Building (Swimming Pool Safety) Legislation Amendment Act 2023 (ACT)

This Amendment Act creates a new, stand-alone regulatory regime for “regulated swimming pools” in the Building Act 2004, prescribes safety standards in the Building (General) Regulation 2008, changes sale-disclosure obligations in the Civil Law (Sale of Residential Property) Act 2003 and its regulation, adjusts how dividing-fence disputes are handled where a fence forms part of a pool safety barrier, and inserts infringement notice entries into the Magistrates Court (Building Infringement Notices) Regulation 2008.

Mechanically, the Act inserts Part 5A (Regulated swimming pools) into the Building Act 2004 and prescribes:

a new definitional framework (including “regulated swimming pool”, “safety barrier”, “owner”, “occupier”, “safety standards”) (see ss 83, 83A, 83B);
two exemption pathways: standing exemptions (automatic, regulation-prescribed) and Ministerial exemptions (application, certificate, conditions, up to 5 years) (ss 83C-83F, and reg 36E-36F);
a system of inspections and compliance certificates issued by “authorised persons” appointed by the director-general (s 83K; s 83P);
an administrative rectification process (pool rectification notices where non-compliance is not an immediate and serious risk) with prescribed rectification periods and further inspection requirements (s 83K(3)-(5));
positive and negative duties on owners and occupiers, including a duty to maintain an effective child‑resistant safety barrier (owner) and a duty to ensure safety-barrier access points are closed when not in use (occupier) (ss 83N-83O);
offences, many set as strict liability, with maximum penalties in penalty units and designated infringement-notice options inserted into the Magistrates Court regulation (ss 83I-83J, 83M, 83N-83R(2); Schedule change at Part 7, s 32);

J2022-312 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Legislation amended 2 Part 2 Building Act 2004 4 New part 5A 3 5 Period for which compliance certificate in force New section 83L (1) (c) 22 6 New sections 83OA and 83OB 22

Contents Page contents 2 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 7 Inspection of building work where no approval Section 131 (1) (a) 24 8 New section 131 (1) (h) and (i) 24 9 Dictionary, new definitions 24 10 Dictionary, definition of owner 25 11 Dictionary, new definitions 26 Part 3 Building (General) Regulation 2008 12 Unaltered parts need not comply with building code if alternative requirements met—Act, s 29 (2) (b) Section 24 (3) (b) (vi) 27 13 New part 3A 27 14 Exempt buildings and building work Schedule 1, part 1.1, section 1.1, definition of demountable pool 30 15 Schedule 1, part 1.1, section 1.1, new definition of safety barrier 31 16 Schedule 1, part 1.1, section 1.1, definition of swimming pool 31 17 Schedule 1, part 1.2, item 11, column 2, paragraph (c) 31 18 Schedule 1, part 1.3, items 1 and 2, column 2 31 19 Schedule 1, part 1.3, items 11 and 12, column 2 31 20 Schedule 1, part 1.3, new item 12A 32 21 Reviewable decisions Schedule 4, new items 11A to 11D 32 22 Dictionary, note 3 33 23 Dictionary, definition of demountable pool 33 24 Dictionary, new definition of demountable swimming pool 33 25 Dictionary, definition of swimming pool 33 Part 4 Civil Law (Sale of Residential Property) Act 2003 26 Meaning of required documents New section 9 (1) (ja) 34 27 Section 9 (4), new definition of regulated swimming pool 34

Contents Page A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 contents 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 5 Civil Law (Sale of Residential Property) Regulation 2004 28 New section 10B 35 29 Section 10B 37 Part 6 Common Boundaries Act 1981 30 New section 13A 40 31 New part 4 40 Part 7 Magistrates Court (Building Infringement Notices) Regulation 2008 32 Building legislation infringement notice offences and penalties Schedule 1, part 1.1, new items 5 to 10 41

J2022-312 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 An Act to amend legislation about swimming pool safety, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1 Preliminary Section 1 page 2 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 Preliminary 1 Name of Act This Act is the Building (Swimming Pool Safety) Legislation Amendment Act 2023. 2 Commencement (1) This Act (other than sections 5, 6 and 29) commences on 1 May 2024. Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)). (2) Sections 5, 6 and 29 commence on 1 May 2028. 3 Legislation amended This Act amends the legislation mentioned in parts 2 to 7.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 2 Building Act 2004 4 New part 5A insert Part 5A Regulated swimming pools Division 5A.1 Preliminary 83 Definitions—pt 5A (1) In this part: access point— (a) means the portion of a safety barrier that is designed to provide access through the barrier to a regulated swimming pool or the water in the pool; and (b) includes a door. authorised person—means a person appointed, or taken to be appointed, under section 83P. compliance certificate, for a regulated swimming pool—see section 83K (1). exemption certificate, for a regulated swimming pool—see section 83D (6). Ministerial exemption means an exemption that applies to a regulated swimming pool under section 83D. occupier, of premises, includes any person who is for the time being in charge of the premises and, if there are 2 or more occupiers of the premises, includes any one of the occupiers.

Part 2 Building Act 2004 Section 4 page 4 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au owner, of premises, means— (a) for premises other than common property—the registered proprietor of the lease for the land on which the premises are located; or (b) for premises that are a unit—the registered proprietor of the lease for the unit; or (c) for premises that are common property—the owners corporation for the common property. safety barrier, for a regulated swimming pool— (a) means any structure or naturally occurring feature that forms, or forms part of, a continuous perimeter that is effective as a safe child resistant barrier to the pool or the water in the pool; and (b) includes— (i) a fence, post, panel, access point, child-resistant doorset, wall, balustrade or part of a building; and (ii) for a pool that is a spa—a lockable child-resistant structure; and (iii) if a Ministerial exemption has been granted for the pool— the barrier that restricts access to a swimming pool or water in the pool permitted under the exemption; and (iv) anything else prescribed by regulation safety standards, for a regulated swimming pool—see section 83A. standing exemption means an exemption that applies to a regulated swimming pool under section 83C. (2) In this section: child-resistant doorset means a safety barrier that comprises a door, door frame, self-closing device and latch.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au common property—see the Unit Titles Act 2001, section 13. registered proprietor, in relation to a lease, means the person who is registered under the Land Titles Act 1925 as the proprietor of the lease. unit—see the Unit Titles Act 2001, section 9. 83A Meaning of safety standards—pt 5A In this part: safety standards, for a regulated swimming pool, means the standards prescribed by regulation. 83B Meaning of regulated swimming pool (1) In this Act: regulated swimming pool— (a) means an excavation, structure or vessel that— (i) can be filled with water to a depth of 300mm or more; and (ii) is used, designed or manufactured mainly for human aquatic activity; and (b) includes the following: (i) a demountable swimming pool; (ii) a flotation tank or flotation tub not equipped to create bubbles or turbulence into water; (iii) a spa; but (c) does not include the following: (i) a bath in a bathroom; (ii) a birthing pool used only for waterbirths;

Part 2 Building Act 2004 Section 4 page 6 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (iii) an ornamental pond; (iv) a water feature; (v) a pool at a category 1 facility; (vi) a pool at short-term accommodation premises; (vii) an inflatable pool; (viii) anything else prescribed by regulation. (2) In this section: category 1 facility—see the Public Pools Act 2015, section 7. demountable swimming pool means a swimming pool— (a) that can be assembled and disassembled by hand, or with hand tools, without damaging the pool’s components; or (b) that— (i) can be inflated and deflated; and (ii) has a filtration system. inflatable pool means a pool that— (a) can be inflated and deflated; but (b) does not have a filtration system. mobile home park—see the Residential Tenancies Act 1997, dictionary. short-term accommodation premises— (a) means premises used to provide short-term accommodation to members of the public as part of a commercial transaction; and (b) includes the following kinds of accommodation: (i) backpacker;

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (ii) bed and breakfast; (iii) hotel; (iv) mobile home park; (v) motel; (vi) resort; (vii) serviced apartment; but (c) does not include premises that are also used, or able to be used, for residential purposes. Examples—par (c) 1 premises used as a residential home made available under a home exchange scheme 2 premises able to be used for a residential home made available for short-term rental accommodation 3 an apartment complex that contains a mix of residential apartments and serviced apartments spa— (a) means an excavation, structure or vessel able to retain water for human immersion and equipped to create water bubbles or water turbulence into the water; and (b) includes— (i) a swim spa; and (ii) a flotation tank or flotation tub equipped to create bubbles or turbulence into water; but (c) does not include a spa bath in a bathroom.

