Survey Act 1992 (SA)

South Australia Survey Act 1992 An Act to provide for the licensing and registration of surveyors and to make provisions relating to surveying and land boundaries; and for other purposes. Contents Part 1—Preliminary 1 Short title 4 Interpretation Part 2—Administration Division 1—Surveyor‑General 5 Surveyor‑General 6 Delegation 7 Surveyor‑General's right to enter etc Division 3—Institution of Surveyors 10 Functions of Institution of Surveyors under Act 11 Administrative arrangements 12 Fees and levies 13 Annual report 13A Delegations Part 3—Licensing and registration Division 1—The practice of surveying 14 Obligation to be licensed to place survey mark 15 Obligation to be licensed to carry out cadastral survey for fee or reward 16 Illegal holding out as being licensed 17 Illegal holding out as being registered 18 Limitation on use of certain expressions 19 Indemnity against loss 20 Disqualification for breach of this Division Division 2—Licences and registrations 21 Applications 22 Grant of licence or registration 23 Conditional licence 24 Duration and renewal 25 Licences or certificates 26 Continuing education 27 Breach of conditions Division 3—Special provisions relating to surveying services providers 28 Improper directions etc to surveyor by surveying services provider Division 4—Discipline 34 Proper cause for disciplinary action 35 Complaints 36 Investigations by Institution of Surveyors 37 Consequence of investigation by Institution of Surveyors 38 Disciplinary powers of Tribunal 38A Participation of assessors in disciplinary proceedings 39 Return of licence or certificate of registration 40 Restrictions on disqualified persons 41 Consequences of action against surveyor in other jurisdictions Division 5—Reviews by Tribunal 42 Reviews by Tribunal Part 4—Surveying Division 1—Survey instructions 43 Survey instructions Division 2—Rectification of surveys 44 Investigations by Surveyor‑General 45 Rectification Division 3—Miscellaneous 46 Right to enter etc 47 Certification of plans 48 Liability of surveyor for acts or omissions of employees Part 5—Establishment of land boundaries Division 1—Coordinated cadastre 49 Coordinated cadastre Division 2—Confused land boundaries 50 Confused Boundary Areas 51 Surveys within Confused Boundary Area Part 6—Miscellaneous 52 Interference with survey marks 53 Offence to hinder or obstruct 54 False or misleading information 55 Confidentiality 55A Victimisation 56 General defence 57 Punishment of conduct that constitutes offence 58 Levy on lodgment of plans 59 Approvals 59A Parties to proceedings before Tribunal 60 Evidentiary provision 61 Summary offences 62 Service of notices 63 Regulations Legislative history Appendix—Divisional penalties and expiation fees The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Survey Act 1992. 4—Interpretation (1) In this Act, unless the contrary intention appears— beneficiary includes an object of a discretionary trust; cadastral survey means any process of determining the boundaries of land by the measurement of distances and angles (including measurement by means of an electronic device) or by photogrammetry; course includes a lecture, seminar, tutorial or workshop; designated survey area—see Part 5 Division 1; director of a body corporate means a member of the board or committee of management of the body corporate, whether validly appointed or not; equipment includes instruments or appliances used in, or for the purposes of, carrying out a survey; Institution of Surveyors means the Institution of Surveyors, Australia, South Australia Division Incorporated; interfere with a survey mark includes disturb, damage, remove or destroy the survey mark; land includes— (a) submerged land; (b) an interest in land; licensed surveyor means a person who holds a licence as a surveyor under Part 3 Division 2; permanent survey mark means a mark or peg included in the network of survey marks established under Part 5 Division 1; provide, in relation to surveying services, means provide surveying services personally or through the instrumentality of another, and includes offer to provide; record means— (a) a documentary record; or (b) a record made by an electronic, electro-magnetic, photographic or optical process; or (c) any other kind of record; registered surveyor means a person registered as a surveyor under Part 3 Division 2; Registrar means the person for the time being appointed to, or acting in, the position of Registrar established by the Institution of Surveyors pursuant to Part 2 Division 3; survey means— (a) a cadastral survey; or (b) any process of determining— (i) the form of land; or (ii) the position of a point, object, structure or feature on or in land, by the measurement of distances and angles (including measurement by means of an electronic device) or by photogrammetry; surveying services provider means a person (not being a surveyor) who provides surveying services through the instrumentality of a surveyor; survey instructions—see Part 4 Division 1; survey mark means— (a) a mark or peg of a kind specified in survey instructions in force under this Act that is placed on or in land for the purposes of defining a boundary of the land; or (b) a permanent survey mark; surveyor means a licensed or registered surveyor; Surveyor‑General means the person for the time being appointed