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Surveyors Amendment Bill 2014
CLAUSE NOTES
Clause 1 Short Title
This clause provides the short title to be used when citing the Act for any legal
purpose.
Clause 2 Commencement
This clause provides for commencement on the day on which the Act receives
Royal Assent.
Clause 3 Principal Act
This clause provides that the Surveyors Act 2002 is the Principal Act.
Clause 4 Section 3 amended (Interpretation)
This clause amends the definitions section of the Principal Act by:
Inserting the term `image' or `images' into the definition of `document'
This amendment ensures that, where the term `document' is referred to in the
Principal Act, it will also include `images'. Images such as aerial and ground-based
photographs often form cogent evidence in the investigation of survey issues.
Inserting the definition of `prescribed institute'
This definition identifies uniquely in the Act and Regulations the institute having the
responsibility for the training, examination and accreditation of persons seeking to
establish their competency to practice as a registered land surveyor in Tasmania.
Inserting the definition of `survey of land' to include surveys undertaken to remark
boundaries of land originally surveyed for a purpose authorised under any Act
While surveys remarking original boundaries have always been considered to be
surveys of land, required to be certified by a registered land surveyor to the
adopted standard, the definitions of `survey' and `land' in the Principal Act may not
in fact reflect this understanding. By inserting this definition this clause makes it clear
that such surveys are in fact surveys of land.
Inserting the definition of `Surveyor-General'
This definition clarifies that the Surveyor-General, as referred to in the Principal Act,
is the person appointed under the Survey Coordination Act 1944.
Clause 5 Section 4 amended (Functions and powers of the Surveyor-General)
This section describes the functions and powers of the Surveyor-General for the
purposes of the Act.
Currently section 4 refers only to the Surveyor-General's `functions' and section 5
refers only to the Surveyor-General's `powers'. These sections should refer to both
`functions and powers'. This clause inserts `powers' in section 4 to reflect this intent.
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Due to amendments made through clause 8, specified requirements must be met
to be eligible for ongoing registration as a land surveyor. Clause 5 inserts sub-
paragraph (ia) into section 4(b) to provide for the Surveyor-General to consult
widely on the relevant requirements.
The definition of `survey' in the Act ensures that it is restricted to purposes required
by an Act and that it will remain relevant as new measurement technologies come
on line. The definition of `land' is a shortened version of that used in the Land Titles
Act 1980, encompassing legal rights in land. These individual definitions are required
to clearly identify the scope of the provisions in the Principal Act, particularly as
surveys other than surveys of land are covered by the provisions of the Act.
However, defining `survey of land' in this way has led to the statutory inclusion of
(particularly office-based) activities defining the extent of legal entitlements over
land that in practice are often not, and do not need to be undertaken by a
registered land surveyor. Consequently, this clause inserts paragraph (d) into section
4 enabling the Surveyor-General, through directions that are the result of
consultation with relevant stakeholders, to identify and exclude such surveys from
the provisions of the Act.
Subsection 7(2) (as provided in clause 8) provides for both initial land surveyor
registration eligibility criteria and also criteria to demonstrate ongoing competency.
Clause 5 inserts paragraph (e) into section 4 to enable the Surveyor-General, in
consultation with the survey profession, to set directions for ongoing competency
requirements.
Clause 6 Section 5 amended (Delegation by Surveyor-General)
This section provides for the Surveyor-General to delegate statutory functions and
powers.
As noted above, section 4 refers only to the Surveyor-General's `functions' and
section 5 refers only to the Surveyor-General's `powers', but these sections should
both refer to both `functions and powers'. This clause inserts `functions' in section 5
to reflect this.
Clause 7 Section 5A inserted
5A. Deputy Surveyor-General
This section provides for the appointment of a Deputy Surveyor-General.
Section 5 provides for the delegation of any or all of the Surveyor-General's powers
under the Act. In practice this is done for a particular subset of those powers. This
does not allow for the circumstance where the Surveyor-General is unavailable due
to leave or absence from the State, planned or otherwise, and there is need to
exercise other of the Surveyor-General's functions or powers in that period of
absence. Nor does it allow for the exercise of any functions or powers during a
period of vacancy due to resignation of the incumbent or unforeseen circumstances.
This clause provides for the appointment of a Deputy Surveyor-General to be
available to perform the functions and duties or exercise the powers of the
Surveyor-General in his or her absence.
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Clause 8 Sections 7 and 8 substituted
Sections 7 and 8 establish a register of surveyors and define the eligibility criteria for
persons wishing to be registered as surveyors. This clause retains and reorganises
the contents of these sections and provides for the additional matters outlined
below.