Part 2 Building Act 2004 Section 4 page 8 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 5A.2 Compliance with safety standards Subdivision 5A.2.1 Exemptions 83C Standing exemption A regulated swimming pool is exempt from the safety standards if a circumstance prescribed by regulation applies to the pool. 83D Ministerial exemption (1) The owner of premises on which a regulated swimming pool is located (the applicant) may apply in writing to the Minister for the pool to be exempt from all or part of the safety standards. (2) On application, the Minister may grant an exemption only if a circumstance prescribed by regulation applies to the regulated swimming pool. Note 1 The Minister may make guidelines for granting exemptions (see s 83G). Note 2 A Minister may delegate the Minister’s functions under an Act or statutory instrument to anyone else (see Legislation Act, s 254A). (3) An exemption may be subject to conditions the Minister considers appropriate. (4) The Minister may ask the applicant for further information the Minister reasonably needs to consider the application. (5) In exercising the Minister’s functions under this section, the Minister may— (a) seek advice from an entity the Minister considers suitable to give advice about a matter relevant to the exercise of the functions; and (b) consider any other relevant information.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (6) If the Minister grants an exemption, the Minister must issue a certificate (an exemption certificate) to the owner that states— (a) the extent to which the regulated swimming pool is exempt from the safety standards; and (b) the grounds for the exemption; and (c) any condition on the exemption and the reason for the condition; and (d) the date of issue of the certificate; and (e) it is an offence for the owner to fail to notify the Minister of a change of circumstances that affects a ground on which the exemption was granted; and (f) anything else prescribed by regulation. (7) An exemption certificate for a regulated swimming pool is in force for the period stated in the exemption certificate which must be not longer than 5 years. 83E Variation of Ministerial exemption (1) This section applies to a regulated swimming pool to which a Ministerial exemption applies. (2) The owner of premises on which the regulated swimming pool is located (the applicant) may apply, in writing, to the Minister to vary a condition that applies to the exemption. (3) On application, the Minister may vary the exemption if the Minister— (a) has considered any reasons provided by the applicant in the application; and (b) is satisfied it is appropriate to vary the exemption.

Part 2 Building Act 2004 Section 4 page 10 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) Also, the Minister may vary an exemption on the Minister’s own initiative if the Minister— (a) has given an owner of premises on which the pool is located written notice that— (i) states how the Minister proposes to vary the exemption; and (ii) states the reason the Minister proposes to vary the exemption; and (iii) tells the owner that a written response may be given to the Minister about the matters stated in the notice not later than 28 days after the owner receives the notice; and (b) has considered any response given in accordance with paragraph (a) (iii); and (c) is satisfied that it is appropriate to vary the exemption. (5) A variation of the exemption takes effect— (a) 90 days after the day notice is given to the owner; or (b) if another day is stated in the notice—on the stated day. 83F Revocation of exemption (1) The Minister may revoke a Ministerial exemption that applies to a regulated swimming pool on the Minister’s own initiative if satisfied that any of the following apply: (a) the owner of the premises on which the pool is located has failed to comply with a condition of the exemption; (b) the owner of the premises knowingly or recklessly used false or misleading information in the application for the exemption, or an application for variation of the exemption;

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (c) no circumstance mentioned in section 83D (2) applies to the pool; (d) there is an immediate and serious risk to the health or safety of a person. (2) However, the Minister must not revoke an exemption unless the Minister— (a) has given the owner of the premises written notice that— (i) states that the Minister proposes to revoke the exemption; and (ii) states the reason the Minister proposes to revoke the exemption; and (iii) tells the owner that the owner may give a written response to the Minister about the matters stated in the notice not later than 28 days after the owner receives the notice; and (b) has considered any response given in accordance with paragraph (a) (iii); and (c) is satisfied that it is appropriate to revoke the certificate. (3) Subsection (2) does not apply to a revocation made under subsection (1) (d). (4) The revocation of the exemption takes effect— (a) for a revocation under subsection (1) (d)—immediately; or (b) in any other case— (i) 90 days after the day notice is given to the owner; or (ii) if another day is stated in the notice—on the stated day.

Part 2 Building Act 2004 Section 4 page 12 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 83G Minister may make guidelines (1) The Minister may make guidelines about applications for, and granting of, Ministerial exemptions. (2) A guideline is a disallowable instrument. 83H Guidance about obligations on owners (1) The Minister must prepare guidance material about the obligations arising under this part of owners of premises on which a regulated swimming pool is located. (2) Guidance material is a notifiable instrument. (3) This section expires on 1 May 2028. 83I Failure to comply with exemption certificate conditions (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) a Ministerial exemption applies to the pool; and (c) the person fails to comply with a condition of the exemption. Maximum penalty: 20 penalty units. (2) An offence against this section is a strict liability offence. 83J Failure to notify change of exemption circumstances (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) a Ministerial exemption applies to the pool; and

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (c) a change of circumstances happens which affects a ground on which the exemption was granted; and (d) the person fails to notify the Minister of the change of circumstances within 14 days of the change happening. Maximum penalty: 20 penalty units. (2) An offence against this section is a strict liability offence. Subdivision 5A.2.2 Compliance certificates 83K Compliance certificates (1) An authorised person must inspect a regulated swimming pool before giving the owner of the premises on which the pool is located (the owner) a written certificate (a compliance certificate) that states the following: (a) whether or not the pool complies with the safety standards, to the extent it is not subject to a Ministerial exemption; (b) if the pool is subject to a Ministerial exemption—details of the exemption including any conditions on the exemption; (c) the date of issue of the certificate; (d) anything else prescribed by regulation. (2) If an authorised person is satisfied that the regulated swimming pool complies with the safety standards, the authorised person must as soon as practicable after the inspection give the owner a compliance certificate for the pool.

Part 2 Building Act 2004 Section 4 page 14 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) If an authorised person is satisfied that the regulated swimming pool does not comply with the safety standards but the non-compliance does not create a serious and immediate safety risk, the authorised person must, as soon as practicable but not later than 7 days after the day of inspection, give the owner written notice (a pool rectification notice) that states the following: (a) the pool fails to comply with the safety standards and the reasons why it fails to comply; (b) the steps needed to rectify the failure to comply; (c) the day (the rectification day), within 6 months of giving the notice, by which the pool must be rectified to comply; (d) anything else prescribed by regulation. (4) If an authorised person is satisfied that the regulated swimming pool does not comply with the safety standards and the non-compliance creates a serious and immediate safety risk, the authorised person must immediately after the inspection give the owner a compliance certificate for the pool. (5) If an authorised person has given the owner a rectification notice for the pool, the authorised person— (a) may give the owner a compliance certificate for the pool only after further inspection of the pool; and (b) if giving a compliance certificate to the owner—must give the certificate as soon as practicable, but not later than 14 days, after the day on which the further inspection happens.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (6) An authorised person must give the construction occupations registrar— (a) a copy of a pool rectification notice given under subsection (3) within 14 days after the day the notice is given; and (b) a copy of a compliance certificate given under section (5) (b), but only if the compliance certificate states that the pool does not comply with the safety standards to the extent that the pool is not subject to a Ministerial exemption, within 14 days after the day the certificate is given; and (c) a copy of a compliance certificate given under subsection (4) within 7 days after the day the certificate is given. 83L Period for which compliance certificate in force (1) A compliance certificate for a regulated swimming pool is in force for the period beginning on the day the certificate is issued and ending on the earliest of the following: (a) whichever of the following applies: (i) for a certificate issued before 1 May 2028—30 April 2032; (ii) for a certificate issued on or after 1 May 2028—the day 5 years after the period begins; (b) the day the regulated swimming pool, or the safety barrier for the pool, is substantially altered; (c) if a Ministerial exemption applies to the regulated swimming pool and the exemption is revoked—the day on which the revocation of the exemption takes effect. Note The reason for the revocation of a Ministerial exemption affects when the revocation takes effect (see s 83F (4)).

Part 2 Building Act 2004 Section 4 page 16 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) In this section: substantially altered— (a) in relation to a swimming pool—means at least 50% of the pool is modified, demolished or replaced; and (b) in relation to a safety barrier for a swimming pool—means the safety barrier is— (i) demolished or replaced; or (ii) altered as prescribed by regulation. 83M Failure to lodge compliance certificate etc for regulated swimming pool (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) the pool was built before 1 May 2013; and (c) the pool is not subject to a standing exemption; and (d) the person fails to lodge with the construction occupations registrar before 1 June 2028— (i) a compliance certificate in force for the pool within 30 days after the certificate is given to the person by an authorised person; and (ii) if the pool has been granted an exemption certificate—the exemption certificate at the same time as the compliance certificate; and (e) a document required to be lodged under subsection (1) (d) has not been lodged by a previous owner of the premises. Maximum penalty: 20 penalty units.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) An offence against this section is a strict liability offence. Division 5A.3 Swimming pool safety 83N Failure to maintain swimming pool safety barrier (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) the person fails to maintain a safety barrier for the pool that is an effective and safe child-resistant barrier. Maximum penalty: 30 penalty units. (2) For subsection (1) (b) a safety barrier is an effective and safe child-resistant barrier if the barrier— (a) complies with the safety standards for a regulated swimming pool; or (b) if the swimming pool is subject to a Ministerial exemption— complies with the safety standards to the extent the pool is not exempt from the standards; or (c) complies with a requirement prescribed by regulation. (3) An offence against this section is a strict liability offence. (4) It is a defence to a prosecution against this section if the defendant proves that the regulated swimming pool is subject to a standing exemption. Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code, s 59).

