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
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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
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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
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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
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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
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Amendment Act 2023
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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
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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;
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Section 4
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(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;
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(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
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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.
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(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.
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(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;
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(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.
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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
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(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.
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(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.
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(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)).
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(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.
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(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).
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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
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(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
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(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.
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(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.
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(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
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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
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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
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Amendment Act 2023
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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
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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
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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
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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
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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
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Amendment Act 2023
A2023-46
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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
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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
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(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
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Amendment Act 2023
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(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
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Amendment Act 2023
A2023-46
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(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
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(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
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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
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Amendment Act 2023
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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