2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

Part 1.1 Districts Act 2002 53

Part 1.2 Electoral Act 1992 54

Part 1.3 Land Titles Act 1925 55

Part 1.4 Legislation Act 2001 55

2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

An Act to regulate the practice of land surveying, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Surveyors Act 2007.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘inquiry, for division 3.3 (Disciplinary action)—see section 25.’ means that the term ‘inquiry’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Note about application of the Mutual Recognition Act 1992 (Cwlth) and the Trans-Tasman Mutual Recognition Act 1997 (Cwlth) (the Commonwealth Acts)

The Commonwealth Acts allow people registered in certain occupations in a State, the ACT, Northern Territory or New Zealand (a local jurisdiction) to carry on the occupations in another local jurisdiction and provide another way of applying for registration in the ACT or another local jurisdiction. Because of the Self-Government Act, s 28, the requirements for registration under this Act cannot validly require anything of people being registered in accordance with the Commonwealth Acts that would be inconsistent with those Acts. Accordingly, provisions of this part, such as the requirements for applications, do not apply to the registration of people in accordance with the Commonwealth Acts. Also, the Commonwealth Acts set out when conditions may be placed on people registered in accordance with those Acts. For more information, see the Commonwealth Acts.

(1) A person may apply to the chief surveyor for registration as a surveyor.

Note 1 If a form is approved under s 81 for the application, the form must be used.

Note 2 A fee may be determined under s 80 for this provision.

(2) The chief surveyor may, in writing, require the applicant to give the chief surveyor additional information in writing or documents that the chief surveyor reasonably needs to decide the application.

(3) If the applicant does not comply with a requirement under subsection (2), the chief surveyor may refuse to consider the application further.

(1) A person is eligible to be registered as a surveyor if—

(a) the person has previously been registered in the ACT; and

(b) the chief surveyor is satisfied that the person has a working knowledge of current surveying practices and any practice directions; and

(c) the person’s registration was not cancelled other than in accordance with a request by the surveyor.

Note Under the Mutual Recognition Act 1992 (Cwlth) and the Trans-Tasman Mutual Recognition Act 1997 (Cwlth) the chief surveyor will also register as surveyors people who are registered, licensed or otherwise authorised to carry out surveys in a State, the Northern Territory or New Zealand, if the surveys authorised to be carried out are substantially the same.

(2) However, a person who would be eligible under subsection (1) but for the cancellation of the person’s registration, is eligible to be registered as a surveyor if the chief surveyor is satisfied, after considering the reason for the cancellation and anything relevant that the person has done since the cancellation, that the person should be registered.

1 the cancellation was because of a failure to pay a registration fee and the fee is paid

2 the cancellation was because the surveyor carried out a survey that was inaccurate because the surveyor lacked knowledge of current surveying practices, but since cancellation, the surveyor has acquired sufficient knowledge of current surveying practices

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) On application by a person for registration as a surveyor, the chief surveyor must—

(a) register the person; or

(b) refuse to register the person.

(2) However, the chief surveyor must refuse to register the person if the person is not eligible for registration.

(3) If the chief surveyor registers the person, the chief surveyor must—

(a) give the person a unique identifying number (a registration number); and

(b) give the person a certificate (a registration certificate), signed by the chief surveyor, that states—

(i) the person’s name; and

(ii) the date of registration; and

(iii) the person’s registration number.

(1) It is a condition of a surveyor’s registration that the surveyor undertakes continuing professional development in accordance with any guidelines under subsection (2).

(2) The chief surveyor may make guidelines about continuing professional development for surveyors.

(3) However, the chief surveyor must consult the advisory committee about a proposed guideline before making the guideline.

(4) A guideline is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

A person’s registration ends—

(a) if the registration is cancelled under section 22 (Cancellation after s 20 suspension)––when the cancellation takes effect under section 22 (2); or

(b) if the registration is cancelled under section 23 (Cancellation of registration for incapacity)—when the cancellation takes effect under section 23 (4); or

(c) if the registration is cancelled under section 39 (Disciplinary action)—when the cancellation takes effect under section 39 (6) (b); or

(d) if the registration is cancelled under section 41 (Voluntary cancellation of registration)—when the chief surveyor cancels the registration; or

(e) if the person dies.

(1) The chief surveyor must ensure a surveyors register is kept in accordance with this Act.

(2) The surveyors register—

(a) may be kept in any form, including electronically; and

(b) must be made available to the public.

(3) However, subsection (2) (b) does not apply to details in the surveyor’s register about––

(a) a surveyor’s date of birth; and

(b) if a surveyor’s registration has been suspended––the grounds for suspension; and

(c) anything else prescribed by regulation.

(4) Any mistake, error or omission in the surveyors register may be corrected.

(1) The following details must be entered in the surveyors register in relation to a surveyor:

(a) the surveyor’s name;

(b) the address of each place (a registered business address) where the surveyor carries on the practice of surveying or, if the surveyor does not have a registered business address, the surveyor’s home address;

(c) the surveyor’s date of birth;

(d) the surveyor’s registration number;

(e) the date of registration;

(f) if the surveyor’s registration has been suspended––

(i) the grounds for suspension; and

(ii) the period of suspension;

(g) any other details prescribed by regulation.

(2) The surveyors register may contain other details.

Information in the register, including information that is not available to the public, may be given to a local registering authority to assist in the regulation of surveyors in the local jurisdiction.