Part 2 Building Act 2004 Section 4 page 18 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 83O Failure to close swimming pool safety barrier (1) A person commits an offence if— (a) the person is the occupier of premises on which a regulated swimming pool is located; and (b) the person fails to ensure all access points for the pool’s safety barrier— (i) are securely closed when they are not in use; or (ii) for a spa with a safety barrier that is a lockable child-resistant structure—the structure is securely fitted and locked when the spa is not in use. Maximum penalty: 30 penalty units. (2) An offence against this section is a strict liability offence. Division 5A.4 Administration 83P Authorised person (1) The director-general may appoint a person as an authorised person for this part. (2) A person must not be appointed under subsection (1) unless the director-general is satisfied that the person is competent to exercise the functions of an authorised person under this part. (3) A regulation may prescribe matters that the director-general must consider in relation to a person’s competency for subsection (2) (a). (4) A regulation may prescribe— (a) a class of person taken to be appointed as an authorised person under this section; and

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) the terms of appointment for the class of person. Note Power to make a regulation includes power to make different provision in relation to different matters or different classes of matters and to make a regulation that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48). (5) An appointment under subsection (1)— (a) must be for a term of not longer than 5 years; and (b) is a notifiable instrument. (6) An authorised person has the following functions: (a) assessing whether regulated swimming pools comply with the safety standards; (b) issuing compliance certificates and pool rectification notices for regulated swimming pools; (c) any other function under this part or prescribed by regulation. (7) An authorised person must exercise the person’s functions in accordance with— (a) if the person is appointed under subsection (1)—the instrument of appointment; and (b) however appointed—any directions the director-general gives the person. (8) In this section: pool rectification notice—see section 83K (3). 83Q Identity cards (1) The director-general must issue an authorised person with an identity card that states the person is an authorised person for this part, and shows— (a) a recent photograph of the person; and

Part 2 Building Act 2004 Section 4 page 20 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) the name of the person; and (c) the date of issue of the card; and (d) the date of expiry for the card; and (e) anything else prescribed by regulation. (2) A person commits an offence if— (a) the person stops being an authorised person; and (b) the person does not return the person’s identity card to the director-general within 7 days after the person stops being an authorised person. Maximum penalty: 1 penalty unit. (3) Subsection (2) does not apply to a person if the person’s identity card is— (a) lost or stolen; or (b) destroyed by someone else. Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58). (4) An offence against subsection (2) is a strict liability offence. 83R Person pretending to be authorised person (1) A person commits an offence if the person— (a) is not an authorised person; and (b) carries out a function of an authorised person; and (c) is reckless as to whether the person is appointed as an authorised person. Maximum penalty: 60 penalty units.

Building Act 2004 Part 2 Section 4 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) A person commits an offence if the person— (a) is not an authorised person; and (b) carries out a function of an authorised person. Maximum penalty: 30 penalty units. (3) Strict liability applies to— (a) subsection (1) (a) and (b); and (b) subsection (2) (a) and (b). Division 5A.5 Miscellaneous 83S Criminal liability of executive members of owners corporation (1) An executive member of an owners corporation is taken to commit an offence against this part if— (a) the corporation commits an offence against this part (a relevant offence); and (b) the member was reckless about whether the relevant offence would be committed; and (c) the member was in a position to influence the conduct of the corporation in relation to the commission of the relevant offence; and (d) the member failed to take reasonable steps to prevent the commission of the relevant offence. Maximum penalty: The maximum penalty that may be imposed for the commission of the offence by an individual.

Part 2 Building Act 2004 Section 5 page 22 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) Subsection (1) does not apply if the owners corporation would have a defence to a prosecution for the relevant offence. Note The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58). (3) This section applies whether or not the owners corporation is prosecuted for, or convicted of, the relevant offence. (4) In this section: executive member, of an owners corporation—see the Unit Titles (Management) Act 2011, dictionary. 5 Period for which compliance certificate in force New section 83L (1) (c) insert (c) the day the owner of the premises on which the swimming pool is located is convicted or found guilty of an offence against section 83OA (Regulated swimming pool fails to comply with safety standards). 6 New sections 83OA and 83OB in division 5A.3, insert 83OA Regulated swimming pool fails to comply with safety standards (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) the swimming pool fails to comply with the safety standards to the extent that the pool is not subject to an exemption; and (c) the person knows that the pool fails to comply with the safety standards; and

Building Act 2004 Part 2 Section 6 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (d) the person fails, within 90 days after the person becomes aware the pool fails to comply with the standards, to take reasonable steps to ensure the pool complies with the standards. Maximum penalty: 60 penalty units. (2) In this section: exemption means— (a) a Ministerial exemption; or (b) a standing exemption. 83OB Failure to obtain compliance certificate for regulated swimming pool (1) A person commits an offence if— (a) the person is the owner of premises on which a regulated swimming pool is located; and (b) the pool was built before 1 May 2013; and (c) the pool is not subject to a standing exemption; and (d) the person fails to obtain a compliance certificate for the pool from an authorised person before 1 May 2028; and (e) a compliance certificate for the pool was not obtained from an authorised person by a previous owner of the premises. Maximum penalty: 30 penalty units. (2) An offence against this section is a strict liability offence.

Part 2 Building Act 2004 Section 7 page 24 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 7 Inspection of building work where no approval Section 131 (1) (a) substitute (a) a building approval has not been issued for building work not exempt from part 3 that is being, or has been, carried out; or (aa) building work exempt from all or part of this Act does not comply with the exemption; or 8 New section 131 (1) (h) and (i) insert (h) the building is a regulated swimming pool that may not comply with part 5A (Regulated swimming pools); or (i) a circumstance prescribed by regulation exists. 9 Dictionary, new definitions insert access point, for part 5A (Regulated swimming pools)—see section 83 (1). authorised person, for part 5A (Regulated swimming pools)—see section 83 (1). compliance certificate, for a regulated swimming pool, for part 5A (Regulated swimming pools)—see section 83K (1). exemption certificate, for a regulated swimming pool, for part 5A (Regulated swimming pools)—see section 83D (6). Ministerial exemption, for part 5A (Regulated swimming pools)— see section 83 (1). occupier, of premises, for part 5A (Regulated swimming pools)—see section 83 (1).

Building Act 2004 Part 2 Section 10 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 10 Dictionary, definition of owner substitute owner— (a) of land, means— (i) if the land is held under a lease from the Commonwealth for a term of years—the lessee; or (ii) if the land is subdivided under the Unit Titles Act 2001— (A) if building work has been, is being or is to be carried out on the land for the owners corporation—the owners corporation; or (B) if building work has been, is being or is to be carried out on the land for the proprietor of a unit in a units plan for the land—the proprietor; or (C) in any other case—the owners corporation; or (iii) if the land is occupied under a tenancy from the Territory or the Commonwealth—the occupier; or (iv) if the land is subject to a public unleased land permit under the Public Unleased Land Act 2013—the permit-holder; or (v) if the land is subject to a licence under the Planning Act 2023, part 10.13 (Licences for unleased land)—the licensee; or (vi) if the Territory carries out or proposes to carry out building work on the land—the Territory; or (vii) if the Commonwealth carries out or proposes to carry out building work on the land—the Commonwealth; or (viii) if the land is under a land sublease—the sublessee; and

Part 2 Building Act 2004 Section 11 page 26 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) of premises, for part 5A (Regulated swimming pools)—see section 83 (1). 11 Dictionary, new definitions insert regulated swimming pool—see section 83B (1). safety barrier, for a regulated swimming pool, for part 5A (Regulated swimming pools)—see section 83 (1). safety standards, for a regulated swimming pool, for part 5A (Regulated swimming pools)—see section 83A. standing exemption, for part 5A (Regulated swimming pools)—see section 83 (1).

Building (General) Regulation 2008 Part 3 Section 12 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 3 Building (General) Regulation 2008 12 Unaltered parts need not comply with building code if alternative requirements met—Act, s 29 (2) (b) Section 24 (3) (b) (vi) substitute (vi) regulated swimming pool access; or 13 New part 3A insert Part 3A Regulated swimming pools 36D Safety standards—Act, s 83A, def safety standards (1) The following are prescribed: (a) for a pool built before 1 May 2023—the following taken together: (i) the building code as in force on 1 May 2023; (ii) AS 1926.1 (2012) (Swimming pool safety, Part 1: Safety barriers for swimming pools); (iii) AS 1926.2 (2007) (Swimming pool safety, Part 2: Location of safety barriers for swimming pools); and Note AS 1926.1 (2012) and AS 1926.2 (2007) may be purchased at www.standards.org.au. (b) for a pool built or substantially altered on or after 1 May 2023— the building code.

