Torres Strait Fisheries Act 1984 - Proclamation (07/02/1985)

Several interconnected concepts underpin the Proclamation and are necessary to read it accurately.

The Protected Zone is the central geographic and regulatory construct of the Torres Strait Treaty regime. The Torres Strait Treaty between Australia and Papua New Guinea established a zone within which traditional inhabitants of both countries retain rights to fish and move for traditional purposes. The Act implements that treaty domestically. The Protected Zone itself sits around the line described in Annex 5 to the Treaty, and the Proclamation's authority is expressly conditioned on the declared areas being "adjacent to the Protected Zone and to the south of the line described in Annex 5."

The near-Protected-Zone category created by subsection 15(1) of the Act is a buffer or functional extension mechanism. It recognises that commercial fishing operations do not always respect point boundaries: vessels pursuing a school of prawns or a run of Spanish mackerel may move through waters that adjoin but are not within the Protected Zone. By formally declaring areas near the zone, the Act and Proclamation together allow the regulatory framework to extend its reach into those adjacent waters for specific commercial purposes, without altering the Protected Zone's geographic definition.

The Fisheries Jurisdiction Line is defined by reference to paragraph (a) of the "area of Australian jurisdiction" definition in subsection 3(1) of the Act. It is used as a boundary segment in four of the six Schedules (those covering dugong, turtles, pearl shell, and tropical rock lobster at the northern edges of their polygons). Its appearance in the schedules anchors the northern or north-western limits of those declared areas to Australian fisheries jurisdiction as determined by the Act itself, creating internal consistency between the Proclamation and its parent statute.

Species-specificity is a deliberate structural feature. Each Schedule declares a separate area for each fishery. The declared areas for prawns (Schedule 1) are more confined, sitting broadly between approximately 10°28'S and 10°41'17"S and between 142°09'E and 144°00'E. The areas for dugong (Schedule 4) and turtles (Schedule 5) extend further west and include a segment along the Fisheries Jurisdiction Line from 141°01'E, reflecting the different habitat ranges of those species. The turtle area (Schedule 5) is the most complex polygon, including geodesic segments reaching to 9°54'S and 144°28'E before returning along the Fisheries Jurisdiction Line, making it significantly larger than the prawn area. This species-level differentiation is commercially and ecologically significant: it avoids a single blanket declaration that would have given commercial operators broad access to near-zone waters regardless of the target species and the relevant conservation or management considerations.

The exclusion of Queensland coastal waters from all six Schedules is not merely a recitation of the statutory precondition. It has ongoing operational significance: a vessel whose track enters Queensland's coastal waters within what would otherwise appear to be the declared polygon does not fall within the Proclamation's protection for that segment of the voyage.

The Proclamation directly affects commercial fishing operators who seek to fish in Torres Strait waters adjacent to the Protected Zone. The classes of operators most immediately affected are those holding or seeking authority to conduct commercial fishing for prawns, tropical rock lobster, Spanish mackerel, dugong, pearl shell, and turtles in the declared areas. Without the Proclamation, those operators could not rely on the near-Protected-Zone provisions of the Act to support their activities in those waters.

Queensland is a direct institutional party, given the statutory requirement of ministerial agreement under subsection 15(3) before any Proclamation could be made over waters that are wholly or partly within Queensland's coastal waters. The preamble recites that agreement was reached, meaning Queensland effectively co-authorised the geographic scope of the instrument. Queensland-based commercial fishing entities therefore operate under a framework that their state government had a formal say in shaping.

Traditional inhabitants of the Torres Strait, both Australian and Papua New Guinean, are affected indirectly. The Proclamation does not alter their traditional fishing rights within the Protected Zone, but it extends the commercial regulatory footprint into adjacent waters, which can affect the practical availability of stocks. The Act's broader framework, of which this Proclamation is a component, is designed to manage that tension.

The Commonwealth, through the relevant ministry (Primary Industry at the time of making), administers the regime. The countersignature of John Kerin as Minister of State for Primary Industry confirms departmental responsibility. Fisheries managers and compliance officers operating in the Torres Strait region are operationally affected because the Proclamation defines the physical boundaries within which the near-Protected-Zone provisions apply.

Indirectly, consumers and processors in the prawn, lobster, mackerel, dugong, turtle, and pearl shell supply chains benefit or are constrained by the geographic access rules the Proclamation establishes, since those rules determine where licensed commercial vessels can lawfully operate.

The Proclamation itself does not impose duties directly on private parties. It is an act of executive declaration that activates a legal category. The duties and rights it enables flow from the parent Act and any licences or authorisations issued in reliance on the declared status of these waters.

