Land Surveyors Act 1909

Land Surveyors Act 1909

An Act to provide for the registration of land surveyors, and to regulate the practice of such surveyors

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title and commencement

This Act may be cited as the Land Surveyors Act 1909 and shall commence on 1st January 1910.

2.   Amendment of other Acts

[Section 2 Inserted by No. 53 of 1972, s. 2 ]Where in any enactment reference is made to an authorized surveyor or a Government surveyor, that reference shall be construed as a reference to a surveyor authorized by registration under this Act.

3.   Interpretation

[Section 3 Amended by No. 25 of 1982, s. 4 ][Section 3 Amended by No. 29 of 1984, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

authorized survey means a survey of land authorized or required –

(a) under any Act dealing with the sale, alienation, leasing, disposal, and occupation of Crown lands, or relating to mines or mining, or affecting titles to land, or relating to transfer and encumbrance of interests in land;

(b) by the proprietor, lessee, or mortgagee under any Act affecting titles to land, or relating to transfer and encumbrance of interests in land;

Board means the Surveyors' Board, constituted under this Act;

Institution means the Institution of Surveyors, Australia, Tasmanian Division;

published means published in such manner, whether by advertisement or otherwise, as the Board thinks expedient;

reciprocating State means –

(a) a State or Territory of the Commonwealth; and

(b) New Zealand;

register means the register of surveyors directed by this Act to be kept;

secretary means the secretary appointed by the Board;

survey mark means any mark established by or on behalf of a surveyor which is –

(a) cut, etched, stamped, or otherwise attached to, or placed in or on, any timber, stone, masonry, or other material; or

(b) placed in or on the ground –

and is used to identify and define the boundary line of any survey carried out by the surveyor;

surveyor means a surveyor authorized by registration under this Act.

4.   Constitution of Surveyors' Board

[Section 4 Amended by 25 Geo. V No. 78 ][Section 4 Amended by 15 Geo. V No. 27 ][Section 4 Amended by No. 25 of 1982, s. 5 ]

(1)  For the purposes of this Act there shall be constituted a Board, consisting of 7 persons, being surveyors, which shall be called "The Surveyors' Board".

(2)  Three members of the Board shall be appointed by the Governor.

(3)  Three members of the Board shall be appointed by the Governor on the nomination of the Institution.

(4)  [Section 4 Subsection (4) substituted by 9 Geo. VI No. 19, s. 2 ]The Surveyor-General shall, by virtue of his office, be a member of the Board and shall be the President thereof.

(5)  Appointments of members of the Board other than the President shall thereafter be made in the month of January in every succeeding third year.

(6)  All persons who may become members of the Board, other than the President, shall vacate office at 12 noon of the day on which their successors are gazetted as appointed.

(7)  If in any year the Institution fails in the nomination of the requisite number of persons to be members before 7th January, the necessary appointments shall be made by the Governor without nomination.

(8)  If any member of the Board other than the President –

(a) fails to obtain registration under this Act, or ceases to be registered;

(b) is suspended from practice as a surveyor;

(c) dies;

(d) resigns;

(e) ceases to reside in the State;

(f) becomes insolvent;

(g) becomes insane;

(h) absents himself from 3 consecutive meetings of the Board without leave obtained from the Board in that behalf; or

(i) is declared by resolution of an absolute majority in number of the members of the Board to be unfit to remain a member of the Board –

his seat shall become vacant, and the Governor shall fill the vacancy by the appointment of some surveyor.

(9)  Every appointment of a member or members shall be notified in the Gazette.

(10)  [Section 4 Subsection (10) substituted by No. 29 of 1984, s. 3 and Sched. 1 ][Section 4 Subsection (10) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] A member of the Board shall be paid, from fees received by the Board pursuant to section 7 (2) , such remuneration and allowances as the Governor may determine, but no remuneration shall be paid to a member of the Board who is a State Service officer or State Service employee except with the approval of the Head of the State Service Agency in which the officer or employee is employed.

5.   Rules for proceedings of the Board

The rules set forth in Schedule 1 shall apply to the business, conduct, and proceedings of the Board.

6.   Appointment of secretary and examiners

[Section 6 Substituted by No. 25 of 1982, s. 6 ]

(1)  The Board may appoint and employ –

(a) a person to be the secretary to the Board; and

(b) such persons to be examiners as it considers necessary for the purposes of this Act –

on such terms and conditions, including remuneration and allowances, as the Board may determine.