Part 3 Building (General) Regulation 2008 Section 13 page 28 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) In this section: substantially altered, in relation to a swimming pool, means at least 50% of the pool, or the safety barrier for the pool, is modified, demolished or replaced. 36E Standing exemptions—circumstances—Act, s 83C (1) A circumstance mentioned in table 36E, column 3 is prescribed for a regulated swimming pool mentioned in column 2. Table 36E Standing exemptions column 1 item column 2 regulated swimming pool column 3 circumstances in which pool is exempt from safety standard 1 a regulated swimming pool demountable pool in place for not more than 3 consecutive days 2 a regulated swimming pool built before 1 May 2023 spa (wherever located) covered and secured by a lockable child-resistant structure (such as a door, lid, grille or mesh) that— (a) is of substantial construction and having no opening through which it is possible to pass a testing apparatus, and (b) is securely fastened by a device that is itself of substantial construction and has no opening through which it is possible to pass a testing apparatus 3 a regulated swimming pool built before 1 May 2023 spa (located on apartment balcony) if the balcony is accessible only through self-closing and self latching doors or windows (2) In this section: spa—see the Act, section 83B (2).

Building (General) Regulation 2008 Part 3 Section 13 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au testing apparatus means a cylindrical test object that has— (a) a diameter of 105 millimetres, plus or minus 1 millimetre; and (b) at least 1 solid flat-faced end. 36F Exemption by Minister—circumstances—Act, s 83D (2) (1) A circumstance mentioned in table 36F, column 3 is prescribed for a regulated swimming pool mentioned in column 2. Table 36F Exemptions by Minister column 1 item column 2 regulated swimming pool column 3 circumstances in which pool may be exempt from safety standard 1 a regulated swimming pool built before 1 May 2013 (a) compliance with the safety standard is impracticable because of— (i) the physical nature of the premises on which the pool is located; or (ii) the design or construction of either the pool or other buildings on the premises on which the pool is located; and (b) either— (i) a barrier comparable to a safety barrier that complies with the safety standards is installed for the pool (a comparable barrier); or (ii) evidence is provided to the Minister as to why installation of a comparable barrier cannot be done 2 a regulated swimming pool built before 1 May 2013 compliance with the safety standard would be reasonably likely to require approval under the Tree Protection Act 2005 to remove a protected tree

Part 3 Building (General) Regulation 2008 Section 14 page 30 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au column 1 item column 2 regulated swimming pool column 3 circumstances in which pool may be exempt from safety standard 3 a regulated swimming pool built before 1 May 2013 compliance with the safety standard would be reasonably likely to involve conduct that would have a significant adverse effect on the heritage significance of a place or object registered under the Heritage Act 2004 4 a regulated swimming pool built before 1 May 2023 (a) the occupier of premises on which the pool is located is a person with disability; and (b) safety barrier compliance with safety standards would substantially impede the occupier’s access to the pool; and (c) the owner of the premises agrees to adopt alternative safety measures (if available) 5 a regulated swimming pool built before 1 May 2023 there are documented plans to demolish the pool within 24 months of the application for exemption Note The Minister may make guidelines in relation to applications for exemptions and the granting of exemptions (see Act, s 83G). (2) In this section: disability—see the Discrimination Act 1991, section 5AA. protected tree—see the Tree Protection Act 2005, section 8. registered—see the Heritage Act 2004, section 11. 14 Exempt buildings and building work Schedule 1, part 1.1, section 1.1, definition of demountable pool substitute demountable swimming pool—see the Act, section 83B (2).

Building (General) Regulation 2008 Part 3 Section 15 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 31 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 15 Schedule 1, part 1.1, section 1.1, new definition of safety barrier insert safety barrier, for a regulated swimming pool—see the Act, section 83 (1). 16 Schedule 1, part 1.1, section 1.1, definition of swimming pool omit 17 Schedule 1, part 1.2, item 11, column 2, paragraph (c) substitute (c) a regulated swimming pool 18 Schedule 1, part 1.3, items 1 and 2, column 2 omit swimming pool insert regulated swimming pool 19 Schedule 1, part 1.3, items 11 and 12, column 2 omit demountable pool insert demountable swimming pool

Part 3 Building (General) Regulation 2008 Section 20 page 32 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 20 Schedule 1, part 1.3, new item 12A insert 12A demountable swimming pool pt 3 (Building work) demountable swimming pool erected for not more than 3 consecutive days 21 Reviewable decisions Schedule 4, new items 11A to 11D insert 11A a decision under the Act, s 83D (2) to refuse to exempt regulated swimming pool from safety standards Minister applicant for exemption 11B a decision under the Act, s 83D (3) to exempt regulated swimming pool from safety standards subject to conditions Minister applicant for exemption 11C a decision under the Act, s 83E (4) to vary exemption of regulated swimming pool from safety standards Minister applicant for exemption 11D a decision under the Act, s 83F (1) (a), (b) or (c) to revoke exemption of regulated swimming pool from safety standards Minister applicant for exemption

Building (General) Regulation 2008 Part 3 Section 22 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 33 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 22 Dictionary, note 3 insert • regulated swimming pool (see s 83B) 23 Dictionary, definition of demountable pool omit 24 Dictionary, new definition of demountable swimming pool insert demountable swimming pool, for schedule 1 (Exempt buildings and building works)—see schedule 1, section 1.1 25 Dictionary, definition of swimming pool omit

Part 4 Civil Law (Sale of Residential Property) Act 2003 Section 26 page 34 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 4 Civil Law (Sale of Residential Property) Act 2003 26 Meaning of required documents New section 9 (1) (ja) insert (ja) if there are premises covered by the proposed contract, or common property associated with the premises, on which a regulated swimming pool is located—the documents prescribed by regulation; 27 Section 9 (4), new definition of regulated swimming pool insert regulated swimming pool—see the Building Act 2004, section 83B (1).

Civil Law (Sale of Residential Property) Regulation 2004 Part 5 Section 28 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 35 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 5 Civil Law (Sale of Residential Property) Regulation 2004 28 New section 10B insert 10B Required documents—Act, s 9 (1) (ja) (1) If the regulated swimming pool was built before 1 May 2023—the following documents are prescribed: (a) a copy of the notifiable instrument made under the Building Act 2004, section 83H; (b) a document mentioned for whichever of the following circumstances apply: (i) if the pool has been granted a Ministerial exemption from the safety standards— (A) the exemption certificate in force for the pool; and (B) if the pool is exempt from only part of the safety standards—a compliance certificate for the pool to the extent that it is not exempt from the standards; (ii) in any other case—any of the following: (A) a swimming pool disclosure statement for the premises covered by the contract; (B) a compliance certificate for the pool; (C) a certificate of occupancy for the pool and safety barrier that is not older than 5 years after the day it was issued.

Part 5 Civil Law (Sale of Residential Property) Regulation 2004 Section 28 page 36 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) If the regulated swimming pool was built or substantially altered on or after 1 May 2023—any 1 of the following documents is prescribed: (a) a swimming pool disclosure statement for the premises covered by the contract; (b) a certificate of occupancy for the pool and safety barrier that is not older than 5 years after the day it was issued; (c) a compliance certificate for the pool. (3) In this section: certificate of occupancy—see the Building Act 2004, dictionary. compliance certificate, for a regulated swimming pool—see the Building Act 2004, section 83K (1). exemption certificate, for a regulated swimming pool—see the Building Act 2004, section 83D (6). Ministerial exemption—see the Building Act 2004, section 83 (1). regulated swimming pool—see the Building Act 2004, section 83B (1). safety barrier, for a regulated swimming pool—see the Building Act 2004, section 83 (1). standing exemption—see the Building Act 2004, section 83 (1). substantially altered—see the Building Act 2004, section 83L (2). swimming pool disclosure statement means a statement by the owner of the premises covered by the proposed contract stating, to the best of the owner’s knowledge and belief and as accurately as the person has been able to find out, the following information: (a) when— (i) the owner purchased the premises; and (ii) the premises were built; and

Civil Law (Sale of Residential Property) Regulation 2004 Part 5 Section 29 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (iii) if the premises were built by the owner—building approval for the premises was granted; and (iv) construction of the pool was completed; and (v) any alterations to the pool were completed; and (b) if a standing exemption applies to the pool—that the pool is subject to a standing exemption and the circumstances for the exemption. 29 Section 10B substitute 10B Required documents—Act, s 9 (1) (ja) (1) If the regulated swimming pool was built before 1 May 2013— a document mentioned for whichever of the following circumstances apply is prescribed: (a) if the pool has been granted a Ministerial exemption from the safety standards— (i) the exemption certificate in force for the pool; and (ii) if the pool is exempt from only part of the safety standards—a compliance certificate for the pool to the extent that it is not exempt from the standards; (b) if a standing exemption applies to the pool—a statutory declaration of the circumstances for the exemption; (c) in any other case—a compliance certificate for the pool.

