SA Co-Regulatory Model Survey Act 1992

Introduction

A co-regulation surveying system has operated in South Australia since 1993. A co-regulation system involves a sharing of the regulatory burden between government and industry. It often involves granting an industry body the responsibility for setting standards of accreditation in a particular profession. Co-regulation is usually underpinned by legislation. It separates responsibility between bodies for the professional aspects of surveying from the practice aspects.

The Survey Act 1992 (SA) gives the Institution of Surveyors, Australia, South Australia Division (the Division) amongst other things, the statutory responsibility for licensing and registering surveyors and investigating complaints for unprofessional conduct. The Government, through the Minister and the Surveyor-General, is responsible for issuing, monitoring and policing survey practice standards.

The Survey Advisory Committee, monitors the operation of the Survey Act 1992, the law relating to surveying and makes recommendations to the Minister, oversees the keeping of survey records and monitors the survey instructions in force under the Act.

The proclamation of the co-regulatory Survey Act in 1992 saw the culmination of a five-year review of surveying in South Australia. The new Act introduced major changes in the administration of the system of licensing surveyors and the practice of cadastral surveying in South Australia. The profession was in agreement with the government for the need to develop survey legislation that would enable changes to survey procedures, practices and accuracy criteria to take place as new technologies evolve, without the need to continually amend Survey Act regulations.

The Division indicated to the Government of the day that it was prepared to take on the role of licensing, registration and disciplinary investigations if the Government did not wish to maintain a statutory Surveyors Board to carry out those functions. The one proviso was that an appropriate model for funding of these functions had to be put in place.

The proposed funding model developed required Licenced and Registered Surveyors to pay registration fees to cover the administration costs of registration, and the public users of the State Survey system covered the other function costs empowered on the Division. The user- pay funding model developed resulted in a levy imposed on all certified survey plans lodged at the Lands Titles Office.

The objectives of the legislation are to:

• Ensure that appropriate standards of competency and professional conduct are maintained by the States Licensed and Registered surveyors
• Transfer responsibility for licensing, registration and discipline of surveyors to the Division
• Provide the statutory controls required for the efficient development and maintenance of the State’s cadastral survey system and in particular to ensure the proper definition of freehold and Crown lands
• Promote improvements to the State cadastral survey system including
• Providing for the introduction of a coordinated cadastre
• Allowing for the resurvey of confused boundaries

The Act sets out the following:

• The responsibilities of the Surveyor-General
• Establishes a Survey Advisory Committee
• Membership includes the Surveyor-General (Presiding Member), the Registrar General, three persons appointed by the Minister of whom two must be nominated by the Surveyor-General and one must be a non-surveyor, and five persons appointed by the Minister nominated by the Division.
• Responsibilities of the Survey Advisory Committee are to:
• Monitor the operation of the Act and the law relating to surveying
• Exercise a general oversight over surveying and the keeping of survey records
• Monitor the operation of survey instructions in force under the Act
• Carry out other functions assigned by the Minister
• Make recommendations to the Minister
• Functions of the Division include:
• Exercising a general oversight over the professional practice of surveyors
• Monitoring the standards of course of instruction and training available to:
• Persons seeking licensing and registration and
• Surveyors seeking to maintain or improve skills in practice
• Consulting with education authorities in the maintenance and improvement of courses
• Advising the Minister on education matters
• Establishing the position of a Registrar
• Maintaining a register of licensed and registered surveyors
• Making administrative arrangements for the reception, consideration and handling of complaints against licensed or registered surveyors
• Maintaining a system for collection of survey plan levies and the keeping of separate accounts of fees and levies received under the Act
• Ensuring that fees and levies collected under the Act are used only in carrying out the functions assigned in the Act
• Delivering an audited report and other specified information each year to the Minister as set out in the Act
• Investigating complaints made against licensed and registered surveyors
• Disciplinary powers of the District Court and procedures for handling complaints
• Issuing of survey instructions by the Surveyor-General
• Coordinated cadastre provisions
• Provisions for confused boundary areas

In view of the introduction of Survey Instructions the Survey Act Regulations only include

• Academic qualifications
• Practical experience requirements
• Projects for surveying graduates to complete before licensing or registration
• Reciprocity with other jurisdictions
• Fundamental survey instruction requirements

In South Australia, only licensed surveyors or those working under the supervision of a licensed surveyor can undertake a boundary survey or place a survey mark. The licensing and registration process includes gaining the prescribed educational qualifications (a Bachelor of Surveying from the University of South Australia or equivalent), completing the prescribed training and passing the prescribed projects. On the successful completion of these components the Division issues a licence or a certificate of registration (General) depending on whichever is appropriate. Only surveyors licensed can use the title Licensed Surveyor. Only surveyors so registered can use the title Registered Surveyor.

