Competition and Consumer Act 2010 - Consumer Protection Notice No. 16 of 2011 - Permanent ban on pools and spas with unsafe design features

Administered by Department of the Treasury

Legislation au F2011L00223 In force Legislative Instrument

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explanatory STATEMENT

Issued by the Authority of the Parliamentary Secretary to the Treasurer

Competition and Consumer Act 2010

Permanent ban on pools and spas with unsafe design features

Background

Prior to 1 January 2011, a notice declaring goods to be unsafe was made pursuant to subsection 65C(5) of the Trade Practices Act 1974 (TPA) in relation to pools and spas with unsafe design features.

The Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 together with the Trade Practices Amendment (Australian Consumer Law) Act (No.1) 2010, amended the TPA to implement a new national consumer law regime known as the Australian Consumer Law (ACL).

The TPA was renamed the Competition and Consumer Act 2010 (CCA) on 1 January 2011. The ACL forms Schedule 2 to the CCA.

Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 sets out the transitional matters relating to the commencement of the ACL. Item 2 of Schedule 7 provides that a notice under subsection 65C(5) of the TPA that was in force immediately before the commencement of the ACL takes effect ‘as if’ it were an interim ban imposed under section 109 of Schedule 2 to the CCA, starting on the day of commencement (1 January 2011). Therefore, an interim ban on pools and spas with unsafe design features came into force on 1 January 2011. An interim ban under the ACL exists for a period of 60 days and is able to be extended on two separate occasions by a period of 30 days.

Subsection 114(1) of Schedule 2 to the CCA provides that the Commonwealth Minister may impose a permanent ban on consumer goods of a particular kind if an interim ban exists for those goods, or it appears to the Commonwealth Minister that consumer goods of that kind will or may cause injury to any person or a reasonably foreseeable use (including misuse) of consumer goods will or may cause injury to any person. A permanent ban on pools and spas with unsafe design features is imposed pursuant to subsection 114(1)(a) of Schedule 2 to the CCA.

Permanent ban on pools and spas with unsafe design features

Open, potty‑shaped skimmer boxes can be installed in permanent swimming pools and spas. They may also be integrally moulded into transportable swimming pools and spas. These skimmer boxes:

  • operate at water level as a suction point for circulating the water
  • look like a child's potty or toilet device
  • have no fixed protective device to stop a person becoming lodged or caught by the suction when in use.

 

The purpose of the permanent ban on these goods is to ensure ongoing consumer safety by prohibiting the supply of pools and spas with unsafe design features. People have suffered serious injuries or died after sitting on potty‑shaped open skimmer boxes. Children are at great risk and there have been cases in Australia where children sitting on open skimmer boxes have been disembowelled by the strong suction action. There is also a risk of entrapment of body parts and hair by suction at the outlets.

Under the CCA, a permanent ban on pools and spas with unsafe design features is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). For the purposes of section 17 of the LIA, consultation has been undertaken both at the time the notice was made under subsection 65C(5) of the TPA and also in January 2011 when the proposed ban notice was published on the internet in accordance with subsection 132(3) of Part XI to the CCA. There are no known suppliers of these banned goods.

This instrument is subject to sunsetting under Part 6 of the LIA. Unless action is taken to defer or exempt it from sunsetting, it is expected to sunset on 1 April 2021. This estimate assumes it is registered on or before 31 March 2011.

Overview

The Competition and Consumer Act 2010, enacted by the Australian Parliament, addresses significant safety concerns associated with certain design features of pools and spas. Specifically, the Act was introduced to tackle the problem of unsafe design features in swimming pools and spas, such as potty-shaped skimmer boxes, which have caused severe injuries and fatalities, particularly among children. By implementing a permanent ban on such goods, the Act aims to enhance consumer safety and prevent future incidents of injury or death. The enactment of this legislation follows transitional provisions from the Trade Practices Act 1974, which was renamed and restructured as part of the Competition and Consumer Act 2010 to incorporate the Australian Consumer Law. The ban on unsafe pools and spas is intended to ensure ongoing consumer protection and safety by prohibiting the supply of these hazardous products.

Scope and Application

The Competition and Consumer Act 2010 (CCA) imposes a permanent ban on the supply of pools and spas with unsafe design features, specifically targeting potty-shaped open skimmer boxes. This Act applies to any person or entity involved in the supply of such goods within the Commonwealth jurisdiction. The ban is designed to prevent serious injuries and deaths caused by the suction action of these skimmer boxes, which can lead to entrapment or disembowelment, particularly among children. The ban is applicable nationwide, reflecting its national importance in ensuring consumer safety. There are no stated exclusions or exemptions to this ban, which extends to all pools and spas with the specified unsafe design features. The application of this Act is not extended or restricted by subordinate instruments, maintaining its straightforward approach to consumer protection in this area.

Key Provisions

The Competition and Consumer Act 2010 (CCA) imposes a permanent ban on the supply of pools and spas with unsafe design features, specifically those with open, potty-shaped skimmer boxes (section 109, Schedule 2). This ban was enacted to address serious safety concerns, particularly the risk of injury or death from the suction created by these skimmer boxes, which can trap and disembowel individuals, especially children (subsection 114(1)(a)). The ban was initially established as an interim measure and has since been made permanent. Entities and individuals governed by the CCA must comply with this ban by ensuring they do not supply, import, or advertise these banned goods. This includes taking measures to prevent the installation of potty-shaped open skimmer boxes in swimming pools and spas, and ensuring that all products comply with safety standards. Compliance requires vigilance in supply chains and adherence to safety regulations to avoid legal repercussions. Failure to comply with the ban on supplying, importing, or advertising pools and spas with unsafe design features can result in significant penalties. Under the CCA, breaches may lead to civil penalties for corporations, which can be up to $1.1 million for serious or repeated breaches (subsection 131(3)). For individuals, the penalties may include fines of up to $220,000 and/or imprisonment for up to two years (subsection 131(1)). Additionally, enforcement agencies may seek injunctions and other remedies to prevent ongoing non-compliance.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.