Whether s 9 of the Act applies
68Subsection 9(1) is met. Subsection 9(2) provides (emphasis added):
(2) A swimming pool that is situated on premises having an area of 2 hectares or more is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations.
69The general principles of statutory interpretation require that regard is had to the words used in their legal and historical context, which is to be understood in its widest sense to include the existing state of the law and the mischief or object to which the legislation is directed: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198. Words and phrases should not be extracted from their statutory context, and a construction which promotes the apparent purpose of the legislation is to be preferred to one which does not: Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 per Basten JA at [17].
70The Council submits that "so long as" and "are at all times" are to be read together, and that the phrase "so long as" in this context should be construed as meaning "provided that". The Council relies on a similar construction adopted by the Court of Appeal in Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361, which concerned the application of s 68B of the Trade Practices Act 1974 (Cth) to a contractual term which purported to exclude liability in relation to "...any claims or liability for death, personal injury or property damage...". Section 68B provided:
68B Limitation of liability in relation to supply of recreational services
(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:
(a) the application of section 74 to the supply of the recreational services under the contract; or
(b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or
(c) any liability of the corporation for a breach of warranty implied by section 74 in relation to the supply of recreational services under the contract;
so long as:
(d) the exclusion, restriction or modification is limited to liability for death or personal injury; and
(e) the contract was entered into after the commencement of this section.
71At issue was whether the exclusion clause was void to the extent that it contravened s 68 of the Trade Practices Act by purporting to exclude liability for a breach of the implied contractual warranty in relation to the supply of services provided by s 74(1) of the Trade Practices Act. Basten JA (at [14]) construed the words "so long as" to introduce a precondition, or two preconditions, to the operation of subsection 68B(1), noting that it was not a temporal control, but equivalent to "provided that" or "but only if", and concluded that the exclusion clause was not "limited to" liability for death or personal injury. Meagher JA (at [41]) agreed that the words "so long as" are to be construed as meaning "provided that", holding that the "exclusion, restriction or modification" referred to in paragraph (d) was that which the relevant term in fact achieved or effected. Gleeson JA (at [116]) held that the words "so long as" were words of limitation that imposed a requirement "that the relevant term of the contract 'is limited to', that is, do no more than exclude, restrict or modify liability for death or personal injury".
72I agree with the Council that the exemption provision in s 9(2) is framed in a similar way to s 68B, as it provides the operation of the section (in this instance, that the swimming pool is not required to be surrounded by a child-resistant barrier), and the precondition to that operation (namely, restriction of the means of access). On that basis, the words "so long as" can be construed to mean "provided that", and as introducing a precondition to the application of the exemption from the requirement that the pool be surrounded by a child-resistant barrier, that precondition being that the means of access to the swimming pool "are at all times restricted" in accordance with the standards prescribed by the regulations. The critical issue is whether the words "are at all times" imposes a continuing obligation, or whether it is sufficient that the property now complies with the requirements of cl 6 of the 1998 Regulation.
73In my view, the natural meaning of the words used requires ongoing compliance for the exemption to apply. Had it been intended that it would be sufficient for there to be compliance at some date after an inspection has found a non compliance, the present tense would not have been used, and the words "at all times" would not have been included. Read as a whole, s 9(2) exempts the swimming pool from the requirement to be surrounded by a child resistant barrier only "so long as", or "provided that", the precondition that the means of access are restricted "at all times" in accordance with the applicable standards is satisfied.
74The applicant submits that this is not how s 9(2) should be construed, because s 9(5) provides the circumstances in which an exemption under s 9 ceases to apply, and thus indicates a legislative intention that failure to maintain compliance with the prescribed means of restriction of access does not result in the exemption ceasing to apply, relying on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. I do not agree, for two reasons. Section 9(5) (and its counterparts in s 8(4) and 10(5)) was inserted in 2012. It does not in terms provide the only circumstance in which the s 9 exemption ceases to apply, and s 9(2) was not amended at the time to indicate that it was to be subject to, or read together with, the later provision in s 9(5). Secondly, in the context where the general requirement in s 7 adopts the approach of requiring separation between a dwelling and a swimming pool by a child resistant barrier, and ss 8, 9 and 10 adopt the alternative approach of allowing the dwelling itself in effect to be the barrier through restriction of means of access from that building, it is apparent that s 9(5) is directed at the situation where for a particular swimming pool, the approach changes, and a barrier is erected between the dwelling and the swimming pool. That could be the case even if at the time of that change in approach the means of access are otherwise restricted in a manner that complies with the prescribed standards for the alternative approach. In that context, s 9(5) and its equivalents avoids any potential ambiguity as to whether it is the barrier, or the dwelling, that restricts access to the swimming pool, and would require the swimming pool from that point on to comply with the general requirement in s 7.
75The applicant submits that the consequences of construing s 9(2) to require continuing compliance with the prescribed standards, so that the exemption ceases to apply if there is any non-compliance, however minor, are such that this could not have been the intended interpretation. The applicant gave as an example the situation where a warning sign falls off, or becomes illegible, or where a latch breaks. However, provision of the warning notice required by s 17 of the Act and compliance with the requirements in cll 10 and 11 of the 2008 Regulation, or cl 9 of the 1998 Regulation, as to its content and legibility, do not relate to restriction of the means of access to the swimming pool from any residential building; and so non-compliance with these requirements, and others not related to the restriction of access, would not appear to fall within the terms of s 9(2) so that the s 9 exemption ceases to apply. Other circumstances, such as a door giving access to a swimming pool ceasing to be child safe because of a temporary failure of a bolt or latch, would fall within the obligation imposed by s 15 to maintain a child-resistant barrier in a good state of repair as an effective and safe child-resistant barrier.
