Torres Strait Fisheries (Crab) Management Instrument 2025

EXPLANATORY STATEMENT

Issued by the authority of the Protected Zone Joint Authority

Torres Strait Fisheries Act 1984

Torres Strait Fisheries (Crab) Management Instrument 2025

Legislative Authority

Subsection 16(1) of the Act provides for the Minister to regulate fishing through a legislative instrument.  Subsection 35(1)(a) of the Act provides for the Protected Zone Joint Authority (PZJA) to exercise the powers of the Minister under section 16 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 dated 17 March 1999 (the PZJA Arrangement[1]), made under Part V of the Act, provides that the PZJA is to have management of the fishery for the purposes of commercial fishing in the areas described in section 4 of the Arrangement. The crab fishery, which is defined in section 4 of the Instrument by reference to the ‘area of the crab fishery’ described in item 2 of the table in Schedule 2 to the Torres Strait Fisheries Regulations 1985 (the Regulations), is within the area described in section 4(2) of the PZJA Arrangement.   It follows that commercial fishing for crab in the area of the crab fishery would come under the definition of being a ‘Protected Zone Joint Authority fishery’ for the purpose of subsection 28(1) of the Act and the PZJA can therefore exercise the power of the Minister under subsection 16(1) of the Act in relation to commercial fishing within the crab fishery.   

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 Aboriginals and Torres Strait Islanders. 

Purpose

The Torres Strait Fisheries (Crab) Management Instrument 2025 (the Instrument) repeals and replaces the Torres Strait Fisheries Management Notice No. 50 (the Previous Instrument) to update the drafting style, provide an exemption to the prohibitions for a person who holds a licence issued under section 19(2), section 19(3) or section 19(4A) of the Torres Strait Fisheries Act 1984 (the Act) that authorises the taking, processing or carrying of crab in the area of the crab fishery and to update gear restrictions consistent with adjacent jurisdictions.

The Fishery

The Torres Strait Crab Fishery primarily targets mud crab (Scylla spp.) although a small quantity of blue simmer crab (Portunus pelagicus) is occasionally taken. Mud crabs are generally captured by hand or using crab pots. The level of participation in the commercial fishery is low due to other fisheries being relatively more profitable.

Details of the Instrument

The Instrument repeals and replaces the Previous Instrument. The key features of the Previous Instrument that are retained in the Instrument are:

• a general prohibition for the taking, processing or carrying of crab (subsection 6(1) of the Instrument, section 5 of the Previous Instrument), subject to an exemption:
  • for a person who holds a licence to take, process or carry crab under subsection 19(2), 19(3) or 19(4A) of the Act (subsection 6(2)(a) of the Instrument, section 6 of the Previous Instrument).
• prohibitions on the use of certain equipment and quantities of equipment (see section 7 and 10 of the Instrument, section 9 and 10 of the Previous Instrument) and prohibitions on the use of a boat of a certain size, (see section 9 of the Instrument, section 8 of the Previous Instrument). The use of an inverted dilly is no longer included in the definition of crab apparatus in the Instrument. This is to ensure consistency in regulation with adjacent jurisdictions.
• prohibitions on the taking, processing or carrying of crab of a certain size (see section 8 of the Instrument, section 7 of the Previous Instrument), including the method for measuring crab for these purposes (subsection 8(1)(a) or subsection 8(1)(b) of the Instrument, and subsection 7(a) or subsection 7(b) of the Previous Instrument).

The Instrument does not apply to persons engaged in traditional fishing. The PZJA has statutory powers in relation to ‘commercial fishing’ which is defined to exclude ‘traditional fishing’ (section 3 of the Act contains these definitions).  Sections 3 and 4 of the PZJA Arrangement state that the PZJA is to have management of commercial fishing (with specific exclusions) in the area set out in subsection 4(2) of the PZJA Arrangement.

Details on the provisions of the Instrument are included at Attachment A.

Publication and Commencement

Subsections 16(9) and 35(1)(a) of the Act provide that the PZJA must publish or broadcast the contents of an instrument made under section 16(1) in a manner prescribed.  Section 16(9) is silent as to how prescription is to occur.  A broad interpretation of ‘prescribed’ is consistent with objectives of the Act as set out in section 8 of the Act.

One manner of publication or broadcast is prescribed by sections 3 or 4 of the Torres Strait Fisheries Regulations 1985 (Regulations). 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.

In making the decision to make the Instrument, 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 Torres News, which is the local newspaper in circulation across the islands of the Torres Strait and Cape York. The Torres News also has some circulation in Cairns where some licence holders are based.

