Torres Strait Fisheries (Coral and Live Rock) Management Instrument 2020

EXPLANATORY STATEMENT

Issued by the authority of the Protected Zone Joint Authority

Torres Strait Fisheries Act 1984

Torres Strait Fisheries (Coral and Live Rock) Management Instrument 2020

The Torres Strait Fisheries (Coral and Live Rock) Management Instrument 2020 (the Instrument) repeals the Torres Strait Fisheries Management Instrument No.6 (the Previous Instrument) which ceases on 31 December 2020 and makes a new instrument which updates the drafting style.

Subsection 16(1) of the Torres Strait Fisheries Act 1984 (the Act) provides for the Minister to regulate fishing through a legislative instrument.  Subsection 35(1) of the Act provides for the Protected Zone Joint Authority (PZJA) to exercise the powers of the Minister under subsection 16(1) of the Act in respect of a ‘Protected Zone Joint Authority fishery’.

Subsection 28(1) of the Act provides that a ‘Protected Zone Joint Authority fishery’ is a fishery in respect of which an arrangement under Part V of the Act is in place.  The Arrangement between the Commonwealth and the State of Queensland under section 31 of the Torres Strait Fisheries Act 1984 (the PZJA Arrangement[1]), made under Part V of the Act, provides that the PZJA is to have management of commercial fishing of any kind other than certain exceptions, in the areas described in subsection 4(2) of the PZJA Arrangement. This Instrument applies to the taking, processing or carrying of coral or live rock in the area of the Protected Zone, south of the Fisheries Jurisdiction Line described in subsection 4(2)(a) of the PZJA Arrangement.  It follows that the commercial fishing of coral and live rock is part of a ‘Protected Zone Joint Authority fishery’ for the purpose of subsection 28(1) of the Act and that the PZJA can exercise the power of the Minister under subsection 16(1) of the Act in relation to the take, processing or carrying of coral and live rock.

The PZJA is established under section 30 of the Act and consists of the Minister administering the Act, the Queensland Minister administering the laws of Queensland relating to marine fishing in the Protected Zone and the Chairperson of the Torres Strait Regional Authority (TSRA), which is the Commonwealth agency established under the Aboriginal and Torres Strait Islander Act 2005 that represents the interests of Torres Strait Islanders. 

The Instrument is a legislative instrument for the purpose of the Legislation Act 2003 (the Legislation Act) and is:

• not subject to disallowance by way of parliamentary scrutiny, by application of subsection 44(1) of the Legislation Act, as the PZJA in making this Instrument is an intergovernmental body involving the Commonwealth and the State of Queensland; and
• not subject to sunsetting by application of subsection 54(1) and paragraph 54(2)(b) of the Legislation Act, read together with item 63AB of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015.

The Instrument is valid to the extent that it impacts upon native title rights and interests under subsection 24HA(1) of the Native Title Act 1993. 

Reefs within the Protected Zone

An extensive reef complex exists in the area of the Torres Strait Protected Zone providing the opportunity for coral collection and prior to 2011, the collection of live coral and live rock was unregulated. Following concerns raised by the Hand Collectables Work Group (HCWG) in July 2008 that unregulated coral harvest was potentially damaging to reefs of the Torres Strait, the PZJA agreed out of session in May 2011 to implement a prohibition on the collection of coral (species of the class Anthozoa or Hydrozoa) and live rock. 

The Instrument implements a prohibition on the taking of coral and live rock within the area of the Protected Zone, with no exemptions.

Details of the Instrument

The Instrument repeals and remakes the Previous Instrument. The key feature of the Previous Instrument that is retained in the Instrument is:

• A general prohibition for the taking, processing or carrying of coral or live rock in the area of the Protected Zone.

The Instrument notes that that the PZJA does not have jurisdiction in relation to ‘traditional fishing’ conducted by ‘traditional inhabitants’ (defined in section 3 of the Act by reference to the Torres Strait Treaty).  This is because subsection 4(1) of the PZJA Arrangement specifies that the PZJA is to have jurisdiction over the management of commercial fishing in the Torres Strait.  A note to the prohibitions is provided in the Instrument. 

Details of the Amendment Instrument are set out in Attachment A. 

Commencement

Subsection 16(4) of the Act provides that an instrument made under subsection 16(1) of the Act comes into force on the day it is published under subsection 16(9) or a later day as specified.  Subsection 16(9) provides that the PZJA, by way of section 35, must publish or broadcast the contents of an instrument made under section 16 in such manner as is prescribed.  Those details have been prescribed in sections 3 and 4 of the Torres Strait Fisheries Regulations 1985 (the Regulations) respectively. In relation to the Instrument, the PZJA has elected to publish the Instrument.  Section 3 of the Regulations states that, for the purpose of subsection 16(9) of the Act, the manner of publication is by publication in such a newspaper as in the opinion of the PZJA is appropriate having regard to the nature of the contents of the notice. 