7. Application and eligibility for registration as a surveyor
Historically surveyor registration fees have been levied by the Surveyor-General
through an administrative arrangement. The funds are predominantly applied to
land surveyor candidate accreditation. This is undertaken by the Institute of
Surveyors Tasmania (IST) under the provisions of the Surveyors Regulations 2003.
This clause provides for the levy of a registration fee through the insertion of
subsection (1).
Subsection (2) maintains the initial registration requirements of the Act in paragraph
(a). Because accreditation as a land surveyor is currently for life, annual renewal of
registration does not require any evidence of ongoing competency. Given ongoing
change in technology, legislation and standards, and making of case law, the
competencies required at initial accreditation are very likely to differ from those
currently required.
The inclusion of subsection (2)(b) provides for the demonstration of ongoing
competency through continuing professional development or involvement with
cadastral survey practice as an eligibility requirement for renewal of registration.
Because one or both of these provisions have been adopted by most Australian
jurisdictions and New Zealand, this will also assist in the maintenance of `mutual
recognition' of Tasmanian land surveyors with other States, Territories and New
Zealand.
Section 7 retains the provision in the Act of voluntary registration of surveyors
(other than land surveyors) with specialist competency accreditation which is
recognised by a relevant institution as satisfying national competency standards for
professional surveyors, but through this clause, voluntary registration on the basis of
membership of a relevant institution has been removed.
This is because the breadth of membership of relevant institutions is now such that
membership is possible without specific competency accreditation in surveying. No
other jurisdiction in Australia or New Zealand registers surveyors without specific
competency accreditation in surveying.
8. Registration by the Surveyor-General
This section maintains existing provisions of the Act.
8A. Re-accreditation by prescribed institute
Clause 8 inserts this provision to provide an avenue for the re-accreditation of land
surveyors who are ineligible for renewal of registration due to not being able to
satisfy the ongoing competency requirements of section 7(2)(b). It is expected this
will mostly apply to surveyors who have let their registration lapse for a significant
period of time. For currently registered surveyors the provisions of section 12(c) (as
inserted by clause 13) will provide a three month grace period for re-accreditation
to be achieved before registration is cancelled.
8B. Register of Surveyors
This section is a re-numbering of section 7 of the current Act.
8C. Disbursement of fees for registration as a land surveyor
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Accreditation of land surveyors is undertaken by the Institute of Surveyors Tasmania
(IST) under the provisions of the Surveyors Regulations 2003. Eligibility for
registration as a land surveyor is, for most surveyors, provided by this accreditation.
Currently surveyor registration fees have been levied by the Surveyor-General
through an administrative arrangement and provided to IST on application.
This clause, through the insertion of section 8C, provides for the disbursement of
land surveyor registration fees to IST for accreditation purposes prescribed in the
Regulations. This involves candidate training in professional ethics, business conduct
and boundary reinstatement, examination and accreditation of candidates, and
participation in the activities of the Council of Reciprocating Boards of Australia and
New Zealand (CRSBANZ), providing the basis for mutual recognition of registered
land surveyors across Australia and New Zealand.
Clause 9 Section 9 amended (Particulars to be entered in the register)
Section 9 determines the particulars to be entered into the register for each
registered surveyor.
Because email now forms a very significant component of communication with
registered surveyors, this clause inserts subsection (1)(ba) requiring inclusion in the
register of an email address (where one is available) for each surveyor.
Clause 8 requires that all registered surveyors must now have a specialist
competency, which is critical information for the public to access specific survey
services. This clause inserts subsection (1)(f), requiring this information to be
included in the register rather than at the discretion of the registered surveyor.
Voluntary disclosure of membership of professional institutions remains unchanged
as subsection (2), but this clause removes voluntary disclosure of performance
indicators due to changes to section 25 introduced in clause 21.
The Act contains no provision for the removal from the register of a notification
placed under subsections 1(f) or (5), which may unfairly impact a surveyor in the
long term. This clause replaces these subsections with subsection (3) to limit
notations to particulars of suspension or cancellation of registration, and with
removal of the notation after three years.
This clause inserts subsection (4), which requires surveyors to keep their particulars
on the register up to date. This avoids out of date information appearing on the
register and ensures that official correspondence will reach the surveyor.
Clause 10 Section 10 amended (Renewal of registration)
The changes to the wording of this section update the terminology only, using `31
December' together with `for the following year' in place of `the first day of January'.
