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Surveyors Bill 2003
SURVEYORS BILL 2003
EXPLANATORY NOTES
OBJECTIVES
The principal purpose of this Bill is to protect the public who
commission surveys, through a system of registration for surveyors. The
Bill replaces those parts of the Surveyors Act 1977 that provide for the
system of registration and discipline of surveyors in Queensland. The Bill
arises from an NCP review of the Surveyors Act 1977, addressing a number
of issues raised in that review and also dealing with a range of other
administrative issues.
This Bill is complemented by the Survey and Mapping Infrastructure
Bill 2003 that incorporates the remaining parts of the Surveyors Act 1977.
The Survey and Mapping Infrastructure Bill will also replace a number of
other Acts related to surveying and mapping.
The principal purpose of this Bill is the protection of the public.
Surveyors provide the positional control for most engineering projects,
ensuring that roads, railways and bridges are constructed to their design
specifications. Surveyors enable our ports and rivers to be navigated in
safety through the information they provide on the terrain that exists under
the water. They are crucial to the safety of underground mining operations
by controlling the location of shafts and tunnels. They also collect mapping
information that provides the basis for the proper planning and
development of the State.
Surveyors are also central to the freehold and State land registration
system on which Queensland's land and property market is dependent. It is
in this area that Queensland's registration system for surveyors had its
genesis. When cadastral surveyors survey the boundaries of land, they have
a number of responsibilities. They must serve the interests of their client,
and also the interests of the owners of adjacent land, which often includes
the State. They also have a responsibility to preserve and enhance the
integrity of the overall cadastral boundary system, as an asset for future
landholders and in support of the land titling system that is important to the
economy of the State. The registration system for cadastral surveyors is
focussed on ensuring that the public interest in the land boundary system is
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Surveyors Bill 2003
protected, by ensuring that cadastral surveyors are competent and act
professionally.
HOW POLICY OBJECTIVES WILL BE ACHIEVED
The general structure and operation of the registration and disciplinary
system in the Surveyors Act 1977 is continued in this Bill. However, the
Bill is drafted to reflect current drafting practice and style. The components
of this system are described below, with the changes from the current
system identified.
Surveyors Board of Queensland
The Surveyors Board of Queensland administers the registration system.
The Board and its chairperson are appointed by the Governor in Council,
and may include nominations made by the chief executive and industry
bodies.
The following changes have been made regarding the appointment of the
eight member Board:
1. There will be one less surveyor and one more community
representative (currently one).
2. The structure of nominations from industry bodies has changed,
to cater for possible changes in the way the industry bodies are
organised and to recognise that the Board may offer a broader
range of specialist endorsements to surveyors.
3. Half of the Board members will be appointed each year, to
remove the possibility that an entire Board might be replaced at
one time, which could lead to business continuity problems for
the Board.
Registration of surveyors
The Bill retains the current system of registration, under which persons
with general competence in surveying can be registered as surveyors and
registered surveyors with special competence in particular fields of
surveying can obtain endorsements on that registration. A corporation may
be registered as a surveyor.
The Bill makes specific provision for an endorsement for cadastral
surveyors and for a consulting endorsement for carrying on a surveying
business that undertakes surveys. Persons undertaking a cadastral survey
must have a cadastral endorsement, and persons carrying on a business that
undertakes cadastral surveys must have a consulting endorsement and a
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Surveyors Bill 2003
cadastral endorsement. Registration of cadastral surveyors is mandatory,
because they undertake work that contributes to the issuing of land titles.
The Government is responsible for the State's land titling system. The
stability and integrity of, and the level of public confidence in, the State's
land titling system depends in part on the competence of cadastral
surveyors.
The Board may issue endorsements in fields of surveying other than
cadastral, but there is no requirement that persons undertaking those other
types of surveys be registered or hold any particular endorsement.
In addition to registration as a surveyor, the Board may also issue
registrations in the following categories: surveying graduate, surveying
associate and emeritus surveyor.
The changes to the system of registration are as follows:
1. Registration is to be based on competency rather than academic
qualifications. This recognises that qualifications alone cannot
adequately test an applicant's ability to operate as a professional
surveyor. The Bill provides for the Board to approve or adopt an
appropriate competency and assessment framework for the
various categories of registration and endorsement.
2. Corporations may be registered in a particular category if they
employ a person who holds registration in that category and if the
corporation meets other prescribed requirements, such as holding
a specified level of insurance. This addresses an issue raised in
the National Competition Policy review of the Surveyors Act
1977, where it was identified that it was a restrictive practice to
require that, for a company to be registered as a surveyor, a
majority of corporation directors must be registered as a
surveyor.
3. The Board may appoint other entities to assess competency.
4. The Board may require evidence of continuing competence,
annually. This will help ensure registrants continue to stay
abreast of technological and professional advancements relevant
to their work.
5. Reforms identified in the Red Tape Reduction Rationalisation
project will be implemented. The registration system is
structured around three categories of registration (surveying
graduate, surveying associate and surveyor) with endorsements
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Surveyors Bill 2003
for surveyors, allowing the Board to reduce the number of forms
associated with the registration renewal system.
6. There are no restrictions on the use of the title `surveyor' or any
of its derivatives, but persons claiming to be registered when they
are not will commit an offence.
Professional Conduct
The Board is required to develop a code of practice to provide guidance
as to what is appropriate professional conduct. The code also provides the
basis for assessing whether or not there has been professional misconduct,
as part of a disciplinary process. Persons may make a complaint to the
Board in relation to the conduct of a registered person.
The Board uses a tiered approach to its disciplinary function, with a
range of processes that reflect the degrees of seriousness of such matters.
The Bill formalises these processes and makes the options available to the
Board more transparent to all parties. The three processes that will be
available to the Board also ensure that complaint handling is carried out
expeditiously and efficiently and that penalty provisions will be
appropriate. The processes are:
1. The Board may ask a registered person to meet with one or more
Board members, and may caution or reprimand the person and
may reach agreement with the person for the person to correct a
survey or undertake further training.
2. If the matter is more serious, the Board may authorise an
investigation, and following that may refer the matter to either a
professional conduct review panel or a disciplinary committee.
3. A professional conduct review panel consists of four or more
Board members. If the Board refers a matter to a panel following
an investigation, the panel must decide whether the person has
engaged in professional misconduct, and if so what disciplinary
action to take in relation to the matter, including cautioning or
reprimanding the person, requiring the person to correct a survey
or undertake further training, or imposing a fine.
4. If the Board refers a matter to a disciplinary committee following
an investigation, a disciplinary committee must be appointed by
the Governor in Council, consisting of a District Court judge and
two surveyors appointed by the Minister. The committee must
conduct a hearing and decide whether the person has engaged in
professional misconduct. The committee must decide what
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Surveyors Bill 2003
disciplinary action to take in relation to the matter, including one
or more of the following: caution or reprimand the person,
require the person to correct a survey, impose a fine, place
conditions on the persons registration, or suspend or cancel the
person's registration.
Investigations
The Bill specifies the powers and responsibilities of investigators who
are authorised by the Board to conduct an investigation. These align with
contemporary processes of this nature and are consistent with natural
justice principles.
Other NCP Issues
The NCP review also identified the two other anti-competitive
provisions in the Surveyors Act 1977. These have not been reproduced in
the Bill. There is no need for business names to be regulated by the Board,
as the Business Names Act 1962 provides a means of assessing and
approving them. The provision for the Board to set fees has not been used
by the Board for several years and is not required.
Survey Standards
Under the Surveyors Act 1977, the Board has responsibility for setting
standards for surveys. This responsibility is not included in the Bill, as it
has been placed in the Survey and Mapping Infrastructure Bill 2003 under
which the chief executive will be responsible for establishing the standards.
ADMINISTRATIVE COST TO GOVERNMENT
There are no known financial implications arising from the Bill for the
Surveyors Board of Queensland or the chief executive.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The following provisions of the Surveyors Bill may be considered not to
comply with fundamental legislative principles.
Investigations about eligibility for appointment - Clause 17
The Bill authorises the chief executive to make enquiries about a person
nominated for appointment to the Board, including obtaining a criminal
history report from the commissioner of police. The purpose of this
provision is to ensure that nominees are eligible for appointment under the
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Surveyors Bill 2003
provisions of the Bill. The information obtained by the chief executive is
safeguarded by restricting its disclosure and by requiring that it be
destroyed as soon as practicable.
Board may ask chief executive for statistical information - Clause 55(6)
When a surveyor lodges a survey plan for registration in the land
registry, the department checks certain aspects of the plan to ensure that it
is suitable for registration, and keeps a record of any errors identified on the
plan. The Bill provides for the chief executive to provide, on request from
the Board, statistical information about the quality of surveys carried out
by a registrant - for example, the proportion of plans lodged by a surveyor
that were not suitable for registration. Such information can provide the
Board with an indication as to whether the person is competent to perform
cadastral surveys, and the Board could use this as a trigger to take remedial
action at an early stage.
Evidentiary matters - Clause 176
The Bill provides that a certificate purporting to be signed by the
chairperson of the Board regarding one of a number of specified matters is
evidence of the matter, in the absence of evidence to the contrary, thereby
reversing the onus of proof on these matters. The matters to which this
provision applies are listed in the clause, and are technical and non-
contentious in nature, which concern the status of documents or the status
of the register on a particular date. The clause does not make the certificate
conclusive evidence, and provides the opportunity for it to be challenged
by the production of other evidence.
Responsibility for acts of corporations and their representatives - Clauses
180 & 181
These clauses provide for persons (including corporations) to be guilty
of offences committed by their representatives, and that if a corporation
commits an offence, each executive officer of the corporation also commits
an offence. Although the provisions reverse the onus of proof, they provide
defences if the person took reasonable steps to ensure compliance or to
prevent the offending act or omission, or if the person was not in a position
to influence the conduct of the relevant person. These clauses adopt the
same approach as other recent legislation in dealing with this complex
issue, for example the Chiropractors Registration Act 2001, Pharmacists
Registration Act 2001 and Psychologists Registration Act 2001.
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Surveyors Bill 2003
Transitional provisions for Board membership - Clause 195
The clause provides for the existing Board members to operate as
members of the Board under the new Act for an interim period of 6 months,
after which they go out of office. This is to provide sufficient time for a
new Board to be appointed in accordance with the provisions of the Bill.
Because of the anticipated timing of commencement of this Bill, Board
members are not likely to lose financial benefits they would otherwise have
obtained for attendance at Board meetings. This Bill is likely to commence
late in 2003, following preparation of Regulations. The current members
of the Board were appointed until 22 August 2003. If this Bill has not
commenced by that date, it is probable that the current Board members will
remain in office from 22 August 2003 until the Bill commences, under the
provisions of Section 11(2) of the Surveyors Act 1977. The new Act will
then keep the members in office for a further 6 months.
CONSULTATION
The Surveyors Board of Queensland was extensively consulted prior to
and during the preparation of the Surveyors Bill.
An exposure draft of the Bill was released in August 2002,
complemented by presentations at a number of seminars around the State.
Written responses were received from surveying industry groups and a
number of individual surveyors. The draft Bill was modified to address
issues raised during the consultation process.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 Short title
This clause is the short title of the Bill.
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Surveyors Bill 2003
Clause 2 Commencement
This clause provides for the commencement of the provisions of this
Bill.
Clause 3 Purposes of Act
This clause sets out the purposes of the Bill. Principally, the Bill aims to
provide a level of protection to the public when obtaining professional
services from surveyors, through a system that addresses the competence
and professionalism of surveyors. It is also aimed at ensuring that the
standards of practice within the profession are such that public confidence
in the profession is maintained. The Bill will achieve these purposes
through several mechanisms. A Surveyors Board of Queensland is
established, with the responsibility of administering a registration system.
