice in the
Gazette , appoint a person to be a swimming pool safety adviser.(2) A person appointed under section 38(2) to be the Authority in respect of an area may, by notice in the Gazette, appoint a person to be a swimming pool safety adviser in respect of the area.
(3) A swimming pool safety adviser is, in the exercise of his or her powers or the performance of his or her functions, subject to the directions of the Authority that appointed him or her.
(1) The Minister must issue an identity card in the approved form to the Authority.
(2) The Authority must issue an identity card in the approved form to each swimming pool adviser.
(3) The Authority must return his or her identity card to the Minister within 14 days after ceasing to be the Authority.
Maximum penalty: 1 penalty unit.
(4) A pool safety adviser must, within 14 days after ceasing to be a pool safety adviser, return to the Authority the identity card issued to him or her by the Authority.
Maximum penalty: 1 penalty unit.
(1) The Authority may, by conducting appropriate enquiries, satisfy itself about any matter referred to in an application or declaration made under Part 3 or 4.
(2) Appropriate enquiries may include requiring further information from the applicant and an assessment by a pool safety adviser of the swimming pool the subject of the application or declaration.
(1) The Authority or a pool safety adviser may, in administering or enforcing this Act, enter premises under the authority of a search warrant issued under section 44.
(2) The Authority or a pool safety adviser may, in administering or enforcing this Act, enter premises otherwise than in accordance with a search warrant issued under section 44 if:
(a) the Authority or pool safety adviser has a reasonable belief that there is a swimming pool at the premises;
(b) reasonable steps are taken to give notice to the owner and the occupier of the premises that the Authority or pool safety adviser intends to enter the premises within 7 days after the notice is given;
(c) the entry occurs:
(i) within 7 days after, but not earlier than 24 hours after, the notice is given under paragraph (b); or
(ii) at an earlier time agreed by the occupier of the premises or, if there is no occupier, the owner of the premises;
(d) the entry occurs between 8 am and 6 pm or, if the normal business hours at the premises are not between 8 am and 6 pm, during the normal business hours at the premises;
(e) the entry occurs at a time to which the occupier of the premises or, if there is no occupier of the premises, the owner of the premises, has agreed, unless the agreement has been unreasonably withheld, in which case the agreement is not required; and
(f) the Authority or adviser, if the owner or occupier so requests, displays the identity card issued to him or her.
(3) The Authority or a pool safety adviser may enter premises (other than a residential building) in accordance with subsection (2), although subsection (2)(c), (d) and (e) have not been complied with, if the entry is urgently required for a reason prescribed by the Regulations.
(4) The Authority or a pool safety adviser may enter a residential building only if:
(a) the occupier of the building agrees or, if there is no occupier of the building, if the owner of the building agrees; or
(b) the Authority or adviser is acting under the authority of a search warrant issued under section 44.
(5) The Authority or a pool safety adviser may, at premises (including a residential building) entered in accordance with this section, do any of the following:
(a) carry out an inspection that he or she considers relevant to the administration or enforcement of this Act;
(b) take photographs, including video recordings, or make sketches or other records of the premises or things at the premises;
(c) inspect and take copies of a document as defined in Part 1 of the Dictionary at the end of the
Evidence (National Uniform Legislation) Act 2011 ;(d) request a person at the premises to provide assistance in carrying out an investigation of the premises.
(6) A person must not (other than by refusing to agree to permit the Authority or a pool safety adviser to enter a residential building):
(a) obstruct the Authority or pool safety adviser in exercising a power of entry or inspection under this Act; or
(b) refuse to provide assistance to the Authority or pool safety adviser in carrying out an investigation of the premises when the person is requested to do so under subsection (5)(d).
Maximum penalty: 5 penalty units.
(1) The Authority or a pool safety adviser may apply to a justice of the peace, by information on oath, for a search warrant in relation to the premises specified in the information if the Authority believes on reasonable grounds that an offence against this Act or the Regulations is being committed at the premises.
(2) A justice of the peace may issue a search warrant authorising the Authority and pool safety advisers to enter premises specified in the information to which the warrant relates, including a residential building at the premises, if the justice of the peace is satisfied that there are reasonable grounds to suspect that an offence against this Act or the Regulations is being committed at the premises in relation to a swimming pool.
