Surveyors Act 2002 (Tas)

Surveyors Act 2002 An Act to repeal the Land Surveyors Act 1909 and provide for the registration of surveyors with diverse specialist competencies, to regulate the practice of registered surveyors engaged in surveys authorised or required under any enactment and to provide for related matters [Royal Assent 14 November 2002] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Surveyors Act 2002 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – authorised officer means the Director or a person declared to be, or appointed as, an authorized officer under the Consumer Affairs Act 1988 ; Board means the Surveyors' Board as constituted under the repealed Act immediately before the commencement day; commencement day means the day fixed under section 2 ; court means the Magistrates Court; Director means the Director of Consumer Affairs; document includes – (a) a book, plan, paper, parchment or other material on which there is an image or writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and (b) a disk, tape, paper or other device from which images, sounds or messages are capable of being reproduced; institution means an institution or association representative of persons engaged in one or more survey disciplines which requires that its members comply with established institutional standards of ethical conduct and professional best practice; land includes messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description (whatever may be the estate or interest in them); mutual recognition legislation means the Mutual Recognition Act 1992 of the Commonwealth, the Mutual Recognition (Tasmania) Act 1993 of Tasmania or the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth; prescribed institute means the institute prescribed as having responsibility for the training, examination and accreditation of persons seeking to establish their competency to practise as a registered land surveyor under this Act; published means – (a) in relation to a publication under section 34(4A) , published in such a manner as the Director thinks fit; and (b) in relation to all other matters under this Act, published in such a manner, whether by advertisement or otherwise, as the Surveyor-General thinks fit; register means the register of surveyors kept under this Act; registered land surveyor means a person authorised by registration under this Act to undertake a survey of land; registered surveyor means a person who is registered as a surveyor under this Act but, for the purpose of Part 4 , does not include a person whose registration is suspended; registering authority means a person or body having authority to require a survey to be carried out for a statutory purpose; regulations means regulations made and in force under this Act; repealed Act means the Land Surveyors Act 1909 ; survey means the definition, redefinition, measurement, interpretation, marking or documentation of the geographic position, dimension, extent or relativity of points, lines and things on, above or below the surface of the earth, for any purpose authorised by any Act; survey mark means any mark established by or on behalf of a surveyor which is used to identify and define any point or line of any survey and is – (a) cut, etched, stamped or otherwise attached to, or placed in or on, any timber, stone, masonry or other material; or (b) placed in or on the ground; survey of land includes a survey of land undertaken to re-mark boundaries of land originally surveyed for a purpose authorised by any Act; surveyor means a person who has acquired the minimum surveying qualifications, skills or experience necessary for membership of a relevant and nationally recognised institution; Surveyor-General means the person appointed under section 3A of the Survey Co-ordination Act 1944 ; trim means to cut, remove or otherwise modify any part of a tree or bush, only to the minimum amount necessary to accomplish a survey. (2) For the purposes of the definition of "land" in subsection (1) , a person who has a licence to enter or remain on land is taken to have an interest in the land. PART 2 - Administration 4. Functions and powers of Surveyor-General The Surveyor-General has the following functions and powers for the purposes of this Act: (a) to maintain the register of surveyors and their specialist competencies as provided in Part 3 ; (b) to consult with any person or body that represents surveyors in Tasmania, and to liaise and enter into arrangements with any person or body that, in Australia or elsewhere, is concerned with surveyors and the practice of surveying, for the purpose of improving or reviewing – (i) the technical specifications and standards applicable to the practice of surveying; and (ia) the requirements for eligibility for registration as a land surveyor; and (ii) the Surveyor-General's functions and powers under this Act; (c) to issue directions as to the minimum technical specifications and standards to be observed in the conduct of any surveys required by law and, for any such survey carried out by a registered surveyor, to monitor compliance with those directions as provided in Part 4 ; (d) to issue directions as to the types of surveys of land that may be exempt from the requirements of this Act; (e) to issue directions as to the minimum level of land survey-related activity or professional development required for registration as a land surveyor. 5. Delegation by Surveyor-General The Surveyor-General may delegate all or any of the Surveyor-General's functions and powers under this Act to a State Service officer who is a registered land surveyor. 5A. Deputy Surveyor-General (1) The Minister may appoint a State Service officer or State Service employee to be Deputy Surveyor-General and that person may hold that office in conjunction with State Service employment. (2) The Deputy Surveyor-General so appointed may, in the absence of the Surveyor-General, perform any of the functions or duties or exercise any of the powers of the Surveyor-General under this Act. 6. Functions of Director The Director has the functions of receiving complaints, conducting investigations and taking disciplinary action as provided by Part 5 . PART 3 - Registration of Surveyors 7. Application and eligibility for registration as a surveyor (1) A person, on payment of the prescribed fee, may apply to the Surveyor-General to be registered as a surveyor. (2) A person is eligible to be registered as a land surveyor if – (a) the person – (i) was a surveyor registered under the repealed Act immediately before the commencement day; or (ii) has been accredited by the prescribed institute as having the educational qualifications and practical training required for the practice of land surveying as prescribed in the regulations; or (iii) is entitled to be registered as a land surveyor under mutual recognition legislation; and (b) the person – (i) has undertaken such land survey-related activities or professional development as may be prescribed in the directions issued under Part 4 ; and (ii) is capable of carrying out the practice of land surveying in Tasmania in accordance with all statutory requirements. (3) A person is eligible to be registered as a surveyor, other than a land surveyor, if the person has competency accreditation which is recognised by a relevant institution as satisfying national competency standards for professional surveyors practising other than in land surveying. 8. Registration by Surveyor-General (1) The Surveyor-General may – (a) require an applicant for registration to produce any documents or other information that the Surveyor-General considers necessary to decide the application; and (b) make any inquiries that the Surveyor-General reasonably needs to decide the application. (2) The Surveyor-General must register a person who applies for registration if the person is eligible for registration and the requirements of this Act relating to the application have been met. (3) The Surveyor-General must refuse to register a person who applies for registration if the person is not eligible for registration or the requirements of this Act relating to the application have not been met. 8A. Re-accreditation by prescribed institute (1) If an applicant satisfies the requirements of section 7(2)(a) , but is unable to satisfy the Surveyor-General in accordance with section 7(2)(b) , the applicant may apply to the prescribed institute for re-accreditation. (2) If the prescribed institute is satisfied that the applicant has sufficient knowledge and skills equivalent to that provided by the professional training referred to in the regulations, the institute may accredit the applicant. (3) Accreditation under this section is sufficient to satisfy the Surveyor-General for the purposes of section 7(2)(b) . 8B. Register of surveyors (1) The Surveyor-General must keep a register of surveyors. (2) The register is to provide for – (a) the mandatory registration of a surveyor intending to practise as a land surveyor; and (b) the voluntary registration of a surveyor intending to practise other than as a land surveyor. (3) The register may be kept in any form, including electronic form, that the Surveyor-General approves. (4) The Surveyor-General must make the register available to the public and may give to any person a copy of part of, or an entry from, the register certified by the Surveyor-General to be a true copy. 8C. Disbursement of fees for registration as land surveyor (1) Any funds received by the Surveyor-General in a financial year in respect of an application for registration as a land surveyor, other than any fees for late applications, are to be provided to the prescribed institute by the next 31 July. (2) The funds paid to the prescribed institute are to be applied in the payment of any expenses necessarily incurred by the institute in undertaking its responsibilities under this Act. (3) By not later than 31 September each year, the prescribed institute is to provide the Surveyor-General with an account of the expenditure of the funds provided to it in the preceding financial year. 9. Particulars to be entered in register (1) The Surveyor-General must enter in the register the following particulars in respect of a registered surveyor, whether a land surveyor or not: (a) his or her name; (b) the address of each place in Tasmania where the surveyor carries on the practice of surveying or, if the surveyor has no such address, his or her home address; (ba) his or her email address; (c) a registration number allotted to the surveyor by the Surveyor-General; (d) the date of his or her initial registration; (e) the date of each successive renewal of such registration; (f) any specialist competency that the surveyor relied on for registration. (2) The Surveyor-General must – (a) on the application of a registered surveyor and subject to authentication of any documents provided, enter in the register the particulars of the surveyor's membership of any relevant institution; and (b) delete those details, on the application of that surveyor. (3) The Surveyor-General must – (a) if the name of a registered surveyor is removed from the register in accordance with section 12(da) or (e) , and that surveyor is subsequently recorded on the register, make a note in the register, in relation to the surveyor, of the date and particulars of each disciplinary action that resulted in the previous removal of the name of the surveyor from the register; and (b) make a note in the register of the date and particulars of each disciplinary action, other than a disciplinary action referred to in paragraph (a) , determined or ordered under this Act in relation to a registered surveyor; and (c) remove a note made under paragraph (b) as soon as practicable after the end of the period of 3 years commencing on the date on which it was made. (3A) Subsection (3)(c) does not prevent the Surveyor-General from removing a note made under subsection (3)(b) before the expiry of the period referred to in subsection (3)(c) . (4) A registered surveyor must notify the Surveyor-General of a change in any of the particulars referred to in subsection (1) within one month of the change occurring. (5) . . . . . . . . 10. Renewal of registration (1) Before 31 December in each year, a registered surveyor may make application to the Surveyor-General for renewal of registration to practise as a registered surveyor for the following year. (2) An application for renewal must be accompanied by whatever documents may be necessary to confirm the applicant's continuing eligibility for registration under this Act. (3) The provisions of this Act relating to an application for registration also apply to an application for renewal of registration. 10A. Refusal of renewal of registration (1) The Surveyor-General may refuse to renew a surveyor's registration if the surveyor fails – (a) to correct a survey within 3 months of a request being made in accordance with section 24(1) ; or (b) to pay all the costs of a correction made in accordance with section 24(2) or notification made in accordance with section 24(4) ; or (c) to notify all relevant parties in accordance with section 24(3) ; or (d) to pay all the costs required to be paid under section 34(1)(h) ; or (e) to be re-accredited following advice from the Surveyor-General in accordance with section 25(5) . (2) On the correction of a failure referred to in subsection (1) , the surveyor may apply for a renewal of registration under section 10 . 11. False or misleading statements (1) A person must not, in or in respect of an application for registration – (a) state anything that is false or misleading in a material particular; or (b) omit from a statement anything without which the statement is misleading in a material particular. Penalty: Fine not exceeding 40 penalty units. (2) A person must not give to the Surveyor-General, in respect of an application for registration, a document containing information that is false or misleading in a material particular. Penalty: Fine not exceeding 40 penalty units. 12. Cancellation or suspension of registration The Surveyor-General must remove from the register the name of any surveyor – (a) who has died; or (b) who has requested in writing that the registration be cancelled; or (c) who has failed to apply for renewal of registration before the expiration of the period of 3 months commencing on the due date for renewal; or (d) who in, or in respect of, an application for registration has provided any false or misleading statement; or (da) whose registration as a land surveyor has been suspended or cancelled as a consequence of disciplinary proceedings in a jurisdiction in which mutual recognition legislation applies; or (e) whose registration has been suspended or cancelled as a consequence of disciplinary proceedings under this Act. 13. Certificate of registration The Surveyor-General must, on registration and on each application for renewal, issue to every registered surveyor applying for it a certificate confirming the details of that surveyor's current registration status. 14. Effect of mutual recognition legislation Nothing in this Part derogates from the effect of mutual recognition legislation and an appeal from a decision of the Surveyor-General under this Part may be brought as provided by legislation. PART 4 - Practice of surveyors Division 1 - Directions by Surveyor-General 15. Directions for practice of surveying, professional development, &c. (1) The Surveyor-General may issue directions as to the technical specifications and standards to be observed in the conduct of any survey for any statutory purpose, including, for example – (a) the preparation of plans of survey and supporting documents; and (b) the field procedures and practices to be observed in the conduct of surveys; and (c) the supervision of persons assisting registered surveyors in the conduct of surveys; and (d) the nature and position of survey marks; and (e) the achievement of accuracy in surveying; and (f) the form of certification to be provided by a registered surveyor on completion of a survey. (1A) The Surveyor-General may issue directions as to the types of surveys of land that may be exempt from the requirements of this Act. (1B) The Surveyor-General may issue directions as to the minimum level of land survey-related activity or professional development required for registration of land surveyors. (2) A direction may provide that – (a) the Surveyor-General may exempt a registered surveyor from a requirement specified in the direction; and (b) the exemption may be subject to conditions decided by the Surveyor-General. (3) An exemption that is subject to a condition does not have effect if the condition is not complied with. (4) Before issuing a direction under subsection (1) or (1A) , the Surveyor-General must invite submissions and consult on the proposed direction and seek agreement with – (a) the Head of Agency of the department responsible to the Minister for the administration of any enactment under which the survey is required; and (b) all institutions that, in Tasmania, represent surveyors; and (c) other entities that appear to the Surveyor-General to have a relevant interest in the proposed direction. (4A) Before issuing a direction under subsection (1B) , the Surveyor-General must invite submissions and consult on the proposed direction and seek agreement with – (a) all institutions that, in Tasmania, represent land surveyors; and (b) other entities that appear to the Surveyor-General to have a relevant interest in the proposed direction. (5) Where agreement cannot be reached between the Surveyor-General and a relevant institution or registering authority as to the nature of any proposed new or amended specifications, standards or requirements, the Surveyor-General – (a) must refer the matter to the Minister for determination; and (b) must notify the parties to the disagreement of his or her intention to do so. (6) For the purposes of subsection (5) , the Surveyor-General must provide a report and recommendation in writing to the Minister including – (a) details of the new or amended specifications, standards or requirements recommended by the Surveyor-General; and (b) details of all consultation undertaken; and (c) details of the specific matters of disagreement; and (d) copies of all submissions made by the interested parties relevant to the issues in contention. (7) The Minister, on considering the report and submissions and making such further inquiry as he or she thinks fit, may approve, modify or reject the recommended specifications, standards or requirements and require the Surveyor-General to issue a direction accordingly. (8) The Minister's decision is final. (9) Notwithstanding subsections (4) , (4A) , (5) , (6) , (7) and (8) , the Surveyor-General may make amendments of a minor or clerical nature, to directions issued under this section, following consultation with only those entities that the Surveyor-General deems appropriate. Division 2 - Practice as registered surveyor 16. Only registered land surveyors to survey land or practise as land surveyors (1) A person who is not a registered land surveyor must not carry on business or hold himself or herself out as a land surveyor or registered land surveyor. Penalty: Fine not exceeding 200 penalty units and a further penalty not exceeding 5 penalty units for each day during which the offence continues after conviction. (2) A person who is not a registered land surveyor, or acting under the supervision of a registered land surveyor, must not survey land. Penalty: Fine not exceeding 200 penalty units. (3) A person who is not a registered land surveyor must not give a certificate that under any law is required to be given by a registered land surveyor. Penalty: Fine not exceeding 200 penalty units. (4) In this section, survey includes deciding, for fee or reward, whether improvements are, or are not, within the boundaries of any land. 17. Only registered surveyors to practise as registered surveyors (1) A person who is not a registered surveyor must not carry on business or hold himself or herself out as a registered surveyor. Penalty: Fine not exceeding 200 penalty units and a further penalty not exceeding 5 penalty units for each day during which the offence continues after conviction. (2) A person who is not a registered surveyor must not give a certificate that under any law is required to be given by a registered surveyor. Penalty: Fine not exceeding 200 penalty units. 18. Supervision by registered surveyor (1) Any part of a survey authorised or required under any enactment may be carried out by a person acting under the supervision of a registered surveyor. (2) For the purpose of subsection (1) , a registered surveyor must exercise such oversight over the work of any person under supervision as may be necessary to ensure that the work is completed in accordance with this and any other Act. 19. Appellations to be used (1) Only a person who is registered as a land surveyor as provided in section 7(2) may use the appellations "Registered Land Surveyor" or "Land Surveyor". Penalty: Fine not exceeding 200 penalty units. (2) Only a person who is registered and has competency accreditation which is recognised as provided in section 7(3) may use an appellation that includes reference to that competency such as "Registered Engineering Surveyor", "Registered Mining Surveyor" or "Registered Hydrographic Surveyor". Penalty: Fine not exceeding 200 penalty units. (3) Only a person who is registered as a surveyor as provided in section 8 or otherwise under this Act may use the appellation "Registered Surveyor" and the use of the appellation must include reference to the specialised professional survey competencies for which the surveyor is registered. Penalty: Fine not exceeding 200 penalty units. 20. Saving for non-registered surveyors Nothing in this Act prevents a person who is not registered as a surveyor from practising as a surveyor, otherwise than as a land surveyor, so long as the person does not hold himself or herself out to be a registered surveyor. Division 3 - Duties of registered surveyors 21. Surveys, &c., to comply with directions, &c. A registered surveyor must ensure that a survey carried out, and a plan with all supporting documents prepared, by or under his or her supervision – (a) complies with all applicable directions under section 15 ; and (b) is endorsed with an annotation summarising all applicable exemptions and setting out sufficient particulars to enable the exemptions and any relevant conditions to be identified. Penalty: Fine not exceeding 100 penalty units. Division 4 - Maintenance of standards and corrections of errors 22. Survey audit (1) The Surveyor-General may instruct an appropriately qualified and registered surveyor, as an inspecting surveyor, to conduct an audit of any survey carried out under any Act by a registered surveyor, to confirm its compliance with all relevant requirements. (2) Where an audit discloses an error or deficiency in a survey, the Surveyor-General must inform the surveyor responsible of – (a) the results of the audit; and (b) any action that may be required to ensure that the survey to which the audit relates is correct and complies with all relevant requirements. 