Clause 11 Section 10A inserted
10A. Refusal of renewal of registration
This section is inserted to provide for the Surveyor-General to refuse renewal of
registration where a surveyor has failed to comply with certain requirements of the
Act. For renewal of registration to be granted the surveyor must first comply with
those requirements.
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Section 24 of the Act provides for the Surveyor-General to request surveyors to
correct errors in their surveys, and if not corrected within three months, to have
the correction made and recoup the cost of correction from the surveyor. Clause
19 inserts similar requirements into section 24 for surveyors to notify affected
parties of corrections made to boundaries. In addition, under section 34(5), the
Director of Consumer Affairs may recoup the outstanding reasonable costs of an
investigation.
However, recoupment of costs often requires an application to the Courts,
involving more unrecoverable cost than the value of the survey costs being
recouped. This clause inserts subsection (1)(a),(b),(c)&(d), providing that surveyors
may be ineligible for renewal of registration until any outstanding defective surveys
certified by them have been corrected and/or costs paid. The provisions of section
12(c) (as inserted by clause 13) provides for a three month delay on cancellation of
registration within which correction or payment may be undertaken.
Section 22 provides for the Surveyor-General to undertake audits on the surveys of
registered surveyors. While the audit program shows that a good standard is
maintained by most surveyors, there are instances of land surveyors with long
records of consistently poor survey practice being disclosed in audits. Section
25(4)&(5)(as inserted by clause 21) provides for surveyors whose last three audits
do not comply with the relevant statutory requirements to require re-accreditation
in order to be re-registered in the following year. This clause inserts subsection
(1)(e) to provide that, where a surveyor fails to take advantage of the year's grace
provided to gain re-accreditation, the Surveyor-General may refuse to renew his or
her registration at the end of that year.
Subsection (2) is inserted by this clause to ensure that, once a surveyor has
corrected the deficiencies identified in subsection (1), he or she is eligible for
renewal of registration.
Clause 12 Section 11 amended (False or misleading statements)
Section 11 provides that a person must not falsify an application through inclusion
or omission of relevant material. However, the only outcome of such action is
removal from the register. There is no impediment to immediately re-applying.
Other States provide financial penalties for such activity.
This clause inserts a penalty for circumstances where an application is falsified. The
quantum of the penalty is in accordance with Department of Justice
recommendations.
Clause 13 Section 12 amended (Cancellation or suspension of registration)
Section 12 deals with the circumstances in which the Surveyor-General is required
to remove a surveyor's name from the register.
This clause replaces paragraph (c) in order to give surveyors a three month `grace'
period from 31st December before their registration is cancelled. The purpose of
this is to facilitate re-accreditation, correction of surveys or payment of costs where
this has resulted in failure to gain renewal of registration as provided for in section
10A (as inserted by clause 11).
The State has the benefit of mutual recognition of registered land surveyors with
other Australian jurisdictions and New Zealand. This means that a surveyor can
register in a number of States, and could minimise the impact of disciplinary action
in one State by moving to another. As provided for in some jurisdictions, this clause
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inserts paragraph (da) into section 12 to provide that a land surveyor whose
registration, licence or practicing certificate has been suspended or cancelled as a
result of disciplinary action in any other State, Territory or New Zealand should not
be registered to practice in Tasmania.
Clause 14 Section 15 amended (Directions for practice of surveying, professional development
& c.)
This section deals with the development and management of directions by the
Surveyor-General, which direct the activities of surveyors. This clause inserts two
new matters to be covered by directions.
Directions are currently issued by the Surveyor-General to provide technical
standards for undertaking surveys of land. In order to put directions into place the
Surveyor-General must invite submissions and consult with all stakeholders affected
by the directions. In the case of survey matters this extends to the survey
profession, all institutions that in Tasmania represent surveyors, the Head of Agency
responsible to the Minister administering the Act for which the survey is required,
and any other entities that it appears might have a relevant interest.
Agreement must be reached with the relevant institutions and registering
authorities. The Minister arbitrates any disagreements that cannot be resolved.
This clause inserts subsection (1A) to provide for the Surveyor-General to issue
directions as to the types of surveys that may be exempt from the requirements of
the Act. This is as a consequence of section 4(d) inserted by clause 5.
This clause inserts subsection (1B) to provide for the Surveyor-General to issue
directions as to the minimum level of land survey-related activity or professional
development required for the registration of land surveyors. This is as a
consequence of section 4(e) (inserted by clause 5) and forms eligibility criteria for
registration as a land surveyor in accordance with section 7(2)(b)(i) (inserted by
clause 8).