That system involves assessment of competence of persons seeking
registration and establishing standards of practice and professionalism to
which registered persons must adhere. The Board will be empowered to
conduct investigations into the conduct of registered persons and undertake
a disciplinary function. The Board will also be empowered to enforce
compliance with the Bill.
Clause 4 Act binds all persons
This clause confirms that all persons and the State are bound by the
provisions contained in the Bill, however, nothing in the Bill can lead to the
State being liable to be prosecuted for an offence.
Clause 5 Mutual recognition legislation not affected
This clause prevents the Bill from affecting the operation of mutual
recognition legislation. The mutual recognition legislation, and
agreements between the Surveyors Boards of Australian states and
territories and New Zealand, provide for mobility of registered persons
between those jurisdictions.
Clause 6 Definitions
This clause provides for a dictionary of particular words or phrases that
are used in the Bill. This is detailed in Schedule 3 of the Bill and defines
those words or terms that do not accord with the common usage of those
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Surveyors Bill 2003
words, as found in the Macquarie Dictionary. Other common words or
terms in the Bill take their meanings from the Acts Interpretation Act 1954.
PART 2--SURVEYORS BOARD OF QUEENSLAND
Division 1--Establishment, functions and powers
Clause 7 Establishment of board
This clause establishes the Surveyors Board of Queensland with a body
corporate structure. This means the Board has a common seal and may sue
and be sued as an entity.
Clause 8 Board's relationship with the State
This clause makes it explicit that the Board does not represent the State,
although it is responsible to Parliament through the Minister.
Clause 9 Functions of board
This clause sets out the functions of the Board. These functions specify
how the Board is to achieve the purposes of the Bill. The Board must
establish the competency frameworks for all the categories of registration
and endorsement defined under the Bill and for those additional
endorsements that the Board decides to introduce. The Board may assess
applicants against these competency frameworks itself or accredit other
entities to perform the assessments. Applicants that are satisfactorily
assessed shall be registered and endorsed as appropriate and be provided
with a certificate attesting to this fact. The Board must keep a register of
persons awarded registration or endorsements. The Board must receive
complaints against registrants, which have been brought to its attention by
complainants or initiated by the Board through information that is in the
Board's hands. If appropriate, the Board must deal with the matter. It may
do this through an informal disciplinary process, or conduct a formal
investigation and then conduct formal disciplinary proceedings or refer
matters to a disciplinary committee. The Board also provides
administrative support to the disciplinary committee and must necessarily
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monitor any outcomes imposed on registrants from those disciplinary
processes. Also, the Board must perform any other function given to it
under legislation.
Clause 10 Board's independence etc.
This clause confirms that the Board has a duty to perform its functions in
the public interest, and to operate and make decisions in an independent
and impartial way.
Clause 11 Powers of board
This clause confirms that the Board has the powers of an individual, and
provides a list of examples of such powers. Notwithstanding this, the Board
does these things as a corporate entity.
Division 2--Membership
Clause 12 Membership of board
This clause provides for the Board to be made up of eight members
appointed by the Governor in Council. The members must include three
cadastral surveyors, a surveyor involved in teaching surveying and three
persons nominated by the chief executive. This composition reflects the
cross-section of expertise required by the Board to undertake its functions
and the range of different types of surveying undertaken by registrants. The
nominees of the chief executive provide for representation of community
interests and direct representation from the department.
Clause 13 Nominations for appointment to board
This clause requires the Minister to ask relevant entities that represent
the interests of surveyors in the State to make nominations for the Board.
Nominees must be eligible for appointment under the requirements
contained in clause 12. The Governor in Council makes the appointments
from the nominees provided by the Minister, however nothing prevents the
Governor in Council from appointing other persons.
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Surveyors Bill 2003
Clause 14 Chairperson of board
This clause states that the Governor in Council must appoint a cadastral
surveyor who is a member of the Board, as chairperson. These
appointments may occur simultaneously. The chairperson ceases to hold
the position if the person ceases to be a member or ceases to be a cadastral
surveyor. The chairperson may also be re-appointed to the position. A
chairperson may resign from the position but retain membership of the
Board.
Clause 15 Term of appointment
This clause sets out the term of appointment for Board members, which
is generally for two years. However on the first composition of the Board,
half the Board will be appointed for two years while the other half will be
appointed for one year. This sets in place the process by which half of the
board members will be appointed each year, rather than all members being
appointed every second year, to provide greater continuity of Board
business. The term of each member's appointment must be stated in the
appointment notice.
In order that the Board is able to continue to operate if a successor has
not been appointed when a member's term expires, the person's
membership continues until a replacement member has been appointed.
Clause 16 Disqualification from membership
This clause specifies that a person is not eligible for membership of the
Board if they are an insolvent under administration as defined within the
Corporations Acts. This captures any persons affected by bankruptcy.
Further, persons are not eligible if they have been convicted of an
indictable offence (including being summarily dealt with), provided that
any conviction is not a spent conviction under the Criminal Law
(Rehabilitation of Offenders) Act 1986. These provisions prevent
unsuitable persons from being Board members. The bankruptcy provision
is applies only to an action by the person themselves, and not an action by
their client or associate.
Clause 17 Investigations about eligibility for appointment
This clause allows the chief executive to make enquiries for the purpose
of determining the eligibility of nominees to the Board, including obtaining
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Surveyors Bill 2003
a criminal history report from the commissioner of police. If such a report
is requested, it must be supplied, but is limited to the criminal history
information in the possession of the commissioner.
Clause 18 Criminal history is confidential document
This clause protects the confidentiality of a criminal history report
provided under the previous clause. No person associated with the
department must allow a criminal history report of a nominee to be
disclosed to anyone, except where such disclosure is authorised by the
chief executive for the purposes of this Bill, or is otherwise required or
permitted by another law. As soon as the person's eligibility has been
determined, the chief executive must destroy the report.
Clause 19 Vacation of office
This clause deals with the situations under which Board members vacate
their office. The clause includes a provision that if a member is absent from
three or more consecutive ordinary meetings without the Board's
permission, the person is taken to have vacated their office. This is to
prevent persons who are either unable or unwilling to attend Board
meetings without a reasonable excuse, from being Board members. If a
member who was appointed because they were a cadastral surveyor stops
being a cadastral surveyor, the member's office is vacated only if this
results in there being insufficient Board members who are cadastral
surveyors - i.e. less than three.
Clause 20 When notice of resignation takes effect
This clause specifies the time at which notices of resignation by the
chairperson or a Board members are taken to have effect.
Clause 21 Casual vacancy in member's office
This clause permits casual vacancies occurring during the term of a
member to be filled by an appointee of the Minister, for the sake of
expediency. If the vacating member was required to be of a particular type
(i.e. a surveyor, a cadastral surveyor, a teacher at an educational institution,
an employee of the department, or a community representative) the
appointee must be of the same type.
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Clause 22 Leave of absence for a member
If a person is not able to undertake their duties as a member of the Board
for a period of more than three months, this clause permits the Minister to
approve a leave of absence and appoint another person to act for the
member. The acting member must satisfy the criteria under which the
member on leave was appointed and be eligible for appointment.
Clause 23 Effect of vacancy or irregularity in membership of
Board
This clause provides that the Board's powers are not diminished or the
performance of its functions reduced because of a vacancy or any other
short- or long-term irregularity in the membership of the Board.
Clause 24 Remuneration and other entitlements of members
This clause provides that Board members are entitled to receive fees and
allowances as approved by the Governor in Council, and other reasonable
expenses as approved by the Board for expenses incurred in performing
Board duties. This recognises that while Board members are undertaking
their duties as members of the Board, they are prevented from doing their
normal work and it is reasonable for them to receive some remuneration for
the duties they perform.
Division 3--Board business
Clause 25 Conduct of business
Division 3 specifies certain matters about the way the Board should
conduct its business. This clause provides that apart from these matters, the
Board has the flexibility to conduct its business in the way it considers
appropriate. This gives the Board broad scope to administer the Bill in
accordance with good practice and according to all relevant laws.
Clause 26 Times and places of meetings
This clause specifies that the chairperson is responsible for setting the
time and place of Board meetings. However, the chairperson must call a
meeting if the Minister or two or more members request so in writing.
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Surveyors Bill 2003
Clause 27 Quorum
This clause specifies that a quorum of the Board is four members.
Clause 28 Presiding at meetings
This clause specifies that the chairperson must preside at all meetings,
unless the chairperson is absent or the office is vacant, in which case the
meeting must be chaired by a member chosen by the remaining members.
Clause 29 Conduct of meetings
This clause deals with the manner in which the Board makes decisions.
Decisions are made by majority vote. However if the vote is tied, the
person chairing the meeting has an additional casting vote. As members of
the Board may not reside in the centre where a meeting is conducted, the
Board may conduct meetings using any technology that provides
continuous communications such as teleconferencing or
videoconferencing. Members are taken to be present at the meeting if
participating using such media. The Board can make a decision out of
session by obtaining the written agreement of a majority of the members,
provided that notice of the resolution is provided to members in a way that
has been previously approved by the Board.
Clause 30 Minutes
This clause requires the Board to keep minutes of meetings and records
of any decisions made by the Board out of session under the previous
clause. The minutes must record the names of those present. If the Board
makes a decision at a meeting, and a member who voted against the motion
asks that their vote be recorded in the minutes, this must be done.
Division 4--Disclosure of interests by members
Clause 31 Disclosure of interests
This clause sets out the process that shall be followed when a member
has a direct or indirect interest in any matter being considered by the
Board, where that interest could conflict with the proper and impartial
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consideration of the matter by the member. This provision is to protect the
Board from being influenced, or being seen to be influenced, by a person
who has an interest in the matter.
The clause makes it clear a member does not have an interest in a Board
matter simply because the member is a surveyor.
Division 5--Directions by Minister
Clause 32 Minister's power to give directions in the public interest
This clause gives the Minister the power to give the Board a direction
consistent with the purpose of the Bill and in the public interest and the
Board must comply with the direction despite clause 10, which requires the
Board to act independently. However, the Minister cannot give a direction
on any matters relating to applications for registration or endorsement, the
registration or endorsement of surveyors, or on any disciplinary matter.
Division 6--Annual report
Clause 33 Matters to be included in annual report
This clause requires the Board to publish an annual report in accordance
with the requirements of the Financial and Administration Audit Act 1977.
The report must include a copy of any Ministerial directions and the
numbers of registrants in the financial year. The Board cannot publish any
information that might identify any person mentioned in a Ministerial
direction.
Division 7--Other provisions about the board
Clause 34 Board is a statutory body under the Financial
Administration and Audit Act 1977
This clause confirms that the Board is a statutory body under the
Financial and Administration Audit Act 1977.
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Clause 35 Board is a statutory body under the Statutory Bodies
Financial Arrangements Act 1982
This clause confirms that the Board is a statutory body under the
Statutory Bodies Financial Arrangements Act 1982. Part 2B of that Act sets
out the way that Act affects the Board's powers.
PART 3--REGISTRATION AND REGISTRATION
ENDORSEMENTS
Division 1--Eligibility
Clause 36 Eligibility for registration or registration endorsement--
individuals
This clause sets out the structure of the registration system, for
individuals. These arrangements are different to those applying to
corporations. The primary category of registration is as a surveyor, for a
person who has general competence in surveying and is a suitable person to
hold a registration. Persons registered as surveyors may obtain an
endorsement on their registration certifying competence in a particular field
of surveying, beyond that which would be expected of a registered
surveyor.