Part 5 Civil Law (Sale of Residential Property) Regulation 2004 Section 29 page 38 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) If the regulated swimming pool was built or substantially altered on or after 1 May 2013 but before 1 May 2023—a document mentioned for whichever of the following circumstances apply is prescribed: (a) if the pool has been granted a Ministerial exemption from the safety standards— (i) the exemption certificate in force for the pool; and (ii) if the pool is exempt from only part of the safety standards—a compliance certificate for the pool to the extent that it is not exempt from the standards; (b) if a standing exemption applies to the pool—a statutory declaration of the circumstances for the exemption; (c) in any other case—either of the following: (i) a compliance certificate for the pool; (ii) a certificate of occupancy for the pool and safety barrier that is not older than 5 years after the day it was issued. (3) If the regulated swimming pool was built or substantially altered on or after 1 May 2023—a document mentioned for whichever of the following circumstances apply is prescribed: (a) if a standing exemption applies to the pool—a statutory declaration of the circumstances for the exemption; (b) in any other case—either of the following: (i) a compliance certificate for the pool; (ii) a certificate of occupancy for the pool and safety barrier that is not older than 5 years after the day it was issued.

Civil Law (Sale of Residential Property) Regulation 2004 Part 5 Section 29 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 39 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (4) In this section: certificate of occupancy—see the Building Act 2004, dictionary. compliance certificate, for a regulated swimming pool—see the Building Act 2004, section 83K (1). exemption certificate, for a regulated swimming pool—see the Building Act 2004, section 83D (6). Ministerial exemption—see the Building Act 2004, section 83 (1). regulated swimming pool—see the Building Act 2004, section 83B (1). safety barrier, for a regulated swimming pool—see the Building Act 2004, section 83 (1). standing exemption—see the Building Act 2004, section 83 (1). substantially altered—see the Building Act 2004, section 83L (2).

Part 6 Common Boundaries Act 1981 Section 30 page 40 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 6 Common Boundaries Act 1981 30 New section 13A insert 13A Matters to be taken into account—dividing fences a safety barrier for regulated swimming pool (1) This section applies if— (a) the ACAT is required to make a determination under this division; and (b) the determination involves a fence that forms part, or will form part, of a safety barrier for a regulated swimming pool. (2) The ACAT must take into account the matters prescribed by regulation. (3) In this section: regulated swimming pool—see the Building Act 2004, section 83B (1). safety barrier, for a regulated swimming pool—see the Building Act 2004, section 83B (1). 31 New part 4 insert Part 4 Miscellaneous 29 Regulation-making power The Executive may make regulations for this Act.

Magistrates Court (Building Infringement Notices) Regulation 2008 Part 7 Section 32 A2023-46 Building (Swimming Pool Safety) Legislation Amendment Act 2023 page 41 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 7 Magistrates Court (Building Infringement Notices) Regulation 2008 32 Building legislation infringement notice offences and penalties Schedule 1, part 1.1, new items 5 to 10 insert 5 83I 20 280 6 83J 20 220 7 83M 20 220 8 83N 30 420 9 83O 30 420 10 83R (2) 30 360

page 42 Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 Presentation speech Presentation speech made in the Legislative Assembly on 30 August 2023. 2 Notification Notified under the Legislation Act on 15 November 2023. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. I certify that the above is a true copy of the Building (Swimming Pool Safety) Legislation Amendment Bill 2023, which was passed by the Legislative Assembly on 1 November 2023. Acting Clerk of the Legislative Assembly © Australian Capital Territory 2023

J2022-312 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Building (Swimming Pool Safety) Legislation Amendment Act 2023 A2023-46 An Act to amend legislation about swimming pool safety, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows:

Regulated swimming pool (s 83B(1)): an excavation, structure or vessel that can be filled to a water depth of 300 mm or more and is used, designed or manufactured mainly for human aquatic activity. The definition explicitly includes demountable swimming pools, spas and certain flotation tanks, and excludes baths, birthing pools, ornamental ponds, water features, pools at category 1 facilities, pools at short‑term accommodation premises, inflatable pools (without filtration), and anything else the regulation prescribes (s 83B(1)(b)-(c)).

Safety barrier (s 83(1)): defined by its function, any structure or naturally occurring feature forming part of a continuous perimeter that is effective as a child‑resistant barrier to the pool or the water in the pool. The definition expressly includes fences, posts, panels, access points (including doors), child‑resistant doorsets, walls, balustrades, parts of buildings, lockable child‑resistant structures for spas and, where a Ministerial exemption applies, the permitted barrier under that exemption. The regulation-making power allows additional items to be prescribed (s 83(1)(b)(iv)).

Safety standards (s 83A; reg 36D): the benchmark standards for compliance are prescribed by regulation. The schedule sets a date-sensitive standard: for pools built before 1 May 2023 the standards are the building code as in force on 1 May 2023 together with AS 1926.1 (2012) and AS 1926.2 (2007); for pools built or substantially altered on/after 1 May 2023 the safety standard is the building code (reg 36D). “Substantially altered” is defined in both the Act (s 83L(2)) and the regulation (reg 36D(2)) as at least 50% modified, demolished or replaced.

Exemptions: two routes (ss 83C-83D; reg 36E-36F). Standing exemptions are automatic where regulation-prescribed circumstances apply (e.g., a demountable swimming pool erected for not more than three consecutive days; certain spas with secure lockable child‑resistant covers; balcony spas where balcony access is only through self‑closing/self‑latching doors; see reg 36E). Ministerial exemptions require an application, can be granted only where regulation-prescribed circumstances apply, can be conditional, and are accompanied by an exemption certificate valid for no longer than five years (s 83D; reg 36F sets the types of circumstances, such as impracticability due to physical nature of premises, tree protection, heritage, disability access issues, documented demolition plans).

Authorised persons (s 83P): inspections and certificates are done by authorised persons appointed by the director‑general. The director‑general must be satisfied of competency, appointments are for up to five years and are notifiable instruments; regulations may prescribe competency criteria or classes of persons taken to be authorised.

Certificates and notices (s 83K): an authorised person must inspect before issuing a compliance certificate and the certificate must record whether the pool complies with the safety standards (to the extent not exempt), details of any Ministerial exemption, date of issue and anything else prescribed. Where non-compliance does not create a serious and immediate risk, the authorised person must give a pool rectification notice (with reasons, steps to rectify and a rectification day within six months). Where the non-compliance does create an immediate and serious risk, the authorised person must immediately give the owner a compliance certificate (which will record non-compliance).

Duties and offences (ss 83I-83OB): the regime creates a mix of procedural duties (lodge certificates with the construction occupations registrar, provide documents on sale of property), positive maintenance and conduct duties (maintain effective safety barrier, ensure access points closed), notification duties (owner must notify Minister within 14 days of a change of circumstances affecting an exemption), and specific offences for failing to obtain or lodge certificates in prescribed periods. Several offences are strict liability (ss 83I(2), 83J(2), 83M(2), 83N(3), 83O(2), s 83R(3)). There are also higher-penalty and knowledge/reasonableness offences inserted to commence in 2028 (s 83OA: owner knows of non-compliance and fails within 90 days to take reasonable steps; penalty up to 60 penalty units; s 83OB: failure to obtain compliance certificate before 1 May 2028 for pools built before 1 May 2013, max 30 units).

Registries and sale disclosure (Civil Law amendments): sellers must provide prescribed documents depending on the pool’s age and exemption status. The Civil Law Regulation prescribes different document packages depending on build dates and whether a Ministerial or standing exemption applies; in some cases a statutory declaration is acceptable for a standing exemption, otherwise a compliance certificate or exemption certificate is required (substituted s 10B).

Administrative review and tribunal interplay: decisions by the Minister to refuse an exemption, grant subject to conditions, vary or revoke exemptions are added to the list of reviewable decisions in Schedule 4 (new items 11A-11D), so applicants gain a defined right of review under the Act’s review framework.

Common-boundary disputes: the Common Boundaries Act is amended so ACAT must take into account matters prescribed by regulation when a dividing fence forms part of a safety barrier for a regulated pool (s 13A).

Infringement-note regime: the Magistrates Court (Building Infringement Notices) Regulation is amended to provide infringement options for several of the new offences, with specific penalty units and stated infringement amounts inserted (see Part 7, s 32).

Owners of premises with a regulated swimming pool: the Act places principal obligations on the “owner” (as defined for Part 5A at s 83(1): registered proprietor, proprietor of a lease for a unit, or owners corporation for common property). Owners must obtain and lodge compliance certificates (where required), maintain a safety barrier that is effective and child resistant (s 83N), notify the Minister of changes affecting exemptions within 14 days (s 83D(6)(e); s 83J), and bear exposure to several offences with maximum penalties (s 83N, s 83I, s 83J, s 83M and by later commencement s 83OA/83OB).