Because of the comprehensive negotiation process required there have been
occasions when minor amendments to directions have been held up until issues of
sufficient gravity requiring resolution justified the time required for those
negotiations. As a consequence, this clause inserts subsection 9, providing that the
Surveyor-General may make amendments of a minor or clerical nature with
reference only to those entities affected.
Clause 15 Section 19 amended (Appellations to be used)
This section prescribes the appellations that may be used only by registered
surveyors.
The changes to this section are to bring the references to other sections of the Act
into line with other amendments made in this Bill. .
In addition, this clause amends subsection (3) in order to negate the existing
confusion that can be brought about by the use of the appellation `Registered
Surveyor', without any specialisation shown. Because the general registration
category will be removed from the Act by clause 8, the requirement to include the
specialisation in the appellation, such as `Registered Land Surveyor', will avoid such
confusion.
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Clause 16 Section 20 amended (Savings for non-registered surveyors)
The change to this section is to improve the phraseology by replacing `a registered
surveyor' with `registered as a surveyor'.
Clause 17 Section 23 amended (Survey Investigation)
Section 23 of the Act requires the Surveyor-General to investigate where registered
surveyors or a registering authority are unable to agree as to the adequacy, accuracy
or compliance of a survey.
The current provisions can only be said to explicitly apply to surveyors registered at
the time of the disagreement, although in practice it is taken to cover the situation
of a disagreement with a survey where the certifying surveyor is no longer
registered. In addition, problems with surveys identified by other means such as
reports from the public or mapping organisations indicating potential problems with
surveys should be addressed.
It is desirable that the Surveyor-General be explicitly authorised to initiate
investigations of surveys on the basis of any information received. This includes
situations where the identity of the relevant surveyor(s) may not be immediately
evident. This clause inserts subsection (2A) for this purpose.
Clause 18 Section 23A inserted
23A. Surveyor-General may require information
This section is inserted to better equip the Surveyor-General to investigate surveys.
Currently it is difficult to investigate in certain circumstances where there is physical
evidence of surveys being undertaken but no documentary evidence to
demonstrate the origin or reliability of the survey marks found. This clause provides
the Surveyor-General with explicit powers to require a person who is in a position
to provide information relevant to an investigation to answer any question put to
him or her, or provide any record in a readily readable format or anything relevant
to the matter.
Clause 19 Section 24 amended (Correction of survey errors)
This section provides for the Surveyor-General to require correction of errors in
surveys, and recoup the costs of correction should the Surveyor-General be
required to do so if the responsible surveyor fails to make the corrections
requested.
Correction of `registered' plans supporting title is undertaken under the provisions
of the Land Titles Act 1980. While the Surveyor-General may request correction of
surveyed boundaries under section 24 of the Act, this does not necessarily lead to
correction of the affected title(s) under the Land Titles Act 1980.
This clause inserts subsection (3) to require the land surveyor responsible for the
error, within three months of the survey correction being made, to advise all parties
with an interest in the land of the consequences of boundary corrections and the
process required to correct the `registered' plan supporting title. Subsection (4)
provides for the recoupment of the Surveyor-General's costs of undertaking this
work should the responsible surveyor fail to do so.
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Clause 20 Section 24A inserted
24A. Notification of errors and anomalies that cannot be readily corrected
This section is inserted to ensure that surveyors are aware of areas in which surveys
exist that contain errors and anomalies that cannot be readily corrected.
This clause provides for a legislated mechanism for such areas to be notified to all
registered land surveyors, and for those surveyors to be required to consider the
information shown in any relevant investigation survey in their following surveys.
Clause 21 Section 25 amended (Survey performance)
Section 25 provides for the Surveyor-General to collect and maintain survey audit,
investigation and examination information that may be accumulated into a single
quality indicator that a registered land surveyor could voluntarily have displayed on
the register to assist both Government and the community to make judgements
about their choice of a surveyor to carry out survey work.
However, the surveying profession has not shown significant interest in using
performance indicators for competitive advantage nor has there been community
demand for that information. As a consequence, this clause deletes the requirement
for the maintenance and dissemination of derived performance indicators from
section 25. Individual records for examination, audit and investigations will continue
to be maintained and outcomes provided to surveyors as required. If necessary, the
overall performance of any surveyor can be assessed by reviewing the records for
examination, audit and investigation.