Persons may be registered as a surveying graduate or surveying associate
if they satisfy the relevant competency and suitability criteria.
This clause introduces a new category of registration - emeritus surveyor
- to provide recognition to previously registered persons who are no longer
practising as surveyors. Applicants for emeritus surveyor cannot be
simultaneously registered under another surveyor category.
The clause prescribes the criteria for registration endorsement as a
consulting surveyor, for persons who intend to conduct a business that
provides surveying services. These criteria include a requirement for
insurance cover to the level specified in regulations.
Persons who hold an equivalent registration under a corresponding law
(for example, legislation dealing with registration of surveyors in another
Australian state) do not need to be assessed for the relevant competency,
but are taken to have that competency on the basis of their registration.
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Clause 37 Suitability of individual for registration or registration
endorsement
This clause provides for the things that the Board must consider in
deciding a person's suitability for registration or registration endorsement.
This continues the requirements of the Surveyors Act 1977 that requires
applicants to be of a suitable character, particularly in regard to reputation,
honesty and integrity. For example, this requirement reflects the obligations
on cadastral surveyors and their responsibility to the State and other
landholders when doing cadastral surveys, that is, responsibilities that
extend beyond the surveyor-client relationship.
Clause 38 Eligibility for registration and registration
endorsement-- corporations
This clause specifies the criteria for registration of a corporation as a
surveyor. Registration of a corporation combines registration and a
consulting endorsement, and may also include other endorsements. This
reflects the situation that a corporation seeking registration as a surveyor
will have the intention of carrying on a business that provides surveying
services, even if the corporation's business operates by sub-contracting to
other surveyors.
Corporations are eligible for registration if they are registered under
Australian company law, intend to carry on a surveying business, and hold
the insurances prescribed under regulation.
Corporations must also employ a surveyor with the category of
registration and endorsement(s) required for the type of registration sought
by the company. If the corporation seeks registration as a cadastral
surveyor, the corporation must employ a surveyor with a cadastral
endorsement. Other examples are:
1. If the corporation seeks registration as a surveyor, the
corporation must employ a registered surveyor who may also
hold, but is not required to hold, other endorsements.
2. If the corporation seeks registration as a surveyor with a
hydrographic surveying endorsement, the corporation must
employ a registered surveyor with a hydrographic surveying
endorsement who may also hold, but is not required to hold,
other endorsements.
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This alters the requirement that existed under the Surveyors Act 1977,
where a corporation was required to have a majority of directors with the
registration or endorsement held by the corporation. This change provides
more flexibility in how surveying companies set up their businesses and
allows easier establishment of multi-disciplined firms, while still providing
for the surveying services to be delivered or supervised by an appropriately
registered person.
Division 2--Competency assessment
Subdivision 1--Competency frameworks
Clause 39 Establishing competency frameworks
This clause requires the Board to establish or adopt an existing
competency framework for each of the categories of registration and
registration endorsements it offers. Competency frameworks will be
statutory instruments and come under the provisions of the Statutory
Instruments Act 1992, including permitting the Board to adopt a
competency framework developed by another entity. In preparing
competency frameworks, the Board must consider the qualifications, skills,
knowledge and experience needed in the relevant type of surveying, and
must consult with entities with knowledge in that field. The competency
framework establishes the basis for the operation of the registration system,
as registration provides evidence of competency. While it is likely that
most people obtaining registration will have completed tertiary training, it
is possible for persons to obtain the same level of knowledge without
tertiary training. The focus of the competency framework is on the
qualifications, skills, knowledge and experience that the person is required
to have, and not on how they obtained them.
Clause 40 Publishing competency frameworks
This clause requires the Board to make those competency frameworks
available by publishing them on their web site, or making them available
for searching or purchase at their office.
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Subdivision 2--Accredited entities
Clause 41 Accreditation of entities for assessing competency
This clause permits the Board to contract with other entities and accredit
them to assess the competency of persons. These contracts may
incorporate any amounts payable by the Board to the entity for carrying out
such assessments. This provision recognises that an organisation or
individual may have the capacity to assess whether or not a person satisfies
the competency framework established by the Board - for example a
professional institution, or an independent assessment body. If such an
entity exists, then the Board can use the services of that entity to undertake
competency assessments. Alternatively, a person could independently
obtain an assessment from the accredited entity, and then seek registration
from the Board.
Clause 42 Record of accredited entities
This clause requires the Board to maintain a record of all those entities
that it has approved to carry out competency assessments, and make that
information available.
Subdivision 3--Assessing competency
Clause 43 Who may assess competency
This clause stipulates that either the Board or an accredited assessing
entity may assess the competency of applicants for registration or
registration endorsement. The assessing entity must decide a procedure for
the assessment of applicants and make those details available to applicants
if requested.
Clause 44 Application for competency assessment
This clause provides that applicants may apply to the Board or an
accredited entity to have their competency assessed, in the way prescribed
and with payment of any fee prescribed under regulation.
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Division 3--Applications for registration and registration endorsement
Clause 45 Procedural requirements for application
This clause sets out the procedural requirements for applicants after their
competency has been satisfactorily assessed. Applications to the Board
need to be made on the prescribed forms and include any application fees,
registration fees and any documents or evidence required by the Board.
Evidence required includes any relevant competency assessment or if the
applicant is registered in another jurisdiction, details of the registration and
any conditions that apply to the registration. Applications by individual
persons for the surveyor consulting endorsement must include evidence of
an intention to carry on a surveying business and evidence that the
prescribed insurance covers is held. If the approved form for an application
specifies that information must be verified by statutory declaration, then
that verification must be provided. Applicants also need to advise the Board
in their application if they object to their address being made available in
the publicly accessible part of the register.
As the Board is obliged to publish a register of surveyors, this provision
observes privacy principles by restricting public access to personal address
information, where desired by the applicant.
Clause 46 Additional requirements for application by corporation
This clause requires that if a corporation applies for registration, the
corporation must also supply information demonstrating that it is eligible
for registration under clause 38. This includes any evidence that the
corporation employs a surveyor with the appropriate endorsement(s) for
the surveying services being provided and that the surveyor holds that
registration and endorsement.
Clause 47 Additional requirements for application for registration
as an emeritus surveyor
This clause requires that if a person applies for registration as an
emeritus surveyor, the person must also supply information demonstrating
that the person is eligible for registration under clause 36 and any other
information reasonably required by the Board and identified in the
approved application form as being required.
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Clause 48 Board's powers before deciding application
This clause provides that if the Board considers that it requires further
information before deciding an application, it may issue a notice requiring
the applicant to supply the information within a reasonable period of at
least 10 business days. The Board must issue such a notice within 10
business days of receiving the application. The applicant is taken to have
withdrawn an application if the applicant does not supply the information
requested within the period stipulated by the Board.
Clause 49 Deciding application
This clause requires the Board to grant the application if it is satisfied
that the applicant is eligible. If the applicant is not eligible the Board must
refuse the application.
Clause 50 Steps to be taken after application decided
This clause requires the Board to issue a certificate for the registration or
registration endorsement to the applicant as soon as possible after deciding
to grant an application. If the Board refuses to grant the application it must
give the applicant an information notice and refund any registration fees
paid in advance of the person becoming registered, but not the application
fee. The contents of an information notice are specified in the dictionary in
Schedule 3.
Clause 51 Term of registration or registration endorsement
This clause provides for flexibility in setting the start dates for the term
of registration. A registration or endorsement has a term of 12 months,
starting on the day decided by the Board and expiring at the end of the
term. Details of the starting date must be provided to registrants in writing
and published on the Board web site. Endorsements must run with the
registration term of the surveyor. The Board may decide to alter a term start
date, to provide flexibility in administering the registration renewal
process. If this occurs, any existing registrations or registration
endorsements are unaffected until the registrant applies for renewal in
which case the new term will run only to the next renewal date. If a
registrant renews a registration or registration endorsement prior to the
expiry of the current term, the existing registration continues until such
time as the application is decided.
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Clause 52 Registration certificate
This clause requires the Board to issue registration certificates in the
approved form. The certificate must state the individual's name or the
corporation's name and ACN. The certificates must also state the issue
date. Certificates are issued separately for registration and each
endorsement held by the registrant.
Clause 53 Failure to decide application
This clause provides that if the Board fails to decide an application
within 40 business days after receiving the application, it is taken to have
refused the application. This is to prevent an application remaining
undecided for a long period of time. If the Board has requested further
information and the Board fails to decide the application within 40 business
days of receipt of that information, the application is taken to have been
refused. The Board must refund any prepaid registration fees as soon as it
is taken to have made the decision.
Division 4--Renewing registration and registration endorsement
Clause 54 Application for renewal
This clause requires registrants who wish to renew their registration to
apply to the Board for renewal of registrations or registration endorsements
prior to the current term expiring. Applications must be on the approved
form, and be accompanied by evidence of the registrant's competency and
the annual registration fee. The requirement of evidence of continuing
competence provides the Board with a means of assessing whether
registered persons continue to meet the competency requirements of the
relevant registration category or categories.
Clause 55 Board's powers before deciding application
This clause provides that if the Board considers that it requires further
information before deciding an application for renewal, it may issue a
notice requiring the applicant to supply the information within a reasonable
period of at least 10 business days. The Board must issue such a notice
within 10 business days of receiving the application. The applicant is taken
to have withdrawn an application if the applicant does not supply the
information requested within the period stipulated by the Board.
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This clause provides the Board with the power to request the chief
executive to provide statistical information held by the chief executive
regarding the quality of surveys by the applicant, to assist the Board in
making its decision. The chief executive must supply the information
requested. The purpose of this provision is to assist in identifying
shortcomings at an early stage, so that remedial action can be taken, rather
than waiting for problems to be identified through a complaint when a
serious problem arises.
Clause 56 Deciding application
This clause stipulates that the Board must grant the application for
renewal only if the applicant is eligible, or else refuse the application.
Clause 57 Steps to be taken after application decided
If the Board decides to grant an application for renewal, the Board must
give the applicant written notice of the decision and the term of renewal.
Such notice may be by automated means such as by email.
However if the Board decides to refuse the renewal application, the
Board must give the applicant an information notice about the decision and
refund any registration fees paid in advance, as soon as practicable. The
contents of an information notice are specified in the dictionary in
Schedule 3. This requirement does not apply if the Board fails to decide
the application.
Clause 58 Failure to decide application
This clause provides that if the Board fails to decide an application for
renewal within 40 business days of receipt, or if the Board has requested
more information from the applicant and fails to decide the application
within 40 business days of receipt of the information, the application is
taken to have been refused. In this case the Board must as soon as
practicable refund any registration fees paid in advance.
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Division 5--Restoring expired registrations and registration
endorsements
Clause 59 When application to restore registration or registration
endorsement may be made
A registrant may apply to the Board for the person's registration and
registration endorsements to be restored to the register, if that person failed
to renew the registration prior to the expiry of the term. This must be done
within 3 months of the expiry. However the Board may consider
applications for restoration after this period if the Board considers it
reasonable to do so under the circumstances.
Clause 60 Procedural requirements for applications to restore
registration or registration endorsement
Application under this division must be in the form prescribed by the
Board and be accompanied by any documents and fees prescribed under
regulation, and if the form requires, any statutory declarations verifying
particulars in the application.
Clause 61 Previous conditions continue for expired registration or
registration endorsement
Any conditions attaching to a registration prior to expiry, must, if an
application for restoration is successful, also apply to the renewed
registration.