(1) If a person’s registration ends, details of the person’s registration must be removed from the surveyors register.

Note For when a person’s registration ends, see s 10.

(2) If a surveyor tells the chief surveyor about a change of address under section 15, the change must be entered in the surveyors register.

(3) To remove any doubt, nothing in this section prevents the keeping of a record of––

(a) registration details removed from the register under subsection (1); or

(b) a previous address under subsection (2).

(1) A surveyor commits an offence if—

(a) the surveyor has a registered business address; and

(b) any of the following changes happen:

(i) the address changes;

(ii) the address stops being a business address of the surveyor; and

(c) the surveyor fails to tell the chief surveyor, in writing, about the change as soon as practicable but not later than 21 days after the day the change happens.

Maximum penalty: 5 penalty units.

(2) A surveyor commits an offence if—

(a) the surveyor does not have a registered business address; and

(b) either of the following changes happen:

(i) the surveyor’s home address changes;

(ii) the surveyor gets a business address; and

(c) the surveyor fails to tell the chief surveyor, in writing, about the change as soon as practicable but not later than 21 days after the day the change happens.

Maximum penalty: 5 penalty units.

(3) An offence against this section is a strict liability offence.

In this division:

continuation notice—see section 19.

(1) This section applies if a fee is determined under section 80 for giving a continuation notice.

(2) To remove any doubt, a continuation notice is taken not to have been given unless the fee is paid.

(1) Before the beginning of a financial year, the chief surveyor may send a notice (a continuation notice reminder) to a surveyor.

(2) A continuation notice reminder must––

(a) be addressed to the surveyor; and

(b) include information to the following effect:

(i) that the surveyor must give the chief surveyor a continuation notice before the beginning of the financial year if the surveyor intends to continue to be registered in the financial year;

(ii) that the surveyor’s registration will be automatically suspended on 1 September in the financial year if the surveyor does not give the chief surveyor a continuation notice for the financial year by 31 August in the financial year;

(iii) that the surveyor’s registration will be automatically cancelled on the day after the end of the financial year if the surveyor does not give the chief surveyor a continuation notice for the financial year before the end of the financial year; and

(c) set out any fee determined for giving a continuation notice, including any higher fee for—

(i) late payment before 1 September; and

(ii) late payment on or after 1 September.

(3) If the chief surveyor fails to send a continuation notice reminder for a surveyor’s registration, or the notice is not received by the surveyor, the failure or nonreceipt does not affect—

(a) any suspension or cancellation of the registration; or

(b) the obligation of the surveyor to give a continuation notice for a financial year if the surveyor intends to continue to be registered in the financial year.

Before the beginning of a financial year, a surveyor must give the chief surveyor written notice (a continuation notice) that the surveyor intends to continue to be registered in the financial year.

Note 1 If a form is approved under section 81 for this provision, the form must be used.

Note 2 A fee may be determined under section 80 for this provision.

Note 3 For how documents may be served, see the Legislation Act, pt 19.5.

(1) This section applies if a surveyor has not given the chief surveyor a continuation notice for a financial year by 31 August in the financial year.

(2) The surveyor’s registration is automatically suspended on 1 September in the financial year.

(1) This section applies if a surveyor’s registration is suspended under section 20 in a financial year.

(2) If, before the financial year ends, the surveyor gives the chief surveyor a continuation notice for the financial year, the suspension ends.

(3) The suspension ends when the surveyor gives the chief surveyor the notice.

Note 1 If a form is approved under section 81 for this provision, the form must be used.

Note 2 A fee may be determined under section 80 for this provision.

Note 3 For when documents are taken to be served, see the Legislation Act, s 250.

(1) This section applies if a surveyor does not give the chief surveyor a continuation notice for a financial year before the end of the financial year.

(2) The surveyor’s registration is automatically cancelled on the day after the end of the financial year.

(1) This section applies if the chief surveyor believes on reasonable grounds that—

(a) a surveyor has become mentally or physically incapacitated; and

(b) the incapacity substantially affects the surveyor’s ability to practise surveying.

(2) The chief surveyor may cancel the surveyor’s registration.

(3) However, the chief surveyor must not cancel the surveyor’s registration unless—

(a) the chief surveyor—

(i) gives the surveyor written notice under section 24 of the chief surveyor’s intention to cancel the registration; and

(ii) takes into consideration any response received from the surveyor in accordance with the notice; and

(b) the chief surveyor is satisfied that—

(i) the surveyor is mentally or physically incapacitated; and

(ii) the incapacity substantially affects the surveyor’s ability to practise surveying; and

(c) at least 15 business days have passed since the day the notice was given under section 24.

(4) Cancellation of a person’s registration under this section takes effect—

(a) when written notice of the cancellation is given to the person; or

(b) if the written notice of the cancellation states a later date—on the stated date.

A notice under this section given to a surveyor must—

(a) state that the chief surveyor intends to cancel the surveyor’s registration; and

(b) explain why the chief surveyor intends to cancel the registration; and

(c) state that the surveyor may, within 12 business days after the day the surveyor is given the notice, give a written response to the chief surveyor about the matters in the notice.

Note For how documents may be served, see the Legislation Act, pt 19.5.

