Repeal of FOSPA & Emotive Assertion

The Fencing of Swimming Pools Act 1987 had as its aim “An Act to promote the safety of young children by requiring the fencing of certain swimming pools.” In 1999 the Ministry of Internal Affairs issued guidelines as to its interpretation. The following year some councils such as Waitakere City Council (WCC) embarked upon a rigid enforcement regime which in many cases lacked common sense. The Building Act (2004) allowed entrance to pools through doors from the house but in many cases pool owners were told this was “illegal.” Some water safety groups praised the actions of WCC and also pushed for isolation fencing (fencing on all sides). Many pool owners in Waitakere were upset, especially in cases where they had compliant pools that were overnight deemed non-compliant. Some were told it was “illegal” to have tables and chairs and BBQ’s in the “immediate pool area”. As complaints grew this led to a group of pool owners in Waitakere joining together in the latter part of 2003, to take a class action against WCC. WCC, confident of its rigid stance, sought a declaratory judgment in the High Court. Every aspect of the judgment sought by WCC was rejected by Judge Randerson and $20,000 costs awarded to the pool owners.

Time and time again pool owners have heard the phrase “It’s a tragedy if even one child drowns.” I am sure there is not one pool owner in NZ who would disagree. However, in pushing for more and more restrictions on the type of pool fencing accepted, water safety groups have not been beyond using emotive assertion rather than cold hard facts.
As an example of emotive assertion, in June 2004 WCC ran an advert that claimed 6 pre-schoolers drown in private NZ pools every year. For the years 1994-2003 the official figures from Water Safety NZ revealed 40 pre-schoolers drowned in private NZ pools. I challenged WCC on the 50% exaggeration but they were unrepentant. I complained to the Advertising Standards Authority but my complaint was not upheld as it was deemed “The social good imparted by the message overrode the inaccuracy of the figures.”

On another occasion, immediately after the Randerson judgment I emailed all Councillors to say this was a victory for common sense. Only one Councillor replied. He told me to have a “wee wee.”
The following year a journalist from the Aucklander approached me and asked if I would be prepared to provide her with some written comment about the large number of prosecutions and perhaps provide her with some names of people she could contact. I gladly did so but was unimpressed when I read in her article “The judge upheld the council approach for the most part, but also allowed for shades of grey over most aspects of the immediate pool area.” I rang her editor pointing out that Court figures revealed that out of 155 call-overs since the Randerson decision, 75 had been withdrawn, 17 were set down for Status hearings throughout May and 63 were set down for defended hearings on 17 June. I emailed him saying I also objected to her statement “Out of 117 properties due to face prosecution only four are compliant according to Judge Randerson’s October ruling. Despite this the editor stood by the journalist’s report so I complained to the Press Council. Three months later the Press Council advised me “The complaint is not upheld.”

In the years from 2005-14 there have been 21 pre-schooler drownings in private NZ pools (Water Safety NZ) yet most submitters claimed at the oral hearings in Auckland on 22 February 2016, there are still 3 drownings per annum. Some went even further and claimed this bill will lead to an increase in the number of deaths. Those same people were calling for the bill to be “science-based”. Indeed one submitter quoted in the Herald on February called the bill “reckless.”
Let’s hope the committee displays common sense in its judgment and we end up with a piece of legislation that is understandable and workable.

To contact the Pool Owners Action Group (POAG) ph Gary Osborne 09 834 4513
Our website is

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2 Responses to Repeal of FOSPA & Emotive Assertion

  1. So it sounds like overstatement of the annual drowning figures. Have they put up any kind of cost-benefit assessment on the legislation or RIS workings where the one-per-year difference would flip the result of the assessment?

  2. The Regulatory Impact Statement can be found at

    Further details of the progress of the bill through parliament can be found on

    The next report to parliament is due on 14 April 2016.

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