(3) A search warrant authorises the Authority and pool safety advisers accompanying the Authority:
(a) to enter premises, including a residential building at the premises, and, if necessary, to use reasonable force to do so; and
(b) to do anything referred to in section 43(5) at the premises and in the residential building.
(4) A search warrant must:
(a) state the purpose for which it is issued;
(b) state the nature of the alleged offence in respect of which the entry is authorised;
(c) specify the hours during which entry to the premises or a residential building at the premises is authorised; and
(d) specify the date on which the warrant ceases to have effect, which is to be not later than 30 days after the date on which the warrant is issued.
45 Approved forms The Authority may approve forms to be used under this Act.
The Minister may, by notice in the
(1) This section applies to a person who is or has been:
(a) the Chief Executive Officer of the Agency administering this Act;
(b) the Authority; or
(c) a pool safety adviser.
(2) The person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under this Act.
(3) Subsection (2) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.
(1) A Review Committee is established.
(2) The Review Committee consists of 3 persons appointed by the Minister under subsection (3).
(3) The Minister may, by notice in the
Gazette , appoint a person to be a member of the Review Committee.(4) The Minister may appoint a person to be the Registrar of the Review Committee.
(1) A person affected by any of the following decisions of the Authority may apply to the Registrar for a review of the decision by the Review Committee:
(a) a decision under Part 3, Division 1 relating to an interim compliance certificate or compliance certificate;
(b) a decision under Part 3, Division 2 refusing to issue an acknowledgment notice;
(c) a decision under Part 4 relating to a provisional compliance certificate, provisional acknowledgment notice or temporary acknowledgment notice;
(d) a decision under section 37 to issue an order.
(2) An application for a review of a decision is to be lodged with the Registrar within 28 days after the date on which notice of the decision was given to the applicant in accordance with section 52.
(3) The application must be in the approved form and accompanied by the prescribed fee (if any).
(4) A review must be by hearing de novo.
(5) The practices and procedure of a review are to be as determined by the Review Committee.
(1) The Review Committee must determine a review within 28 days after the date on which the application for review is lodged.
(2) The Review Committee must determine the review by:
(a) confirming the decision of the Authority;
(b) varying the decision of the Authority; or
(c) setting aside the decision of the Authority and making a decision in substitution for the decision to which the review relates.
(3) The Review Committee must give to the applicant for the review written notice of the Committee’s determination and the reasons for the determination.
(4) Any prescribed fee paid under section 49(3) is to be refunded to the applicant if the Review Committee varies or sets aside the decision of the Authority.
(5) A determination under subsection (2)(b) or (c) is taken to be the original decision of the Authority.
(1) Subject to subsection (2), any expenses associated with constructing, altering, repairing, replacing or maintaining a dividing barrier required for compliance with this Act or the Regulations are to be borne by the owner of the premises at which the swimming pool is (or is to be) situated.
(2) If there are adjoining premises at each of which there is (or is to be) a swimming pool:
(a) the location or proposed location of a dividing barrier is to be as agreed between the owners of the premises, subject to the requirements of this Act; and
(b) the expenses associated with constructing, altering, repairing, replacing or maintaining a dividing barrier between the premises are to be borne by both owners of the premises in equal proportions or as otherwise agreed between them.
52 Notice (1) Subject to any express provision, the Authority must, within 14 days after making a decision under this Act, give written notice to the owner of the premises to which the decision relates of the making of the decision and of the reasons for the decision.
(2) A notice permitted or required to be given by or under this Act to an owner or occupier of premises may be given:
(a) personally;
(b) by letter addressed to the owner or occupier and sent by post to the premises;
(c) by a letter addressed to the owner or occupier and left at the premises with a person who appears to be of or above the age of 16 years and to reside or be employed at the premises; or
(d) by a letter addressed to the owner or occupier and fixed to a conspicuous part of the premises.
53 Defence if swimming pool not able to be used It is a defence to a charge of committing an offence against this Act in relation to a swimming pool if the defendant establishes that, at the time of the alleged offence, the swimming pool:
(a) was not intended for use or was incapable of use as a swimming pool because it was dismantled or in the course of alteration, renovation or removal; and
(b) was empty or filled with water to a depth less than 300 millimetres at the deepest point of the swimming pool.
54 Continuing offences (1) If, on finding a person guilty of an offence against this Act, a court is satisfied that the person continued to commit the offence after the date on which the person was notified of the alleged offence, the court may, in addition to the penalty (if any) specified for the offence, impose a further penalty.
(2) Any further penalty imposed by the court is for each day during which the offence continued to be committed after the date on which the person was notified of the alleged offence.
(3) A further penalty must not exceed one penalty unit for each day on which the offence continued.
(1) A person permitted or required by this Act to make a declaration of compliance, declaration of proposed compliance or purchaser’s declaration may appoint any of the following persons to make the declaration on his or her behalf:
(a) a legal practitioner;
(b) a real estate agent, business agent or conveyancing agent within the meaning of the
Agents Licensing Act 1979 .
(2) A person must not make a false statement in a declaration.
Maximum penalty: 20 penalty units or imprisonment for 12 months.
(1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters that are:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The Regulations may provide for any of the following:
(a) matters in connection with applications for interim compliance certificates, provisional compliance certificates or compliance certificates and applications for variations of any of those certificates;
(b) matters in connection with declarations of compliance, declarations of proposed compliance, acknowledgment notices, provisional acknowledgment notices and temporary acknowledgment notices;
(c) the variation or revocation of interim compliance certificates, provisional compliance certificates and compliance certificates;
(d) extensions of time for the upgrade of existing swimming pools in accordance with a provisional compliance certificate or provisional acknowledgment notice;
(e) the waiver or refund (in whole or in part) of prescribed fees by the Authority;
(f) the circumstances and the manner in which the Authority may exercise a discretion in relation to a matter referred to in paragraphs (a) to (e);
(g) restrictions on the use of land surrounding or adjoining a swimming pool barrier, so as to ensure the effective restriction of access by children to the swimming pool;
(h) the payment of a prescribed amount instead of a penalty that may otherwise be imposed for an offence against this Act or the Regulations, the service of a notice relating to the payment of the amount on a person alleged to have committed the offence, and the particulars to be included in the notice;
(i) penalties for offences against the Regulations not exceeding 5 penalty units for a natural person and 50 penalty units for a body corporate.
(3) The Regulations may apply, adopt or incorporate (either wholly or in part or with or without modification) a standard, code or rule as in force for the time being.
(4) The Regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.
(5) The Regulations may provide that a savings or transitional provision takes effect from a date that is earlier than the date of its publication or notification in the
Gazette but, if they do so, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the Territory), the rights of that person existing before the date of its publication or notification; or
(b) to impose liabilities on a person (other than the Territory) in respect of anything done or omitted to be done before the date of its publication or notification.
57 Repeal The
Swimming Pool Fencing Act 2002 (No. 66 of 2002) and theSwimming Pool Fencing Amendment Act 2003 (No. 53 of 2003) are repealed.
The provisions set out in the Schedule apply.
section 58
1 Definitions
In this Schedule:
2 Registered swimming pools that are certified swimming pools
(1) A registered swimming pool stated in the certificate of registration to be registered as being enclosed in accordance with the appropriate Australian Standard in accordance with section 13 or 17 of the repealed Act is taken to be a certified swimming pool that complies with the modified Australian Standard.
(2) A registered swimming pool stated in the certificate of registration to be registered as being enclosed with a non-standard enclosure under section 19 of the repealed Act in accordance with section 14 or 18 of that Act is taken to be a certified swimming pool that complies with the non-standard safety provision.
(3) A former compliance certificate in relation to premises at which there is a registered swimming pool referred to in subclause (1) or (2) is revoked on the commencement day.
(4) A certificate of registration in respect of a registered swimming pool referred to in subclause (1) or (2) is taken to be a compliance certificate in respect of that swimming pool.
(5) The Authority may, on application by the holder of a certificate of registration or on its own initiative, issue a compliance certificate in substitution for a certificate of registration referred to in subclause (1) or (2).
3 Registered swimming pools that are not certified swimming pools
(1) The following registered swimming pools are not taken to be certified swimming pools:
(a) a swimming pool that is stated in the certificate of registration to be registered as satisfying the requirements of a clause in Schedule 2 of the repealed Act in accordance with section 12 of that Act;
(b) a swimming pool that is stated in the certificate of registration to be registered as being authorised under section 15 of the repealed Act.
(2) The certificate of registration for a swimming pool referred to in subclause (1) is revoked on the commencement day.