In this division:

disciplinary notice—see section 27.

inquiry means a hearing under section 31.

surveyor—

(a) in relation to an act or omission, means—

(i) a registered person; or

(ii) a person who was registered at the time of the act or omission; and

(b) in any other case—includes a person whose registration has been cancelled.

(1) Each of the following is a ground for disciplinary action against a surveyor:

(a) the surveyor gave information in relation to the application for registration that was false or misleading in a material particular;

(b) the surveyor has certified to the accuracy of a survey knowing it to be inaccurate;

(c) the surveyor has, deliberately or through carelessness or incompetence, carried out a survey that is so inaccurate or defective as to be unreliable;

(d) a survey has been carried out, or a plan prepared, by or under the supervision of the surveyor, that contravenes section 58 (Surveys and plans to comply with practice directions);

(e) the surveyor has contravened, or is contravening, this Act;

(f) both of the following apply:

(i) the surveyor has been convicted or found guilty in Australia of an offence involving fraud, dishonesty or violence that is punishable by imprisonment for 1 year or longer;

(ii) the chief surveyor is satisfied that committing the offence affects the surveyor’s suitability to practise surveying;

(g) both of the following apply:

(i) the surveyor has been convicted or found guilty outside Australia of an offence involving fraud, dishonesty or violence that, if it had been committed in the ACT, would be punishable by imprisonment for 1 year or longer;

(ii) the chief surveyor is satisfied that committing the offence affects the surveyor’s suitability to practise surveying.

(2) To remove any doubt, a ground for disciplinary action applies to a surveyor who is no longer registered if the ground applied to the surveyor while registered.

If the chief surveyor is satisfied that a ground for disciplinary action exists, or may exist, in relation to a surveyor, the chief surveyor may give the surveyor a notice (a disciplinary notice).

(1) A disciplinary notice given to a surveyor must—

(a) state the grounds on which the notice is given; and

(b) state details of each ground that the chief surveyor is satisfied would allow a reasonable person to identify the circumstances that give rise to the ground; and

(c) state where and when the inquiry into the grounds will be held; and

(d) if the surveyor’s registration is suspended under section 29—state that the surveyor’s registration is suspended until the inquiry into the grounds is finished or the suspension is ended under section 30 (End of suspension for inquiry).

(2) For subsection (1) (c), the time for holding the inquiry must be not less than 10 days and, if the surveyor’s registration is suspended when the disciplinary notice is sent, not more than 28 days, after the day the surveyor is given the notice.

(1) This section applies if the chief surveyor gives, or proposes to give, a disciplinary notice to a surveyor.

(2) The chief surveyor may suspend the surveyor’s registration by the disciplinary notice or a later written notice given to the surveyor.

(3) However, the chief surveyor may only suspend the registration under subsection (2) if the chief surveyor—

(a) has taken into account the circumstances leading to the decision to give the disciplinary notice and the grounds stated in the notice; and

(b) believes on reasonable grounds that it is in the public interest to suspend the surveyor’s registration until the inquiry into the grounds stated in the notice is finished.

(4) If the chief surveyor suspends a surveyor’s registration, the registration is suspended when the surveyor receives notice of the suspension.

(1) This section applies if the chief surveyor suspends a surveyor’s registration under section 29.

(2) The chief surveyor may, at any time before the inquiry is finished, end the surveyor’s suspension by written notice given to the surveyor.

(3) If the chief surveyor does not end a surveyor’s suspension under subsection (2), the suspension ends—

(a) when the chief surveyor gives the surveyor notice under section 39 (5) (Disciplinary action); or

(b) if the chief surveyor takes disciplinary action against the surveyor under section 39—when the action takes effect under section 39 (6).

If the chief surveyor gives a surveyor a disciplinary notice, the chief surveyor must hold a hearing to inquire into each ground for disciplinary action stated in the notice.

(1) The chief surveyor may decide any procedure for an inquiry in relation to which a procedure is not provided under this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(2) The chief surveyor may adjourn an inquiry.

(1) At an inquiry, the chief surveyor—

(a) must comply with the rules of natural justice; and

(b) is not bound by rules of evidence but may inform himself or herself in the way he or she considers appropriate.

(2) At an inquiry, the surveyor whose actions are being inquired into may call witnesses.

(1) A surveyor may be represented at an inquiry by a lawyer who may examine witnesses and address the chief surveyor on behalf of the surveyor.

(2) The chief surveyor may appoint a lawyer to examine witnesses in an inquiry and advise the chief surveyor on any matter relating to the inquiry.

Note For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

(1) For an inquiry, the chief surveyor may, in writing, require a person to appear before the inquiry on a stated date—

(a) to give evidence; or

(b) to give evidence and produce a document or thing in the possession, custody or control of the person; or

(c) to produce a document or thing in the possession, custody or control of the person.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(2) The chief surveyor may give the surveyor whose actions are being inquired into, or the surveyor’s lawyer, leave, subject to any condition—

(a) to inspect a document or thing produced under this section; and

(b) to make copies of, or take extracts from, a produced document for the inquiry.

(3) A person is taken to have complied with a requirement under subsection (1) (c) if the person gives the document or thing to the chief surveyor before the date stated in the requirement.

(4) The chief surveyor may set aside a requirement under subsection (1).

(1) A person commits an offence if––

(a) the person is required under section 35 to appear before an inquiry on a stated date––

(i) to give evidence; or

(ii) to give evidence and produce a document or thing in the possession, custody or control of the person; or

(iii) to produce a document or thing in the possession, custody or control of the person; and

(b) the person––

(i) fails to attend as required; or

(ii) fails to produce the document or thing as required.

