EXPLANATORY STATEMENT
Issued by the authority of the Protected Zone Joint Authority
Torres Strait Fisheries Act 1984
Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023
The Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023 (the Instrument) remakes the Torres Strait Fisheries Logbook Instrument 2020 (‘the Previous Instrument’) which ceases to apply on 31 August 2023.
Subsection 14(1) of the Torres Strait Fisheries Act 1984 (the Act) provides that the Minister may, by legislative instrument, require the master of a boat licensed under section 19 of the Act, or a boat in respect of which an endorsement under section 20 of the Act is in force, to provide information relating to the taking or processing of fish with the use of a boat in the course of commercial fishing (other than community fishing). Subsection 35(1) of the Act provides for the Protected Zone Joint Authority (PZJA) to exercise the powers of the Minister under subsection 14(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 in the areas described in subsection 4(2) of the PZJA Arrangement. It follows that the PZJA can exercise the power of the Minister under subsection 14(1) of the Act in relation to commercial fishing in the area of a ‘Protected Zone Joint Authority fishery’ for the purpose of subsection 28(1) of the Act.
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.
Details of the Instrument
The Instrument provides that the master of a boat licensed under section 19 of the Act or a boat in respect of which an endorsement under section 20 of the Act is in force, who uses that boat in the course of commercial fishing (other than for community fishing) to take the fish, in any area of Australian jurisdiction under the Act is required to furnish information as is required by the logbooks listed in section 5 of the Instrument.
The Instrument replaces the Previous Instrument which ceased to apply on 31 August 2023 due to the provisions of sub-regulation 11(5) of the Torres Strait Fisheries Regulations 1985 (the Regulations). Sub-regulation 11(5) provides that completion of logbooks is not required beyond 3 years from the date of the commencement of the instrument.
The remaking of this instrument introduces one change, which is to allow the use of electronic logbooks by Torres Strait Prawn Fishery licence holders, in addition to the existing paper logbooks.
Sub-regulation 10(1) of the Regulations requires the Minister to publish logbooks where he is satisfied that information is required in relation to the taking or processing of fish in areas of Australian jurisdiction and the sale or disposal of those fish.
Detail on the provisions of the Instrument is included at Attachment A.
Publication and Commencement
Subsection 14(11) provides that the PZJA, by way of section 35, must publish or broadcast the contents of an instrument made under section 14 in such manner as is prescribed. Section 3 of the Regulations states that, for the purpose of subsection 14(11) 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 Torres News, which is the local newspaper in circulation across the islands of the Torres Strait.
Subsection 14(9) of the Act provides that an instrument made under subsection 14(1), (1A), (2), (2A) or (3) of the Act comes into force on the day specified for the purposes of the instrument, being a day not earlier than one month after the making of the instrument. It follows that the Instrument will come into force on the day after it is registered.
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, 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‑.
The Torres Strait Prawn Management Advisory Committee was consulted at it’s 21st meeting in November 2022 regarding the changes to the instrument. The committee supported the addition of electronic logbooks as an option for use by Torres Strait Prawn Fishery fishers. The other relevant advisory forums including the Hand Collectables Working Group, the Tropical Rock Lobster Working Group, the Finfish Working Group were provided an opportunity to consider the remaking of the Instrument out of session, noting no changes were made which effect these fisheries. Having regard to Working Group and MAC advice, the PZJA agreed to remake the Instrument at their meeting on 19 July 2023.
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 Impact Analysis advised that a Regulation Impact Statement was not required for the Instrument (OIA23-05161).
Attachment A
Details of the Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023
Section 1 Provides that the name of the Instrument is the Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023.
Section 2 Provides that, pursuant to subsection 14(9), the Instrument commences on the day after it is registered. The PZJA authorised staff members of AFMA to register the instrument on the Federal Register of Legislation.
Section 3 Provides that the Instrument is made under section 14 of the Act.
Section 4 Provides that the Instrument ceases to have effect 31 August 2026 unless earlier revoked. This is due to the provisions of sub-regulation 11(5) of the Torres Strait Fisheries Regulations 1985 (the Regulations). Sub-regulation 11(5) provides that completion of logbooks is not required beyond 3 years from the date of the commencement of the instrument.
Section 5 Provides the relevant definitions for the purpose of the Instrument.
Section 6 Enables the Schedules to the Determination.
Section 7 Provides that the Determination may require logbooks to be kept in electronic form (referred to as e-logs) that must have a particular form and content (referred to as electronic schema) (subsection (1)). The electronic schema is ADC EPRAWN (subsection (2)). The particulars of each electronic schema are prescribed in Schedule 2 (subsection (3)).
Subsection (4) of this clause provides for standard units of measurement in which the content for electronic schema must be provided.
Section 8 Provides that the Instrument does not apply to a person who is a traditional inhabitant engaged in community fishing. The power in subsection 14(1) of the Act can only be exercised to require certain information be provided by a master of a boat used to take fish in the course of commercial fishing other than for community fishing.
Section 9 Subsection 14(1) of the Act relevantly provides that the PZJA may, by legislative instrument, require the master of any boat that is being used to take fishing included in a class of fish specified in the instrument in the course of commercial fishing (other than community fishing), in any area of Australian jurisdiction or in an area of Australian jurisdiction specified in the instrument, to furnish information relating to the taking of fish of that kind with the use of the boat. Section 7 of this Instrument is made for this purpose.
Paragraphs 7(1)(a) and 7(1)(b) provide that the master of any boat licensed under section 19 or, the master of any boat licensed in Papua New Guinea but endorsed to commercially fish in the area of the Australian jurisdiction under section 20 of the Act, who uses the boat for the taking or processing of fish, is required to furnish information. This paragraph is intended to replicate paragraph 5 of the Previous Instrument.
Subsection 7(2) provides for the types of information to be furnished by the master of a licensed boat in the form of a specific logbook. This paragraph is intended to replicate paragraph 7 and the list outlined in Schedule 1 to the Previous Instrument.
Subsection 7(3) provides that the master must provide all information relating to the taking, disposal or sale of fish by the Logbook, to secure the Logbook and store the Logbook. This paragraph is intended to replicate paragraph 6 of the Previous Instrument.
Subsection 7(4) provides that the master must complete the Logbook for each calendar day upon which commercial fishing activities occur. This paragraph is intended to replicate paragraph 8 of the Previous Instrument.
It is noted at this section that failure to provide information required by this Instrument is a strict liability offence. It is also noted at this section that Regulations may be prescribed for the purpose of section 54B of the Act, which means that an infringement notice scheme may be applied for an alleged offence against section 14 or Division 2 of Part VI of the Act.
Subsection 7(5) provides that the manner in which the master must furnish information to AFMA is to be as prescribed in section 8 of the Instrument.
Section 10 Provides the manner and frequency in which the master must furnish information to AFMA. This is a new section of the Instrument, which was not included in the Previous Instrument. The manner and frequency in which the master must furnish information to AFMA is described in the instructions of each relevant Logbook, however, as logbooks change over time, the provisions of this section will continue to apply.
Paragraphs 10 and 11 of the Previous Instrument, which provided where paper and electronic logbooks may be obtained from, are removed from this Instrument. This is because this information is not considered an obligation for the purposes of this Instrument.
[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).