The key right created is the right to invoke the near-Protected-Zone framework of section 15 of the Act in respect of the six declared species and their corresponding geographic areas. A commercial fishing operator authorised under the Act can rely on the Proclamation to establish that their activities in, say, the Schedule 1 area constitute activities falling within the declared class (commercial fishing for prawns) in a declared near-Protected-Zone area.

The Governor-General's right to make the Proclamation is conditioned on the satisfaction of the precondition in subsection 15(3): the agreement of both the Commonwealth Minister and the Queensland Minister where Queensland coastal waters are involved. The Proclamation's preamble recites that satisfaction. This creates a public record that the intergovernmental precondition was met, which has significance if the validity of the Proclamation were ever challenged.

Paragraph (g) of the operative declaration creates a definitional right: it formally assigns the meaning of "Fisheries Jurisdiction Line" for the purposes of the Schedules, so that any party reading the instrument can precisely determine the northern boundary segments of the relevant declared areas without having to cross-reference the definition section of the Act separately. This is a practical right of certainty, reducing interpretive ambiguity for operators and compliance authorities.

The Proclamation implicitly carries the restriction that activities outside the declared classes are not authorised by the near-Protected-Zone status of the declared areas. A vessel fishing for, say, barramundi in the Schedule 1 area cannot rely on that Schedule's declaration, because barramundi fishing is not the class of activity declared in respect of that area.

The Proclamation itself contains no penalty provisions. Penalties applicable to conduct in the declared areas are set by the Torres Strait Fisheries Act 1984 and any regulations made under it. The Proclamation is purely declaratory: it defines geographic areas and activates a regulatory category; enforcement consequences for non-compliance with the broader regulatory scheme in those areas are found elsewhere in the legislative hierarchy.

This is architecturally typical of Australian Governor-General proclamations exercising statutory geographic-declaration powers. The enabling Act carries the penalty and enforcement framework; the Proclamation supplies the geographic and categorical parameters within which that framework operates. Operators and their legal advisers should not look to this instrument for offence definitions or maximum penalties. Those are in the Act.

The practical enforcement significance of the Proclamation is nonetheless real. If a vessel is found operating in one of the declared areas and claims the benefit of the near-Protected-Zone provisions of the Act, the Proclamation is the instrument that establishes whether that benefit is available. Conversely, if a vessel is operating in a way that is only lawful within a declared near-Protected-Zone area, and the Proclamation does not cover the relevant species or the vessel's actual location falls outside the Schedule's polygon, then the near-Protected-Zone defence is unavailable and the Act's general or specific offence provisions apply.

Compliance officers and prosecutors therefore need to work with the Schedule coordinates to determine whether a vessel's logged or observed position falls within the relevant declared polygon for the target species in question. The polygon descriptions are detailed and include low-water coastline segments along Cape York Peninsula, which means that precise determination of location relative to the Queensland coastal waters exclusion may itself require careful geographic analysis.

The Proclamation sits within a layered legal structure. At the apex for the purposes of this instrument is the Torres Strait Treaty between Australia and Papua New Guinea. The treaty establishes the Protected Zone, the traditional inhabitant rights, and the cooperative management framework. The Torres Strait Fisheries Act 1984 implements that treaty domestically. The Proclamation is a third-tier instrument made under the Act.

The interaction with Queensland law is explicit and structural. Subsection 15(3) of the Act, recited in the preamble, imposes a requirement of Queensland ministerial agreement before any proclamation can cover Queensland coastal waters. The Proclamation satisfies this requirement and excludes Queensland's coastal waters from all six Schedules, so the federal instrument and Queensland's jurisdiction coexist without the Proclamation overriding state waters authority.

The Proclamation engages the broader Australian fisheries management framework, including, at the time of making, the Fisheries Act 1952 (Cth) and, subsequently, its successor the Fisheries Management Act 1991 (Cth). The declared areas and the species-specific classes interact with Commonwealth licensing and quota systems that apply to those fisheries.

Environmental law intersects notably in respect of dugong and turtles. Both are species with significant conservation status under Australian and international law. The Proclamation declares areas for commercial fishing for dugong (Schedule 4) and turtles (Schedule 5). At the time of making, 1985, the contemporary environmental framework was less restrictive than subsequent Commonwealth and state conservation legislation. Later instruments under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and related fisheries management decisions have progressively constrained or effectively extinguished commercial dugong and turtle take in Australian waters. Operators should not assume that the existence of this 1985 Proclamation declaring a near-Protected-Zone area for dugong or turtle commercial fishing means that such fishing remains lawfully available: subsequent laws and management decisions must be consulted independently.

The "Fisheries Jurisdiction Line" as defined by reference to subsection 3(1) of the Act anchors the Proclamation's northern boundaries to the Act's own jurisdictional demarcation, which in turn reflects the international law boundaries relevant to Australian fisheries jurisdiction in Torres Strait.