Clause 62 How division 4 applies for applying to restore
registration or registration endorsement
An applicant and a registrant's application for restoration to the register
shall be treated in the same way as if the application by the registrant were
for a renewal prior to expiry, with the exception that the application is not
being lodged within the normal period.
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Division 6--Amending, suspending, cancelling and surrendering
registrations and registration endorsements
Clause 63 Amending, suspending or cancelling registration or
registration endorsement
This clause sets out the Board's powers in amending, suspending or
cancelling a registration or registration endorsement.
If the Board reasonably believes that a registration or registration
endorsement was obtained through incorrect or misleading information, it
may amend, suspend or cancel the registration or endorsement.
The Board may also take one of these actions if a person has, as a result
of disciplinary action under this Bill, had conditions imposed on the
registration and has contravened those conditions.
A registration may be amended, suspended or cancelled if the registrant
is convicted of an offence against this Bill.
The Board may also amend, suspend or cancel a registration or
registration endorsement if the registrant's equivalent registration is
affected similarly under laws in another jurisdiction. This applies if the
person first obtained registration in Queensland and subsequently obtained
registration in the other jurisdiction, or if the person obtained registration
first in another jurisdiction and then obtained registration in Queensland
based on the first registration.
The Board can also apply these powers where a registrant or former
registrant fails to pay amounts owing to the Board from penalties applied to
the registrant or former registrant from disciplinary procedures. This gives
to the Board a means of enforcing payment of such penalties.
Clause 64 Procedure for amendment, suspension or cancellation
This clause sets out the process to be followed for the amendment,
suspension or cancellation of a registration or endorsement, to ensure that
natural justice applies. If the Board proposes to amend, suspend or cancel a
registration or registration endorsement, the Board must provide written
notice of the proposed action to the registrant, including the basis for the
proposed action. The notice must invite the registrant to show why the
Board should not proceed with the proposed action. The registrant should
be given at least 20 business days in which to respond.
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If, after considering all submissions made within the given period, the
Board considers that grounds still exist to proceed with the proposed
action, the Board may implement the proposed amendment, suspension or
cancellation of the registration or registration endorsement, or take a lesser
action than that proposed. The Board must inform the registrant of the
decision taken and if the proposed action is proceeded with, this shall be by
way of an information notice.
The effective date of the amendment, suspension or cancellation shall be
the later of the date given in the notice or the date of receipt of the notice by
the registrant.
Clause 65 Effect of suspension on renewal
This clause permits registrants to renew a registration or registration
endorsement whilst that registration or registration endorsement may be
suspended, however the suspension continues to have effect for the entire
period of the suspension. This allows a person's registration or
endorsement to revive at the end of the suspension period, if it would
otherwise have expired before the end of the suspension period.
Clause 66 Returning registration certificate on cancellation of
registration or registration endorsement
This clause requires that if a registration or registration endorsement is
cancelled, the registrant must return the registrant's certificate to the Board
within 10 business days after notification, unless there is a reasonable
excuse. A penalty of up to 20 penalty units applies to this provision as it is
important that the registrant cannot continue to hold invalid evidence of a
registration or registration endorsement.
Clause 67 Surrendering registration or registration endorsement
This clause permits registrants to voluntarily surrender their registration
or registration endorsement by returning their certificate and providing
written notice to the Board.
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Division 7--Register
Clause 68 Register
This clause requires the Board to maintain a register for all categories of
registration and endorsement, in a way that the Board considers
appropriate. A regulation may detail any particulars required to be recorded
in the register. The register can be inspected at no cost or a copy may be
obtained for a fee set by the Board. In order to preserve the privacy of
registrants, their addresses may only be listed in the publicly available part
of the register with the registrant's permission. The publicly available parts
of the register may also be published in a way decided by the Board.
Division 8--Offences about registrations, registration endorsements and
registers
Clause 69 False or misleading information given by applicant
This clause provides that applicants for registration or registration
endorsement must not knowingly make false statements. The maximum
penalty for this offence is 50 penalty units.
Clause 70 False or misleading documents given by applicant
This clause applies the principle in clause 69 to documents an applicant
provides to the Board. A penalty provision of 50 penalty units applies if
such documents are false or misleading, unless the applicant informs the
Board that the document may be false or misleading in a particular way and
gives to the Board the correct information if it is available.
Clause 71 Offences about register
This clause protects the integrity of information in, or obtained from, the
register. It is an offence to participate in the recording of incorrect
information in the register. It is also an offence to produce a document that
falsely purports to contain information from the register. As the integrity of
the register is central to the operation of this Bill, the maximum penalty for
an offence is 50 penalty units.
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Clause 72 Notice of change in circumstances
This clause requires registrants to keep the Board informed of changes in
their circumstances that affect the integrity of the register. There is a
maximum penalty of 20 penalty units to reflect the importance of keeping
the public register current and accurate.
The clause contains a definition of the word "change" which excludes a
change in business name under which a registrant provides surveying
services. However, the exclusion does not apply to the name of a
corporation if the corporation is registered, as the name of the corporation
is integral to the register. If a registered person or corporation changes the
name under which they trade, they are not required to comply with this
provision. However, they are required to comply with clause 79
(Notification of business name).
Clause 73 Claims by persons as to registration
This clause makes it an offence to falsely claim to hold, or hold out as
having a registration or registration endorsement of any type, if that
registration is not properly held by the registrant or a person who is not a
registrant. This same provision applies where disciplinary action has
amended, suspended or cancelled a registration or registration
endorsement, or imposed conditions on it, and the person falsely claims
otherwise.
This is an important provision as it provides protection for the public, so
that only persons who are registered may claim to be so. The maximum
penalty for this offence is 100 penalty units, reflecting the seriousness of
such an offence. As it is not necessary for a person to hold a registration in
order to undertake a survey, other than a cadastral survey, the clause makes
it clear that a person does not contravene this clause simply by performing
a survey.
Clause 74 Claims by persons as to other persons' registration
This clause makes it an offence for a person to hold out another person
as holding a registration or registration endorsement. The test is that the
person must reasonably know that the other person does not hold the
registration. In line with the previous clause, the maximum penalty is 100
penalty units.
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Clause 75 Carrying out a cadastral survey
This clause deals with cadastral or land boundary surveys. A significant
element of the registration system is the cadastral endorsement, and only a
registered surveyor with a cadastral endorsement may undertake cadastral
surveys. Cadastral surveys contribute to the issuing of land titles. The
stability and integrity of, and the level of public confidence in, the State's
land titling system depends in part on cadastral surveys being performed by
competent persons.
The clause makes it an offence for a cadastral survey to be carried out by
a person who is not a registered cadastral surveyor. An exception applies if
the person is a registered surveyor, surveying associate or surveying
graduate under the personal supervision of a registered cadastral surveyor
who accepts responsibility for the quality of the survey. An offence against
this provision carries a maximum penalty of 100 penalty units.
A person must hold a registration endorsement as a consulting surveyor
in order to charge a fee for carrying out a cadastral survey. The maximum
penalty for this offence is 50 penalty units.
Clause 76 Carrying on a business providing cadastral surveying
services
This clause makes it mandatory for a business that provides cadastral
surveying services to be a registered surveyor with a cadastral endorsement
and a consulting endorsement. The maximum penalty for the offence is 50
penalty units. Businesses providing other types of surveying services may,
but are not required to, hold a consulting endorsement.
Clause 77 Compliance with disciplinary conditions
This clause makes it an offence for a person not to comply with any
conditions placed on the registration as a result of a disciplinary process.
The maximum penalty for the offence is 50 penalty units.
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Division 9--Miscellaneous
Clause 78 Replacement or duplication of registration certificate
This clause permits persons to apply to the Board for a replacement or
duplicate registration certificate, by application on the required form and
on the payment of a prescribed fee.
PART 4--OBLIGATIONS OF REGISTRANTS AND
OTHER PERSONS
Division 1--General
Clause 79 Notification of business name
This clause requires registrants who carry out a business providing
surveying services to advise the Board of the business name that the
registrant intends to use, if that name is not the registrant's own name. This
applies regardless of whether the business name is registered under the
Business Names Act 1962. A penalty of up to 20 penalty units may apply if
this requirement is not satisfied.
If a registrant's business name changes, the registrant must advise the
Board within 10 business days of that changed name, or a penalty of up to
10 penalty units may apply. This provision complements clause 72 (Notice
of change in circumstances) by requiring the Board to be advised of the
change. However, as the business name is incidental to the register, a lower
penalty applies.
Division 2--Code of practice and other matters about professional
conduct
Clause 80 Board must develop a code of practice
This clause requires the Board to develop a code of practice to provide
guidance to registrants about appropriate professional conduct. The code
may make use of other codes of practice, for example a national code or the
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code of a professional body, either by incorporating them in the Board's
code or by the Board's code stating that the other code applies to
registrants.
In developing the code, the Board must consult with the chief executive,
entities that the Board considers represent the interests of surveyors,
Queensland educational institutions that teach surveying, and any other
entity that the Minister considers appropriate. The Board must review the
code regularly to ensure that it remains relevant.
Clause 81 When code of practice has effect
The code or any amendment of the code must be gazetted by the
Minister to have effect.
Clause 82 Inspection and notification of code
This clause requires the Board to inform all registrants of the approved
code of practice and to keep copies of the code available for inspection at
the Board's office and to publish it on the Internet.
Clause 83 Use of code of practice in disciplinary proceedings
This clause allows the code to be admitted in disciplinary proceedings as
evidence of appropriate professional conduct or practice by registrants.
However, this does not limit the matters that may be considered as evidence
of professional conduct in a disciplinary proceeding. In other words, the
fact that the code is silent on a matter does not mean that the matter may
not be considered.
Clause 84 Certificates etc. not to be false or misleading
This clause prohibits a registrant, when acting in the registrant's
professional capacity, from giving or signing a certificate, notice, report or
other document that the registrant knows to be false or misleading. The
maximum penalty for this offence is 50 penalty units.
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PART 5--COMPLAINTS AND INVESTIGATIONS
ABOUT REGISTRANTS' PROFESSIONAL CONDUCT
Division 1--Complaints and investigation
Clause 85 Complaints about registrant's professional conduct
This clause provides for complaints to be made to the Board about a
registrant's professional conduct whilst carrying out a survey. This is the
initial step in processes that may lead to investigations or disciplinary
action. Complaints must be in writing. Any conduct that falls within the
definition of professional misconduct, defined in Schedule 3, is a matter
about which a complaint can be made. However the Board may reject
complaints that are frivolous, vexatious or trivial. This gives discretion to
the Board to dismiss inappropriate complaints.
The Survey and Mapping Infrastructure Bill 2003 sets the standards for
surveys, particularly cadastral surveys. The department that administers
that Bill is involved with checking the quality of cadastral survey plans.
The chief executive of that department or the registrar of titles may refer
matters to the Board, if either person believes that a surveyor has not
complied with survey standards.
Clause 86 Board's power to deal with matter without investigation
of the registrant's professional conduct
This Bill establishes a three-tiered approach to disciplinary actions,
depending on the severity of the matter.
At the lowest level, the Board may ask the registrant to meet with one or
more of the Board members, for the purpose of deciding what action
should be taken in relation to the matter, which may result in the registrant
agreeing to take action to address the matter.
At the second level, the Board may establish a professional conduct
review panel consisting of at least four Board members to deal with the
matter and, if appropriate, take action against the registrant.
At the highest level, a special disciplinary committee chaired by a
District Court judge may be appointed by the Governor in Council to
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conduct a hearing and, if appropriate, take action against the registrant,
which may include suspension or cancellation of the person's registration.
It is not mandatory that matters progress through each of the levels. The
Board may choose the most appropriate level to address the matter.