Maximum penalty: 50 penalty units.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(2) This section does not apply if the person has a reasonable excuse.

(1) This section applies if a surveyor—

(a) is required to give confidential information to the chief surveyor for an inquiry in relation to the surveyor; or

(b) believes on reasonable grounds that it is necessary to give confidential information to the chief surveyor to explain an act or omission of the surveyor.

(2) The surveyor is not civilly liable for giving the information to the chief surveyor.

(3) In this section:

confidential information, in relation to a surveyor, means information given to the surveyor by a client in confidence.

(1) A requirement made of a person under section 35 (1) (a) or (b) (Chief surveyor may require appearance, information and documents) must be accompanied by—

(a) an undertaking to appear to be signed by the person and returned to the chief surveyor by the stated date; and

(b) a form to be completed by the person to claim the reasonable costs and expenses of attendance at the inquiry.

(2) A person is not entitled to refuse to comply with the requirement only because the requirement was not accompanied by the form.

(1) This section applies if an inquiry in relation to a surveyor has been held.

(2) The chief surveyor must decide whether or not to take disciplinary action against the surveyor.

(3) The chief surveyor may take disciplinary action against the surveyor if satisfied on reasonable grounds that a ground for disciplinary action is established in relation to the surveyor.

(4) If the chief surveyor may take disciplinary action against the surveyor, the chief surveyor may do 1 or more of the following:

(a) reprimand the surveyor;

(b) require the surveyor to complete a stated course of training to the satisfaction of the chief surveyor;

(c) suspend the surveyor’s registration for not longer than 3 years;

(d) cancel the surveyor’s registration;

(e) cancel the surveyor’s registration and disqualify the surveyor from applying for registration for a stated period or until a stated thing happens.

(5) If the chief surveyor decides not to take disciplinary action against the surveyor, the chief surveyor must, by written notice given to the surveyor, tell the surveyor about the decision.

(6) If the chief surveyor decides to take disciplinary action against the surveyor—

(a) the chief surveyor must, by written notice given to the surveyor, tell the surveyor about the decision; and

(b) the disciplinary action takes effect—

(i) when the notice is given to the surveyor; or

(ii) if the notice states a later date of effect—on the stated date.

(1) This section applies if the chief surveyor suspends or cancels a surveyor’s registration or disqualifies a surveyor from applying for registration.

(2) The chief surveyor must give each local registering authority the following information in relation to the surveyor:

(a) the name and any other identifying details of the surveyor;

(b) a short description of the disciplinary ground the disciplinary action was based on;

(c) whether the registration has been suspended or cancelled or the surveyor disqualified;

(d) if the registration has been suspended—the period of suspension;

(e) if the surveyor has been disqualified—the period of disqualification;

(f) when the disciplinary action takes effect.

(3) This section does not limit any other requirement or power, under this Act or another law in force in the ACT, to give information to a local registering authority.

The chief surveyor must cancel a surveyor’s registration if—

(a) the surveyor asks, in writing, for the cancellation; and

(b) the surveyor gives the surveyor’s registration certificate to the chief surveyor or satisfies the chief surveyor that the certificate has been lost, stolen or destroyed; and

(c) the chief surveyor has no ground for believing that the surveyor has contravened, or is contravening, this Act.

(1) The chief surveyor may, by written notice, ask a surveyor—

(a) if the surveyor’s address in the surveyors register is correct; and

(b) for a surveyor without a registered business address—if the surveyor has a business address.

(2) A notice under subsection (1) must state the consequences under subsection (3) of failing to respond to the notice.

(3) If the chief surveyor does not receive an answer to a notice sent to a surveyor under subsection (1) by the end of the period of 2 months after the day the notice is sent to the surveyor, the chief surveyor may cancel the surveyor’s registration.

(1) This section applies to a person whose registration is suspended or cancelled.

(2) The chief surveyor may, by written notice, require the person to return to the chief surveyor, as soon as practicable but not later than 14 days after the day the person receives the notice, the person’s registration certificate.

(3) A person must comply with a requirement made of the person under subsection (2).

Maximum penalty: 5 penalty units.

(4) An offence against this section is a strict liability offence.

In this part:

survey mark includes a beacon, concrete block, chisel mark, galvanised iron pipe, lockspit, metal pin or plaque, drill hole and wings, peg or stone cairn, placed on land for a survey.

surveyor does not include a person whose registration is suspended.

(1) For the purpose of carrying out a survey, a surveyor or someone assisting a surveyor (an assistant) may at any reasonable time, in accordance with this section—

(a) enter land, including land that is not to be surveyed; and

(b) open a door, gate or fence; and

(c) place a survey mark on the ground of land entered; and

(d) make a hole in the ground to uncover or expose a survey mark; and

(e) enter a building; and

(f) trim a tree or bush obstructing a survey.

(2) A surveyor or assistant may enter land that is not owned by the person for whom the survey is being carried out only if, before entering the land, the surveyor gives the owner of the land reasonable notice, whether oral or written, of the surveyor’s or assistant’s intention to enter the land.

(3) A surveyor or assistant may enter a building or part of a building that is not occupied by the person for whom the survey is being carried out only—

(a) if the occupier has consented, in writing, to the entry; or

(b) in accordance with an order of the Magistrates Court.