The PZJA has considered the nature and the contents of the Instrument and have determined that it would be appropriate for the Instrument to be published in the Cairns Post, which has some circulation across the islands of the Torres Strait and Cape York. 

When making the Instrument, the PZJA authorised staff members of AFMA to register the Instrument on the Federal Register of Legislation and publish the Instrument in the Cairns Post. The publication in the Cairns Post will occur in the week of 7 to 13 December 2020. It follows that the Instrument can come into force on the day specified in section 2 of the Instrument, being 30 December 2020.

Consultation

The PZJA and staff members of AFMA, who have been delegated responsibility for the day-to-day management of Torres Strait fisheries by the PZJA under paragraph 38(1)(b), are advised through a number of advisory forums established under subsection 40(7) of the Act, that incorporate representation from traditional inhabitants of the Torres Strait.  The PZJA forums generally consist of an independent Chair and representatives from the government (AFMA, the Queensland Department of Agriculture and Fisheries and TSRA), scientific experts, economists, traditional inhabitant fishing industry and, where applicable, non‑traditional inhabitant fishing industry. 

Between 17 and 30 July 2020, the Torres Strait Hand Collectables Working Group (HCWG) was provided an opportunity to consider and provide advice on the remaking of the Instrument out of session.  Having regard to HCWG advice, the PZJA agreed to remake the Instrument at their meeting on 27 August 2020.

Native Title

The making of the Instrument is a future act for the purposes of the Native Title Act 1993 (the Native Title Act).  In particular, sections 24HA and 24OA of the Native Title Act relevantly provides that the making of legislation in relation the management or regulation of living aquatic resources, such as the Instrument, is a valid future act insofar as it impacts upon native title rights and interests. 

Statement of compatibility with human rights

As the Instrument is exempt from disallowance through the process of parliamentary scrutiny, by application of subsection 44(1) of the Legislation Act, a statement of compatibility with human rights does not have to be prepared for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) advised that a Regulation Impact Statement was not required for the Instrument (OBPR ID 42794). 

ATTACHMENT A

Details of the Torres Strait Fisheries (Coral and Live Rock) Management Instrument 2020

Section 1 Provides that the name of the Instrument is the Torres Strait Fisheries (Coral and Live Rock) Management Instrument 2020. 

Section 2 Provides for the commencement of the Instrument.  As outlined above, subsection 16(4) of the Act provides that any prohibition contained within an instrument made under subsection 16(1) of the Act does not take effect inter alia until the instrument is published in accordance with subsection 16(9) of the Act and section 3 of the Regulations.  The PZJA authorised staff members of AFMA to publish the Instrument in the Cairns Post and to register it on the Federal Register of Legislation. It follows that the commencement of the Instrument is the day specified in section 2, being 30 December 2020, complies with the Act and Regulations.

Section 3 Provides that the Instrument is made under subsection 16(1) of the Act. Section 16 of the Act provides that the Minister may, by legislative instrument, prohibit certain activities.  As outlined in the Explanatory Statement, commercial fishing of coral and live rock in the area of the Protected Zone is a Protected Zone Joint Authority fishery within the meaning of subsection 28(1) of the Act, the power of the Minister under section 16 may be exercised by the PZJA (see paragraph 35(1)(a) of the Act). 

Section 4 Provides the relevant definitions for the purpose of the Instrument.

Section 5 Provides authority for Schedule 1 to the Instrument, which repeals the Previous Instrument.

Section 6 Paragraph 16(1)(a) of the Act relevantly provides that the PZJA may, by legislative instrument, prohibit the taking, processing or carrying of a class of fish specified in the instrument.  Section 6 of the Instrument is made for this purpose.

Section 6 provides that the taking, processing or carrying of coral or live rock in the area of the Protected Zone is prohibited. This section is intended to replicate paragraphs 5(a) and 5(b) of the Previous Instrument. There are no exemptions to this prohibition.

Paragraph 6 of the Previous Instrument, which provided an exemption to the prohibition on taking, processing or carrying of coral or live rock by persons using a boat in the course of traditional fishing, has been removed in this Instrument. This is because the PZJA, the body making the Instrument, does not have jurisdiction to regulate traditional fishing under the PZJA Arrangement.

[1] PZJA Arrangement means the document titled “Arrangement between the Commonwealth and the State of Queensland under section 31 of the Torres Strait Fisheries Act 1984” dated 17 March 1999 and published on the Federal Register of Legislation, as that document exists at the commencement of this Instrument.

Note: The PZJA Arrangement could in 2020 be viewed on the website of the Federal Register of Legislation (https://www.legislation.gov.au/Details/F2008B00750).