Under subsections 56(2) and (3) of the Legislation Act 2003 (Cth) (Legislation Act), the publication of the Instrument is taken to be in addition to a requirement under the Legislation Act for the Instrument to be registered as a legislative instrument on the Federal Register of Legislation.  The PZJA, as the rule maker for the Instrument, must lodge the Instrument for registration as a legislative instrument on the Federal Register of Legislation as soon as practicable after the Instrument is made under section 15G(1) of the Legislation Act.  Under section 38(1)(b) of the Act, the PZJA has delegated lodgement for registration of the Instrument on the Federal Register of Legislation to staff members of the Australian Fisheries Management Authority (AFMA).  Note the powers in section 35(1) of the Act are not delegable under section 38 of the Act.

Subsection 16(4) of the Act provides that a prohibition in an instrument made under section 16(1) comes into force on the day it is published under subsection 16(9), or a later day as specified in the instrument. Under section 2 of the Instrument, a later day is specified being the day after the Instrument is registered on the Federal Register of Legislation.

Consultation

The PZJA and AFMA, which is delegated responsibility for the day-to-day management of Torres Strait fisheries under paragraph 38(1)(b) of the Act, take advice through a number of advisory committees established under subsection 40(7) of the Act, that include traditional inhabitants of the Torres Strait.  The PZJA committees generally consist of an independent Chair and representatives from the government (Fisheries Queensland, AFMA and TSRA), scientific experts, economists, traditional inhabitant fishing industry and, where applicable, non‑traditional inhabitant fishing industry.  In addition, the Chairperson of the Malu Lamar (Torres Strait Islander) Corporation RNTBC (Malu Lamar), which is a Registered Native Title Body Corporate (RNTBC) and representatives from the Papua New Guinea National Fisheries Authority also have standing invitation to attend meetings as an observer. 

The Hand Collectables Working Group (HCWG) is an advisory committee to the PZJA. At their meeting on 19 June 2025 the HCWG considered the proposed changes to the Instrument and provided its advice. Having regard to HCWG advice, the PZJA agreed to make the Instrument on 12 December 2025.

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. 

Disallowance and sunsetting

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

Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

As the Instrument has been developed for the purposes of the intergovernmental body or scheme, it is exempt from disallowance through the process of parliamentary scrutiny, by application of subsection 44(1)(a) of the Legislation Act. Therefore, a statement of compatibility with human rights, prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) is not required, as subsection 15J(2)(f) of the Legislation Act only requires statement of compatibility of human rights to be prepared for disallowable legislative instruments.

Attachment A

Details of the Torres Strait Fisheries (Crab) Management Instrument 2025

Section 1 - Name 

This section provides that this instrument is the Torres Strait Fisheries (Crab) Management Instrument 2025 (the Instrument).

Section 2 – Commencement  

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 comes into force on the day on which the instrument is published in accordance with subsection 16(9) of the Act or on such later date as is specified in the instrument.  Section 2 specifies a later date for the commencement of the Instrument being the day after registration on the Federal Register of Legislation. The PZJA has caused the Instrument to be published in the Torres News and lodged it for registration on the Federal Register of Legislation. 

Section 3 – Authority  

Provides that the Instrument is made under section 16(1) and section 35(1)(a) of the Act.

Section 4 – Definitions  

This section outlines relevant definitions for the purpose of the Instrument, which provide as follows:

Crab means fish of the infraorders Anomura and Brachyura other than spanner crabs (Ranina ranina).

Crab apparatus means a crab pot or a dilly.

Crab fishery means the area of the crab fishery prescribed in item 2 of Schedule 2 to the Torres Strait Fisheries Regulations 1985.

Crab licenced person means a person who has been granted a licence under subsection 19(2), 19(3) or 19(4A) of the Act that authorises the taking, processing or carrying of crab in the crab fishery.

Crab pot means crab apparatus comprising a cage with a round opening in the top, or an elongated opening (parallel to the base) in the side, for trapping crabs.

Dilly means fishing apparatus comprising a frame and a net that hangs below the frames horizontal plane when the apparatus is in use.

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 be viewed on the website of the Federal Register of Legislation at:https://www.legislation.gov.au/Details/F2008B00750.

Regulations means the Torres Strait Fisheries Regulations 1985.

Section 5 – Schedules  

Relevantly, this section states that each instrument that is specified in a schedule to the Instrument is amended or repealed as set out in the applicable items in the schedule concerned.  Schedule 1 to the Instrument repeals the Torres Strait Fisheries Management Notice No. 50 in its entirety.

Section 6 – Prohibition on taking, processing or carrying crab 

Section 6 of the Instrument is made under subsection 16(1)(a) of the Act. 

Subsection 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. 

Subsection 6(1) of the Instrument prohibits the taking, processing or carrying of crab in the area of the crab fishery. 