(4) To remove any doubt, an assistant may only exercise a function under this section in relation to land or a building––

(a) if the assistant is with the surveyor; or

(b) if the assistant is not with the surveyor––if the owner or occupier has consented, in writing, to the exercise of the function.

(5) In this section:

occupier, of a building, includes—

(a) a person believed on reasonable grounds to be an occupier of the building; and

(b) a person apparently in charge of the building.

owner, of land, includes the lessee or occupier of the land.

(1) A surveyor or person for whom a survey is being, or is to be, carried out, may apply to the Magistrates Court for an order under section 45 (3) (b) allowing entry to a building or part of a building.

(2) The Magistrates Court must make the order if satisfied that the survey can not reasonably be carried out unless the surveyor, or person assisting the surveyor, enters the building or part of the building.

(3) An order under this section may be subject to a condition.

(1) This section applies if someone exercises or purports to exercise a function under section 45.

(2) The person must take reasonable steps to ensure that the person causes as little inconvenience, detriment and damage as is practicable when exercising or purporting to exercise the function.

(3) If the person damages anything when exercising or purporting to exercise the function, the person must immediately give written notice of the details of the damage to someone the person believes on reasonable grounds is the owner of the thing.

(4) However, if it is not practicable to comply with subsection (3), the person must leave the notice, in a reasonably secure way and in a conspicuous position, at the place where the damage happened.

(5) The person is liable to pay compensation for the damage to the owner of the thing.

(1) Compensation mentioned in section 47 (5) may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction.

(2) A court may order the payment of reasonable compensation for the damage only if satisfied it is just to make the order in the circumstances of the particular case.

(3) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

(4) The amount of compensation that a person is ordered to pay that is reasonably and necessarily caused in carrying out the survey is an amount owing to the person by the person for whom the survey is being, or was, carried out.

Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction (see Legislation Act, s 177).

A person commits an offence if––

(a) the person is not a surveyor; and

(b) the person carries out a survey; and

(c) the person is reckless about whether the person is carrying out a survey.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(1) A person commits an offence if––

(a) the person is not a surveyor; and

(b) the person gives, or purports to give, a certificate that, under a territory law, is required to be given by a surveyor.

Maximum penalty: 30 penalty units.

(2) An offence against this section is a strict liability offence.

A person commits an offence if––

(a) the person is not a surveyor; and

(b) the person––

(i) pretends to be qualified to carry out a survey; or

(ii) otherwise pretends to be a surveyor.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

using ‘registered surveyor’ on letterhead or in an advertisement

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

A person commits an offence if—

(a) the person knows someone is—

(i) a surveyor; or

(ii) assisting a surveyor (an assistant); and

(b) the person hinders or obstructs the surveyor or assistant in the exercise of the surveyor’s or assistant’s powers under section 45 (1) (Power of entry generally).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(1) A person commits an offence if––

(a) the person interferes with, changes or removes a mark; and

(b) the mark is a survey mark; and

(c) the person is reckless about whether the mark is a survey mark.

Maximum penalty: 20 penalty units.

(2) However, subsection (1) does not apply to a person––

(a) who removes a survey mark if the mark is removed to put up a fence or do construction work on or near the boundary of a property; or

(b) if the person otherwise has a reasonable excuse.

A person has a reasonable excuse if the removal of a survey mark has been authorised in writing by the chief surveyor.

(1) The chief surveyor may, in writing, require a surveyor to give the chief surveyor stated evidence of field procedures that the chief surveyor reasonably needs to exercise the chief surveyor’s functions under this Act or another territory law.

Note  Territory laws that give functions to the chief surveyor include the Districts Act 2002, s 7 and s 17 and the Land Titles Act 1925, s 64.

(2) A surveyor must comply with a requirement made of the surveyor under subsection (1).

Maximum penalty: 50 penalty units.

(3) An offence against this section is a strict liability offence.

(4) It is a defence to a prosecution for an offence against this section if the defendant proves that the defendant took reasonable steps to comply with subsection (2).

(5) The chief surveyor may keep material produced under this section for the time reasonably necessary to make a copy of it.

(6) In this section:

field procedure means any field procedure that a surveyor is required to keep under a practice direction.

(1) The chief surveyor may issue directions in relation to the practice of surveying, including, for example—

(a) the preparation of plans showing the results of surveys; and

(b) the preparation and keeping of field procedures relating to surveys; and

(c) the supervision of people assisting surveyors in carrying out or preparing surveys; and

(d) the nature and position of survey marks; and

(e) the achievement of accuracy in surveying; and

(f) the provision of information by surveyors for inclusion in the digital cadastral database.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Before issuing a practice direction, the chief surveyor must consult the advisory committee about the proposed direction.

(3) A practice direction is a disallowable instrument.

Note  A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(4) In this section:

digital cadastral database––see the Districts Act 2002, section 17.

(1) The chief surveyor may, in writing, exempt a surveyor from a stated requirement of a practice direction if satisfied in all the circumstances that it is not reasonably practicable for the surveyor to comply with the direction.

(2) An exemption may be subject to any condition decided by the chief surveyor.

(3) An exemption that is subject to a condition does not have effect if the condition is not complied with.

A surveyor must comply with each practice direction that applies to the surveyor.