or acting as the Surveyor‑General; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; trust—a trust is considered for the purposes of this Act as a single entity consisting of the trustees and the beneficiaries; trust or corporate entity means a trust or a body corporate. (2) A person who holds a licence under this Act will be taken to be registered under this Act. (3) A reference in an instrument (whether of a statutory nature or not)— (a) to a licensed surveyor is to be taken to be a reference to a licensed surveyor within the meaning of this Act; (b) to a registered surveyor is to be taken to be a reference to a licensed or registered surveyor within the meaning of this Act. (4) For the purposes of this Act, a surveyor whose licence or registration is under suspension will be taken not to hold a licence or not to be registered (as the case may require). (5) Without limiting the generality of the expression, a person who is not a surveyor will, unless exempted by the regulations, be taken to provide surveying services through the instrumentality of a surveyor if the person, in the course of carrying on a business, provides services to the surveyor for which the person is entitled to receive a share in the profits or income of the surveyor's practice. (6) For the purposes of this Act, a person occupies a position of authority in a trust or corporate entity if the person— (a) in the case of a body corporate— (i) is a director of the body corporate; or (ii) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or (iii) manages, or is to manage, the business of the body corporate that consists of the provision of surveying services; or (iv) where the body corporate is a proprietary company—is a shareholder in the body corporate; or (b) in the case of a trust—is a trustee or beneficiary of the trust. (7) However— (a) a minor who is a shareholder in a proprietary company, or a beneficiary under a trust, is not, for that reason, to be regarded as a person occupying a position of authority; and (b) a charitable organisation that is a beneficiary of a trust is not, for that reason, to be regarded as occupying a position of authority in the trust. (8) For the purposes of this Act, a person who holds more than 10 per cent of the issued share capital of a public company will be regarded as a person occupying a position of authority in that company. Note— For definition of divisional penalties (and expiation fees) see Appendix. Part 2—Administration Division 1—Surveyor‑General 5—Surveyor‑General (1) There will be a Surveyor‑General. (2) The Surveyor‑General must be a person who is eligible to be licensed or registered under this Act. 6—Delegation (1) The Surveyor‑General may delegate to any person any of the Surveyor‑General's functions or powers under this or any other Act. (2) A delegation under this section— (a) may be made subject to such conditions as the Surveyor‑General thinks fit; and (b) is revocable at will; and (c) does not derogate from the power of the Surveyor‑General to act in any matter. 7—Surveyor‑General's right to enter etc The Surveyor‑General, or a person authorised in writing by the Surveyor‑General, may— (a) at any reasonable time, enter any land for the purposes of performing the functions assigned to the Surveyor‑General under this Act; and (b) take such action as is necessary to enable those functions to be carried out effectively (including excavating or breaking the surface of land to the extent necessary to uncover or place a survey mark). Division 3—Institution of Surveyors 10—Functions of Institution of Surveyors under Act (1) The Institution of Surveyors is responsible for— (a) monitoring the operation of this Act and the law relating to surveying; and (b) exercising a general oversight over surveying, and the keeping of survey records, in this State; and (c) monitoring the operation of survey instructions in force under this Act; and (d) exercising a general oversight over the professional practice of surveyors; and (e) monitoring the standards of courses of instruction and training available to— (i) those seeking licensing or registration as surveyors; and (ii) surveyors seeking to maintain or improve their skills in surveying practice; and (f) consulting with educational authorities in relation to the establishment, maintenance or improvement of courses referred to in paragraph (e); and (g) making recommendations to the Minister with respect to the matters referred to in the preceding paragraphs; and (h) providing financial and other assistance for the conduct by a university of, or participation of a student in, a course of instruction and training that provides qualifications for licensing or registration as a surveyor, and otherwise promoting surveying as a career, as agreed with the Minister; and (i) carrying out such other functions as are assigned to it by this Act. (2) The Institution of Surveyors must carry out its functions under this Act with a view to promoting and maintaining high standards of competence and conduct in surveying practice. 11—Administrative arrangements The Institution of Surveyors must, after consulting with the Minister— (a) establish the position of Registrar and ensure that a person is appointed to, or acting in, that position at all times; and (b) establish and maintain a register of surveyors and ensure— (i) that the register is accurate; and (ii) that the register is available for inspection by or on behalf of the Surveyor‑General without charge and by any other person on payment of the fee fixed by the Institution of Surveyors with the approval of the Minister; and (c) make administrative arrangements for receiving, considering and investigating complaints against surveyors; and (d) establish and maintain a system for collecting the levies payable under this Act on lodgment of survey plans; and (e) establish and maintain such other administrative arrangements as are necessary for the performance of the functions assigned to it by this Act. 12—Fees and levies (1) The Institution of Surveyors— (a) must keep separate accounts of fees and levies received under this Act; and (b) must prepare a statement of those accounts in respect of each financial year and have the statement audited by a registered company auditor. (2) Fees and levies received by the Institution of Surveyors under this Act may only be used in carrying out the functions assigned to the Institution by this Act. 13—Annual report (1) The Institution of Surveyors must, on or before 30 September in each year, deliver to the Minister a report on the performance of its functions under this Act during the financial year that ended on the preceding 30 June. (2) The report must include, in respect of the financial year to which it relates— (a) statistics relating to licences, registrations and renewals granted under this Act, complaints against surveyors received under this Act and investigations carried out under this Act; and (b) the audited statement of accounts of fees and levies. (3) The Minister must, within 12 sitting days after receipt of the report, cause a copy of the report to be laid before each House of Parliament. 13A—Delegations (1) The Institution of Surveyors may, by instrument in writing, delegate any of its functions or powers under this Act other than this power of delegation. (2) A delegation— (a) may be made— (i) to a member of the Institution of Surveyors; or (ii) to a committee established by the Institution of Surveyors; and (b) may be made subject to conditions and limitations specified in the instrument of delegation; and (c) is revocable at will and does not derogate from the power of the Institution of Surveyors to act in a matter. Part 3—Licensing and registration Division 1—The practice of surveying 14—Obligation to be licensed to place survey mark A person must not personally place a survey mark on or in land unless— (a) he or she is a licensed surveyor; or (b) he or she is acting under the supervision of a licensed surveyor; or (c) the survey mark is placed in the course of a survey carried out as part of a course of training approved by the Institution of Surveyors. Penalty: Division 5 fine. 15—Obligation to be licensed to carry out cadastral survey for fee or reward A person must not carry out a cadastral survey for fee or reward unless— (a) he or she is a licensed surveyor; or (b) he or she is acting under the supervision of a licensed surveyor; or (ba) the survey is carried out through the instrumentality of a licensed surveyor or a person acting under the supervision of a licensed surveyor; or (c) the survey is carried out as part of a course of training approved by the Institution of Surveyors. Penalty: Division 5 fine. 16—Illegal holding out as being licensed (1) A person who is not a licensed surveyor must not— (a) hold himself or herself out as holding a licence under this Act; or (b) permit another person to do so. Penalty: Division 5 fine. (2) A person must not hold out another as being licensed under this Act unless the other person is a licensed surveyor. Penalty: Division 5 fine. 17—Illegal holding out as being registered (1) A person who is not a registered surveyor must not hold himself or herself out as being registered under this Act or permit another person to do so. Penalty: Division 5 fine. (2) A person must not hold out another as being registered under this Act unless the other person is a registered surveyor. Penalty: Division 5 fine. 18—Limitation on use of certain expressions (1) A person who is not a licensed surveyor must not use the expression "licensed surveyor" or any of its derivatives, or any expression reserved in the regulations for use by licensed surveyors, to describe himself or herself. Penalty: Division 5 fine. (2) A person who is not a registered surveyor must not use the expression "registered surveyor" or any of its derivatives, or any expression reserved in the regulations for use by registered surveyors, to describe himself or herself. Penalty: Division 5 fine. (3) A person must not, in the course of advertising or promoting a service that the person provides, use an expression reserved in this section or the regulations for use by licensed or registered surveyors, or any derivative of such an expression, to describe a person who is engaged in the provision of the service but who is not licensed or registered under this Act (as the case may require). Penalty: Division 5 fine. (4) The regulations may exempt (conditionally or unconditionally) persons of a specified class from the provisions, or any specified provisions, of this section. 19—Indemnity against loss (1) A surveyor must not practise surveying unless— (a) an agreement is in force between the surveyor and a person approved by the Institution of Surveyors; and (b) the Institution of Surveyors is satisfied that, by virtue of that agreement, the surveyor will be compensated to the extent required by the Institution of Surveyors in the event that he or she suffers loss by reason of civil liability incurred in the practice of surveying. Penalty: Division 5 fine. (2) The Institution of Surveyors may, on such conditions as it thinks fit, exempt a person or a class of persons from the requirements of this section and may, whenever it thinks fit, revoke an exemption or vary the conditions under which an exemption operates. 20—Disqualification for breach of this Division A court finding a person guilty of an offence against this Division may, in addition to imposing a fine, order that the person be disqualified from being licensed or registered under this Act permanently, for a specified period, until fulfilment of stipulated conditions or until further order. Division 2—Licences and registrations 21—Applications (1) An application for a licence or registration, or for renewal of a licence or registration, under this Act— (a) must be made to the Institution of Surveyors; and (b) must, in the case of an application for renewal, be delivered to the Registrar not earlier than 3 months and not later than 1 month preceding the end of the period of the current licence or registration; and (c) must conform to the requirements of the Institution of Surveyors as to its form, contents and the manner in which it is made; and (d) must be accompanied by the fee fixed by the Institution of Surveyors with the approval of the Minister. (2) An applicant must furnish the Institution of Surveyors with such information or records as it reasonably requires. (3) The Institution of Surveyors may, if it thinks fit, determine an application for renewal of a licence or registration despite the fact that it is delivered out of time or that the period of the licence or registration has expired. 22—Grant of licence or registration (1) Where a natural person applies for a licence or registration under this Act, the Institution of Surveyors must grant the application if satisfied that the applicant— (a) is a fit and proper person to be licensed or registered under this Act (as the case may require); and (b) has the qualifications required by the regulations or has qualifications, or qualifications together with experience, accredited as being equivalent to those qualifications by a body or authority specified in the regulations; and (c) has the experience required by the regulations; and (d) fulfils all other requirements set out in the regulations. (3) The Institution of Surveyors may, with the approval of the Minister, grant an application for a licence or registration under this Act to an applicant who does not comply with any one or more of the requirements of this section if satisfied that the lack of compliance would not adversely affect the ability of the applicant to practise surveying. 23—Conditional licence (1) The Institution of Surveyors may grant an application for a licence under this Act to an applicant who does not comply with any one or more of the requirements for eligibility for a licence in order to enable the person to do whatever is necessary to become eligible for a full licence. (2) The Institution of Surveyors may impose conditions on a licence granted under this section, including conditions— (a) restricting the places and times at which the applicant may practise cadastral surveying; (b) limiting the areas of cadastral surveying in which the applicant may practise; (c) requiring cadastral surveys undertaken by the applicant to be submitted for consideration by the Institution of Surveyors; (d) limiting the period during which the licence remains in force. 24—Duration and renewal (1) Subject to this Act, a licence or registration (not being a licence for a limited period) remains in force until 30 June following the grant of the licence or registration and may be renewed for successive periods of one year expiring on 30 June. (2) Subject to this Act, where application is made in accordance with this Act for renewal of a licence or registration, the Institution of Surveyors must renew the licence or registration. 25—Licences or certificates (1) The Registrar must, on the licensing or registration of a surveyor or the renewal of the licence or registration of a surveyor, issue a licence or certificate of registration (as the case may require) to the surveyor. (2) The Registrar may, on request by a surveyor and payment of the fee fixed by the Institution of Surveyors with the approval of the Minister, issue a duplicate licence or certificate of registration. 26—Continuing education (1) The Institution of Surveyors may require surveyors to attend specified courses, to gain specified experience, or to take other specified action, within a specified period for the purpose of encouraging surveyors to maintain or improve their skills in surveying practice. (2) If the Institution of Surveyors is not satisfied that an applicant for renewal of a licence or registration has complied with requirements specified under subsection (1), the Institution of Surveyors may— (a) renew the licence or registration subject to specified conditions; or (b) refuse to renew the licence or registration until specified conditions are fulfilled; or (c) refuse to renew the licence or registration. (3) The Institution of Surveyors may, on application by a surveyor, vary or revoke a condition imposed under this section. (4) If the Institution of Surveyors refuses to renew a licence or registration until specified conditions are fulfilled, the licence or registration is, on the fulfilment of those conditions, renewed for the period expiring on the following 30 June. (5) The Institution of Surveyors may charge such fees as are approved by the Minister in relation to the provision of courses or other services for the purposes of this section. 27—Breach of conditions A surveyor who contravenes or fails to comply with a condition imposed under this Act on the surveyor's licence or registration is guilty of an offence. Penalty: Division 5 fine. Division 3—Special provisions relating to surveying services providers 28—Improper directions etc to surveyor by surveying services provider (1) If a person who provides surveying services through the instrumentality of a surveyor directs or pressures the surveyor to act unlawfully, improperly, negligently or unfairly in relation to the provision of surveying services, the person is guilty of an offence. Penalty: Division 4 fine. (2) If a person who occupies a position of authority in a trust or corporate entity that provides surveying services through the instrumentality of a surveyor directs or pressures the surveyor to act unlawfully, improperly, negligently or unfairly in relation to the provision of surveying services, the person and the entity are each guilty of an offence. Penalty: Division 4 fine. Division 4—Discipline 34—Proper cause for disciplinary action (1) A surveyor is liable to be disciplined if the surveyor— (a) has been guilty of conduct that constitutes a breach of this Act or has contravened or failed to comply with survey instructions in force under this Act; or (b) has obtained a licence or registration under this Act improperly; or (c) has failed to exercise proper care in carrying out a survey, establishing survey marks or in the preparation of a plan or record of a survey; or (d) has, in the course of surveying practice— (i) been guilty of conduct that constitutes a breach of any other Act or law punishable by imprisonment for a period of one year or more; or (ii) been guilty of improper or unethical conduct, incompetence or negligence. (2) A surveying services provider is liable to be disciplined if— (a) the provider has contravened or failed to comply with a provision of this Act; or (b) in the case of a surveying services provider that is a trust or corporate entity—the occupier of a position of authority in the trust or corporate entity has contravened or failed to comply with a provision of this Act. (3) The occupier of a position of authority in a trust or corporate entity that is a surveying services provider is liable to be disciplined if— (a) the person has contravened or failed to comply with a provision of this Act; or (b) the trust or corporate entity has contravened or failed to comply with a provision of this Act (unless it is proved that the person could not, by the exercise of reasonable care, have prevented the commission of the offence by the entity). (4) Disciplinary action may be taken under this Division against— (a) a person who was licensed or registered as a surveyor when the cause for disciplinary action arose but has since ceased to be licensed or registered as a surveyor; or (b) a surveying services provider who was a provider when the cause for disciplinary action arose but has since ceased to be a surveying services provider; or (c) the occupier of a position of authority in a trust or corporate entity that is a surveying services provider who was the occupier of the position of authority when the cause for disciplinary action arose but has since ceased to be the occupier of the position. 35—Complaints (1) Any person may lodge with the Institution of Surveyors a complaint against— (a) a surveyor or former surveyor; or (b) a surveying services provider or former surveying services provider; or (c) the occupier, or former occupier, of a position of authority in a trust or corporate entity that is a surveying services provider. (2) The Institution of Surveyors must, wherever practicable, attempt to resolve the subject matter of a complaint by conciliation. 36—Investigations by Institution of Surveyors (1) The Institution of Surveyors must at the direction of the Surveyor‑General, and may in any other case, investigate a complaint made against a person under this Division. (2) The Institution of Surveyors may appoint a suitable person to conduct an investigation. (3) The Institution of Surveyors must provide a person so appointed with a certificate of appointment. (4) For the purposes of an investigation, a person appointed by the Institution of Surveyors under this section— (a) may require a person who is in a position to do so, to provide the name and address of— (i) any person who personally, or through the instrumentality of another, provided the services the subject of the complaint; or (ii) if the services the subject of the complaint were provided by a surveying services provider that is a trust or corporate entity, the persons occupying positions of authority in the trust or corporate