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Land Surveying Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to--
· provide for the annual registration of licensed surveyors to
perform cadastral surveying in Victoria; and
· provide for investigations into the professional conduct of
licensed surveyors; and
· establish the Surveyors Registration Board of Victoria; and
· to provide for the establishment of the Surveyors
Registration Board of Victoria Fund; and
· repeal the Surveyors Act 1978 and make consequential
amendments to other Acts; and
· provide for fees for the maintenance of the survey control
network.
Clause 2 provides for the commencement of the Bill to be on a day to be
proclaimed but no later than 1 January 2002.
Clause 3 defines certain terms used in the Bill.
PART 2--REGISTRATION AS LICENSED SURVEYOR
Clause 4 sets out the process for a person to apply to the Surveyors
Registration Board of Victoria (the Board) for registration as a
licensed surveyor. The application must be in writing and
contain the address of the applicant, evidence of qualifications
and training and any other information required by the Board,
together with the prescribed application fee. The Board may also
require proof of identity of the applicant and also a statutory
declaration verifying the information in or in support of the
application.
541178 BILL LA CIRCULATION 4/5/2001
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Clause 5 sets outs the qualifications a person needs to be qualified for
registration as a licensed surveyor. A person must have passed
an examination in cadastral surveying set by or on behalf of the
Board and undertaken practical training in cadastral surveying
required by the Board. In addition the person must have
successfully completed a course of study approved by the Board
or hold a qualification that in the opinion of the Board is
substantially equivalent to that course of study or the person must
have a qualification that is recognised by a reciprocal board
authorising the person to practise cadastral surveying.
Clause 6 sets out the circumstances under which the Board must grant
registration and when the Board may refuse to grant registration.
It also provides that the Board may impose any condition,
limitation or restriction on a registration. The clause also gives
the Board power to amend, vary or revoke any condition,
limitation or restriction.
Clause 7 provides that if the Board is proposing to refuse an application
for registration it must not do so until it has given the applicant
notice in writing and an opportunity to make a submission.
Clause 8 provides that on determining an application for registration
the Board must notify the applicant as to whether or not
registration has been granted and if any conditions, limitations or
restrictions have been imposed on the registration.
Should registration not be granted the Board must advise the
applicant as to the reasons and a statement that the applicant has
a right to obtain a review of the decision not to grant registration.
Clause 9 provides that registration granted or renewed remains in force for
a term of 12 months unless sooner cancelled or suspended.
Clause 10 sets out the process for applying for registration and also sets out
the grounds upon which the Board may rely to refuse renewal of
registration.
Clause 11 provides that the Board may restore a person's name to the
register if the person applies to the Board within 2 years from the
date of removal and undertakes any further examination,
practical training or course of study required by the Board
together with paying the Board the prescribed fee.
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Clause 12 provides that a licensed surveyor whose registration is suspended
is deemed not be registered for the period of suspension.
Clause 13 provides that the Board must conduct a formal hearing if it
believes that the registration of a licensed surveyor has been
obtained by fraud or misrepresentation or the qualifications on
which the licensed surveyor relied on for registration have been
withdrawn.
Clause 14 sets out that the Board must keep a register of all licensed
surveyors and what must be included in that register.
The register may be inspected during ordinary business hours
and a person may obtain a copy or an extract from the register on
request.
Clause 15 provides that a licensed surveyor must notify the Board within
28 days of any change of business or residential address as
recorded on the register.
PART 3--INVESTIGATIONS INTO LICENSED SURVEYORS
Clause 16 provides that a person may make a complaint to the Board about
the professional conduct of a licensed surveyor or a person who
was a licensed surveyor if the complaint relates to conduct of that
person at a time when he or she was a licensed surveyor.
Clause 17 provides that the Board must investigate a complaint concerning
the professional conduct of a licensed surveyor and, in order to
determine whether or not to it is necessary to conduct a formal
hearing into the complaint, the Board may conduct a preliminary
investigation.
Clause 18 provides that the Board may conduct or continue to conduct an
investigation and a hearing (if any) and make a finding or
determination into a complaint about the professional conduct of
a person who was previously a licensed surveyor at the time to
which the complaint relates.
Clause 19 provides that the Board must give notice of a complaint to the
licensed surveyor. The notice must be in writing and advise of
the details of the complaint and the procedures for dealing with
the complaint.