The note to subsection 6(1) of the Instrument explains that the prohibition does not apply to traditional fishing.  Under s 35(1)(a) of the Act, the PZJA’s powers are in respect of a ‘Protected Zone Joint Authority fishery’. A Protected Zone Joint Authority fishery is defined in section 28 of the Act to mean a fishery in respect of which there is in force an arrangement under Part V of the Act under which the fishery is to be under the management of the Protected Zone Joint Authority.  Relevantly, section 31 of the Act is contained in Part V of the Act. Sections 3 and 4 of the Arrangement between the Commonwealth and the State of Queensland under section 31 of the Torres Strait Fisheries Act 1984 (which is defined in the section 4 of the Instrument to be the ‘PZJA Arrangement’) defines the fishery by reference to “commercial fishing” (with specific exclusions) in the area set out in subsection 4(2) of the PZJA Arrangement.  While the crab fishery is within the area set out in subsection 4(2) of the PZJA Arrangement, traditional fishing is not included in the scope of the PZJA’s powers under section 35(1)(a) of the Act.  This is because commercial fishing is defined in section 3 of the Act to mean fishing for commercial purposes, but expressly excludes traditional fishing.  For completeness, we note that traditional fishing is also defined in section 3 of the Act.  Accordingly, the prohibition in subsection 6(1) of the Instrument does not apply to traditional fishing.

Subsection 6(2) of the Instrument outlines the exemption from the prohibition in subsection 6(1) of the Instrument. Subsection 6(2) of the Instrument is made under subsection 16(1A)(d) of the Act which states that an instrument made under subsection 16(1) of the Act may provide for exemptions from the prohibitions contained in the instrument.

The exemption in subsection 6(2) of the Instrument does not apply in relation to the taking or carrying of female crabs and is drafted by reference to a person when that person is a crab licensed person.  A crab licensed person is defined in section 4 of the Instrument.  Subsection 6(2) of the Instrument means that a person, including a crab licensed person, cannot take or carry female crabs in the area of the crab fishery.

Section 7 - Prohibition on the use of certain equipment

Section 7 of the Instrument is made under subsections 16(1)(f) and 16(1)(gb) of the Act.

Both subsections 16(1)(f) and 16(1)(gb) of the Act prohibit a person from using or having in his or her possession or under his or her control, a quantity of equipment, in the course of commercial fishing, of a specified kind that is in excess of a quantity specified in, or ascertainable as provided by, the instrument.  The key difference between subsections 16(1)(f) and 16(1)(gb) is that subsection 16(1)(f) applies on a boat, and subsection 16(1)(gb) applies without the use of a boat.

Section 7 of the Instrument specifies the kind of equipment, being crab apparatus.  Crab apparatus is defined in section 4 of the Instrument (see also the related definitions of ‘crab pot’ and ‘dilly’ in section 4 of the Instrument).  Section 7 of the Instrument also specifies the quantity of equipment, being more than 50.

Section 8 – Prohibition on taking, processing or carrying of crab of a certain size

Section 8 of the Instrument is made under subsection 16(1)(b)(i) of the Act.

Subsection 16(1)(b)(i) of the Act relevantly provides that the PZJA may, by legislative instrument, prohibit the taking, processing or carrying of fish included in a specified class of fish that are less than a size or weight specified in the instrument.

Section 8 prohibits the taking, processing or carrying of crab by a crab licensed person that are less than the size specified in the instrument.  The size of the crab is determined by reference to length measured in millimetres in accordance with the methods set out in subsections 8(1)(a), or if the carapace is missing, in accordance with subsections 8(1)(b)(i) for blue swimmer crabs, and 8(1)(b)(ii) for mud crabs.

Section 9 – Prohibition on the use of a boat of a certain size 

Section 9 of the Instrument is made under subsection 16(1)(c) of the Act.

Subsection 16(1)(c) of the Act relevantly provides that the PZJA may, by legislative instrument, prohibit the taking, processing or carrying of fish included in a class of fish specified in the instrument by a method, or with the use of equipment or a boat, of a kind specified in the instrument.

Section 9 of the Instrument prohibits the taking, processing or carrying of crab by a crab licensed person with the use of a boat of a kind that is longer than 14 metres.

Section 10 – Prohibition on the use, possession or control of crab apparatus

Section 10 of the Instrument is made under subsection 16(1)(p) of the Act.

Subsection 16(1)(p) of the Act relevantly provides that a person is prohibited from using or having in the possession or under the control of the person, on a boat, equipment of a kind specified in the instrument for taking fish unless that equipment is marked or otherwise identified in a manner specified in the instrument.

Section 10 states that a crab licensed person is prohibited from using, having in his or her possession, or from having under his or her control, on a boat, crab apparatus unless that apparatus is marked and identifiable as set out in subsection 10(1)(a) and (b).

[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 be viewed on the website of the Federal Register of Legislation at: https://www.legislation.gov.au/Details/F2008B00750.