This clause describes the process for the lowest level of disciplinary
action. If the Board believes a registrant has engaged in professional
misconduct, whether or not a complaint has been made, the Board may ask
the registrant to attend before one or more of its members acting for and on
behalf of the Board, to provide information or documents, and to answer
questions. In deciding whether or not to ask the person to attend such a
meeting, the Board can obtain information from the chief executive.
The registrant is not compelled to attend the meeting. If the registrant
does attend, the Board (through its representatives) may decide that the
matter can be dealt with adequately without undertaking a formal
investigation, by either (i) cautioning, advising or reprimanding the
registrant, or (ii) reaching agreement that the registrant will take action to
address the matter by correcting the survey or undergoing further training
or competency assessment, at the registrant's expense. Alternatively, the
Board may decide to authorise a formal investigation, which could lead to
one of the higher levels of disciplinary action being taken.
The registrant may during the course of the discussion with the Board
members, refuse to answer a question or refuse to supply a document or
information if such a response could tend to incriminate the registrant.
Clause 87 Board may authorise investigation of registrant's
professional conduct
This clause sets out the basis on which the Board may authorise an
investigation of a registrant's professional conduct. This may occur if the
Board believes a registrant has engaged in professional misconduct, or if
the registrant has not met with the Board when asked to do so under clause
86.
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Division 2--Action following investigation
Subdivision 1--Investigator's report and board's decision on
investigation
Clause 88 Investigator's report about investigation
This clause requires an investigator to provide the Board with a written
report as soon as possible after completing the investigation into a
registrant's professional conduct. The provisions regarding an
investigator's powers and the investigation process are in Part 7.
Clause 89 Board's decision on investigation
This clause sets out the process to be followed after receipt of a report
from an investigator, and describes the setting up of a `professional conduct
review panel'.
After receiving a report from an investigator, the Board must decide
whether it believes the registrant has engaged in professional misconduct.
If it considers this to be the case, then the Board must decide which course
of action to take, having regard to both the Bill's purpose to protect the
public and the seriousness of the matter.
The Board may decide to deal with the matter under the informal process
set out in clause 86, if it reasonably believes the professional misconduct is
not of a serious nature and that corrective action is reasonably likely under
an agreed outcome between the Board and the registrant. Alternatively, the
Board may refer the matter to a professional conduct review panel or, for
more serious matters, to a disciplinary committee.
A professional conduct review panel consists of at least four members of
the Board, chosen having regard to both the nature of the matter and the
qualifications and experience of the members constituting the panel.
Clause 90 Board's notice, and implementation, of its decision on
investigation
This clause requires that if the Board decides to refer a matter to a
professional conduct review panel, it must advise the registrant in writing
of that fact, and where the investigation originated from a complaint, also
advise the complainant. The Board must also implement the decision.
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Subdivision 2--Taking disciplinary action
Clause 91 Disciplinary action by professional conduct review panel
This clause sets out the powers and functions of a professional conduct
review panel to which the Board has referred a matter.
The panel must decide whether to take disciplinary action, and if so,
what action. The decision must be decided in the way the panel considers
appropriate, but the decision-making process must observe natural justice.
Although it is not prescribed, it is likely that some form of hearing would
be conducted to allow the person to respond to the findings of the
investigator and to provide an explanation to the panel.
If the panel decides to take action it may do one or more of the
following: caution or reprimand the registrant, order the registrant to
correct a survey that is the subject of the compliant, order the registrant to
undergo further training or competency assessment, or order the registrant
to pay to the Board a fine of up to 100 penalty units. In addition, the panel
may also order the registrant to pay the costs of the Board in bringing the
action, including any associated investigation costs. Any fines or costs
ordered to be paid to the Board are a debt payable by the registrant to the
Board, and as such can be recovered under legislation governing the
recovery of debts.
After making its decision, the panel must advise the registrant, and also
the complainant where the investigation was the result of a complaint. If
the decision was to require the correction of a survey or payment of a fine
or costs, the advice to the registrant must be by way of an information
notice, the contents of which are set out in the Dictionary in Schedule 3.
Clause 92 Protection against self-incrimination
This clause provides protection against self-incrimination by providing
that a registrant is not obliged to produce a document to, or answer a
question from, a professional conduct review panel where that may
incriminate the registrant.
Clause 93 Disciplinary action by disciplinary committee
This clause provides that if under clause 89 the Board decides to refer a
matter to a disciplinary committee, the process for hearing and deciding the
matter is set out in Part 6.
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PART 6--SURVEYORS DISCIPLINARY COMMITTEE
Division 1--Establishment and functions of surveyors disciplinary
committee
Clause 94 Establishment
This clause requires a disciplinary committee to be established as soon
as possible after the Board decides to refer a matter to a committee. A new
committee is established each time the Board makes such a decision,
because the composition of the committee must reflect the nature of the
matter.
Clause 95 When disciplinary committee ceases to exist
This clause provides that a disciplinary committee ceases to exist when it
has completed the function it was established to perform, or it is no longer
able to perform that function.
Clause 96 Functions
This clause specifies the functions of the disciplinary committees - to
conduct a hearing and to make decisions about the matter referred to it by
the Board.
Division 2--Membership of disciplinary committee
Clause 97 Membership
This clause provides for the members of a disciplinary committee to be
appointed by the Governor in Council. A disciplinary committee comprises
a District Court Judge who is the chairperson, and two surveyors who are
not Board members and are considered by the Minister to be appropriate
given the nature of the matter being heard by the committee. The two
surveyors must each have held their registration for at least ten years and
either hold a registration and appropriate endorsement in the area of
surveying that is the subject of the action, or be an emeritus surveyor. The
surveyors are on the committee to provide expert advice regarding the
practice of surveying.
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Clause 98 Payment of members
This clause provides that members of a disciplinary committee are
entitled to be paid the remuneration and allowances decided by the
Governor in Council.
Division 3--Proceedings of disciplinary committee
Clause 99 Notice of intention to conduct disciplinary proceedings
by hearing
This clause requires the Board to notify the registrant, and if appropriate
the complainant, about a proposed hearing by a disciplinary committee.
The notice must specify that the grounds for the proceeding are that the
registrant has engaged in professional misconduct, and must explain the
basis of the grounds. The meaning of professional misconduct is set out in
the Dictionary in Schedule 3. The notice must also specify the time and
place of the hearing, which must be at least 10 business days after the
registrant receives the notice, and that the registrant may be accompanied
by a lawyer. If relevant, the notice must advise that if the complainant is to
be required to provide evidence to the committee, the complainant may be
excluded from the hearing under clause 106.
Due to the seriousness of the matters being considered at this level of the
disciplinary process, and the penalties that can be imposed by the
committee, including suspension or cancellation of a registration or
endorsement, the registrant is entitled to legal representation, and must be
advised of this in the notice.
Clause 100 Substituted service on registrant and complainant
This clause provides that if the hearing notice under clause 99 cannot be
served personally on the registrant or complainant, it can be served in a
way ordered by the committee, for example by way of facsimile or
telephone.
Clause 101 Procedure for hearing by disciplinary committee
This clause prescribes the manner in which the disciplinary committee
should conduct a hearing. Subject to the requirements of this division of the
Bill, the chairperson may decide the procedures for the hearing. The
hearing must be conducted as expeditiously, informally and with as little
technicality as possible, but must be fair and comply with natural justice.
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The committee is not bound by rules of evidence, allowing it to proceed
with less formality than would be required if it were bound by these rules.
The committee may decide the manner in which it obtains information.
Certain obligations are placed on the committee, to ensure that the
process is conducted in a fair and reasonable manner, and to ensure that the
registrant understands the process. The committee must inform the
registrant of all the facts and circumstances for bringing the action against
the registrant and also the possible disciplinary actions the committee is
empowered to take under this Bill. At the request of the registrant, the
committee must explain any aspect of the proceedings, including any
decisions or rulings the committee makes. The registrant must be given
full opportunity to be heard by the committee, so that the person is able to
provide the committee with an explanation regarding the matters being
considered by the committee and any evidence that has been presented to
it.
Clause 102 Time and place of hearing
This clause makes the chairperson responsible for deciding the time and
place for the hearing.
Clause 103 Evidence by telephone, video link or another form of
communication
This clause provides the committee with flexibility in the ways it can
receive evidence, provided that the method used allows for a reasonable
level of simultaneous communication between the participants. The
manner in which such a method is used is at the discretion of the
committee.
Clause 104 Hearing open to the public
This clause requires a disciplinary hearing to be open to the public,
unless the committee decides otherwise.
Clause 105 Attendance and appearance at hearing
This clause permits the registrant to be accompanied and represented by
a lawyer or another person, due to the seriousness of the matters that would
be considered at this level of the disciplinary process, and penalties that can
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be imposed by the committee, including suspension or cancellation of a
registration or endorsement.
The complainant may also attend the hearing subject to clause 106.
Clause 106 Disciplinary committee may exclude complainant or
witness from hearing
This clause permits the committee to exclude a complainant or a witness
from the hearing until the person gives evidence, to ensure that the fairness
of the hearing is not affected by the person's presence.
Clause 107 Disciplinary committee may exclude disruptive person
from hearing
This clause permits the committee to exclude a disruptive person from
the hearing.
Clause 108 Witnesses
This clause gives the committee the power to require a witness to attend
a hearing, to give evidence, answer questions or produce an item to the
committee. The witness' evidence may be taken under oath administered
by a member of the committee who is permitted to do so by the
chairperson. The registrant may request the committee to require a witness
to attend the hearing, and the committee must do so unless it believes it is
unnecessary or inappropriate.
Clause 109 Disciplinary committee may proceed in absence of
registrant or may adjourn hearing
This clause permits the committee to conduct a hearing in the absence of
a registrant, if the registrant has been given proper notice of the hearing.
The clause also permits the committee to adjourn the hearing at its
choosing.
Clause 110 Questions to be decided by majority of disciplinary
committee members
This clause prescribes the manner in which the committee makes its
decisions. The chairperson must decide matters of law, and such a decision
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is taken to be a decision of the committee. Other decisions are made by
majority vote, with the chairperson having a casting vote.
Clause 111 Procedure if committee member unable to participate
further in the disciplinary proceedings
This clause deals with those situations where a committee member is
unable to continue on the committee after the hearing has commenced but
before the committee has made its decision. If the committee member who
cannot continue is the chairperson, a new committee must be established.
In other cases, the hearing may continue with the remaining committee
members, if the registrant consents, otherwise a new committee must be
established. The new committee may contain persons from the previous
committee.
Clause 112 Inspection of things
This clause allows a disciplinary committee to inspect things produced at
a hearing and, if the committee considers it to be relevant to the hearing,
the committee may photograph the thing, copy or take an extract of the
thing if it is a document, or keep the thing during the hearing. Where the
committee holds the thing, the owner may photograph the thing, or copy or
take an extract of the thing if it is a document at a reasonable place and
time decided by the committee. The thing must be returned to its owner
after the hearing.
Clause 113 Disciplinary committee to keep record of proceedings
This clause requires the committee to keep records of evidence given to a
hearing, in the manner decided by the committee. The committee is not
required to keep a transcript of the hearing, but must give the record of
evidence to the Board at the end of the hearing. The Board is bound by the
Public Records Act 2002 in relation to the way and length of time that
records shall be kept.
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Division 4--Offences about disciplinary proceedings dealt with by
disciplinary committee
Clause 114 Offences about attending hearing, answering questions
and related matters
This clause sets out a number of offences in relation to the conduct of
registrants and witnesses at a proceeding of the committee, including when
a registrant or person is required to attend but fails to attend or fails to
continue to attend, or fails to take an oath. It is also an offence for a witness
to fail to answer a question or produce a thing, unless doing so might
incriminate the witness. The maximum penalty for each offence is 50
penalty units.