Occupiers: occupiers (persons “for the time being in charge of the premises”) have a specific duty to ensure all access points are securely closed when not in use (s 83O). The statutory text differentiates between owners and occupiers so tenants, residents and staff could be liable under s 83O even where not the registered owner.

Authorsied persons and the director-general: the director-general (presumably of the Territory’s building regulator or relevant director-general) decides who is an authorised person (s 83P), issues identity cards (s 83Q) and gives directions affecting the exercise of functions (s 83P(7)). Those appointed will inspect pools, issue compliance certificates and rectification notices and must comply with appointment instruments and any director‑general directions.

Owners corporations and their executive members: where the owner is an owners corporation, executive members may be treated as committing offences if the corporation commits an offence under the part and the member was reckless, could influence the corporation and failed to take reasonable steps to prevent the offence (s 83S). The maximum penalty that may be imposed on an executive member for that taken-to-have-committed offence is the same as the maximum for an individual offender.

Buyers and sellers of residential property: sale‑contract disclosure obligations are changed. Vendors must include prescribed documents about any regulated pool on the premises; the required documents differ by the pool’s age and exemption status (substituted s 10B). Conveyancers, real-estate agents and buyers need to factor these new mandatory documents into pre-contract due diligence.

Pool builders, designers and contractors: indirectly affected. The safety standards (reg 36D) set which codes and standards apply depending on build date and substantial alteration. For new builds and substantial alterations on/after 1 May 2023 the building code applies; for older pools the building code as of 1 May 2023 plus AS 1926.1 and AS 1926.2 apply. That affects design and retrofit work and will shape compliance costs.

Tribunal and courts: ACAT is required to take regulation‑prescribed matters into account when adjudicating fence disputes where the fence forms part of a pool safety barrier (new s 13A). The Minister’s exemption decisions are reviewable decisions in Schedule 4, giving applicants a route to seek review under the Act’s review framework.

Regulatory administration and registries: the construction occupations registrar must receive copies of rectification notices and compliance certificates within prescribed timeframes (s 83K(6)). The Minister must prepare guidance material for owners (s 83H), and may make guidelines for granting Ministerial exemptions (s 83G). Regulations and disallowable instruments will shape how many of the practical obligations are implemented.

Insurance, strata managers and heritage/tree protection stakeholders: indirectly affected where exemptions are sought because of protected trees (reg 36F(1)(b)), heritage significance (reg 36F(1)(c)), or where a strata/common property pool exists and owners corporations must respond to registration, maintenance, enforcement or potential criminal exposure for executive members (s 83S).

Owner duties

Obtain inspection and certificate: An authorised person must inspect a regulated pool before issuing a compliance certificate; owners must obtain and, where required, lodge the certificate with the construction occupations registrar (s 83K(1), (6); s 83M). For pools built before 1 May 2013 owners must lodge compliance certificates (and any exemption certificate) with the registrar before 1 June 2028 (s 83M(1)(d)-(e)).
Maintain safety barrier: Owners must maintain a safety barrier that is an effective and safe child‑resistant barrier; compliance is measured by prescribed safety standards or the extent not exempt (s 83N(1)-(2)). Failure is a strict‑liability offence with a maximum penalty of 30 penalty units (s 83N(1), (3)).
Notify Minister of change of exemption circumstances: If a Ministerial exemption applies, the exemption certificate must state that failure to notify the Minister within 14 days of a change of circumstances affecting the exemption is an offence (s 83D(6)(e)), and s 83J creates the offence with maximum penalty of 20 units (and strict liability).
Apply for Ministerial exemption / variation / respond to variation/revocation: Owners can apply for Ministerial exemptions (s 83D); may apply to vary conditions (s 83E); must respond to proposed variations or revocations where the Minister is required to give notice and consider responses (ss 83E(4)-(5), 83F(2)). The Minister may consult external entities and make guidelines (ss 83D(5), 83G).

Occupier duties

Close access points: An occupier must ensure all access points are securely closed when not in use; for spas with lockable structures, the structure must be fitted and locked when not in use (s 83O). This is a strict liability offence with a maximum penalty of 30 units (s 83O(1)-(2)).

Authorised person functions and duties

Inspections and certificates: Authorised persons assess compliance with safety standards, issue compliance certificates and pool rectification notices, and must lodge copies of certain notices/certificates with the registrar within prescribed timeframes (s 83K; s 83P(6)). They are appointed by the director-general on competency grounds, for terms not exceeding five years, and must carry identity cards (ss 83P(1)-(6); 83Q).
Identity and impersonation offences: Identity cards are required and must be returned when appointment ceases (s 83Q); impersonation or unauthorised exercise of functions is an offence with significant penalties (s 83R).

Ministerial powers and rights

Grant, vary or revoke exemptions: The Minister decides on exemption applications, may impose conditions, may vary conditions on application or own initiative (with notice and 28‑day response periods), and may revoke an exemption if conditions are breached, false information is used, prescribed circumstances cease to apply, or there is an immediate and serious safety risk (ss 83D-83F). Exemption certificates must state reasons, grounds and conditions and are capped at five years (s 83D(6)-(7)).
Guidance and guidelines: The Minister may make guidelines for granting exemptions (disallowable instrument; s 83G) and must prepare guidance material for owners (notifiable instrument), though the guidance duty expires on 1 May 2028 (s 83H).

Registries and tribunal rights

Right to copy and lodge documents: Construction occupations registrar must receive copies of rectification notices/compliance certificates (s 83K(6)); owners must lodge required documents when selling (Civil Law Regulation s 10B). The Schedule 4 additions make Minister decisions in the exemption process reviewable decisions (new items 11A-11D) , that entitles applicants to have certain Minister actions reviewed under the Act’s review framework (Schedule 4).

Burden distinctions and strict liability

Several offences are strict liability (ss 83I(2), 83J(2), 83M(2), 83N(3), 83O(2), s 83R(3)). The Act also creates a knowledge/attempt-to-remedy offence of broader scope that commences in 2028 (s 83OA), which requires knowledge of non-compliance and a failure within 90 days to take reasonable steps to ensure compliance; this is a fault-based, higher-penalty offence (60 penalty units).

Disclosure rights in sales

Buyers have the right (as a practical matter) to receive different documents depending on the pool’s age and exemption status. Sellers must provide either compliance certificates, exemption certificates, certificates of occupancy or statutory declarations of standing exemptions depending on build dates (Civil Law Regulation, substituted s 10B). That alters the baseline of seller disclosure and creates obligations on sellers to source and provide regulatory certificates where applicable.

Penalty architecture

Maximum penalties are expressed in penalty units in the Building Act additions:
- Failure to comply with exemption certificate conditions (s 83I): 20 penalty units (strict liability).
- Failure to notify change of exemption circumstances within 14 days (s 83J): 20 penalty units (strict liability).
- Failure to lodge compliance/exemption certificate with registrar for pre‑1 May 2013 pools before 1 June 2028 (s 83M): 20 penalty units (strict liability).
- Failure to maintain safety barrier (s 83N): 30 penalty units (strict liability).
- Failure to ensure safety-barrier access points closed (occupier) (s 83O): 30 penalty units (strict liability).
- Person pretending to be authorised person (s 83R): up to 60 penalty units or 30 units depending on subsection (s 83R(1) is 60 units; s 83R(2) 30 units). Strict liability applies to some elements of the impersonation offences (s 83R(3)).
New offences commencing 1 May 2028 (s 6):
- s 83OA (owner knows pool fails to comply and fails within 90 days to take reasonable steps): maximum 60 penalty units; fault-based (knowledge) offence.
- s 83OB (failure to obtain a compliance certificate before 1 May 2028 for pools built before 1 May 2013): maximum 30 penalty units; strict liability.

Infringement notices

The Magistrates Court (Building Infringement Notices) Regulation is amended to create infringement‑notice options for specified offences and sets the number of penalty units and an associated infringement amount for each (Part 7, s 32). The inserted table entries list the following (section , penalty units , infringement amount as set out):
- s 83I , 20 , 280
- s 83J , 20 , 220
- s 83M , 20 , 220
- s 83N , 30 , 420
- s 83O , 30 , 420
- s 83R(2) , 30 , 360

(Those table entries are the legislative text; the instrument sets the infringement notice amounts alongside the penalty‑unit maxima that apply if a matter proceeds to court.)

Enforcement mechanics

Inspections and compliance certificates are the primary administrative enforcement tool. An authorised person inspects and must issue either a compliance certificate (recording compliance or non‑compliance and exemptions) or a pool rectification notice where the risk is not immediate (s 83K(2)-(5)). Where there is an immediate and serious safety risk, the authorised person must “immediately” give a compliance certificate (s 83K(4)).
Administrative record-keeping is enforced by obligations to lodge copies of rectification notices and compliance certificates with the construction occupations registrar within prescribed timeframes (s 83K(6)) and by the owner’s obligation to lodge in particular circumstances before deadlines (s 83M).
Ministerial oversight: the Minister can vary or revoke exemptions, and revocation can be immediate in cases of immediate and serious risk (ss 83E-83F). The Minister can also make guidelines (disallowable instrument) and is empowered to delegate functions under the Legislation Act (s 83D(5) note).
Criminal liability flows to individuals and, in the case of owners corporations, to executive members who were reckless and failed to take reasonable steps to prevent corporate offences (s 83S). This creates a risk of personal liability for strata committee members in some circumstances.