(2)  A member of the Board is eligible for appointment under subsection (1) as secretary or an examiner.

7.   Persons entitled to be registered as surveyors

[Section 7 Subsection (1) amended by No. 25 of 1982, s. 7 ]

(1)  [Section 7 Subsection (1) amended by No. 21 of 1973, s. 5 and Sched. 1 ]Subject to this Act, every person shall be entitled to be registered as a surveyor upon making application in the prescribed form, and proving to the satisfaction of the Board that he is of good fame and character, and –

(a) .  .  .  .  .  .  .  .  

(b) has obtained the prescribed certificate of competency after the prescribed examination;

(c) is qualified to practise as a surveyor in any reciprocating State, and has otherwise complied with any conditions prescribed; or

(d) has passed in any country outside Tasmania, not being a reciprocating State, an examination recognized by the Board as equivalent to the prescribed examination, and has also passed such further examination or has completed such field service with a surveyor in Tasmania, or both, as the Board may require –

and has made the prescribed declaration.

(2)  [Section 7 Subsection (2) amended by No. 55 of 1965, s. 5 ]Every person entitled to be registered as a surveyor shall pay to the Board upon or prior to registration, and thereafter annually, such amount as may be prescribed in the by-laws made under this Act.

8.   Power of Board to require attendance of any person

(1)  The Board may require the attendance of any person who applies for registration or for an annual certificate, and of any other person, and may examine or question any such persons or any witnesses who may attend before the Board, upon oath, or otherwise, and for any such purposes the Chairman may administer an oath.

(2)  Every summons issued by the Board requiring the attendance of any person or the production of any documents shall have the same effect as a subpoena issued by the Supreme Court in a civil action; and the obedience thereto or non-observance thereof may be enforced and punished by a judge in chambers in the same manner as in the case of the disobedience or non-observance of a subpoena issued by the said Court.

9.   Examinations

(1)  The Board shall hold examinations of persons desirous of qualifying themselves to be registered as surveyors, and shall give certificates of competency in surveying to persons who have passed all the examinations and fulfilled all the conditions prescribed.

(2)  No person shall be admitted to the final qualifying examination unless he has attained the age of 20 years and has fulfilled all the conditions prescribed.

(2A)  [Section 9 Subsection (2A) inserted by 9 Geo. VI No. 19, s. 3 ]The Board may conduct examinations in –

(a) survey draftmanship; and

(b) the principles relating to the valuation of land –

and may grant certificates of competency to persons who pass such examinations.

(3)  [Section 9 Subsection (3) substituted by No. 25 of 1982, s. 8 ]The Board may require or accept, in substitution for an examination in all the prescribed subjects or for part of that examination, a certificate of examination granted by a public educational institution approved by the Board and established in Tasmania or in a reciprocating State.

(4)  Such certificate of examination shall have the like force and effect as if such examination had been held by the Board.

10.   Reciprocity

[Section 10 Amended by 25 Geo. V No. 78 ]

(1)  Where legislation similar to this Act is in force in any State or colony within the Sovereign's dominions providing for the recognition therein of the status of any person registered as a surveyor under this Act, the Governor, by proclamation, on the recommendation of the Board, may declare that this Act shall apply to such State or colony.

(2)  While any such proclamation is in force in respect of any such State or colony, any applicant therefrom may be registered under this Act on such conditions as may be prescribed.

11.   Board to issue certificates

(1)  The Board shall upon registration, and thereafter annually upon payment of the prescribed fees, issue to every surveyor entitled to practise, and applying for the same, a certificate in the prescribed form.

(2)  Such certificate shall expire on 31st December next after the issue thereof.

(3)  Any certificate, if it purports to be signed by the President and secretary, shall be evidence of the matters stated therein, without proof of the signatures or of the official character of the persons appearing to have signed the same.

12.   Board to keep a register and publish annual list: Copy of register, &c., evidence

(1)  The Board shall cause an official register to be kept, which shall contain the names, addresses, and qualifications of all surveyors entitled to practise as such, and the respective dates on which they were registered, or on which certificates were issued to them under this Act.

(2)  The register shall at all times be open to inspection by any person on payment of the prescribed fee.

(3)  [Section 12 Subsection (3) amended by No. 58 of 1987, s. 3 and Sched. 1 ]A list may be published annually by the Board containing the names and addresses of every surveyor who at the time of such publication is entitled to practise, and also the date of the issue to him of his certificate for the current year.