Clause 115 False or misleading information
This clause provides a penalty of up to 50 penalty units for persons
knowingly making a false or misleading statement to a disciplinary
committee.
Clause 116 False or misleading documents
This clause provides a penalty of up to 50 penalty units for persons who
knowingly provide a document containing false information to a
disciplinary committee, unless the person informs the committee how the
information is incorrect and if possible, provides the correct information.
Clause 117 Contempt of disciplinary committee
This clause provides a penalty of up to 50 penalty units for persons
acting in contempt of the committee, as described in the clause.
Division 5--Decision on completion of disciplinary proceedings
Clause 118 Decision about whether ground for disciplinary action is
established
This clause requires that after the disciplinary committee has completed
the hearing, it must decide whether the registrant has engaged in
professional misconduct - the matter that the committee was established to
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consider. In particular, the committee must make its decision having regard
to the Board's code of practice for registrants and relevant survey standards
made under the Survey and Mapping Infrastructure Bill 2003.
In certain circumstances, a registrant may have done a series of things,
any of which may not have been serious enough for a committee to decide
that the person had engaged in professional misconduct. However, the
committee might decide that some or all of the things, when considered
together, constitute professional misconduct. For this reason, the
committee is also required to consider previous decisions by a disciplinary
body if they are relevant or any other matter the committee deems relevant.
Such considerations might also affect the severity of the action taken
against the registrant under the following clause.
Clause 119 Decision about disciplinary action against registrant,
other than former registrant
This clause sets out the disciplinary action that the committee can take
against a registrant, other than a former registrant, if the committee has
decided that the registrant has engaged in professional misconduct. These
range from issuing advice or a caution to the registrant, through to
suspension or cancellation of the registrant's registration or endorsement.
Certain options available to the committee allow a deficiency in the
person's competence or conduct to be rectified without taking away the
person's ability to earn a livelihood. For example, the registrant can be
prevented from carrying out a particular type of survey, or can be restricted
to a particular type of survey, until that person demonstrates to the Board
that they have the relevant competency.
Similarly, if the committee cancels a registration or registration
endorsement, it may set conditions upon which the registrant may be able
to re-apply for registration, giving some scope or opportunity for the
registrant to regain a livelihood from surveying.
Any amounts ordered to be paid by the registrant are debts payable to the
Board.
Clause 120 Decision about disciplinary action against former
registrant
This clause sets out the disciplinary action that the committee can take
against a former registrant, if the committee has decided that the former
registrant has engaged in professional misconduct. The options available
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to the committee are the same as for a current registrant under clause 119,
except that the person's registration cannot be suspended or cancelled.
However, if the committee would have suspended or cancelled the
registration if the person had been registered, the committee must decide a
period of time before which the person cannot reapply to be registered.
Clause 121 Matters disciplinary committee must consider in
making decision about disciplinary action
This clause requires that when the disciplinary committee makes its
decision about a registrant or a former registrant, it must give consideration
of the purposes this Bill and any previous decisions about the registrant
made by any other disciplinary committee or any other matter the
committee considers is relevant.
Clause 122 Disciplinary committee's power to order costs
This clause permits the disciplinary committee to make orders about
costs associated with the disciplinary proceedings to be paid by the
registrant or former registrant. Such a decision is to be guided by the rules
governing the determination of costs for proceedings in the District Court
and may also include the costs incurred by the Board that are associated
with the conducting of the investigation into the person's professional
misconduct.
Division 6--Action after decision about disciplinary action
Clause 123 Notification of disciplinary committee's decision
This clause requires the disciplinary committee to notify the registrant
and the Board of its decision. The clause prescribes the contents of the
notice, including the decision itself and the grounds and reasons for that
decision, and advice that the Board or the registrant may appeal on a
question of law.
The committee's decisions take effect either on the day the notice is
given to the registrant or the date stated in the notice, whichever is later.
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Clause 124 Board may notify other persons
This clause permits the Board to publish the nature and outcome of the
proceeding in the Board's annual report, website or other form of
publication. The clause also permits publication of the identity of the
registrant or former registrant. The Board may also advise the complainant
of the decision made by the disciplinary committee, if the action related to
a complaint. This does not affect the Board's responsibility to record in the
register any change about the registrant's registration resulting from the
disciplinary action.
Division 7--Effect of decision
Clause 125 Effect of disciplinary committee's decision
This clause specifies that the disciplinary committee's decision is
binding on the Board and the registrant.
Clause 126 Implementation of decision
This clause requires the Board to give effect to the decisions of the
disciplinary committee unless the decision is stayed on application by a
registrant or former registrant to the Court of Appeal.
Clause 127 Disciplinary action to be recorded in register
This clause requires the Board to record in the register any decisions by
the disciplinary committee if those decisions affect the registrant's
registration or registration endorsements. Such information might include
any conditions on registration imposed by the committee, any periods of
suspension, or cancellation, and the effective dates of these. As the register
is a public register, any person searching it can become aware of a change
in the status of a registrant's registration.
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PART 7--INVESTIGATORS
Division 1--Functions and powers generally
Clause 128 Functions of investigator
This clause specifies that an investigator appointed by the Board to carry
out an investigation has two functions - to carry out the investigation and to
provide a report to the Board.
Clause 129 Powers of investigator
This clause provides the investigator with the powers given to
investigators under this Bill for carrying out the investigator's functions.
Division 2--Appointment of investigators and other matters
Clause 130 Appointment
This clause stipulates that the Board appoints investigators on a case-by-
case basis. An investigator can be a surveyor who is not a Board member.
Clause 131 Appointment conditions and limit on powers
This clause stipulates that an investigator holds office on conditions set
by the Board and specified either in the instrument of appointment or in a
signed notice given to the investigator by the Board. The instrument or
notice may limit the powers of the investigator that are otherwise provided
for in this Bill.
Clause 132 Issue of identity card
This clause requires the Board to give an investigator an identity card, so
that the investigator can produce it to demonstrate that the Board has
appointed the person as an investigator. An identity card may serve other
purposes. The use of the card is set out in the following clause.
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Clause 133 Production or display of identity card
This clause requires an investigator to produce their identity card and to
keep it displayed when carrying out their investigatory roles and exercising
the investigatory powers. However if this is not practicable in the first
instance, the identity card should be produced at the first available
opportunity. The clause clarifies that an investigator is not exercising a
power under this Bill simply by entering a place that is reasonable for the
public to do to contact the occupier.
Clause 134 Resignation
This clause permits an investigator to resign by notifying the Board in
writing. The person is required to provide the Board with a report of the
investigation, so that the work done by the investigator does not need to be
repeated by another investigator, and so that any evidence collected by the
investigator is not lost.
If the person holds another office on the condition that the person is an
investigator, the person must resign from that other position as well.
Clause 135 Return of identity card
If an investigator stops being an investigator, this clause requires the
person to return the identity card to the Board with 15 business days unless
there is a reasonable excuse. This prevents continued use of the card when
the person is not an investigator. A penalty of up to 10 penalty units may be
incurred.
Division 3--Particular powers of investigators
Subdivision 1--Power to obtain information
Clause 136 Power to require information or attendance
Investigators generally need to acquire information from persons in
order to conduct an investigation. This clause gives an investigator the
power to obtain the information by consent or by issuing a written notice to
a person requiring them to provide the information or meet with the
investigator to answer questions or produce a specified thing. The
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investigator must allow a reasonable time for the person to comply with
any requirement contained in the notice.
Clause 137 Offences
This clause makes it an offence for a person to refuse to provide the
information or produce a thing requested by an investigator. A maximum
penalty of 50 penalty units applies to this offence.
If a notice has been issued under clause 136, the person must attend and
continue attending as required or until excused by the investigator, and
must answer any question put by the investigator and produce any thing
required by the investigator. A maximum penalty of 50 penalty units
applies to this requirement.
It is reasonable for a person to refuse to give the information, answer a
question or produce a thing if the person reasonably believes that doing so
could incriminate the person.
Clause 138 Inspection of produced things
This clause gives an investigator the power to inspect things produced to
the investigator. If the investigator reasonably believes the thing to be
relevant to the investigation, the inspector may photograph the thing, copy
or take an extract of the thing if it is a document or keep the thing during
the investigation. However, if the investigator keeps the thing, the owner
must be allowed reasonable access to it, in the manner specified in the
clause.
Subdivision 2--Entry of places
Clause 139 Power to enter places
This clause gives an investigator the power to enter places for the
purposes of carrying out an investigation. If the place is a public place, the
investigator may enter it when the place is open to the public. In other
instances, including privately owned premises or a public place when the
place is not open, the investigator may enter a place if the occupier
consents, or if the entry is authorised by a warrant. For the purposes of
contacting an occupier, it is lawful for an investigator to enter land or those
places where the public ordinarily go, without a warrant or the owner's
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consent. This clause provides an appropriate balance between the rights of
owners or occupiers and the need for an investigator to enter private
property in order to properly conduct an investigation. The following
subdivision sets out the procedure to be followed for entry to places.
Subdivision 3--Procedure for entry
Clause 140 Entry with consent
This clause sets out the procedures an investigator must follow in
obtaining the consent of an occupier to enter a place. This provision
recognises the rights of an occupier to consent to entry or otherwise restrict
entry.
The investigator must inform the occupier why entry to the place is
required and that the occupier has the right to refuse that entry. If consent is
given, the investigator may require the occupier to sign an
acknowledgement form stating that the occupier has been told the purpose
of entry and has been told that the occupier is not required to consent, and
also stating the purpose of entry, and stating that the occupier's consents to
the investigator entering the place and the time and date that the consent
was given. If the occupier signs the consent, the investigator must provide a
copy of the consent to the occupier.
If the question arises at a later date as to whether or not the consent was
given, it is up to the person relying on the consent to provide the written
acknowledgement or otherwise prove that the occupier consented.
Clause 141 Application for warrant
This clause permits an investigator to apply to a magistrate for a warrant
to enter a place, so as to gain access to those places where an investigator
reasonably suspects that there is evidence and when consent cannot be
obtained from the occupier. The magistrate is not compelled to issue the
warrant and may require further information before considering the
application.
Clause 142 Issue of warrant
This clause provides for a magistrate to issue a warrant for an
investigator to enter a place, only if there are reasonable grounds for
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suspecting that there is a particular thing or activity that could provide
evidence in a disciplinary matter being investigated by the investigator and
that the evidence is or may be at the place within the next 7 days. The
warrant must contain the information specified in the clause, to inform the
occupier of the basis for the warrant and any limitations on it such as the
hours of entry or the evidence that may be seized.
Clause 143 Warrants--procedure before entry
This clause sets out the procedure that an investigator must follow when
entering a place with a warrant. The investigator must identify himself or
herself to the occupier by producing the investigator's identification card
issued by the Board or other document evidencing the investigator's
authority. The occupier must be given a copy of the warrant. The
investigator must inform the occupier that the investigator has the right
under the warrant to enter the place. The investigator must give the
occupier reasonable opportunity to allow the investigator to enter the place
without using force, so as to prevent an investigator from using force
unnecessarily.
However, if investigator believes that taking the above steps will lead to
the purpose of the entry being frustrated, for example evidence being
destroyed or removed, the investigator may make immediate entry to the
place.