entity; and (ab) may require any person who is in a position to provide other information relevant to the matter under investigation to answer any question put to him or her in relation to the matter; and (ac) may require any person who has possession of records or equipment relevant to the matter under investigation to produce those records or equipment for inspection, including written records that reproduce in a readily understandable form information kept by computer, microfilm or other process; and (b) may inspect the records or equipment, make copies of the records or their contents or test the equipment and, where reasonably necessary for those purposes, seize and retain the records or equipment. (5) A person appointed under this section must, at the request of a person in relation to whom he or she has exercised, or intends to exercise, powers under this section, produce his or her certificate of appointment. (6) Where an investigation is conducted at the direction of the Surveyor‑General, the Institution of Surveyors must report to the Surveyor‑General on the results of the investigation. 37—Consequence of investigation by Institution of Surveyors (1) After conducting an investigation under this Division, the Institution of Surveyors may lodge with the Tribunal a complaint against the person setting out matters that are alleged to constitute proper cause for disciplinary action. (3) Where the Institution of Surveyors lodges a complaint with the Tribunal, it must report the matter to the Surveyor‑General. (4) If, after conducting an investigation under this Division, the Institution of Surveyors is satisfied that there are reasonable grounds to suspect that a person has committed an offence against this Act, it must— (a) report the matter to the Surveyor‑General; and (b) at the request of the Surveyor‑General, furnish the Surveyor‑General with copies of any material in its possession relevant to the investigation or prosecution of the suspected offence. 38—Disciplinary powers of Tribunal (1) The Surveyor‑General, the Institution of Surveyors or any other person may lodge with the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Division. (2) On the lodging of a complaint under this Act, the Tribunal may conduct a hearing for the purpose of determining whether the matters alleged in the complaint constitute grounds for disciplinary action under this Part. (3) Without limiting the usual powers of the Tribunal, the Tribunal may during the hearing— (a) allow an adjournment to enable the Surveyor‑General or the Institution of Surveyors to investigate or further investigate matters to which the complaint relates; and (b) allow the modification of the complaint or additional allegations to be included in the complaint subject to any conditions as to adjournment and notice to parties and other conditions that the Tribunal may think fit to impose. (6) If, after conducting a hearing under this section, the Tribunal is satisfied that proper cause exists for disciplinary action against the person, it may exercise any one or more of the following powers: (a) it may reprimand the person; (b) it may impose a fine not exceeding a division 5 fine on the person; (c) it may impose conditions on the person's licence or registration restricting the right of the person to practise surveying; (d) it may suspend the person's licence or registration for a specified period, until fulfilment of stipulated conditions or until further order; (e) it may cancel the person's licence or registration; (f) it may disqualify the person from being licensed or registered under this Act permanently, for a specified period, until fulfilment of stipulated conditions or until further order; (g) it may prohibit the person from carrying on business as a surveying services provider; (h) it may prohibit the person from occupying a position of authority in a trust or corporate entity that is a surveying services provider. (7) A person who has been convicted of, or has expiated, an offence is not liable to a fine under this section in respect of the act or activity comprising the offence. (8) If the Tribunal takes disciplinary action against the person, it may stipulate that the action is to have effect at a future time specified by the Tribunal. (9) The Tribunal may, on application by a surveyor, vary or revoke a condition imposed under this section. 38A—Participation of assessors in disciplinary proceedings (1) For the purposes of section 22 of the South Australian Civil and Administrative Tribunal Act 2013, there will be a panel of assessors consisting of— (a) persons representative of surveyors; and (b) persons representative of members of the public who deal with surveyors. (2) In any proceedings under this Division, the Tribunal may, if the President so determines, sit with 1 or more assessors selected from the panel by the President. (3) In this section— President means the President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013. 39—Return of licence or certificate of registration Where a person's licence or registration under this Act is suspended or cancelled, the person must, at the direction of the Tribunal, return the licence or certificate of registration to the Registrar. Penalty: Division 8 fine. 40—Restrictions on disqualified persons (1) A disqualified person must not, without the prio