(4)  A copy of or extract from the register or from the minutes of the Board, purporting to be certified as a true copy or extract, shall be prima facie evidence of the matters mentioned or referred to in such copy or extract, without proof being required of the handwriting or official position of the person certifying.

13.   Certain entries to be erased

(1)  The Board shall erase any entry in the register which is proved to its satisfaction to have been fraudulently or incorrectly made.

(2)  The secretary shall erase the names of all surveyors who have died, and shall make such alterations and amendments in the register as the Board may direct, for the purpose of making the same an accurate record of the names, addresses, and qualifications of the surveyors for the time being.

(3)  The Board may erase from the register the name of any surveyor who is in arrear for 3 months in the payment of any fees payable by him under this Act, provided that a demand for payment of such fees has been made to the satisfaction of the Board.

(4)  Any name erased from the register under this section may be restored by the Board.

14.   Powers of surveyor

[Section 14 Subsection (2) amended by No. 25 of 1982, s. 9 ]

(1)  Subject to this Act, a surveyor who holds a certificate issued to him and in force under this Act shall be entitled to practise as a surveyor and to make authorized surveys.

(2)  [Section 14 Subsection (2) amended by No. 55 of 1965, s. 5 ][Section 14 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]No person who is –

(a) not the holder of a certificate issued to him and in force under this Act; or

(b) under suspension from practice as a surveyor –

shall practise as a surveyor, or make any authorized survey.

Penalty:  Fine not exceeding 10 penalty units.

15.   Power of surveyor to enter upon lands to survey

(1)  In making any authorized survey, or for any purpose relating thereto, a surveyor, with his assistants, may open any fence and may enter upon any land: Provided that, in the case of occupied land, 24 hours' notice in writing shall be given to the occupier thereof before entering thereon.

(2)  This section shall not exempt any surveyor from liability for any damage he may commit; but the employer of such surveyor shall be liable at the suit of the surveyor to reimburse him if the act occasioning such damage was necessary for the due making of the survey.

16.   Surveyors to correct errors at their own expense

[Section 16 Amended by 15 Geo. V No. 27, s. 4 ][Section 16 Amended by 9 Geo. VI No. 19, s. 4 ]

(1)  Every surveyor who makes an error in any authorized survey shall, at the request of the Surveyor-General, correct such error at his own expense; or shall be liable to pay the cost of such correction, if such error has been corrected by an inspecting surveyor instructed by the Surveyor-General.

(2)  In all cases where a mining lease has been issued in respect of a mining tenement and any error is subsequently discovered in connection with the survey of such tenement, the lessee shall be entitled to the whole of the land as originally surveyed notwithstanding such error, unless by reason of such error an encroachment may have been caused upon any other mining tenement held under a mining lease, and in that case the lessee of the tenement which was first surveyed shall be entitled to the portion of land in question.

17.   Surveyor not to be interested in Crown land which he surveys

It shall be unlawful for any surveyor, directly or indirectly, to acquire any interest in any Crown land open for occupation under any Act relating to mining or to the sale, alienation, leasing, disposal, and occupation of Crown lands, if he has been or is concerned in the survey thereof.

18.   Power of Board to deal with offences charged against a surveyor

[Section 18 Amended by 25 Geo. V No. 78 ]

(1)  Upon a charge duly made and after inquiry, if it is shown with respect to any surveyor that –

(a) he has certified to the accuracy of any authorized survey, knowing the same to be inaccurate, or has negligently certified as aforesaid, without having taken reasonable precautions to verify the accuracy thereof;

(b) he wilfully or by culpable negligence has made, or caused to be made under his immediate supervision, any authorized survey which is so inaccurate or defective as to be unreliable;

(c) his certificate of competency has been obtained by fraud;

(d) after registration, he has been convicted of any misdemeanour or crime;

(e) he has been guilty of a contravention, or attempted contravention, of section 17 ;

(f) he has been guilty of such conduct as in the opinion of the Board renders him unfit to practise as a surveyor; or

(g) his certificate, licence, or registration in any other State of the Commonwealth or New Zealand has been suspended or cancelled in such State –

the Board may erase the name of such surveyor from the register, or suspend such surveyor from practice as a surveyor for any period not exceeding 3 years, or caution such surveyor and order him to pay the cost of any correction of an error.

(2)  The Board may reinstate a surveyor whose name has been erased from the register, or who has been suspended from practice.

(3)  The erasure of a surveyor's name from the register, his suspension from practice, or his reinstatement shall be published by the Board.

(4)  The details of any such suspension as aforesaid and of any reinstatement shall be entered in the register.