Strict liability and legal burden

For strict liability offences, the prosecution need not prove fault beyond the prescribed element; several owner and occupier offences are strict liability (ss 83I(2), 83J(2), 83M(2), 83N(3), 83O(2), s 83R(3)). Where the Act identifies a defence or the defendant bears a legal or evidential burden (e.g. s 83N(4) offers a defence if the defendant proves a standing exemption) the Criminal Code’s statutory rules about evidential and legal burdens apply (notes referencing Criminal Code ss 58 and 59).

Timing and staged enforcement

The Act phases in certain offences and the new sale-disclosure regime. Most amendments commence 1 May 2024; ss 5, 6 and 29 commence 1 May 2028 (s 2). That staggers the point at which the stricter, knowledge-based offence (s 83OA) and the specific failure-to-obtain-certificate offence (s 83OB) become actionable and when the substituted sale‑document rules apply.

Remedies and reviewability

Ministerial decisions about exemptions are reviewable , Schedule 4 gains items 11A-11D to make decisions to refuse, grant subject to conditions, vary, or revoke exemptions reviewable decisions with the applicant as the applicant for review. The Act’s schedule‑driven reviewability framework applies; applicants have a tribunal avenue to challenge Minister decisions (see new Schedule 4 entries).

Building Act and building code interplay

Safety standards in the framework are explicitly tied to the building code as relevant to construction date and to particular Australian Standards for older pools (reg 36D). For pools built or substantially altered on or after 1 May 2023 the building code is the safety standard; pre‑1 May 2023 pools are assessed against the building code as at 1 May 2023 plus AS 1926.1 (2012) and AS 1926.2 (2007).

Unit titles and owners corporation regimes

The concept of “owner” for part 5A is tailored to include registered proprietors, proprietors of units, and owners corporations for common property (s 83(1) definition of “owner”; s 10 dictionary amendment substitutes owner for premises for Part 5A). Owners corporations are potential owners under the part and their executive members can be criminally liable under s 83S.

Tree Protection and Heritage Acts

Ministerial exemption grounds explicitly reference the Tree Protection Act 2005 and the Heritage Act 2004 as possible limiting pathways where compliance would otherwise require prohibited conduct (reg 36F(1)(b)-(c)). This structure creates a cross-reference, where the Minister can grant exemptions where compliance likely would require removal of a protected tree or where compliance would have a significant adverse effect on registered heritage.

Civil Law (Sale of Residential Property) Act and regulation

The civil sale disclosure regime is modified so that a seller’s required documents include pool documents where a regulated pool exists on the premises (Civil Law Act s 9(1)(ja); Civil Law Regulation s 10B). The substituted s 10B (commencing 1 May 2028) stratifies required documents by pool age and exemption type, making compliance certificates, exemption certificates, certificates of occupancy or statutory declarations relevant to the conveyancing process.

Common Boundaries Act 1981

The Common Boundaries Act is amended so ACAT must take into account regulation‑prescribed matters where a dividing fence forms part of a safety barrier (new s 13A). That changes the legal factors ACAT must weigh in fence disputes where a fence also serves as a pool safety barrier, linking dividing‑fence remedies to pool safety regulation.

Legislation Act and instrument relationships

The Minister’s power to make guidelines for exemptions is a disallowable instrument (s 83G). Guidance material for owners is a notifiable instrument (s 83H). The director‑general’s appointment instruments for authorised persons are notifiable (s 83P(5)(b)). The Act also relies on the Legislation Act’s delegation rules (s 83D note) for potential delegation of Minister functions.

Magistrates Court and infringement procedures

The Magistrates Court (Building Infringement Notices) Regulation is amended to provide specified infringement penalties for several new offences, integrating the pool‑safety offences into the Territory’s infringement notice enforcement mechanism (Part 7, s 32).

Regulation‑making and administrative interaction

The Act relies heavily on regulation-making power to define standing exemption circumstances, fine‑grain safety standards, competency criteria for authorised persons, the content of certificates and notices and the matters ACAT must take into account in fence disputes (for example regs 36D, 36E, 36F; s 83P(3) and s 13A(2)). The operational detail is therefore set to be settled by regulation and by disallowable/notifiable instruments, making administrative rules central to implementation.

The Amendment Act text itself is the instrument; the enacted changes and their staging are as follows (as per the Act’s commencement and insertion provisions):

Commencement (s 2): Most provisions commence 1 May 2024; sections 5, 6 and 29 commence 1 May 2028. The effect is to bring the primary regulatory machinery into force in 2024 while staging in certain offences and the substituted sale-document regime in 2028.
Building Act 2004: New Part 5A is inserted by s 4. This is the substantive addition , definitions (s 83); safety standards reference (s 83A); meaning of regulated swimming pool (s 83B); exemptions (ss 83C-83F); guidelines and guidance obligations (ss 83G-83H); offences and strict‑liability declarations (ss 83I-83J); compliance certificates and rectification notices procedures (s 83K); period of force for compliance certificates (s 83L) and other offences including maintenance and occupier duties (ss 83M-83O); authorised person appointment and identity rules (ss 83P-83Q); impersonation offences (s 83R); executive-member criminal exposure for owners corporation offences (s 83S).
Insertions and modifications to s 83L and new offences s 83OA and s 83OB are added by s 5 and s 6, which commence 1 May 2028; s 5 inserts a new paragraph in s 83L(1) so that a compliance certificate ends on the day the owner is convicted or found guilty of s 83OA (s 5).
Building (General) Regulation 2008: reg 36D prescribes safety standards depending on build/alteration date. reg 36E prescribes standing exemption circumstances (three items), reg 36F prescribes Ministerial exemption circumstances (five items) including heritage/tree/disability/demolition scenarios. Schedule changes rename and redefine “demountable swimming pool” and adjust exemption lists, with new item 12A allowing demountable swimming pools erected for not more than three consecutive days to be exempt building work (regs 14-20). Schedule 4 additions (regs 21) add Minister decisions to the list of reviewable decisions (new items 11A-11D). Dictionary changes add regulated swimming pool cross-references.
Civil Law (Sale of Residential Property) Act and Regulation: s 26 inserts required documents rule reference to regulated pools (s 9(1)(ja)); s 27 defines regulated swimming pool by cross‑reference. The Civil Law Regulation initially had a new s 10B inserted (s 28) but s 29 substitutes a revised s 10B and this substituted provision commences 1 May 2028. The final s 10B stratifies what documents are required for sale contracts depending on build date and exemption status (exemption certificate, compliance certificate, statutory declaration for standing exemptions, certificate of occupancy where appropriate).
Common Boundaries Act 1981: s 30 inserts new s 13A requiring ACAT to take into account regulation‑prescribed matters when a dividing fence forms part of a pool safety barrier.
Magistrates Court (Building Infringement Notices) Regulation 2008: s 32 adds new entries in Schedule 1 mapping certain building‑legislation offences to penalty units and fixed infringement amounts (new items 5-10).

The Act was passed by the Assembly on 1 November 2023 and notified under the Legislation Act on 15 November 2023 (Endnotes).

No prior amendment history is supplied in the text beyond this enactment; this Amendment Act is the legislated change introducing the Part 5A framework and associated regulation and regulatory-instrument linkages.

The Amendment Act text contains no cases, precedents or litigation history. The Act adds reviewability paths (Schedule 4 new items 11A-11D) for Ministerial exemption decisions, enabling applicants to seek review under the Building Act’s review regime, but the Act text provides no reported decisions or case law. The Act notes interaction with other Acts (Unit Titles Act, Tree Protection Act, Heritage Act) where those statutes’ definitions and registration regimes are referenced for exemption grounds or ownership definitions, which could be the focus of future litigation over interpretation. Any litigation interpreting the new provisions will depend on subsequent administrative practice, guidance, regulations and tribunal/court decisions; none are supplied in the enactment text.

Deadlines and staged commencements: The Act staggers commencement. Most provisions commence 1 May 2024, but ss 5, 6 and 29 commence 1 May 2028 (s 2). Those later-starting provisions insert new fault-based and timing offences (s 83OA and s 83OB) and substantially rewrite the sale-disclosure rules (s 10B). Parties should map obligations by pool construction date and by the operation date of each provision; enforcement windows and cut‑off dates (for instance the 1 June 2028 lodging rule for pre‑1 May 2013 pools, s 83M) are time‑sensitive.