Clause 20 provides that on the completion of a preliminary hearing the
person or persons conducting the investigation may recommend
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to the Board that the investigation not proceed any further or that
a formal hearing be held into the matter. The Board must then
determine whether or not to act on that recommendation.
Clause 21 provides that the Board may conduct a formal hearing into the
professional conduct of a licensed surveyor without conducting a
preliminary investigation or first receiving a complaint.
Clause 22 requires the Board to appoint a panel to hold a hearing into the
professional conduct of a licensed surveyor and requires the
Board to give notice to the licensed surveyor of the nature of the
hearing, the allegations made against the licensed surveyor and
the details relating to the conduct of the hearing. The Board
must also notify the complainant that a formal hearing is to be
conducted, the time and place of the hearing and whether the
complainant may make submissions at the hearing.
Clause 23 provides that the panel for a formal hearing must consist of not
less than 3 members of the Board of whom one must be a
licensed surveyor and one a lawyer. A member of the Board
who has undertaken a preliminary investigation of a matter that is
the subject of the hearing is not eligible to be a member of the
panel for that hearing.
The Minister may appoint to a panel a person who is not a
member of the Board in certain circumstances. These are if the
Board is unable to appoint a panel because there are not enough
suitably qualified members available to sit on it or the Board is of
the opinion that a person with special expertise is required for the
hearing.
Clause 24 provides that at a formal hearing the licensed surveyor who is the
subject of the hearing is entitled to be present, make submissions
and be represented. The proceedings are to be open to the public
unless the panel determines that the proceedings should be closed
because the hearing is taking evidence of a person or financial
nature. If the hearing arises from a complaint, then the identity
of the complainant is not to be published or broadcast and the
complainant is entitled to be present, unless the proceedings have
been closed, and if not called as a witness, may make
submissions with the permission of the Board. In certain
circumstances, the identity of a witness or the licensed surveyor
may not be published or broadcast.
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Clause 25 sets out the findings and determinations open to the Board
following a formal hearing. The Board may find that the
licensed surveyor has engaged in unprofessional conduct which
is of a serious nature or not of a serious nature or has not
engaged in unprofessional conduct. If the panel finds that the
licensed surveyor has engaged in unprofessional conduct of a
serious nature, the panel may caution or reprimand the licensed
surveyor, require the licensed surveyor to undertake further
education or training, impose conditions, limitations or
restrictions on the licensed surveyor's registration, require the
licensed surveyor to rectify a faulty survey, impose a fine of not
more than $2000, or suspend or cancel registration.
Should the panel find that the licensed surveyor has engaged in
unprofessional conduct which is not of a serious nature then the
panel may caution or reprimand the licensed surveyor or require
the licensed surveyor to undertake further education or training.
Clause 26 provides that at a formal hearing the procedure of a panel is at its
discretion. The proceedings are to be conducted with as little
formality and technicality as the requirements of the Act and
proper consideration of the matter permit. The panel is not bound
by the rules of evidence but is bound by the rules of natural
justice.
Clause 27 provides that sections 14, 15, 16 and 21A of the Evidence Act
1958 apply to a panel in the conduct of a formal hearing.
Clause 28 provides that a determination made by a panel is to have effect as
if it were a determination of the Board and comes into operation
on its making or at any later time stated in the determination. If a
fine is imposed by a panel, it may be recovered by the Board as a
debt due to the Board and is to be paid into the Surveyors
Registration Board of Victoria Fund.
Clause 29 provides that where the Board has suspended the registration of a
licensed surveyor until the completion of a hearing and the panel,
at the conclusion of the hearing, determines the suspension
should be removed then the Board must remove the suspension.
Should a condition, limitation or a restriction have been imposed
on a licensed surveyor and the panel determines that the
condition, limitation or restriction should be removed, the Board
must remove the condition, limitation or restriction.
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Clause 30 provides that a panel must give reasons for a determination to the
licensed surveyor within 28 days. Any person affected by the
determination of a panel may apply to the panel within 45 days
after the making of the determination for the reasons for the
determination and those reasons must be given to the applicant
within 45 days of the request.
Clause 31 provides that if a complaint was made to the Board, the Board
must notify the complainant within 28 days after the making of
the complaint, or the completion of any preliminary
investigation, whether a formal hearing is to be conducted. If a
formal hearing has been conducted, the Board must notify the
complainant of the findings and determinations of the formal
hearing and the reasons thereof within 28 days after they were
made.