19.   Procedure for making and hearing charges against a surveyor

(1)  Every charge against a surveyor under section 18 shall be submitted to the Board in writing signed by the person making the charge; and if it appears to the Board that the charge is one into which an inquiry should be held, the Board shall fix a time and place for that purpose.

(2)  At least 30 days prior to the date fixed for such inquiry, notice in writing shall be sent by the secretary to the last-known postal address of the surveyor so charged, informing him of the time and place fixed for the inquiry, and supplying him with a copy of all charges made.

(3)  At such inquiry, the surveyor charged shall be entitled to be heard in his defence; and he may be represented by counsel.

20.   Appeal to Supreme Court

[Section 20 Amended by 25 Geo. V No. 78 ]

(1)  Any person dissatisfied with any decision of the Board upon any question may appeal therefrom to the Supreme Court stating the grounds of his appeal.

(2)  The Court may make such order in the matter as to the Court seems just.

(3)  Any such order shall be final and without appeal, and shall be observed by the Board and every person concerned.

(4)  After any such person has lodged his notice of appeal, a judge in chambers may, if he thinks fit, on application being made to him by such person, make an order entitling him to practise as a surveyor and to make authorized surveys during such period as the judge thinks fit, or until the appeal has been disposed of, and upon such terms and conditions as the judge thinks proper.

(5)  The judges may make rules to regulate the practice and procedure of the Supreme Court under this Act.

21.   Apprentices to be permitted to conform to prescribed course of study

(1)  Every surveyor who has an apprentice or pupil shall permit such apprentice or pupil a reasonable time for the purpose of attending any lectures or gaining any practice which may be prescribed as part of the course of study of persons desirous of being registered as surveyors.

(2)  The provisions of this section shall be deemed to be included in all contracts or articles of apprenticeship or pupilage, and any failure to conform therewith shall be a breach of such contract or articles.

22.   Power of Board to take and defend legal proceedings

(1)  The Board may, by the secretary or any person thereunto authorized in writing under the hand of the President, in the name of the Board, institute, carry on, prosecute, and defend any action, complaint, or proceeding whatsoever.

(2)  All fees payable may be recovered by the Board by complaint.

(3)  All penalties recovered and all fees received or recovered by the Board under this Act shall be paid to the Board, and shall form part of the funds of the Board.

23.   Application of funds

The funds of the Board shall be applied by it towards the payment of all expenses necessarily incurred in carrying this Act into execution, and in doing and performing any acts and things which the Board is by this Act empowered or required to do or perform.

23A.   Removal, &c., of survey marks, &c.

[Section 23A Inserted by No. 25 of 1982, s. 10 ]

(1)  [Section 23A Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person who –

(a) without lawful authority removes, alters, defaces, or destroys a survey mark; or

(b) imitates any such mark –

is guilty of an offence and is liable on summary conviction to a fine not exceeding 2 penalty units.

(2)  Where a person pleads guilty to or is found guilty of an offence under subsection (1) , the court may, in addition to imposing any penalty under that subsection, order that person to pay the costs of re-establishing the survey mark so removed, altered, defaced, destroyed, or imitated.

(3)  Where the court makes an order under subsection (2) , section 140 of the Justices Act 1959 applies as if the offence referred to in subsection (1) were an offence specified in section 140 of that Act .

(4)  The Surveyor-General, or a person authorized by him to do so, may remove, alter, deface, or destroy a survey mark which, in the opinion of the Surveyor-General, is so placed as to mislead any person.

24.   By-laws

[Section 24 Amended by 25 Geo. V No. 78 ][Section 24 Amended by 9 Geo. VI No. 19, s. 5 ][Section 24 Amended by No. 55 of 1965, s. 5 ][Section 24 Amended by No. 25 of 1982, s. 11 ]

(1)  The Board, with the approval of the Governor, may make by-laws for –

(a) regulating the meetings and proceedings of the Board and the conduct of the business thereof; the election of a member to perform the duties of the President and act as Deputy-President during the illness or absence of the President;

(b) regulating the manner of keeping the register;

(c) determining the evidence to be produced and conditions to be fulfilled by any person applying for registration under this Act;

(d) prescribing the course of study, professional practice, conditions of service, and training and examination of persons desiring to obtain certificates of competency entitling them to be registered as surveyors;

(e) regulating the granting of certificates of competency;

(f) regulating the conduct of examinations for the purposes of section 9 (2A) , and the granting of certificates of competency to persons who pass such examinations, and prescribing courses of study for, and the conditions applicable to, such examinations;