76In considering whether the legislature should be understood to have intended that the s 9 exemption would cease to apply as a consequence of what might be regarded as a minor, or temporary, non-compliance, it is relevant to have regard to the overall purpose of the legislative scheme. The purpose of the legislative scheme in restricting access, as reflected in the long title to the Act, is to avoid or minimise the risk of pool related drownings. As is already apparent, the legislative scheme incorporates technical developments through reference to relevant Australian Standards which are updated over time. It has also imposed more stringent requirements over time, for example, through the amendment of ss 8(1), 9(1), and 10(1) in 2009 to restrict the availability of the relevant exemptions to swimming pools constructed before a certain date, and the further amendments in 2012 to insert s 8(4), s 9(5) and s 10(5), to the position now that the only standard applicable to any swimming pool constructed after 1 July 2010 is that imposed under s 7 of the Act. Having regard to the context of the phasing out of exemptions and the updating of technical standards, it is consistent with the purpose of the legislative scheme.to construe s 9(2) according to the natural meaning of the words used, so as to limit the scope of the exemptions now phased out to those owners who have at all times complied with their obligations to ensure that their swimming pool meets the prescribed standards. As a consequence, the s 9 exemption would cease to apply if at any stage the means of access to the swimming pool from the building is not restricted in accordance with the standards prescribed by the regulations.
77However, it is not necessary to reach a concluded view on this issue in the circumstances of this appeal. In my view, the non-compliances observed in April 2013 were significant: they related to several of the doors and windows giving access from the ground level of the dwelling, and required considerable work to rectify.
78The nature and extent of non-compliances would be relevant in the exercise of the power conferred by s 30 of the Act. Lismore City Council v Hamshaw [2013] NSWLEC 204 was an application under s 30 of the Act by Lismore Council for orders to remedy or restrain breaches of the Act. The relevant exemption provision was that in s 8 of the Act, applying to swimming pools constructed before 1 August 1990, and expressed in s 8(2) as follows:
(2) The child-resistant barrier surrounding the swimming pool is not required to separate the swimming pool from any residential building situated on the premises so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations.
79Craig J found (at [32]) that a number of breaches of the Act had occurred, being non observance of the requirements of two directions given under s 23 of the Act, and failures to observe the requirements of ss 7 and 8 of the Act, "obliging the owner of the premises upon which a swimming pool is situated to provide child-resistant barriers conforming to the Regulation and the 2007 Standard and 2012 Standard, as the case may be...". His Honour then considered what orders should be made to require that the identified breaches of the Act be remedied or restrained. At [35] Craig J noted that once a breach was established, the Court has a broad discretion as to the terms in which restraining or remedial orders were to be framed, and "[t]hat power may extend beyond the scope of an order available to the Council giving directions under s 23". In considering the need for precision in framing an order identifying with specificity the work that was to be carried out, Craig J noted the Council's submission that s 8 no longer had any application because of the history of non-compliance, and that because the means of access had not been restricted in accordance with the relevant standards "at all times", the obligation imposed under s 7 for an appropriate child-resistant barrier to be provided was required, and continued:
41 There is substance in this argument. I accept that s 8(2) appears to require continuity in maintaining restricted access between dwelling and swimming pool. Each inspection carried out by Mr Bailey since November 2012 demonstrates that at no time have the requirements of the 2007 Standard been observed in important respects.
42 However, even if I am wrong in supporting that interpretation of s 8(2), it seems to me that the broad power of the Court to frame remedial orders in accordance with s 30(2) of the Swimming Pools Act is such that the Court can impose an order obliging the respondents to take measures that effectively achieve compliance with the 2012 Standard. So much the more is that the case when issues of child safety arise. The facts of this case demonstrate that the breaches involved are far from technical.
80The applicant submits that Hamshaw does not stand for a binding proposition that the words "at all times" in s 8(2) have the consequence that a failure to comply, at any time, results in a loss of the s 8 exemption, and further, even if the decision could be said to be persuasive, the reasoning cannot be applied to the different regime in s 9 of the Act, because of the operation of s 9(5), by which the legislature has made it clear when the s 9 exemption ceases to apply.
81The Council submits that the words on which his Honour relied in s 8(2) are, in all relevant respects, identical to the terms of s 9(2), and accordingly the decision and reasoning leads to the necessary conclusion that the benefit of the exemption in s 9(2) is no longer available to the applicant, and further, there is not a meaningful difference between s 9 and s 8 of the Act, as s 8(4) is, in all relevant respects, in the same terms as s 9(5).
82Hamshaw was a Class 4 application for orders to remedy or restrain breaches of the Act, and the discussion of s 8(2) was in the context of consideration of the broad discretion available to the Court in framing remedial orders under s 30(2) of the Act. The context of the powers being exercised, and the nature of the issues arising from the particular facts in Hamshaw, are clearly distinguishable from those arising in the present appeals. While accepting that, I agree with the Council that the construction of s 8(2) at paragraph [41] lends supports to a construction of s 9(2) that the natural meaning of the words used is intended, namely that it imposes a continuing requirement.
83At the time of construction of the swimming pool, the prescribed standards for a swimming pool to which s 9 applied were those provided in cl 6 of the 1998 Regulation as set out in [15] above. Whether or not the property ever complied with those standards, it did not comply as at the date of Ms Stoner's first inspection in April 2013. Since 1 September 2008, the standards applicable to a swimming pool to which s 9 applies are those provided in the 2007 Standard; the swimming pool did not in April 2013, and does not now, comply with those standards. On the evidence before me, I cannot be satisfied that the means of access to the swimming pool have at all times been restricted in accordance with the prescribed standards. Accordingly, the s 9 exemption does not apply to the property, and s 7 applies.