Torres Strait Fisheries (Spanish Mackerel) Management Instrument 2025

EXPLANATORY STATEMENT

Issued by the authority of the Protected Zone Joint Authority

Torres Strait Fisheries Act 1984

Torres Strait Fisheries (Spanish Mackerel) 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 mackerel fishery, which is defined in section 4 of the Instrument by reference to the ‘area of the Spanish mackerel fishery’ described in item 7 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 mackerel in the area of the mackerel 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 mackerel 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 (Spanish Mackerel) Management Instrument 2025 (the Instrument) repeals and replaces the Fisheries Management Instrument No. 14 (the Previous Instrument) which ceases to have effect on 31 December 2025. The Instrument will update the drafting style , and provide an exemption to the prohibitions for a person who holds a licence issued under sections 19(2), 19(3) or 19(4A) or transferred such a licence under section 25 of the Torres Strait Fisheries Act 1984 (the Act) that authorises the taking, processing or carrying of mackerel in the area of the mackerel fishery. Fishing methods and equipment have been defined to ensure greater clarity of requirements. Droplining has been removed as a permitted method. The minimum size limit for grey mackerel Scomberomorus semifasciatus has been increased and some exemptions to the prohibition on taking, processing or carrying mackerel in the Spanish mackerel fishery have been removed to ensure consistency with other legislative instruments. A cessation date has also been removed.

The Fishery

The Torres Strait Spanish Mackerel Fishery operates predominantly in the eastern Torres Strait targeting the narrow-barred Spanish mackerel (Scomberomorus commerson). In 1999, the Fishery was expanded to include the mackerel species school mackerel (Scomberomorus queenslandicus), grey mackerel (Scomberomorus semifasciatus), spotted mackerel (Scomberomorus munroi) and shark mackerel (Grammatorcynus bicarinatus).

Mackerel are fished predominately by trolling (towing lures or bait behind the boat), generally from dories/dinghies (aluminium or fibreglass boats under 6 meters) operating either to a primary vessel or by themselves. The majority of the catch is taken by a small number of non-traditional inhabitant licence holders.

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 mackerel (subsection 6(1) of the Instrument, section 5 of the Previous Instrument), subject to exemptions:
  • for a person who holds a licence to take, process or carry mackerel under subsections 19(2), 19(3) and 19(4A) of the Act, or transferred such a licence under section 25 of the Act (subsection 6(2) of the Instrument, subclause 6(a) of the Previous Instrument which relates to subsections 19(2) and 19(3)).
  • for a person who holds a licence to take, process or carry finfish under subsection 19(2), 19(3) or 19(4A) of the Act, other than such a person who has been temporarily transferred such a licence under section 25 of the Act (subsection 6(3) of the Instrument, subsection 6(b) of the Previous Instrument which relates to subsections 19(2) and 19(3)), who does not possess more than 20 kilograms of mackerel in any form.
  • For a person who takes, processes or carries mackerel on a boat for which a Treaty endorsement under section 20 of the Act is in force (section 7 of the Instrument, subsection 6(d) of the Previous Instrument).
• prohibitions on the taking, processing or carrying of mackerel of a certain size (see section 8 of the Instrument, section 7 of the Previous Instrument), including the method for measuring mackerel for these purposes (subsection 8(2) of the Instrument).
• prohibitions on the use of certain methods (see sections 9 and 11 of the Instrument, section 9 and 10 of the Previous Instrument) and equipment (see section 10 Instrument, section 9 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). Subsections 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

Subsection 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 Finfish Resource Assessment Group (FFRAG) and Finfish Working Group (FFWG) are advisory committees to the PZJA. Changes to the Previous Instrument have been discussed and recommended by the FFRAG and FFWG over several meetings (FFRAG meeting 9, 14-15 October 2021; FFWG 7-8 December 2022; 5-6 December 2023 and 16 October 2024). Having regard to FFRAG and FFWG 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 purposes 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 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 (Spanish mackerel) Management Instrument 2025

Section 1 - Name 

This section provides that this instrument is the Torres Strait Fisheries (Spanish Mackerel) 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:

Act means the Torres Strait Fisheries Act 1984.

finfish means all fish of the superclass Pisces other than:

1.     mackerel; and
2.     tuna (Thunnus spp.); and
3.     skipjack tuna (Katsuwomus pelamis); and
4.     fish of the family Bramidae (known as pomfrets); and
5.     fish of the familis Istiophoridae by Xiphiidea (known as billfish.

finfish fishery means the area of the finfish fishery prescribed in item 4 of the table in Schedule 2 to the Regulations.

finfish licensed person means a person who is a licensed person that is authorised to take, process or carry finfish in the finfish fishery.

handlining means fishing by hand using line fishing apparatus where each line fishing apparatus has no more than 6 hooks attached to it and no more than 3 line fishing apparatus are being used for fishing.

licensed person means a person who has been granted a licence under subsection 19(2), 19(3) or 19(4A) of the Act, or transferred such a licence under section 25 of the Act, that authorises the taking, processing or carrying of fish.

line fishing apparatus means any combination of:

1.     hand held fishing lines; and
2.     fishing rods; and
3.     mechanically operated fishing reels and lines.

mackerel means species of fish that are:

1.     grey mackerel (Scomberomorus semifasciatus); and
2.     school mackerel (Scomberomorus queenslandicus); and
3.     shark mackerel (Grammatorcynus bicarinatus); and
4.     Spanish mackerel (Scomberomorus commerson); and
5.     spotted mackerel (Scomberomorus munroi).

mackerel fishery means the area of the Spanish mackerel fishery prescribed in item 7 of the table in Schedule 2 to the Regulations.

mackerel licensed person means a person who is a licensed person that is authorised to take, process or carry mackerel in the mackerel fishery.