Clause 32 enables members of a panel to receive fees and allowances as if
he or she were a member or acting member of the Board.
PART 4--REVIEW BY VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL
Clause 33 provides that a person whose interests are affected by the
relevant decision, finding or determination may apply to the
Victorian Civil and Administrative Tribunal (VCAT) for a
review of the decision, finding or determination. The application
must be received by VCAT within 28 days after the date on
which the Board gave notice of its decision, finding or
determination to the person concerned. If a finding has been
made at a formal hearing but not a final determination, then an
application for review can only be made with the leave of VCAT.
Clause 34 provides that if a decision, finding or determination has been
reviewed by VCAT then the Board must notify any person who
was notified of the original decision, finding or determination of
any changes made by VCAT. In certain circumstances, the
Board must give notice of a determination to all reciprocal
boards.
PART 5--OFFENCES
Clause 35 creates an offence for a person who is not registered as a licensed
surveyor to take or use the title of licensed surveyor, claim to be
registered, carry out any act which is required to be carried out
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by a licensed surveyor or claim to be qualified to practise as a
licensed surveyor.
Clause 36 creates an offence for a person to fraudulently or by false
representation obtain registration or procure another person's
registration or forge or alter any evidence of qualifications for
registration.
Clause 37 creates an offence for a person who is not registered as a licensed
surveyor to certify to the accuracy of a cadastral survey or sign or
initial a plan purporting to be the plan of a cadastral survey. The
clause also makes it an offence for a person who is not registered
or is not acting under the direction and supervision of a licensed
surveyor to place in position a peg or other mark that may be
taken to be placed for the purposes of a cadastral survey or to
make a cadastral survey or to carry out any work in connection
with a cadastral survey.
Clause 38 creates an offence for a person without reasonable excuse to
interfere with a survey peg or mark placed in position by or
under the direction of a licensed surveyor. For the purposes of
the section 86 of the Sentencing Act 1991, compensation for the
loss or destruction of, or damage to, property as a result of the
offence is to include any expenses incurred in replacing or
re-establishing the survey peg or mark.
Clause 39 creates an offence for a person to wilfully obstruct a licensed
surveyor or a person acting under the direction of a licensed
surveyor in carrying out his or her professional work or in
exercising any power conferred by this or any other Act.
PART 6--SURVEYOR-GENERAL
Clause 40 provides that there is to be a Surveyor-General employed under
Part 3 of the Public Sector Management and Employment Act
1998 and the holder of that position must be a licensed surveyor.
Clause 41 provides that the powers and functions of the Surveyor-General
are those conferred on him or her by or under this or any other
Act.
Clause 42 enables the Surveyor-General to delegate by instrument to any
licensed surveyor, or class of licensed surveyors, employed under
Part 3 of the Public Sector Management and Employment Act
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1998 any power or function of the Surveyor-General relating to
the certification of plans.
PART 7--SURVEYORS REGISTRATION BOARD OF
VICTORIA
Clause 43 establishes the Surveyors Registration Board of Victoria and
provides that the Board is a body corporate that may sue or be
sued and may do and suffer all acts and things that a body
corporate may by law do and suffer.
Clause 44 sets out the functions of the Board.
Clause 45 provides the Board with all the powers necessary to enable it to
perform its functions.
Clause 46 provides that the Board should consist of no more than
8 members appointed by the Minister and sets out the
qualifications for membership. The Minister must appoint one
member as chairperson.
Clause 47 provides that a member of the Board holds office for a period of
up to 3 years and is eligible for reappointment.
Clause 48 sets out the grounds upon which a member of the Board ceases to
be a member. If a member of the Board dies, resigns, is removed
from office or ceases to hold office, the Minister may fill the
vacant office. The appointee holds office for the rest of the term
of appointment of the member he or she replaces.
Clause 49 provides that if a member of the Board is unable to perform the
duties or functions of the office, the Minister may appoint a
person qualified to be appointed as that member to act as the
member during the period of inability.
Clause 50 provides that a member or acting member of the Board, other
than an employee under Part 3 of the Public Sector
Management and Employment Act 1998 is entitled to receive
fees and allowances that are fixed from time to time by the
Minister.