A surveyor must ensure that a survey carried out, or a plan prepared, by or under the supervision of the surveyor—

(a) is in accordance with each practice direction that applies in relation to the survey or plan; and

(b) states any exemption under section 56 (1) for a practice direction that applies in relation to the survey or plan; and

(c) states the conditions (if any) the exemption is subject to.

(1) The chief executive must appoint a public servant as the Chief Surveyor.

(2) However, the chief executive must not appoint a person under subsection (1) unless satisfied that the person is, or is eligible to be, registered as a surveyor.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

(1) The chief surveyor has the following functions:

(a) to investigate trends in surveying and to ensure the practice of surveying is current in the ACT and aligned with best practice;

(b) to consult with entities (including organisations that represent surveyors in the ACT) on major policy issues affecting the practice of surveying;

(c) to liaise and enter into arrangements on behalf of the Territory with any entity that, in Australia or elsewhere, is concerned with surveyors and the practice of surveying, for—

(i) developing or reviewing standards for the practice of surveying; and

(ii) reviewing the qualifications and professional development of surveyors; and

(iii) the exercise of the chief surveyor’s functions under this Act or another territory law.

(2) The chief surveyor has any other function given to the chief surveyor under this Act or another territory law.

Note 1 Territory laws that give functions to the chief surveyor include the Districts Act 2002, s 7 and s 17 and the Land Titles Act 1925, s 64.

Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

Note 3 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

The chief surveyor may delegate the chief surveyor’s functions under this Act or another territory law to a public servant who is a surveyor.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

The survey practice advisory committee is established.

(1) The advisory committee has the following functions of advising the chief surveyor:

(a) in relation to anything about the practice of surveying if asked by the chief surveyor;

(b) whether a new practice direction is needed or a direction needs revising;

(c) about any proposed guidelines for continuing professional development or if a guideline needs revising.

(2) The advisory committee has any other function given to it under this Act.

Note 1 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

Note 2 A provision of a law that gives an entity a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

(1) The advisory committee must have at least 5, but not more than 7, members (each of whom is an advisory committee member).

(2) The advisory committee is made up of the following people:

(a) the chief surveyor;

(b) at least 3 other surveyors, 2 of whom are professional entity representatives;

(c) at least 1 member who is not a surveyor.

Note Section 66 sets out how professional entity representatives are chosen for appointment under s 65.

(3) To remove any doubt, in this section:

surveyor does not include a person whose registration is suspended.

(1) The Minister must appoint the advisory committee members (other than the chief surveyor).

Note For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

(2) The Legislation Act, division 19.3.3 (Appointments––Assembly consultation) does not apply to an appointment of an advisory committee member under this section.

(3) The Minister must not appoint a professional entity representative for longer than 3 years.

(4) The Minister must not reappoint a person as a professional entity representative if the person would be a professional entity representative for longer than 3 consecutive years.

(1) This section applies if, whether because of a vacancy or otherwise, the Minister must appoint 1 or 2 professional entity representatives to the advisory committee.

(2) The Minister must ask a professional entity to nominate the prescribed number of potential representatives—

(a) that the entity is satisfied will adequately represent the views of the entity on the advisory committee; and

(b) who are surveyors.

(3) The Minister must, under section 65, appoint 1 or 2 representatives from the people nominated.

(4) In this section:

prescribed number, of potential representatives, means—

(a) if the Minister must appoint 1 professional entity representative—2; or

(b) if the Minister must appoint 2 professional entity representatives—3.

professional entity means an entity that the Minister is satisfied was established to represent the interests of surveyors in the ACT.

(1) If an advisory committee member has a relevant interest in an issue being considered, or about to be considered, by the committee, the member must disclose the nature of the interest at a meeting of the committee as soon as practicable after the relevant facts come to the member’s knowledge.

(2) The disclosure must be recorded in the advisory committee’s minutes and, unless the committee otherwise decides, the advisory committee member must not—

(a) be present when the committee considers the issue; or

(b) take part in a decision of the committee on the issue.

(3) Any other advisory committee member who also has a relevant interest in the issue must not—

(a) be present when the committee considers whether to make a decision under subsection (2); or

(b) take part in the decision.

(4) The advisory committee must, not later than 7 days after the end of each financial year, give the chief surveyor a statement that sets out the details of all disclosures under this section made during the financial year.

(5) In this section:

relevant interest, in an issue, means a direct or indirect financial or other interest in the issue.

The chief surveyor is the chair of the advisory committee.

(1) Meetings of the advisory committee are to be held when and where it decides.

(2) However—

(a) the advisory committee must meet at least twice each year; and

(b) the chief surveyor may, by reasonable written notice given to the other advisory committee members, call a meeting.

(3) The advisory committee may conduct its proceedings (including its meetings) as it considers appropriate.

Business may be carried on at an advisory committee meeting only if at least 3 advisory committee members are present.

At a meeting of the advisory committee, a question is decided by a majority of the votes of the advisory committee members present and voting.

The advisory committee must keep minutes of its meetings.

(1) An advisory committee member is not personally liable for conduct engaged in honestly and not recklessly—

(a) in the exercise of a function under this Act; or

(b) in the reasonable belief that the conduct was in the exercise of a function under this Act.

(2) Any civil liability that would, apart from this section, attach to a person attaches instead to the Territory.

(3) In this section:

advisory committee member includes anyone acting under the direction or authority of the advisory committee.