Subdivision 4--Powers after entry
Clause 144 General powers after entering places
This clause sets out the powers that an investigator has after entering a
place with the occupier's consent or under some other authority, for
example with a warrant. The clause specifies a number of things that the
investigator can do for the purpose of finding and collecting evidence. As
the investigation may involve the carrying out of a survey, the investigator
is permitted to take a person and equipment onto the place and is permitted
to place survey marks (A person and equipment may be taken onto the
place also for purposes other than the undertaking of a survey.)
The investigator may require the occupier or person at the place to assist
the investigator to exercise the investigator's powers, or to provide
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information to the investigator. In doing so, the investigator must warn the
occupier or person at the place that it is an offence to not assist unless there
is a reasonable excuse. The following clause makes failing to help the
investigator an offence.
Clause 145 Failure to help investigator
This clause makes it an offence for a person to refuse to give the
assistance that an investigator requests under clause 144, unless the person
has a reasonable excuse. It is a reasonable excuse to not comply if the
assistance might incriminate the person. A penalty of up to 50 penalty units
may be imposed for this offence.
Clause 146 Failure to give information
This clause makes it an offence for a person to refuse to give the
information that an investigator requests under clause 144, unless the
person has a reasonable excuse. It is a reasonable excuse to not comply if
giving the information might incriminate the person. A penalty of up to 50
penalty units may be imposed for this offence.
Subdivision 5--Power to seize evidence
In certain circumstances, evidence cannot be obtained without taking an
item from a place, or an item needs to be protected or taken from a place to
prevent evidence being removed or destroyed. This subdivision sets out the
manner in which such items can be seized by an investigator.
Clause 147 Seizing evidence at public place if entry made when
place open
This clause gives an investigator the power to seize a thing at a public
place, when the place is open to the public, if the investigator believes the
thing is relevant to the investigation and that the evidence is unable to be
obtained in another way. A computer or some surveying equipment may
need to be removed because data on the computer cannot be copied at the
premises.
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Clause 148 Seizing evidence at a place that may only be entered with
consent or warrant
This clause gives an investigator the power to seize a thing at a place that
the investigator enters with the consent of the occupier or with a warrant,
including at a public place when the place is not open to the public.
If the investigator enters with the consent of the occupier, the
investigator may seize a thing if the investigator believes that the thing is
relevant to the investigation, provided that the seizure of the thing is
consistent with the information given to the occupier about the purpose of
the entry when seeking the occupier's consent.
If the investigator enters with a warrant, the investigator may seize
evidence for which the warrant was issued or any other thing at the
premises that is relevant to the investigation.
A further power to seize things is provided if the investigator believes it
is necessary to seize a thing to prevent evidence from being lost, destroyed
or hidden.
The investigator must not seize a thing under this clause if the evidence
can be obtained or copied from it at the premises without seizing the thing.
Clause 149 Securing seized things
This clause provides for the securing of things seized by an investigator,
to protect the evidence. This can be done either by removing the thing from
the premises, or by restricting access to it in such a way that it is obvious
that access to the thing is restricted.
Clause 150 Tampering with seized things
This clause makes it an offence with a penalty up to 50 penalty units for
a person to tamper with a thing to which access has been restricted by an
investigator.
Clause 151 Receipt for seized things
This clause requires an investigator to give a receipt to the person from
whom a thing was taken or, if this is not practicable, leave it for the person
at the place where the thing was seized, in a conspicuous and secure place.
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The receipt must adequately describe each thing seized. An investigator is
not obliged to give a receipt if it is impracticable to do so because of the
nature of the thing.
Clause 152 Forfeiture of seized things
This clause provides that things that have been seized by an investigator
may be forfeited if the owner cannot be found after making reasonable
enquires or the thing cannot be returned to its owner after making
reasonable efforts to return it. The investigator must have regard to the
nature, condition and value of the seized thing when considering the effort
required to find the owner or return the thing.
Clause 153 Dealing with forfeited things
This clause permits the Board to deal with a forfeited thing as if it were
its own property and allows the Board to sell, destroy or otherwise dispose
of the thing.
Clause 154 Return of seized things
This clause requires an investigator to return a seized thing to its owner
after 6 months or if proceedings have been started within the 6 months, the
thing must be returned at the end of any proceedings and any subsequent
appeal from those proceedings. However, the investigator must return the
thing if it is no longer required as evidence, if it is not forfeited.
Clause 155 Access to seized things
This clause permits an owner of a thing to be able to inspect a thing or
copy a thing if it is a document that has been seized and not forfeited,
provided that the inspection or copying is not unreasonable or
impracticable.
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Division 4--General investigation matters
Clause 156 Investigator's obligation not to cause unnecessary
damage
This clause requires an investigator to take all reasonable steps to ensure
that no damage is caused to any property when exercising the investigator's
powers.
Clause 157 Notice of damage
This clause specifies the responsibilities of an investigator when
property is damaged. If an investigator, or a person acting under the
investigator's direction, damages property during an investigation, the
investigator must immediately notify the person who appears to be the
owner. If the owner cannot be advised personally, the advice may be way of
a notice left in a reasonably secure yet conspicuous place near the damage.
These provisions do not apply to damage that the investigator reasonably
believes is trivial. If the investigator believes the damage was caused by an
inherent defect in the property or was caused by circumstances that were
beyond the control of the investigator, this should be stated in the notice.
Clause 158 Compensation
This clause makes the Board responsible for compensation if a person
suffers loss as a result of an investigator exercising the investigator's
powers given in this Bill. This clause also applies to losses or expenses
incurred by a person when that person is complying with a requirement
under the subdivision. The person who suffered loss may seek
compensation through the relevant court. The court may only order
compensation if it is satisfied that is it fair to make the order in the
circumstances.
Clause 159 False or misleading information given to investigator
This clause makes it an offence, with a penalty of up to 50 penalty units,
for a person to state anything to an investigator knowing that such
information is false or misleading.
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Clause 160 False or misleading documents given to investigator
This clause makes it an offence, with a penalty of up to 50 penalty units,
for a person to provide a document to an investigator knowing that the
document contains false or misleading information, unless the person
informs the investigator how the information in the document is false or
misleading and provides to the investigator the correct information if it is
reasonably available to the person.
Clause 161 Obstruction of investigator
This clause makes it an offence, with a penalty of up to 100 penalty
units, for a person to obstruct an investigator who is carrying out the duties
of an investigator, unless the person has a reasonable excuse. Where there
is an obstruction and the investigator proceeds with the investigation, the
investigator must warn the person that it is an offence to obstruct the
investigator without reasonable excuse and that the investigator considers
the person is causing an obstruction. For the purposes of this clause,
obstruction is taken to include hindering or attempting to obstruct or
hinder.
Clause 162 Impersonation of investigator
This clause makes it an offence, with a penalty of up to 50 penalty units,
for a person to pretend to be an investigator.
PART 8--APPEALS TO DISTRICT COURT
Clause 163 Who may appeal
This clause specifies the persons who are entitled to appeal a decision in
the District Court. This includes those persons who have been given an
information notice by the Board or a professional conduct review panel.
These instances have been summarised in Schedule 1 of the Bill. Under
clauses 53 and 58, the Board is taken to have made a decision to refuse an
application if the Board has not made a decision within a specified time.
Applicants affected by such a decision may also appeal to the District
Court. The clause upholds natural justice by providing a right of appeal
against decisions made under powers contained in the Bill.
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Clause 164 How to start an appeal
This clause sets out the process for starting an appeal to the District
Court. The Uniform Civil Procedure Rules apply to the process. A notice
of appeal must be filed with the registrar of the court within 28 days of the
person receiving an information notice informing them of the decision. If
the person does not receive an information notice, the person may appeal
within 28 days of becoming aware of the decision.
The Bill provides flexibility for starting appeals, by allow persons to start
an appeal at any District Court and by allowing the court to extend the time
in which an appeal can be filed.
Clause 165 Hearing procedures
This clause specifies the manner in which the District Court deals with
appeals. The appeal is to be a rehearing, based on the material that the
entity used to make the decision and any other material that the Court
wishes to use. This provides an independent review of the decision and
shall be made as if the Court has the same powers as the original decision
making entity.
Clause 166 Stay of operation of decision
This clause allows the court to suspend the operation of the decision that
is being appealed against. This prevents a person from being required to
do, or cease doing, something, until such time as the requirement is
reviewed in the appeal process. If the Court does not stay the decision, the
appeal has no effect on the implementation of the decision.
Clause 167 Powers of court on appeal
This clause sets out the decisions that the Court can make in deciding an
appeal against a decision. The Court may confirm or amend the decision
that was the subject of the appeal or substitute another decision and that is
then taken to be the decision of the original decision making entity.
Clause 168 Appointment of advisors
This clause allows the court to appoint specialist advisors in cases where
the court requires special knowledge or skills to decide the appeal. As the
matters that may be appealed to the District Court involve decisions about a
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person's competence or professional conduct, the Court may require
specialist advice about these matters before making its decision.
However the court itself must decide all questions of fact and law, giving
the advice whatever weight it considers is appropriate.
PART 9--APPEALS TO COURT OF APPEAL FROM
DECISIONS OF DISCIPLINARY COMMITTEE
Clause 169 Appealable decisions
This clause provides for the Court of Appeal to hear appeals from
persons about decisions made pursuant to clauses 118, 119 and 120, that is,
decisions made by a disciplinary committee as to whether a registrant has
engaged in professional misconduct, and the disciplinary action taken
against the person. This is an appropriate court for appeals of this nature to
be heard.
Clause 170 Who may appeal
This clause permits the Board, or the registrant or former registrant
about whom the decision was made, to appeal to the Court of Appeal.
Clause 171 Appeal on questions of law only
This clause stipulates that the Court of Appeal may decide on questions
of law only.
Clause 172 How to start an appeal
This clause sets out the process for starting an appeal to the Court of
Appeal. The Uniform Civil Procedure Rules apply to the process. A notice
of appeal must be filed with the registrar of the court and must comply with
the rules of court applying to the appeal. The Bill provides flexibility for
starting appeals, by allowing the court to extend the time in which an
appeal can be filed.
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Clause 173 Appellant to give notice of appeal to particular persons
This clause requires the appellant to give the respondent a copy of the
notice of appeal within 14 days of filing the notice. If a registrant has made
the appeal, the respondent is the Board. If the Board has made the appeal,
the respondent is the registrant.
Clause 174 Stay of operation of appealable decision
This clause allows the court to suspend the operation of the decision that
is being appealed against. This prevents a person from being required to
do, or cease doing, something, until such time as the requirement is
reviewed in the appeal process. If the Court does not stay the decision, the
appeal has no effect on the implementation of the original decision.
Clause 175 Hearing procedures
This clause requires the Court of Appeal to follow the procedures of the
relevant rules of the courts. If the rules do not adequately cover a situation,
the appeal must follow the directions of the Court of Appeal.
Clause 176 Powers of court on appeal
This clause provides for the Court of Appeal to decide the appeal in any
of the following ways; to confirm, change or set aside the decision, to set
aside the decision and replace it with another decision, or to send the matter
back to the disciplinary committee with any directions that the Court
considers to be appropriate.
PART 10--LEGAL PROCEEDINGS
Division 1--Evidence
Clause 177 Application of div 1
This clause causes this division to apply to a proceeding under this Bill,
including a proceeding before a disciplinary body. The following clauses
in this division deal with matters of evidence, and are included to simplify
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the process of a proceeding, by setting out matters that can be taken at face
value.
Clause 178 Appointments and authority
This clause stipulates that it is not necessary to prove the appointments
of the persons or entities listed or to prove the authority of the listed entities
to do anything under this Bill.
Clause 179 Signatures
This clause stipulates that a signature that purports to be that of one the
persons specified in the clause shall be taken to be the signature of that
person.