Clause 51 provides that the chairperson is to preside at any meeting of the
Board and that the quorum is 5 members. The clause also sets
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out the voting procedures for any question arising at a meeting
and that the person presiding over the meeting must ensure that
accurate minutes of the meeting are kept.
Clause 52 provides that a member who has a pecuniary or other interest in
any matter in which the Board is concerned must disclose the
nature of the interest either at or before the meeting is held.
The member may take part in the discussion in the meeting but
must leave the meeting while any vote is taken on a question
relating to the matter.
Clause 53 provides that an act or decision of the Board is not invalid only
because of a vacancy in its membership, a defect or irregularity
in the appointment of any of its members or in the case of an
acting member, the occasion for that member so acting had not
arisen or had ceased.
Clause 54 provides that a member is not personally liable for anything done
or omitted to be done in good faith in the exercise of a power or
duty under this Act or the regulations. Liability attaches instead
to the Board.
Clause 55 enables the Board to employ persons that are necessary for the
purposes of administering the Act, including being responsible
for maintaining the register.
PART 8--MISCELLANEOUS
Clause 56 requires the Board to issue an identity card to each licensed
surveyor and stipulates what must be included on the card.
Clause 57 sets out the circumstance under which a licensed surveyor, or a
person acting under the direction and supervision of a licensed
surveyor, may enter land for the purpose of conducting a
cadastral survey.
A person must not enter a residence under this clause without
first obtaining the written consent of the occupier. A licensed
surveyor is liable for damage caused by him or her and any other
person acting under his or her direction and supervision in
exercising the power of entry under this clause.
Clause 58 requires the Board to establish the Surveyors Registration Board
of Victoria Fund. All fees, fines and penalties paid or recovered
by the Board and any other money received by it including
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income from investments of the Fund must be paid into the Fund.
All money immediately before the commencement of this Act
standing to the credit of the Surveyors Board Account
established under the Surveyors Act 1978 is to be paid into the
Fund.
Out of the Fund the Board must pay the expenses incurred by it
in carrying out its functions, powers and duties, any other
expenses incurred in the administration of the Act, any payments
to members of the Board and other persons under the Act and
any other payment recommended by the Board and approved by
the Minister.
Clause 59 enables the Board to invest money credited to the Fund that it
does not immediately require in any manner in which the money
may be invested under the Trustee Act 1958 or in any other
manner that the Minister approves.
Clause 60 provides for any proceedings under this Act to be brought by the
Board or by a person authorised by the Board.
Clause 61 requires the Board to publish the current details of the practical
training and courses of study approved by the Board under clause
5(a) and the procedure for making a complaint about the
professional conduct of a licensed surveyor.
Clause 62 sets out the various regulation-making powers under the Act.
PART 9--REPEAL, TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS
Clause 63 defines several terms that are used in this Part of the Bill.
Clause 64 provides for the repeal of the Surveyors Act 1978 (the repealed
Act).
Clause 65 provides that where any proceedings before the Surveyors Board
(the old Board) established under the repealed Act have
commenced but have not been completed prior to the
commencement of this Act, they are to be completed by the old
Board and any appeal or other further proceedings may be taken
as if this Act had not been enacted.
Clause 66 provides that any complaints concerning the activities of a person
deemed to be a licensed surveyor under this Act and which
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occurred prior to the commencement of Part 3 of this Act and in
respect of which no proceedings have commenced under the
repealed Act are to be dealt with under the provisions of this Act
to the extent that there was power to conduct an inquiry under
Part 2 of the repealed Act into those activities.
Clause 67 provides that a person who was a licensed surveyor under the
repealed Act immediately before the commencement of this Act
is deemed to be registered under this Act. That registration
expires 12 months after commencement of the Act if the person
pays the prescribed registration fee within 3 months of the
commencement. If payment is not made, registration expires
3 months after commencement of the Act.
Clause 68 requires the Board to prepare any annual reports that the old
Board would have been required to prepare under the Financial
Management Act 1994.
Clause 69 provides that the Surveyors (Cadastral Surveys) Regulations
1995 are deemed to continue in force and may be amended or
revoked as if they were made under this Act.
Clause 70 provides for consequential amendments which are set out in the
Schedule.
Clause 71 amends the Subdivision Act 1988 to enable a fee to be paid to
the Registrar of Titles for the maintenance of the survey control
network.
Clause 72 amends the Survey Co-ordination Act 1958 to enable a fee to
be prescribed for the maintenance of the survey control network.
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