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SURVEYORS BILL (No. 2) 2002 (No. 55)

Second Reading

Mr GREEN (Braddon - Minister for Primary Industries, Water and Environment - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

The purpose of this bill is to repeal theLand Surveyors Act 1909 and replace it with a new surveyors act. Since 1909, the Land Surveyors Act has provided exclusively for the registration and regulation of surveyors engaged in the survey of land, and interests in land. At the same time however, surveying practice in diverse areas such as mapping, civil engineering and construction, has remained completely unregulated.

In 1998 a committee was appointed to review the act under the Legislation Review Program.

The committee found that the current restrictions on entry to the occupation of land surveying continue to yield a net public benefit, and recommended that they be retained, preferably within a co-regulatory framework. Similar conclusions have been reached in other Australian States and Territories and in New Zealand.

Significantly, however, the committee also noted that as much as 85 per cent of the work of registered surveyors is in areas other than land surveying, where registered practitioners compete with unregistered surveyors in an open market. In a report prepared in response, the Surveyor-General suggested that exclusive provision for the registration of land surveyors may have resulted in their enjoying an unwarranted business advantage, when competing against unregistered surveyors in the open market.

Following consideration of both reports, the Government decided that any such potential distortion of the open market should be eliminated, by providing not only for the continued registration of land surveyors, but also for the voluntary registration of surveyors practising in other survey disciplines. The Government also decided that this should be accomplished within a new competency based, co-regulatory framework.

Members, may I emphasise that whilst the bill is fundamentally different from the current legislation, existing standards of land surveying practice will be maintained. Provision for entry to property by registered surveyors has been retained, as have provisions establishing a surveyor's liability for any damage necessarily incurred.

Significantly however, the bill provides for the abolition of the Surveyors Board, and its replacement with a form of co-regulation where the complementary roles and responsibilities of government and the survey profession are clearly defined. The bill also provides for complaints against a registered surveyor to be investigated and determined by the Director of Consumer Affairs, rather than the Surveyors Board as is currently the case. Notwithstanding these fundamental changes, the qualifications of registered land surveyors will however continue to be recognised throughout Australia and in New Zealand.

For registered land surveyors the bill will preserve the status quo, whilst creating new opportunities and incentives to enhance individual competitive standing in the market place. This will be achieved through the provision for voluntary public disclosure of a range of professional competencies, performance indicators and institutional membership. For unregistered surveyors practicing in fields other than land surveying, there will remain no requirement to be registered. For the first time however there will be an opportunity to do so and, like registered land surveyors, to enhance their individual position in an increasingly competitive open market. That benefit will come at a cost however. All registered surveyors will be required to comply with relevant survey directions that may be issued by the Surveyor-General, and will be subject to the same complaint and disciplinary provisions as registered land surveyors.

Mr Deputy Speaker, the work of the surveyor is not well understood within the community. In fact surveyors play a major role in the maintenance and development of the State's various land tenure systems and related spatial information infrastructure. The primary object of this bill is to regulate the activities of surveyors, not only to protect the immediate interests of Tasmanian consumers, but also to preserve the future integrity of that infrastructure.

The survey industry in Tasmania, whilst small, is highly competitive, and a consumer needs to be suitably informed in order to take advantage of that competitive market. Unfortunately, a significant proportion of consumers rarely have occasion to require the services of a surveyor, and thus have limited understanding of the options available to them. This problem has been addressed by providing for public access to a register that contains not only the names of registered surveyors, but also details of their individual specialist competencies. The register will assist consumers in making an informed choice from the range of appropriately skilled surveyors potentially available to provide any required service.

Furthermore, the provision for voluntary public disclosure of specialist surveying competencies, performance indicators and institutional membership, will ensure that a consumer is not only better informed, but also better protected. Any identified instances of substandard performance will impact negatively on a surveyor's performance indicators and, ultimately, on the surveyor's market position.

Finally, should a consumer have cause for complaint against a registered surveyor, both surveyor and consumer will benefit from the provision for complaints to be investigated and determined by the independent office of the Director of Consumer Affairs.