PZJA Arrangement means the document titled “Arrangement between the Commonwealth and the State of Queensland under section 31of 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 can  be viewed on the website of the Federal Register of Legislation (https://www.legislation.gov.au/F2008B00750).

Regulations means the Torres Strait Fisheries Regulations 1985.Sunset licence holder means, in respect of a licence granted under subsection 19(2) of the Act that authorises the taking, processing or carrying of mackerel in the mackerel fishery, a person who has been temporarily transferred such a licence under section 25 of the Act.

trolling means a fishing method where lures or baits attached to line fishing apparatus are towed behind a slowly moving boat.

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 Instrument No. 14 in its entirety.

Section 6 – Prohibition on taking, processing or carrying mackerel 

Section 6 of the Instrument is made under subsection16(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 mackerel in the area of the mackerel fishery. 

The note to section 6 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 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 mackerel 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.

Subsections 6(2), 6(3) and section 7 (see heading immediately below) outline the exemptions from the prohibition in subsection 6(1) of the Instrument and are made under section 16(1A)(d) of the Act.  Section 16(1A)(d) of the Act states that an instrument under section 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 applies to a person when the person is a mackerel licensed person.

The exemption in subsection 6(3) of the Instrument applies to a person when the person is a finfish licensed person, other than a finfish licensed person who has been temporarily transferred such a licence under section 25 of the Act, and the person does not possess any more than 20 kilograms of mackerel in any form.

Section 7 – Treaty endorsements

As stated above, section 7 of the Instrument is made under section 16(1A)(d) of the Act.  Section 16(1A)(d) of the Act states that an instrument under section 16(1) of the Act may provide for exemptions from the prohibitions contained in the instrument.

Section 7 provides an exemption to the prohibition contained in section 6(1) to a person where the person takes, processes or carries mackerel on a boat for which a Treaty endorsement under section 20 of the Act is in force, and the mackerel is taken, processed or carried in accordance with the conditions specified in the Treaty endorsement made under section 22 of the Act.

Section 8 – Prohibition on taking, processing or carrying of undersize mackerel

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.  

Under section 8(1) of the Instrument, the taking, processing or carrying of mackerel by a mackerel licensed person is prohibited if the mackerel are less than the size specified in the table in subsection 8(1).

Subsection 8(2) of the Instrument explains the way in which mackerel are to be measured for the purposes of subsection 8(1).

Section 9 – Prohibition on the use of certain methods

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 specified class of fish by a method, or with the use of equipment or a boat, of a kind specified in the instrument.

Under section 9, a mackerel licensed person is prohibited from taking mackerel by all fishing methods, other than by trolling or handlining. Droplining has been removed as a permitted method. Trolling and handlining are now defined in section 4 of the Instrument. Trolling and handlining were not defined in the Previous Instrument.

Section 10 – Prohibition on the use of certain equipment

Section 10 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 specified class of fish by a method, or with the use of equipment or a boat, of a kind specified in the instrument.

Under section 10, a mackerel licensed person is prohibited from taking mackerel using all fishing equipment other than line fishing apparatus. Line fishing apparatus is defined in section 4 of the Instrument. Line fishing apparatus was not defined in the Previous Instrument.

Section 11 – Prohibition on the use of certain methods in certain areas for sunset licence holders

Section 11 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 specified class of fish by a method, or with the use of equipment or a boat, of a kind specified in the instrument.

Subsection 16(2)(a) of the Act provides that a prohibition contained in an instrument under subsection (1) (other than subsections 16(1)(d) or (n)) has effect if an area of Australian jurisdiction is specified in the instrument as being the area in respect of which the prohibition is to have effect – in that area.

Subsection 16(5)(a) of the Act provides that a prohibition contained in an instrument under subsection (1) has effect if a period is specified in the instrument as being the period during which the prohibition is to have effect – during that period.

Under section 11 of the Instrument, a sunset licence holder is prohibited from taking mackerel in the area of the Australian territorial sea surrounding Bramble Cay and Black Rocks between the hours of 0930 and 1500 (Australian eastern standard time) each day during the months of August to December in any year.  In addition, outside of the aforementioned times, a sunset licence holder is prohibited from taking mackerel in the area of the Australian territorial sea surrounding Bramble Cay and Black Rocks by all fishing methods, other than trolling (section 11 of the Instrument, section 10 of the Previous 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 be viewed on the website of the Federal Register of Legislation at: https://www.legislation.gov.au/Details/F2008B00750.