(g) prescribing what certificates of examinations will be recognized by the Board as a substitute for the examinations of the Board;

(h) prescribing what certificates, diplomas, memberships, degrees, licences, letters-testimonial, or other titles, status, or documents, will be recognized by the Board as qualifying persons holding them or any of them to be registered as surveyors, whether immediately or after further examination or field service, or both;

(i) prescribing a scale of fees to be charged and paid in respect of any application, examination, registration, certificate, inspection, or other proceeding, act, or thing provided or required under this Act; prescribing the fees payable to examiners;

(j) requiring and regulating the registration in the office of the secretary of all contracts and articles of apprenticeship or pupilage under which apprentices or pupils in surveying are serving;

(k) regulating the conduct of proceedings in connection with charges against surveyors;

(l) regulating the practice and professional conduct of surveyors;

(m) generally for the purposes of this Act.

(2)  [Section 24 Subsection (2) substituted by No. 25 of 1982, s. 11 ][Section 24 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A by-law may make it an offence to contravene or fail to comply with any provisions of the by-laws and may impose in respect of any such offence a fine not exceeding 5 penalty units and, in the case of a continuing offence, a further fine not exceeding 0·2 penalty unit for each day during which the offence continues.

(3)  [Section 24 Subsection (3) substituted by No. 25 of 1982, s. 11 ]By-laws made under this section may provide for the disciplining, fining, suspending from practice, or striking off the register, of any surveyor who contravenes or fails to comply with any by-laws made under subsection (1) (l) .

24A.   Scales of fees

[Section 24A Inserted by No. 40 of 1964, s. 2 ]The Board may approve and publish scales of fees to be charged by surveyors that have been drawn up by the Institution.

25.   Forms

[Section 25 Substituted by 25 Geo. V No. 78 ]The forms set forth in Schedule 2 shall be used in matters to which they are appropriate respectively.

26.   Copy of Gazette to be evidence

(1)  The production of a copy of the Gazette purporting to contain any notification relating to any appointment, register, registration, erasure, suspension, reinstatement, by-laws or any other matter under or for the purposes of this Act shall be prima facie evidence of the facts therein published.

(2)  Every court shall take judicial notice of the signatures of the President and of the secretary.

(3)  In any proceeding by or on behalf of the Board, it shall not be necessary to prove the appointment of the members, President, or secretary.

SCHEDULE 1 - Rules for the Conduct of the Business of the Board

Section 5

1.   Executive officer

The President shall be the executive officer of the Board.

2.   Authentication of documents

Every appointment and every order, notice, certificate, or other document of the Board relating to the execution of this Act shall be sufficiently authenticated if signed by the President or any 2 members of the Board.

3.   Meetings: Quorum

No business shall be transacted at any meeting of the Board unless at least 3 of the members are present when such business is transacted.

4.   Chairman

The President shall preside at all meetings at which he is present. In the absence of the President, the members present shall elect from their number a chairman for the day. The President, or in his absence the chairman for the day, shall have a vote, and, when there is an equal division of votes upon any question, it shall pass in the negative.

5.   Voting

All powers vested in the Board may be exercised by the majority of the members present at any meeting duly held, and all questions shall be decided by a majority and by open voting. At all meetings, save as herein otherwise provided, all members present shall vote. If a member refuses to vote, his vote shall be counted for the negative.

6.   Adjournment

The members present at a meeting may adjourn the meeting. If a quorum is not present within half an hour after the time appointed for a meeting, the members present, or any one member if only one is present, or the secretary if no member is present, may adjourn such meeting to any time not later than 7 days from the date of such adjournment. Provided that nothing herein contained shall be construed to prevent the adjournment of any meeting to a later hour of the same day on which such meeting was appointed to be held.

7.   Notices

All notices of any meeting shall be in writing, and shall be delivered or sent by post or otherwise to the address of each of the members prior to the meeting.

8.   Proceedings validated

If any member refuses or neglects to act or to attend any duly convened meeting of the Board, all lawful acts and proceedings of the Board shall be as valid and effectual as if they had been done or authorized by the full Board.

9.   Vacancies

No proceedings of the Board shall be invalidated by reason of any defect in any appointment, or by reason of there being any vacancy in the number of members at the time of such proceedings, provided that the number of members is not reduced below 3.

SCHEDULE 2

Form 1

Sections 7 , 25

Form 2

Sections 11 , 25