Section 22 provides for the Surveyor-General to undertake audits on the surveys of
registered surveyors, currently only land surveyors. There is no consideration of
recent survey performance in the renewal of registration process. While the audit
program shows that a good standard is maintained by most surveyors, there are
instances of land surveyors with long records of consistently poor survey practice
being disclosed in audits. These surveyors have often continued with non-
conforming survey practices despite these practices being exposed and advised
through the survey audit process, but without consequences for their prospect of
renewal of registration.
This clause inserts section 25 (4)&(5) to act as a circuit breaker to provide the
surveyor with the opportunity to regain the required level of competency and
performance through re-accreditation before resort to refusal of renewal of
registration.
Clause 22 Section 26 amended (Certification and adequacy of surveys)
This addition is to correct a minor omission from the existing Act.
Clause 23 Section 27 amended (Power of entry on land)
This section authorises surveyors to enter on land other than the land under survey
following reasonable notice, to undertake certain actions required to facilitate the
survey. Surveys of land could not be conducted without this provision.
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Surveying often requires a surveyor to search for buried physical evidence of
boundaries and previous surveys. Despite being included in previous legislation, the
power for a surveyor to break up the surface of land in order to search for physical
evidence of boundaries and previous surveys was inadvertently omitted from the
original drafting of the Act.
This provision rectifies that omission by inserting subsection (1)(da). Section 28 will
continue to provide for the surveyor to repair any damage caused.
Part 5 of the Act provides for the Director of Consumer Affairs to undertake disciplinary action
in relation to the practice of registered surveyors. The Director may receive
complaints for failure to comply with directions and complaints about the conduct
of surveyors relating to this legislation. Experience has shown that where such a
complaint is made the provisions are not sufficiently clear to enable effective
disciplinary action. The following clauses provide for a more effective management
of that process.
Clause 24 Section 31A inserted
31A. Temporary prohibition from practice
This section is inserted to better manage circumstances of highly detrimental activity
by a surveyor.
Evidence may be provided to the Director that a registered surveyor's ongoing
actions are so detrimental to the community as to justify immediate prohibition
from practice, or the surveyor may have contravened an order of the Director
imposing discipline short of actual prohibition. This clause, which is common to
similar legislation in which the Director has disciplinary responsibilities, is inserted to
provide the Director with the power to apply an immediate prohibition on that
surveyor from practising as a registered surveyor pending investigation and
consideration of further appropriate disciplinary action.
Clause 25 Section 32 substituted
32. Grounds for disciplinary action
This section defines the grounds against which the Director must assess the need,
or otherwise, for disciplinary action.
Survey legislation in other jurisdictions tends to provide more specific criteria as a
basis for disciplinary action than currently contained in section 32.
On the recommendation of the Director this clause inserts additional, more specific
criteria and will improve the effectiveness of the disciplinary processes of the Act.
Clause 26 Section 34 amended (Disciplinary action)
This section provides disciplinary actions available to the Director.
Information of disciplinary activity in other jurisdictions shows that it is desirable that
the Act provide for a graduated process of education and training, and graduated
discipline where appropriate, in order that there be opportunity for improvement in
a surveyor's practice prior to the Director having to resort to prohibition from
practice. Alternatively, activity to restore competence may be required in
conjunction with a period of prohibition from practice.
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This clause inserts additional provisions into section 34 to enable the Director to
take a graduated approach to discipline, involving education, quality assurance of a
surveyor's work, and re-accreditation.
Clause 27 Section 40 amended (Survey examination)
Subsection (2) has been deleted as it duplicates section 25.
Clause 28 Section 41 amended (Destruction of, damage to, &c., survey marks)
This section deals with the protection of survey marks.
The intention is to re-locate the requirements for survey marks currently
documented in the Regulations to the Directions. This is an appropriate move given
the technical nature of this provision.
This clause recognises this re-location.
Clause 29 Section 43 amended (Protection from liability)
This section provides protection from liability to the Surveyor-General and persons
acting under the Surveyor-General's direction or authority from civil liability when
acting in good faith for the purposes of the Act.
With the position of Deputy Surveyor-General to be created by clause 7, this clause
specifically extends the protection from liability accorded the Surveyor-General to
the Deputy Surveyor-General.
Clause 30 Section 46 amended (Regulations)
Section 46 provides for the making of regulations.
This clause replaces the general term `relevant institution' found in subsections 2, 3
and 4 with the specific term `prescribed institute'.
This clause also inserts subsection 2(g), providing for fees and charges to be
specified in the Regulations.
Clause 31 Repeal of Act
This clause provides that this Act is repealed on the ninetieth day from the day on
which it commences.
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