Mr Deputy Speaker, the introduction of any significant change in the regulation of a profession is never an easy process. The changes that are proposed will clearly have a profound impact on the survey profession. The Surveyors Board and the relevant professional institutions have in this case however, confirmed their support for the proposed changes. They are, I suggest, to be commended for the maturity evidenced by that decision. Mr Speaker, I commend the bill to the House.

Mr ROCKLIFF (Braddon) - Mr Deputy Speaker, the Opposition would like to indicate that we will support this legislation. It is a major piece of legislation that has the support obviously of the profession, although I have been made aware of concerns of lack of consultation.

Mr Llewellyn - God, it's been consulted to death.

Mr ROCKLIFF - That is not what I hear.

Mr Llewellyn - Well, you don't hear the right thing.

Mr ROCKLIFF - But obviously, despite that, they do offer their support. Of course it is essential that the public has confidence in the profession of surveying because, as the minister indicated, they do play a major and important role in the economy. The only concern that I have heard is the process relating to audits, and it has been expressed to me that they believe the system may be flawed in that the surveys for audit by the Surveyor-General are random, and the small size of the sample could cause false assumptions as to the competency of the individual surveyor. For example, a simple drafting error may be recorded as a black mark at the same level as a major survey error such as incorrectly re-establishing an existing boundary. There is also a fear in the profession that competency standards may be too subjective, and we may need a fairer system worked through by all stakeholders. That being said, Minister, if you could address those concerns, as I said before, the Opposition wishes to support the bill.

Mr McKIM (Franklin) - Mr Deputy Speaker, the Greens do broadly support this bill, which I note has been dealt with once by this House.

I do have an area of concern which the minister may like to briefly address now or he might like to address in committee. He might let me know in a minute but I will continue to talk about it. It is clause 27 of the bill which basically allows a surveyor or a person assisting a surveyor to trim a tree or a bush. I know people are going to say that as soon as the Greens see the word tree they come over all green, but I do have a couple of concerns and I would like to share them with the House and the minister.

I fully accept that sometimes it is necessary to trim a tree to conduct a survey and it is not the intention of the Greens to place unnecessary barriers in the way of surveyors when they are undertaking their lawful activities. I have worked as a surveyor's assistant and I know that most of the time you can survey around something, it just takes a bit longer and a bit more effort. It is not to say that we do not realise that there are occasions when you will need to trim a tree or a bush in order to conduct a survey but an area of concern I have is that 'trim' is undefined in this act, so that to trim a tree might be to chop it off an inch above the ground just because it saved a bit of time, when what you should have done is take a branch which is, for example, obstructing your line of sight. So I do have a little concern around that area.

Further, in relation to a tree or a bush, I do note that in clause 28 which is damage by a surveyor, subclause (1) says, 'This section applies if a registered surveyor or a person assisting ... damages any thing' while conducting their business. 'Any thing', I assume, would include a tree but of course subclause (4) of that clause says, 'The registered surveyor must repair the damage ... and, if he fails to do so, is liable to pay compensation'. Obviously you cannot repair the damage if the tree is dead. So I would be interested in a possible amendment there which says, 'If he ... fails to do so, or cannot do so, is liable to pay compensation for the damage ' which would allow reimbursement for, for example, a damaged tree.

My final concern is whether this act would allow a surveyor in the course of his or her duties to damage a tree which is otherwise protected, for example a listed tree. Then I would be interested in whether the minister could provide any advice over whether that would need to be dealt with in the provisions of this act or whether that is - I am not sure of my jurisprudence, I do not know which has precedence.

Minister, were you aware of the first concern I raised?

Mr Green - The first one in relation to trimming trees?

Mr McKIM - The first one was in relation to how savagely a tree or a bush can be trimmed, the second one is the damages and the third one is a tree or a bush that is possibly otherwise listed. I do have some amendments if you feel that we need to go into committee but I would take your advice, especially on the issue of a tree that is heritage listed because I am a bit concerned about whether this act would mean that it would be lawful to -

Mr Llewellyn - Heritage listed or threatened species listed?

Mr McKIM - Well, either. That is a very good point actually because I think there have been some threatened species listed trees that have been damaged recently which should not have been damaged - obviously they are not under this act. I guess they are my concerns. This is new to me, Minister. I would be interested in listening to your response and maybe we can take it from there, if that is amenable to you. Can I just finish and say we do broadly support the act.

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, I rise, but briefly, to support the legislation, to endorse the remarks made by our shadow minister and to commend the minister on his introduction.

It is fascinating to note that this bill in fact repeals and replaces the original Land Surveyors Act which went back to 1909, which has basically has been the law in our State for nearly a century in relation to the profession of surveying. I am reminded, Mr Deputy Speaker, that we have had surveyors operating in this State of ours right back to the very early days of the nineteenth century. You will find in the early 1800s reports of surveyors - you will see, as I looked the other day at a map dedicated to His Excellency the Governor of Tasmania, Sir Edward Henry Fox Young, which was prepared by James Sprent, Surveyor-General. You come further down the track and you have that great Surveyor-General, Mr Colin Mackenzie Pitt - you will find a tablet to his memorial, which effectively is the west coast road - more recently, and sadly dead, Mr Butler and now our present Surveyor-General, Mr Chris Rowe and you have a profession which has done so much for this State.

As a lawyer who has never been involved in conveyancing - I have never done a conveyance in my life and I must concede I know very little about the art of surveying - it greatly impresses me that the quality of the profession has been such that there have in this State been comparatively few cases of litigation in the courts in relation to the determinations of surveyors. The profession considered it was time to effectively review the system and to bring in a brand new one. As my colleague, the shadow minister has said, the Opposition supports this move. It is important that we as a parliament - and I think the minister encapsulated these views - watch carefully to see how the new system works and to be on amber alert if problems arise. With a new keen minister, who is already showing great energy in his portfolio, and with a community which is very keen to see how the new system works, we can do no more than commend the bill but to say, 'Let us keep an eye on it and if a problem does arise, let us move quickly as a parliament to respond to it'. Having said that, the Opposition supports the bill.

Mr GREEN (Braddon - Minister for Primary Industries, Water and Environment) - In relation to the issues, when I was briefed on the bill initially I was listening to the information that is always provided and there was a bit said about the board and the fact that we are changing from a situation where we have gone from a position where the board looks after it to Consumer Affairs. I was interested to find that in the last 20 years there has not been a complaint to the board about an issue in relation to surveyors. I just say that to preface my remarks about the audit situation that you raised and also the consultation. I think it is probably fair to say, especially given that this bill had been introduced in the past, that there has been a high level of consultation. That is certainly my advice anyway and I am disappointed to hear that the industry would think that we have not consulted with them widely enough to bring about what is a major change to the legislation.

As I understand it, there is at a minimum one audit per surveyor a year, but all their work in terms of the surveys they do is examined as they come in. For minor breaches they are basically ignored but if there are more severe breaches obviously there needs to be something taken into consideration in terms of the points allocated to that. But minor breaches, such as you talked about in your contribution, are recognised as not being potentially challengeable for various reasons. Any of those minor ones are ignored; if they are more major breaches, obviously they would be taken into consideration.

In relation to the point raised about trimming trees, I did check and I am advised that certainly from the point of view of threatened species, it is not a case of the surveyor having the right or the opportunity to make a decision to cut those down. We know that there are certain species that are protected. I think you raised the point yesterday that highlighted that sometimes it does not work, but the fact is that we have that and the Federal legislation that overarches us as well.

With regard to how much one can trim or whatever, all I can say to you is that people in the profession, as I understand it and am advised, go about their work in a responsible way. We have not had a complaint or an application for compensation that we are aware of coming about as a result of what you have raised today in terms of trees being trimmed or whatever.

Mr McKim - Wouldn't it be prudent, perhaps, to address that before it did potentially come up rather than leave it until later when it might come up and then someone is aggrieved because they have no redress?

Mr GREEN - If we go into committee we can have a look at this specific clause and I will take some advice on that.

I tried to preface these remarks by saying that I asked these questions myself during the briefing and I have been convinced that, in terms of the profession and the way it has conducted itself over that period of time, there has not been a complaint to the board in the last 20 years. So I am satisfied that the new practices that we have put in place allowing people to make complaints will sort out the so-called cowboys and if they are out there, then all of a sudden they are going to come undone.

I thank both the Liberals and the Greens for their support of this bill.

Bill read the second time.