(1) This section applies to an advisory committee member other than the chief surveyor.

(2) The Minister must end the appointment of an advisory committee member if—

(a) the Minister becomes aware that the member—

(i) has failed to comply with section 67 (Disclosure of interests by advisory committee members) without reasonable excuse; or

(ii) has at any time been convicted, in Australia, of an offence punishable by imprisonment for 1 year or longer; or

(iii) has at any time been convicted, outside Australia, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for 1 year or longer; or

(b) satisfied that the member is no longer qualified to be appointed to the member’s position.

(3) The Minister may end the appointment of an advisory committee member—

(a) if the member is absent from 3 consecutive meetings of the advisory committee other than on approved leave; or

(b) if the member contravenes a territory law; or

(c) for misbehaviour; or

(d) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member’s functions.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

Each of the following decisions of the chief surveyor is a reviewable decision:

(a) refusing to register a person under section 8;

(b) cancelling a registration under section 23;

(c) suspending a registration under section 29;

(d) reprimanding a surveyor under section 39 (4) (a);

(e) requiring a surveyor to complete a course of training under section 39 (4) (b);

(f) suspending a registration under section 39 (4) (c);

(g) cancelling a registration under section 39 (4) (d);

(h) cancelling a registration and disqualifying a surveyor from applying for registration under section 39 (4) (e);

(i) refusing to cancel a registration under section 41;

(j) cancelling a registration under section 42 (3);

(k) refusing to give an exemption under section 56;

(l) giving an exemption under section 56 that is subject to a condition.

Application may be made to the AAT for review of a reviewable decision.

(1) If the chief surveyor makes a reviewable decision, the chief surveyor must give written notice of the decision to each person affected by the decision.

(2) The notice must be in accordance with the requirements of the code of practice in force under the Administrative Appeals Tribunal Act 1989, section 25B (1).

(1) The chief surveyor may give a signed certificate—

(a) stating that on a stated date or during a stated period a named person was or was not registered; and

(b) if the person was registered—including details of the person’s registration.

(2) A certificate under this section is evidence of the matters stated in it.

(3) Unless the contrary is proved, a document that purports to be a certificate under this section is taken to be a certificate.

(1) In this section:

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.

divulge includes communicate.

person to whom this section applies means a person who—

(a) is or has been—

(i) a member of the advisory committee; or

(ii) anyone acting under the direction or authority of the advisory committee; or

(b) exercises, or has exercised, a function under this Act.

produce includes allow access to.

protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise, or purported exercise, of a function under this Act by the person or someone else.

(2) A person to whom this section applies commits an offence if—

(a) the person—

(i) makes a record of protected information about someone else; and

(ii) is reckless about whether the information is protected information about someone else; or

(b) the person—

(i) does something that divulges protected information about someone else; and

(ii) is reckless about whether—

(A) the information is protected information about someone else; and

(B) doing the thing would result in the information being divulged to someone else.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) Subsection (2) does not apply if the record is made, or the information is divulged—

(a) under this Act or another territory law; or

(b) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law; or

(c) in a court proceeding; or

(d) to a person administering or enforcing a corresponding law of a local jurisdiction.

Note Corresponding law—see the dictionary.

(4) Subsection (2) does not apply to the divulging of protected information about someone with the person’s consent.

(1) The Minister may determine fees for this Act.

Note The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

(2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) The chief surveyor may approve forms for this Act.

(2) If the chief surveyor approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see the Legislation Act, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

This Act amends the legislation mentioned in schedule 1.

In this part:

commencement day means the day this Act commences.

repealed Act means the Surveyors Act 2001.

(1) The Surveyors Act 2001 A2001-2 is repealed.

(2) The following legislative instruments are repealed:

(a) Surveyors (Fees) Determination 2006 (No 1) DI2006-160;

(b) Surveyors (Commissioner for Surveys) Appointment 2005 (No 1) DI2005-42.

(1) The survey practice directions are taken to be directions issued under this Act, section 55 (Chief surveyor practice directions).

(2) If the survey practice directions have not been repealed 1 year after commencement day, they are repealed 1 year after commencement day.

(3) In this section:

survey practice directions means the survey practice directions determined by the Minister in the Surveyors Practice Directions Determination 2003 (No 1) DI2003-118, as in force under the repealed Act immediately before commencement day.

(1) A person who was registered under the repealed Act immediately before commencement day is taken to be registered under this Act.

(2) The information about the person in the register under the repealed Act must be included in the surveyors register.

(3) The chief surveyor may ask the person for any information in relation to the person that is required to be included in the surveyors register that was not included in the register under the repealed Act.

(4) The person must give the chief surveyor the information requested.

Note A failure to comply with this section is a ground for disciplinary action.

(5) Information given to the chief surveyor under this section must be included in the surveyors register.

(6) To remove any doubt—

(a) this section applies whether or not the person had a registration certificate under the repealed Act; and

(b) the person need not be eligible to be registered under this Act to be registered under this section.

(1) This section applies if, immediately before commencement day, a person’s registration under the repealed Act was suspended.

(2) The person’s registration under this Act is taken to be suspended until the time the suspension would have ended if the repealed Act had not been repealed.