Overlap of compliance certificates and rectification procedure: s 83K creates both rectification notices and compliance certificates in circumstances of non-compliance. Where non-compliance creates an immediate and serious risk the authorised person must “immediately” give a compliance certificate (s 83K(4)). That compliance certificate must state whether the pool complies with the safety standards (s 83K(1)(a)). Practitioners should note that a “compliance certificate” can record non‑compliance; the certificate is primarily a record of inspection and findings, not necessarily an attestation of compliance. The wording may cause confusion for owners, buyers and conveyancers when using certificates as saleable proof of compliance.

Multiple registers and notification points: owners must both obtain certificates from authorised persons and, in certain circumstances, lodge copies with the construction occupations registrar (s 83K(6); s 83M). Conveyancers must ensure that the vendor-supplied documents (s 10B) match registry filings where required. Failure to lodge is itself an offence (s 83M).

Strict liability offences and burdens: many owner and occupier obligations are strict liability (s 83I(2); s 83J(2); s 83M(2); s 83N(3); s 83O(2); s 83R(3)). Defendants face an evidential or legal burden on certain defences where explicitly set out (e.g. s 83N(4) defence that the pool is subject to a standing exemption, note on Criminal Code s 59). Practitioners should note that strict liability reduces prosecution proof thresholds; compliance systems should assume a low tolerance for lapses.

Owners corporation executive exposure: s 83S applies criminal liability to executive members of owners corporations where the corporation commits an offence and the member was reckless, able to influence conduct and failed to take reasonable steps. Executive members must be conscious of governance and record‑keeping to demonstrate “reasonable steps” taken.

Regulation dependence and standards by date: the safety standards are defined by reference to the building code and, for older pools, to two Australian Standards (AS 1926.1 (2012) and AS 1926.2 (2007)) (reg 36D). For pools substantially altered or built on/after 1 May 2023 the relevant benchmark is the building code only. This date‑sensitive bifurcation can cause confusion in retrofit contexts where part of an installation is altered and “substantially altered” is defined as at least 50% modification. The “substantially altered” test is binary and tied to a 50% threshold (s 83L(2); reg 36D(2)) , careful documentation of works and their extent will be necessary.

Exemptions where other legal regimes apply: Ministerial exemptions can be granted on grounds tied to other statutes (tree protection, heritage, disability access). Those grounds are necessarily fact‑sensitive and may require evidence, plans or third-party approvals, and the Minister may require conditions (reg 36F; s 83D). Applicants should expect interaction with tree protection and heritage authorities to gather evidence for an exemption application.

Sale disclosure complexity: s 10B (Civil Law Regulation) varies required documents by pool age and exemption status. The substituted s 10B (commencing 1 May 2028) requires a compliance certificate for most pre‑2013 pools unless a Ministerial exemption applies (in which case the exemption certificate and, for partial exemptions, a compliance certificate for the non‑exempt parts are required), and permits statutory declarations only where a standing exemption applies. Vendors who supply deficient documents could be exposed to contract risk and delays in conveyancing.

Authorised person competency and delegation: the director‑general appoints authorised persons and regulations may prescribe competency matters and even classes of persons taken to be authorised (s 83P(2)-(4)). The appointment instrument and any director‑general directions govern how an authorised person exercises functions (s 83P(7)). The potential for variation in appointment terms and the use of classes taken to be appointed could create inconsistency in inspector competencies if regulations are not specific.

ACAT dividing‑fence considerations: new s 13A requires ACAT to take into account regulation‑prescribed matters where a dividing fence forms part of a pool safety barrier. Parties involved in fence disputes should check the forthcoming regulations for the specific factors ACAT must consider; those factors could change usual dividing fence outcomes.

Practical checklist for owners and occupiers

Determine whether the pool is a “regulated swimming pool” (s 83B(1)): confirm depth (≥300 mm) and primary intended use (human aquatic activity), and whether any statutory exclusion applies (s 83B(1)(c)). Document the pool’s build/completion date and any substantial alterations (≥50% change).
Identify applicable safety standards (reg 36D): establish whether the pool was built before 1 May 2023 or built/substantially altered on/after that date. For pre‑1 May 2023 pools, review the building code as at 1 May 2023 and AS 1926.1 (2012) and AS 1926.2 (2007); for later pools, review the current building code.
Engage an authorised person for inspection and compliance certificate (s 83K; s 83P): an authorised person must inspect before issuing a compliance certificate. Confirm the inspector is an authorised person (ask to see identity card per s 83Q). Ensure the compliance certificate records compliance status, any Ministerial exemption details, date of issue and required content.
Where non‑compliance is identified: expect either a pool rectification notice (non‑immediate serious risk) stating reasons, steps to rectify and a rectification day within six months (s 83K(3)), or an immediate compliance certificate where there is an immediate and serious risk (s 83K(4)). Comply with rectification steps within the rectification day, and arrange further inspection by the authorised person where required to obtain a compliance certificate after rectification (s 83K(5)).
Lodge required documents with the registrar (s 83K(6); s 83M): an authorised person must give the construction occupations registrar copies of rectification notices and specified compliance certificates within prescribed days. Owners of pre‑1 May 2013 pools must lodge their compliance certificate (and any exemption certificate) with the construction occupations registrar before 1 June 2028 (s 83M(1)(d)-(e)). Keep proof of lodgement.
Maintain safety barrier and keep access points closed (ss 83N-83O): maintain the barrier to the prescribed safety standards (or to the extent not exempt) and ensure all access points are securely closed when not in use. For occupiers this is a continuing duty; create and document operational procedures, signage, and lock/key management.
If seeking an exemption, apply to the Minister (s 83D): assemble evidence that a regulation‑prescribed circumstance applies (reg 36F lists examples such as impracticability due to physical site constraints, tree protection, heritage, disability access, planned demolition). Be prepared for conditions and a certificate with specified term (≤5 years). Understand that the Minister may consult external entities and may issue guidelines (s 83D(5); s 83G). If granted, monitor and comply with all certificate conditions; notify the Minister within 14 days of any change of circumstances affecting a ground for the exemption (s 83D(6)(e); s 83J).
Prepare for sale of property: if selling property with a regulated pool, prepare the documents required by the Civil Law Regulation s 10B for the pool’s build date and exemption status. For example, for pre‑2013 pools (substituted s 10B taking effect 1 May 2028), provide an exemption certificate if a Ministerial exemption exists (with compliance certificate for non‑exempt parts), a statutory declaration if a standing exemption applies, or otherwise a compliance certificate (s 10B substituted). Ensure certificates are current where a certificate of occupancy is permitted (certificate of occupancy not older than five years where accepted).
Record-keeping and governance for owners corporations: owners corporations should log inspections, certificates, rectification notices and any Ministerial communications. Executive members should document the “reasonable steps” they take to prevent offences to reduce personal exposure under s 83S.
Verify authorised-person identity and credentials: demand identity cards and, where relevant, written appointment instruments or contact the director‑general’s office to verify authorised persons. Be careful to avoid allowing unauthorised persons to undertake inspections; impersonation is an offence (s 83R).
Plan for timing and deadlines: track the staged commencement dates. Note that certain obligations and offences only commence 1 May 2028 (ss 5, 6, 29). Owners of older pools should prioritise audits and obtaining compliance certificates well ahead of 1 May 2028 and the 1 June 2028 lodgement deadline where applicable.
Manage interfaces with other regimes: if tree protection, heritage, or disability considerations apply, obtain the supporting evidence or approvals to support any Ministerial exemption application (reg 36F references these regimes). Coordinate with local planning, heritage and relevant authorities to secure required evidence or permits.
Risk management: ensure insurance policies and risk registers reflect the new obligations and enforceable duties. Document compliance activity, service contracts for barrier maintenance, inspection dates, rectification works and any correspondence with the Minister or authorised persons.
Use the review avenue where appropriate: if the Minister refuses or imposes conditions on an exemption, the applicant is the review applicant under the new Schedule 4 items 11A-11D. Seek timely legal advice on lodgement of a review application and applicable timeframes under the Building Act’s review framework.
Stay alert for regulation and instrument rollout: many operational details are set in regulation and in disallowable or notifiable instruments (s 83G, s 83H, s 83P). Monitor the Territory’s legislative and instrument registers for competency requirements, prescribed matters for ACAT, testing apparatus definitions, the exact content of guidance material, and any updates to the building code references.

By following these steps and documenting each compliance action, owners and occupiers will align with the statutory duties inserted by this Act (primary references: ss 83, 83A-83K, 83L-83S; regs 36D-36F; Civil Law Regulation s 10B). Legal advice should be sought where exemption decisions are contested, where owners corporation governance issues arise, or where the interplay with other statutory regimes (heritage, tree protection, strata law) is material.

Building (Swimming Pool Safety) Legislation Amendment Act 2023

Plain English Summary

Deep Dive

What it does

Current sections

Building (Swimming Pool Safety) Legislation Amendment Act 2023

Source text: opening excerpt

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply