In the lead up to the NSW Coroners Special Inquest, Sydney Morning Herald journalist, Miranda Devine, continued her commentary on this subject with an article title “home truths on pool drownings”.
She claims that critics argue “the inquest is part of a tear-jerking set-piece to usher in sweeping and intrusive amendments to the Swimming Pools Act.”
Again, this article showed a lack or research on behalf of Miranda Devine, the reasons why will be dealt with below.
In this article Miranda Devine highlights the comments of Clarrie Briese, former Chief Magistrate, Emeritus Professor Phillip Ley, and Barrister Peter Collins in relation what she referred to as proposed draconian laws. Each of these gentlemen is an emminent citizen who has in their respective professions served the community well.
However it could be fairly argued that it is their comments which show a knee jerk reaction in relation to proposed changes to the Swimming Pools Act, and issues surrounding the Coroners Inquest.
Miranda Devine quotes Briese and Ley as being concerned that the legislation would be pushed through without adequate community consultation.
This is a demonstrably wrong assertion. The department of local government briefing paper on the review of the Swimming Pools Act 1992 was open for public comment with an options paper, and many submissions were made to the department of local government by a range of government, non-government and not for profit organisations as well as from private pool owners.
The review process has been ongoing since August 2005 and has had two periods of public consultation. Therefore the review has been over four years in the making, hardly what you could call being pushed through. Each of these gentlemen had an equal opportunity to every other NSW citizen to put forward their opinions on proposed changes during these consultation periods.
In addition the Swimming Pools Amendment Bill 2009, was listed on the NSW Parliament website, and as citizens with concerns about this issue they each had an opportunity to make representations to politicians on both sides of politics. An opportunity which the Samuel Morris Foundation took, making representations to EVERY member of the NSW Parliament in both the upper and lower houses, a continuation of the Foundations lobbying activities over the past few years.
The Upper House debated the Amendment Bill on November 24, and the lower house on November 27, with the letter of consent sent to the Governor on November 30 after the amendment Bill was passed by both house of Parliament without amendment. Of note is that this is at least 5 days prior to the publication of Miranda Devines article.
Had Miranda Devine, Misters Briese, Ley or Collins read the Swimming Pools Amendment Bill 2009 then they would have known that Mr Brieses comment that ” it will require the pool-owning community to again outlay large sums of money and on this occasion the expenditure will be entirely wasted.” was entirely erroneous.
The Bill included NO retrospective provisions and therefore anyone who already had an approved three sided fence would not be required to outlay additional sums of money, and indeed if they had pools built before 1990 they would still remain exempt from fencing requirements. The Bill only proposed mandatory isolation fencing for new pools approved and built AFTER 1 July 2010.
Contrary to Miranda’s assertions the Bill did not provide council officers the right to invade private property to inspect the state’s 300,000 pools and impose fines of $5500. The Bill only provides entry for council officers after a WRITTEN complaint about a non-complying pool fence, hardly a blanket right to invade private property and inspect 300,000 pools. Council Officers are also limited to issuing a $550 dollar on the spot fine, the $5,500 penalty is reserved (as a MAXIMUM) penalty that may be imposed by a court for repeated failure to comply. So who is making knee-jerk claims, or again acting without doing the research?
Miranda also highlights a paper produced by Professor Ley, which was tendered into evidence in the Coroners Court. Miranda makes great claims about Professor Leys paper and what it allegedly demonstrates and makes reference to the outcomes of a study by Pitt and Balanda.
Professor Ley was critical of the Cochrane Review which included the study by Pitt and Balanda.
The Cochrane Collaboration produces the Cochrane Review which is based on the best available information about healthcare interventions, Cochrane reviews explore the evidence for and against the effectiveness and appropriateness of treatments (medications, surgery, education, etc) in specific circumstances, and this is done in a systematic review process. Designed to facilitate the choices that doctors, patients, policy makers and others face in health care, these papers are peer-reviewed. The Cochrane Colloboration does not take conflicted funding.
The purpose of the Pitt and Balanda study was to look at the effectiveness of no, three-sided, and four-sided isolation fencing in preventing child immersions in swimming pools. Professor Ley was critical of the Cochrane Review paper due to the fact that out of the original 100 cases selected for the Pitt and Balanda study as part of it’s data collection methodology, 28 cases were removed. Under oath however Professor Ley admitted that the researchers had removed these 28 cases because the children were in the pool area with the prior permission and knowledge of their parents, and therefore the fence, or the children breaching the fence without permission played no part in the immersion of these children.
When these 28 cases are removed Professor Leys premise that four sided fencing is more dangerous than three sided fencing fails miserably. In fact the figures reveal that four sided fencing is several times safer than three sided fencing (information supported by another study Barker et al which shows that it is three times safer)., and the risk of death or brain damage is also less for four sided vs three sided fencing Professor Ley has re-included these 28 cases in his calculations, thus skewing the data in order to support his premise.
It was also interesting to note that despite Professor Leys paper being produced in November 2009, he selected data sets that finished in the years 2005/06, and did not include data that was available for the reporting years 2007,2008 or 2009. The question must be asked why? Is it because the reporting in those years was contrary to his premise that drowning rates were declining, and in fact in there has been an upward trend in the toddler drowning rates over the 5 year average in NSW and QLD, states which Professor Ley used as examples in his research?
In his paper Professor Ley admits for one section that he did a 20 minute literature search returning thousands of items, then says but none of the ones “he read” without revealing how many of them he actually did read or what process he used to select the ones he read support the mainstream position.
In the paper Professor Ley also admits to making a range of “assumptions” about a number of elements, assumptions which when tested against the available evidence are questionable.
Also of note was the fact that when questioned under oath Professor Ley admitted that he has had NO papers on childhood drowning peer-reviewed or published, but was dismissive of the peer review process.
As a career academic Professor Leys reputation in his field would have been built solidly on the peer review process, and on his name appearing on numerous research papers subject to the peer-review process, so it is interesting that he know professes a disdain for the peer review process which helped build his academic career.
Misters Ley, Briese and Collins may well have been members of the Pool Fencing Advisory Committee which made the first pool fencing laws in 1992, however the evidence shows that these gentlemen have resisted advances in requirments for pool fencing. Indeed Professor Ley, via Mr Collins, also tendered a minority report from 1991 outlining the case against pool fencing.
Misters Ley, Briese and Collins and Ms Devine are attempting to shut the gate after the horse has bolted, the Amendment Bill had already been passed prior to the publication of Miranda Devines’ article, and in advance of the coroners inquest and none of their claims of a knee jerk set piece, or draconian outcomes, could be sustained based on the objective evidence. In fact the amendment bill included some changes but was overall a weak outcome in relation to providing mechanisms to improve compliance with pool fencing laws.
Evidence was also introduced into the Coroner Court that in Western Australia, which has a system of ongoing mandatory inspection regimes for swimming pool fences, the rate of compliance since it’s introduction has gone from 45% to almost 90%, and the toddler drowning rate has halved. It is for these reasons that the Samuel Morris Foundation has been seeking the introduction of an ongoing compliance inspection regime within NSW and elsewhere.
Yet again, had Miranda Devine done some even rudimentary research, instead of just repeating material provided to her by those with a contrarian position to push, she may have made a useful and informed contribution to the debate surrounding how as a community we can best help prevent toddler drownings. Sadly Miranda has missed the opportunity.
The Coroners Inquest was a detailed review of the circumstances related to the tragic deaths of eight children. Deputy State Coroner McMahon provided a measured and supportive environment in which to explore issues surrounding these circumstances and to highlight a number of systemic problems which may have contributed to the deaths.
The Samuel Morris Foundation now awaits the delivery of Coroner McMahons findings early next year. Let’s hope that the debate after Deputy State Coroner McMahon delivers his findings is more reasoned than that provided by Ms Devine to date.
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