(3) Subject to clause 4, the former compliance certificate in relation to a swimming pool referred to in subclause (1) is revoked on the commencement day.
4 Contracts of sale not completed
(1) The Registrar-General may transfer the fee simple interest in small premises at which there is a swimming pool if:
(a) there is a former compliance certificate in relation to those premises; and
(b) the contract of sale in relation to those premises was entered into before the commencement date.
(2) On the transfer of the fee simple interest, the former compliance certificate in relation to the premises is revoked.
5 Applications not fully dealt with
(1) If on the commencement day any application to the Authority has not been decided, the Authority must continue to deal with the application in the manner the Authority considers to be appropriate and reasonable in the circumstances.
(2) In dealing with an application referred to in subclause (1), the Authority may do any of the following:
(a) return the application to the applicant if it is no longer required under this Act;
(b) require the applicant to make a further application in accordance with this Act or the Regulations;
(c) deal with the application as if made under this Act;
(d) return any fee paid by the applicant in connection with the application;
(e) advise the applicant of the applicant’s obligations or options under this Act;
(f) require the applicant to provide the Authority with further information;
(g) direct a pool safety adviser to give advice to the applicant.
6 Former orders not fully complied with
(1) A person issued with a former order is not required to comply with the order.
(2) As soon as practicable after the commencement day, a pool safety adviser must assess the swimming pool to which the former order relates and the Authority must, after considering the assessment, take the actions the Authority considers appropriate and reasonable in the circumstances.
(3) Actions that may be taken by the Authority include either or both of the following:
(a) advising the person to whom the former order was issued of the person’s obligations and options under this Act;
(b) issuing an order under section 37.
7 Appointments under repealed Act to continue
(1) A person who immediately before the commencement day was appointed as the Swimming Pool Fencing Authority under section 41(1) or (2) of the repealed Act is taken to be a person appointed as the Swimming Pool Safety Authority under section 38(1) or (2) respectively.
(2) A person who immediately before the commencement day was appointed as an inspector under section 43(1) or (2) of the repealed Act is taken to be a person appointed as a swimming pool safety adviser under section 40(1) or (2) respectively.
(3) A person who immediately before the commencement day was appointed as a member of the Review Committee established by the repealed Act is taken to be a person appointed as a member of the Review Committee established by this Act.
1 KEY
Key to abbreviations
2 LIST OF LEGISLATION
Assent date | 9 March 2004 |
Commenced | 15 March 2004 ( |
Assent date | 8 March 2007 |
Commenced | 8 March 2007 |
Assent date | 14 November 2008 |
Commenced | 1 July 2008 (s 2) |
Assent date | 26 May 2009 |
Commenced | pt 2.3, div 3, sdv 4 and s 135 (to ext ins s 54C): 1 January 2010; s 111: 1 July 2010; rem: 1 July 2009 (s 2, |
Assent date | 21 November 2012 |
Commenced | 1 January 2013 ( |
Assent date | 12 July 2013 |
Commenced | 28 August 2013 ( |
Assent date | 2 June 2014 |
Commenced | s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014 (s 2) |
Assent date | 6 April 2016 |
Commenced | 1 May 2016 (s 2, s 2 |
Assent date | 15 December2021 |
Commenced | 16 December2021 (s 2) |
Assent date | 2 March 2023 |
Commenced | 3 March 2023 |
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the
4 LIST OF AMENDMENTS
s 3 amd No. 19, 2014, s 26; No. 29, 2021, s 10
s 4 amd No. 28, 2008, s 3; No. 19, 2014, s 26
ss 14 – 16 amd No. 23, 2013, s 12
s 22 amd No. 14, 2009, s 161
s 23 amd No. 14, 2009, s 162; No. 23, 2013, s 12
ss 26 – 27 amd No. 23, 2013, s 12
s 28 amd No. 4, 2007, s 6; No. 4, 2023, s 23
ss 29 – 35 amd No. 23, 2013, s 12
s 36 amd No. 19, 2014, s 26
s 37 amd No. 23, 2013, s 12
s 38 amd No. 19, 2014, s 26
s 41 amd No. 23, 2013, s 12
s 43 amd No. 23, 2012, s 32; No. 23, 2013, s 12
s 44 amd No. 8, 2016, s 45
s 55 amd No. 23, 2013, s 12
s 59 exp No. 13, 2004, s 59(3)
0
0
0