23. Survey investigation (1) If two or more registered surveyors, or a registered surveyor and a registering authority, are unable to agree as to – (a) the adequacy or accuracy of a survey; or (b) the compliance of a survey with the relevant requirements – all parties to the disagreement must submit a report on the matter of the disagreement to the Surveyor-General. (2) The Surveyor-General must investigate a reported error or anomaly or may instruct an appropriately qualified and registered surveyor, as an inspecting surveyor, to conduct the investigation. (2A) The Surveyor-General may initiate an investigation, or instruct an appropriately qualified registered surveyor, as an inspecting surveyor, to conduct an investigation, based on any information that the Surveyor-General receives through any means. (3) On completion of the investigation, the Surveyor-General must inform the parties to the disagreement, and those responsible for the surveys under investigation, of – (a) the results of that investigation; and (b) the action required to ensure that the survey to which the investigation relates is correct and complies with all requirements. 23A. Surveyor-General may require information (1) The Surveyor-General may require a person who is in a position to provide information relevant to an investigation under section 23 to answer questions or provide any record or other information relevant to that investigation. (2) A person must not fail to answer questions or provide any information or record when required to do so. Penalty: Fine not exceeding 40 penalty units. (3) A person must not, in answering a question or providing any information or record under this section – (a) make a statement knowing it to be false or misleading; or (b) omit any matter from a statement knowing that without that matter the statement is false or misleading. Penalty: Fine not exceeding 40 penalty units. 24. Correction of survey errors (1) Any registered surveyor found to have made an error in any survey carried out under any Act must, at the request of the Surveyor-General, correct the error at his or her own expense. (2) If a registered surveyor fails to correct an error within 3 months of being informed of that error by the Surveyor-General, the error may be corrected by an inspecting surveyor instructed by the Surveyor-General, and the surveyor responsible is liable to pay the cost of that correction. (3) Where the correction of an error in a survey of land requires a correction of the boundaries of a property registered under the Land Titles Act 1980 , the registered land surveyor must notify all parties with an interest in the affected land of the correction of the error and the steps required to correct the affected land title, within 3 months of the correction of the error being made. (4) If a registered land surveyor fails to notify all parties in accordance with subsection (3) , the notification may be made by an inspecting surveyor instructed by the Surveyor-General, and the surveyor responsible is liable to pay the cost of that notification. 24A. Notification of errors and anomalies that cannot be readily corrected (1) Where a survey investigation reveals an error or anomaly in a land boundary but that error or anomaly cannot be readily corrected, the Surveyor-General is to publish details of the error or anomaly in such a way as is reasonably accessible to any registered land surveyor. (2) A registered land surveyor is to take into account any error or anomaly of which he or she has been notified under subsection (1) in any future dealings with the relevant boundary. 25. Survey performance (1) The Surveyor-General must – (a) maintain a record of the conduct and outcome of a survey audit and survey investigation which may be carried out under this Division; and (b) maintain, for each registered surveyor, the results of survey examinations conducted by a registering authority as provided in section 40 . (2) For the purposes of subsection (1) , records of survey examinations, audits and investigations may be kept in any form, including electronic form, that the Surveyor-General determines. (3) The Surveyor-General may from time to time provide each registered surveyor with advice as to the current status of his or her records of survey examinations, audits and investigations. (4) Where, on the application in a particular year for the renewal of a land surveyor's registration, the Surveyor-General finds that the land surveyor's last 3 audits do not comply with the relevant statutory requirements, the land surveyor's registration may nevertheless be renewed for the following year. (5) Where a land surveyor's registration is renewed for a year in accordance with subsection (4) , the Surveyor-General is to advise the land surveyor – (a) of the details of the non-compliances with the relevant statutory requirements; and (b) that the renewal of the land surveyor's registration for the year following that year is dependent on the land surveyor's re-accreditation by the prescribed institute. 26. Certification and adequacy of surveys (1) A survey carried out for any statutory purpose by, or under the supervision of, a registered surveyor must be certified correct by that surveyor before being lodged for registration or acted on. (2) If any such survey is conducted wholly or in part by a person under the supervision of a registered surveyor, the supervising surveyor remains responsible for the adequacy of the survey as certified. (3) A registered surveyor must implement, or ensure the implementation of, any checking procedures necessary to confirm the technical accuracy and adequacy of the survey as certified. (4) The certification is to be in accordance with the regulations or directions issued under section 15 and is to confirm that the survey and associated documentation complies with all relevant requirements, including survey directions issued by the Surveyor-General, and is correct for the purpose required. Division 5 - Power to enter on land 27. Power of entry on land (1) For the purpose of conducting a survey, a registered surveyor or a person assisting a registered surveyor may, at any reasonable time, in accordance with this section – (a) enter on any 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 any land entered; and (d) enter any building; and