Clause 180 Evidentiary matters
This clause stipulates that a certificate purporting to be signed by the
chairperson of the Board in regarding one of the listed matters shall be
taken to be evidence of the matter.
Division 2--Proceedings
Clause 181 Summary proceedings for offences
This clause provides that a proceeding that is taken for an offence
against this Bill must be taken as a summary proceeding under the Justices
Act 1886. The clause also specifies the timeframes within which the
proceeding must be started, providing a reasonable period in which a
potential complainant may bring a charge.
Clause 182 Allegations of false or misleading information or
documents
This clause provides that if there is a proceeding for an offence that
involves in some way `false or misleading' information, or a `false or
misleading' document, it is not necessary to distinguish between the terms
`false' and `misleading' or to specify which of the terms applies. It is
sufficient for a person to state that the document or information was, to
their knowledge, `false or misleading'.
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Clause 183 Penalties to be paid to board
This clause requires that if a penalty is imposed for an offence against
this Bill, then the entity imposing the penalty must order that the penalty be
paid to the Board. This provides a means by which some of the Board's
costs in pursuing the action may be recouped, and reduces the likelihood
that the Board will be deterred from pursuing an action because of the cost
of doing so.
Clause 184 Responsibility for acts or omissions of representatives
This clause deals with considerations regarding acts or omissions by a
representative of an individual or corporation, in any proceeding for an
offence against this Bill. Two situations are dealt with - determining the
state of mind of an individual or corporation regarding an act that is done or
omitted by a representative; and determining the responsibility of an
individual or corporation regarding an act that is done, or is omitted to be
done, for them by a representative.
The state of mind of a corporation or individual regarding a particular act
or omission by a representative is determined by showing that the
representative was acting within their authority and showing the
representative's state of mind.
If a representative does an act, or omits to do an act, for an individual or
corporation, and the representative is acting within their authority, the act is
taken to have been done, or is taken to have been omitted to be done, also
by the individual or corporation. This does not apply if the individual or
corporation proves that they could not have reasonably prevented the act or
omission.
It is necessary to provide such a statement of clarification because
corporations are usually represented by an individual in carrying out the
functions of the corporation, and in the case of individuals, are often
represented by employees and agents of the individual.
Clause 185 Executive officers must ensure corporation complies
with Act
This clause deals with the role of executive officers of corporations in
complying with provisions of the Bill. The clause provides that the
executive officers of a corporation have a responsibility to ensure the
corporation complies with the Bill.
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If a corporation is proved to commit an offence against the Bill, each
executive officer also commits the offence of failing to ensure that the
corporation complies with the relevant provision. Complementing this, the
clause provides that evidence that a corporation has committed an offence
is also evidence that the executive officers have also committed the offence
of failing to ensure that the corporation complies with the relevant
provision.
It is a defence for an executive officer to show that they exercised
reasonable diligence to ensure the corporate complied with the division, or
the executive officer was not in a position to influence the conduct of the
corporation.
PART 11--MISCELLANEOUS
Clause 186 Board's power to decide fee for producing a copy of a
document
This clause gives the Board the power to set a fee for producing a copy
of a document, but the fee must not be more than the reasonable cost of
supplying the copy.
Clause 187 Board may authorise investigation of compliance by
persons, other than registrants, with Act
This clause gives the Board the power to authorise investigations into
suspected contraventions of certain provisions of the Bill by persons who
are not registered, or persons who are not appropriately registered. This
clause relates to those provisions that prohibit people from claiming to be
registered or require a person to hold a cadastral endorsement to carry out a
cadastral survey or require a person to hold a cadastral and a consulting
endorsement to carry on a business or charge a fee for a cadastral survey.
Clause 188 Board's power to correct work and recover costs
This clause gives the Board the power to correct a survey if a registrant
or former registrant does not comply with a disciplinary body's order to
correct the survey. The Board may recover the reasonable costs of the
survey from the registrant or former registrant.
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Clause 189 Protecting officials from liability
This clause protects officials from civil liability, provided that the person
has acted honestly and without negligence. However, to provide recourse
for persons who suffer loss or damage as a result of the actions of an
official, the liability that would have attached to the official attaches to the
State or the Board, depending on who the official is.
Clause 190 Confidentiality
This clause protects the confidentiality of information about a person's
affairs that is obtained in the course of performing functions under this Bill.
Such information may not be disclosed to another person unless specific
provision is made for that disclosure. An offence against this clause incurs
a maximum penalty of 100 penalty units. The clause contains a list of how
the information may be disclosed. One of these provisions allows the
Minister to disclose information about a person's affairs if the Minister
considers this to be in the public interest. If this occurs and the information
is about a registrant, the Minister must inform the Board.
Clause 191 Approval of forms
This clause gives the Board the power to approve forms for purposes
under this Bill.
Clause 192 Regulation-making power
This clause provides for the Governor in Council to make regulations
under this Bill and lists those things that can be provided for by regulation.
A regulation may also prescribe a penalty of up to 20 penalty units for any
contravention of a regulation.
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PART 12--TRANSITIONAL PROVISIONS
Division 1--Transitional references
Clause 193 Application of div 1
The clause clarifies that the use of the word `reference' in this
subdivision means a reference in Acts or documents.
Clause 194 References to repealed Act
This clause specifies that a reference to the Surveyors Act 1977 means a
reference to this Bill (when it is enacted).
Clause 195 References to president appointed under repealed Act
This clause makes it clear that a reference to the president of the Board
appointed under the former Act means where it is appropriate, a reference
to the chairperson of the Board under this Bill (when it is enacted).
Clause 196 References to authorised surveyors
References to an authorised surveyor means, where appropriate, a
reference to a cadastral surveyor. Authorised surveyor was the term used in
the Act that preceded the Surveyors Act 1977 to refer to the equivalent of a
cadastral surveyor in this Bill.
Clause 197 References to surveyor-general
References to the surveyor-general mean, where appropriate, a reference
to the chief executive.
Clause 198 References to persons holding column 1 registrations
References to persons listed in column 1 of the table in clause 200
means, if appropriate, a reference to the persons mentioned in column 2.
This deals with the use of terms that were defined under the Surveyors Act
1977 where different terms are used in this Bill - for example a "licensed
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surveyor" under the Surveyors Act 1977 means a "cadastral surveyor"
under this Bill.
Division 2--Other transitional provisions
Clause 199 Continuation of existing members' membership
This clause provides for the continuity of the operation of the Board
while the process for appointing a new Board under this Bill is followed.
The existing members and president of the Board will continue to serve
during an interim period of 6 months, and they go out of office at the end of
that time. If a casual vacancy occurs in the interim period, including the
President, the Minister must appoint another person to fill the vacancy. To
deal with the situation where the process for appointment of the new Board
has not been completed at the end of the 6-month interim period, reference
is made to clause 15(3), which provides that members continue to hold
office until their successor is appointed.
Clause 200 Existing registrations
This clause provides for the transfer of registrations under the Surveyors
Act 1977 to registrations under this Bill, for the remainder of their term. If
a condition had been imposed on a registration or registration endorsement
by a disciplinary process under the former Act, that condition continues to
apply to the registration for the remainder of the term of the condition set
down by the disciplinary committee.
Clause 201 Existing applications for column 1 registrations
This clause provides for applications for registration or registration
endorsement made under the former Act but not decided before the
commencement of this Bill, to be dealt with as applications under this Bill.
The requirements of this Bill regarding the criteria for registration or
endorsement and the offences regarding applications apply to the
assessment of the application. The fees under this Bill do not need to be
paid for such applications, as the relevant fee would have been paid under
the former Act.
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Clause 202 Suspended registrations
This clause stipulates that a suspension of registration or registration
endorsement under a disciplinary process under the former Act continues
to apply to the comparable registration or registration endorsement under
this Bill, for the term of the suspension.
Clause 203 Approval of business names under repealed Act
This clause provides that if a person continues to carry on a business
whose name was approved under Section 47A of the Surveyors Act 1977,
the person is taken to have provided the notice as required under clause 79
of this Bill.
Clause 204 Existing code of professional conduct of surveyors
This clause stipulates that the code of professional conduct of surveyors
under the Surveyors Act 1977 continues in force and is taken to be the code
of practice for this Bill, for up to 6 months only. During this period, the
code under the former Act is to be read as if it has been changed to make it
consistent with this Bill and to apply it to the provisions of this Bill.
PART 13--REPEAL AND AMENDMENTS
Clause 205 Repeal of Surveyors Act 1977
The Surveyors Act 1977 is repealed.
Clause 206 Other Acts amended
Schedule 2 amends the Acts so mentioned in the way prescribed.
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SCHEDULE 1
DECISIONS FOR WHICH INFORMATION NOTICES
MUST BE GIVEN
Schedule 1 provides a list of decisions made under this Bill where an
information notice must be given. The contents of the information notice
are specified in the Dictionary in Schedule 3.
SCHEDULE 2
CONSEQUENTIAL AND MINOR AMENDMENTS OF
OTHER ACTS
ACQUSITION OF LAND ACT 1967
These changes reflect the new term "cadastral surveyor" where
"authorised surveyor" is used in the Act. The title of chief executive
(surveys) is updated to chief executive of the department reflecting
contemporary drafting practice.
BEACH PROTECTION ACT 1968
This change recognises that survey standards will be developed under
the Survey and Mapping Infrastructure Bill 2003.
BUILDING UNITS AND GROUP TITLE ACT 1980
These changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act. The change also recognises that survey
standards will be developed under the Survey and Mapping Infrastructure
Bill 2003.
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COAL MINING AND HEALTH ACT 1999
The change reflects the title of this Bill.
DIVIDING FENCES ACT 1953
These changes reflect the new term "cadastral surveyor" where
"registered surveyor" is used in the Act. These changes also recognise that
survey standards will be developed under the Survey and Mapping
Infrastructure Bill 2003. Another change also makes it clear that non-
surveyors may only place marks that cannot be confused with those types
of marks placed by cadastral surveyors.
EVIDENCE ACT 1977
The change in a definition reflects the title of this Bill.
LAND ACT 1994
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act. The changes also recognise that survey
standards will be developed under the Survey and Mapping Infrastructure
Bill 2003.
LAND SALES ACT 1984
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act.
LAND TITLE ACT 1994
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act. The changes also recognise that survey
standards will be developed under the Survey and Mapping Infrastructure
Bill 2003.
MINING AND QUARRYING SAFETY AND HEALTH ACT 1999
The change reflects the title of this Bill.
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MIXED USE DEVELOPMENT ACT 1993
The change recognises that survey standards will be developed under the
Survey and Mapping Infrastructure Bill 2003.
QUEENSLAND INTERNATIONAL TOURIST CENTRE
AGREEMENT ACT REPEAL ACT 1989
The change reflects the title of this Bill.
REGISTRATION OF PLANS (H.S.P. (NOMINEES) PTY. LIMITED)
ENABLING ACT 1980
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act and also reflects the title of this Bill.
REGISTRATION OF PLANS (STAGE 2) (H.S.P. (NOMINEES) PTY.
LIMITED) ENABLING ACT 1984
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act and also reflects the title of this Bill.
SOUTHBANK CORPORATION ACT 1989
The changes reflect the new term "cadastral surveyor" where "licensed
surveyor" is used in the Act and also reflects the title of this Bill.
SCHEDULE 3
DICTIONARY
Schedule 3 provides a dictionary of meanings for words used in this Bill
that have particular meanings for this Bill. Other words or terms take their
meanings from the Macquarie Dictionary or the Acts Interpretation Act
1954 as appropriate to the context.
© State of Queensland 2003