(1) This section applies if—

(a) the commissioner for surveys had started to take action in relation to a surveyor under—

(i) the repealed Act, section 25 (Voluntary cancellation of registration), section 27 (Inquiries about registered addresses) or section 28 (Surrender of certificate on cancellation or suspension of registration); or

(ii) the repealed Act, part 4 (Disciplinary provisions); and

(b) immediately before commencement day, the action had not finished.

(2) The action may be continued under this Act as if it had been started under this Act.

(3) If something required to be done under this Act for part 3 (Regulatory action) has not been done because it was not required to be done under the repealed Act—

(a) the failure to do the thing does not affect the action being taken; and

(b) the chief surveyor may take any action the chief surveyor considers necessary or desirable to facilitate dealing with the action under this Act.

(1) This section applies if—

(a) an inquiry had been begun under the repealed Act; and

(b) immediately before commencement day, the inquiry had been finished but no action had been taken in relation to the findings of the inquiry.

(2) The inquiry is taken to have been an inquiry under this Act.

In section 26:

this Act, in relation to a contravention, includes the repealed Act.

(1) The chief surveyor may give a signed certificate––

(a) stating that on a stated date or during a stated period a named person was or was not registered under the repealed Act; and

(b) if the person was registered—including details of the person’s registration under the repealed Act.

(2) A certificate under this section is evidence of the matters stated in it.

(3) Unless the contrary is proved, a document that purports to be a certificate under this section is taken to be a certificate.

(1) This section applies if––

(a) a redistribution committee is established under the Electoral Act 1992, section 39 with the commissioner for surveys as a member; and

(b) immediately before commencement day, the committee has not been dissolved under that Act.

(2) To remove any doubt, on and after commencement day, the chief surveyor is a member of the redistribution committee instead of the commissioner for surveys.

(3) In this section:

commissioner for surveys means the commissioner for surveys under the repealed Act, section 5.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) A regulation may modify this part (including in relation to legislation mentioned in schedule 1) to make provision in relation to anything that, in the Executive’s opinion, is not, or not adequately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything else in this Act or another territory law.

This part expires 1 year after commencement day.

(4) For subsection (3) (a), the chief surveyor may certify that land divided by the plan is correctly described only if––

(a) the boundaries of the land have been established by a registered surveyor––

(i) by survey; or

(ii) for land that the plan divides into districts or divisions or that the chief surveyor is satisfied is to be the subject of a holding lease––by reference to information in the digital cadastral database; and

(b) the plan and the information in the digital cadastral database are not inconsistent with each other.

(1) The planning and land authority must keep an electronic database of information about land in the ACT (the digital cadastral database).

commissioner for surveys

planning and land authority

commissioner for surveys

chief surveyor

• section 7 (3)

• section 18

• dictionary, note 2

(c) the chief surveyor; and

(5) The chief surveyor is not subject to direction from anyone (other than the electoral commissioner, for the efficient functioning of the redistribution committee) in the exercise of the chief surveyor’s functions as a member of the committee.

(3) The chief surveyor is not subject to direction from anyone (other than the electoral commissioner, for the efficient functioning of the augmented commission) in the exercise of the chief surveyor’s functions as a member of the augmented commission.

commissioner for surveys

chief surveyor

chief surveyor means the Chief Surveyor under the Surveyors Act 2007.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• AAT

• appoint

• business day

• exercise

• found guilty

• function

• public servant

• State

• territory law.

advisory committee means the survey practice advisory committee established under section 62.

advisory committee member—see section 64.

business address, for a surveyor, means an address of a place from which the surveyor carries on the practice of surveying.

chief surveyor means the Chief Surveyor appointed under section 59.

continuation notice, for division 3.1 (Continuing registration)––see section 19.

corresponding law means any law of a local jurisdiction that regulates surveyors in the jurisdiction.

disciplinary action means action the chief surveyor may take under section 39 (4).

disciplinary notice, for division 3.3 (Disciplinary action)—see section 27.

field procedures means field notes, records, measurements or calculations.

ground for disciplinary action—see section 26.

inquiry, for division 3.3 (Disciplinary action)––see section 25.

local jurisdiction means the Commonwealth, a State or New Zealand.

local registering authority means the entity responsible for regulating the surveying profession under a corresponding law.

practice direction means a direction issued under section 55.

registered means registered under this Act.

registered business address—see section 12 (Details to be entered in surveyors register).

registration certificate—see section 8 (Decision on registration application).

registration number––see section 8.

reviewable decision—see section 75.

survey means the survey of land for the purpose of—

(a) defining, redefining or marking the boundaries of land divided or to be divided under the Districts Act 2002; or

(b) deciding whether improvements are or are not within the boundaries of any land; or

(c) defining, redefining or marking the boundaries of a public place or public road within the meaning of the Roads and Public Places Act 1937; or

(d) defining, redefining or marking the boundaries of land in relation to which an interest has been, or is to be, created; or

(e) defining, redefining or marking the boundaries of land to be resumed under a law of the Territory or Commonwealth.

survey mark, for part 4 (The practice of surveying)––see section 44.

surveyor—

(a) for this Act generally—means a person registered under this Act; and

(b) for division 3.3 (Disciplinary action)––see section 25; and

(c) for part 4 (The practice of surveying)—see section 44.

surveyors register means the surveyors register mentioned in section 11.

Presentation speech made in the Legislative Assembly on 2007.

Notified under the Legislation Act on 2007.

For the latest republication of amended laws, see www.legislation.act.gov.au.