The Division also issues licences and certificates of registration to companies provided they satisfy certain conditions set out in the Act. In addition, any company name, business name or trading name in connection with a business of or involving surveying must be approved by the Division.

A compulsory requirement for indemnity against loss is imposed on all licensed and registered surveyors. Practicing licensed and registered surveyors are required by the Division to take out professional indemnity insurance. Non-practicing surveyors do not require professional indemnity insurance, however they must advise the Division that they will not be carrying out boundary surveys.

The Division may also issue conditional licenses to applicants who do not comply with all requirements for a full licence, and can impose conditions set out in the Regulations, on the licence granted. Every surveyor who is licensed or registered must pay an annual fee to the Division and may be required to meet the continuing education requirements as specified in the Act. The fees for 2003 are $116 for individuals who are members of the Division, $168 for individuals who are members of another Division, $116 for companies and $235 for individuals who are not members of the Division. The surveyor can apply to the Division to have his/her name restored to the register upon payment of the prescribed fee.

The Surveyor-General may investigate a complaint or may refer the complaint to the Division for investigation. The Division must at the direction of the Surveyor-General, and may in any other case, investigate a complaint made against a licensed or registered surveyor.

Investigation of complaints is referred through the Board and on the Boards recommendation; the Division may appoint a suitable person to conduct an investigation. If the Board is satisfied that the complaint is proven it will recommend an appropriate course of action to the Division Committee. The Division Committee will decide if there is a case to answer, and if so will refer the complaint to the District Court. The complaint must set out matters that are alleged to constitute grounds for disciplinary action against a licensed or registered surveyor.

The District Court may decide to hold an inquiry and may exercise one or more of the powers below:

1. reprimanding the surveyor; or
2. imposing a fine; or
3. imposing conditions on the surveyor’s licence or registration; or
4. suspending the surveyor’s licence or registration for a certain time period; or
5. cancelling the surveyor’s licence or registration; or
6. disqualifying the surveyor from being licensed or registered permanently, for a set time period or until stipulated conditions have been met.

If a person’s licence or registration is suspended or cancelled at the direction of the District Court he/she must return the licence or certificate of registration to the Registrar.

The National Competition Review of the survey legislation has been classified as a minor review by the State Government. The Review Team has reported to the Minister and it is intended for minor recommendation changes to go to Cabinet.

The recommendations of the National Competition Review are:

1. South Australia should continue to licence surveyors who choose to practice cadastral surveying;
2. The qualification and experience restrictions in the Survey Act 1992 should be maintained;
3. The current restrictions on companies and partnerships should be removed and new provisions added to the Act making it an offence for any person to exert undue influence over a licensed surveyor to provide a service in an inappropriate or unprofessional manner;
4. The current regime of regulations, instructions and directions provide an effective framework for controlling cadastral survey practice and should be retained;
5. Prior to any code standard or document being adopted under the Survey Act 1992, it be subject to review to identify and justify anti competitive provisions to satisfy the NCP test. Breach of a "Code of Ethics" clause should not be grounds for taking disciplinary proceedings against a surveyor;
6. The powers conferred by the legislation on the Division are required for the effective administration of the Survey Act 1992 and should be retained.

A proposal to amend the Survey Act 1992 has been prepared by the Surveyor-General. The proposal includes the recommendations of the competition review and other minor amendments to the Act.

Co-regulation in South Australia places responsibility for the professional side of surveying with the profession itself and survey practice with Government. It is claimed that the flexibility given to the Surveyor-General in issuing instructions and varying regulations to suit circumstances has improved the efficiency of the boundary surveying process.

The Survey Act has proven over the past 8 years to meet the needs of the profession in South Australia. The Division has shown that it has achieved the objectives and requirements of the Act.

Co-regulation has resulted in costs savings to the South Australian Government. It previously employed the Board Registrar, provided clerical support and funded all investigations and disciplinary proceedings. It is estimated that the Government is saving $100,000 per year as a result. Much of this responsibility now falls on the Division. To fund these new responsibilities, the Survey Act allows the Division to collect annual registration fees and to place a levy on all surveys lodged in the Lands Titles Office. Currently registration fees for renewal of licence plus the levy (currently $42.50) give an annual income of around $140,000, but this is dependant on the survey activity by the industry.