The source document is the original Proclamation as made on 7 February 1985. No amendment history is recorded in the source. The instrument, as presented, reflects its original form. Whether subsequent proclamations have varied, replaced, or supplemented this Proclamation in respect of any of the six declared areas or species cannot be determined from this source alone, and no such amendments are recorded here.

The source document records no litigation. No cases are named in the Proclamation, which is an executive declaration rather than a judicial or quasi-judicial instrument. Accordingly, no litigation history can be reported from this source.

Several practical traps deserve explicit attention.

First, the exclusion of Queensland coastal waters from all six Schedules is a polygon-within-a-polygon problem that is easy to overlook. The Schedule boundaries are defined by coordinates, but the exclusion of Queensland's coastal waters operates as an overlay that removes a subset of the enclosed area. An operator whose vessel is within the coordinate polygon but within Queensland coastal waters is not in a declared area for the purposes of the Proclamation.

Second, species-specificity is strict. Each Schedule applies only to the named fishery. There is no cross-species or "incidental take" carve-in in the Proclamation. An operator fishing for Spanish mackerel in the Schedule 3 area cannot rely on Schedule 1's prawn declaration if their vessel's position happens to sit within the prawn area as well. The relevant declaration for any given trip is the one matching the target species.

Third, and most significant for current operators, the declarations for dugong (Schedule 4) and turtles (Schedule 5) were made in 1985 when commercial fishing for those species was a lawfully recognised activity. The existence of this Proclamation does not mean commercial fishing for dugong or turtles is currently lawful. Subsequent conservation legislation, Commonwealth and state, and fisheries management decisions have fundamentally altered the permissibility of commercial take of these species. Any operator who locates this Proclamation and attempts to rely on it as authority for commercial dugong or turtle fishing without consulting the current regulatory framework is operating in serious legal error.

Fourth, the Fisheries Jurisdiction Line, used as a boundary in Schedules 2 through 6, is defined by reference to the Act's subsection 3(1) definition. That definition must be consulted in the Act itself; the Proclamation's paragraph (g) points to it but does not reproduce it. Operators relying on the northern boundaries of the Schedule 4, 5, 6, 2, and 3 areas need the Act in hand to precisely locate the Fisheries Jurisdiction Line on the relevant chart.

Fifth, the low-water coastline of Cape York Peninsula is used as a boundary segment in all six Schedules. Coastlines at low water can shift, and precise charting is necessary. This is not a hypothetical concern in an area where tidal ranges and coastal morphology are significant.

Sixth, the Proclamation's stated geographic scope (south of the Annex 5 line, adjacent to the Protected Zone) reflects the statutory condition in subsection 15(1). If any declared area were found, on close geographic analysis, not to satisfy those locational conditions, the validity of that declaration for that area could be in question, though such a challenge would be a matter for judicial resolution.

Operators intending to fish in the Torres Strait region near the Protected Zone should take the following steps grounded in this instrument and its parent Act.

Identify the target species for each voyage and the corresponding Schedule. Only the declared class of commercial fishing activity is authorised by each Schedule. Match the target species to the correct Schedule polygon before departure.

Plot the Schedule polygon precisely using the coordinate sequence in the relevant Schedule and verify the vessel's intended operating area falls entirely within the declared polygon and outside Queensland's coastal waters. Relying on approximate or visually estimated positions is insufficient given the specificity of the coordinate boundaries.

Consult the current Torres Strait Fisheries Act 1984 and all regulations, determinations, and management plans made under it, as well as the EPBC Act and relevant fisheries management frameworks, before fishing for any species listed in this Proclamation. This is especially critical for dugong and turtles: the 1985 Proclamation's existence as a geographic declaration is not a current licence or permission to take those species commercially.

Confirm that any fishing authority, licence, or permit held covers operations in the declared near-Protected-Zone areas. The Proclamation activates the legal category; it does not itself authorise individual fishing operations. Licences are the operative permissions.

Where vessels may operate near the Queensland coastal waters exclusion zone within a Schedule polygon, maintain position records sufficient to demonstrate compliance with the exclusion. GPS logs at regular intervals are the practical minimum.

Verify that the Fisheries Jurisdiction Line as currently charted matches the Act's definition, particularly for operations near the northern boundaries of Schedules 2, 4, 5, and 6, where that line forms part of the declared area boundary.

Legal advisers should obtain and cross-reference the current consolidated version of the Torres Strait Fisheries Act 1984 and confirm whether any subsequent proclamations under subsection 15(1) have varied or superseded any of the six Schedules in this instrument, since no amendment history is recorded in this source.