Torres Strait Fisheries (Bêche-de-mer) Management Instrument 2022

This instrument, the Torres Strait Fisheries (Bêche-de-mer) Management Instrument 2022, makes a set of targeted prohibitions and limited exemptions regulating the taking, processing and carriage of bêche‑de‑mer in the bêche‑de‑mer fishery prescribed under the Torres Strait Fisheries framework. It was made by the Protected Zone Joint Authority under section 16 of the Torres Strait Fisheries Act 1984 and in accordance with section 40, and is dated 11 February 2022. The instrument commenced in full on 1 March 2022 (see ss 3 and 2).

Mechanically, the instrument does the following (key provisions and immediate legal effects):

• Establishes a general prohibition on taking, processing or carrying bêche‑de‑mer within the bêche‑de‑mer fishery (s 6(1)).
• Creates narrow statutory exemptions to that general prohibition: persons granted a bêche‑de‑mer licence under subsection 19(2), 19(3) or 19(4A) of the Torres Strait Fisheries Act 1984; and very small possession allowances for persons not using a boat, for boats with a single person, and for boats with more than one person (s 6(2)(a)-(d)).
• Sets species‑specific minimum size limits expressed as the length in their original living form at their longest point for 16 listed species (s 7 and the table).
• Prohibits all taking, processing or carrying methods other than collection by hand (ss 8(1)-(2)).
• Prohibits the use of certain equipment for taking, processing or carrying bêche‑de‑mer, namely any mechanical device providing underwater propulsion and any underwater breathing apparatus (ss 9(1)-(2)).
• Adds a specific prohibition on using, possessing or having under control underwater breathing apparatus on a boat in the bêche‑de‑mer fishery where a person is carrying bêche‑de‑mer on that boat (s 10).

The instrument also repeals an earlier Torres Strait Fisheries Management Instrument No. 15 (Schedule 1). The definitions section (s 4) supplies constructional detail: bêche‑de‑mer is limited to two families (Holothuriidae and Stichopodidae), hookah gear is defined, underwater breathing apparatus expressly includes hookah gear and SCUBA, and it identifies the PZJA Arrangement as the intergovernmental arrangement bearing on traditional fishing exemptions.

Two structural features have immediate compliance and operational significance. First, the instrument repeatedly states that the prohibitions do not apply to traditional inhabitants engaged in traditional fishing by reason of the PZJA Arrangement (notes to ss 6(1), 7, 8(1), 9(1) and 10). Second, the exemptions are patterned: the separate s 6(2) exemptions operate for the general prohibition on taking/processing/carrying, while the method and equipment prohibitions (ss 8-10) are framed to exclude only traditional inhabitants expressly; they do not repeat the bêche‑de‑mer licence exemption found in s 6(2)(a). This structure leaves open differential rules that a bêche‑de‑mer licenced person may be exempted from the general ban on possession but not necessarily exempted from method and equipment prohibitions, depending on the statutory interaction of the relevant provisions.

The instrument does not set out penalties or enforcement powers within its text. It relies on the statutory architecture of the Torres Strait Fisheries Act 1984 and the Regulations for definitions and territorial prescription. Schedule 1 effects a repeal of the prior instrument, bringing the new prohibitions and exemptions into force as of 1 March 2022.

Definitions and scope

• The instrument governs activity only in the area of the bêche‑de‑mer fishery as prescribed in item 1 of Schedule 2 to the Torres Strait Fisheries Regulations 1985; the instrument does not itself reproduce the geographic boundary (s 4, definition of bêche‑de‑mer fishery). Complying parties must therefore read the Regulations to determine the spatial scope.
• “Bêche‑de‑mer” is defined by taxonomic families: Holothuriidae and Stichopodidae (s 4). The table in s 7 lists species by common and scientific name paired with minimum lengths.

Primary prohibitions

• A general prohibition on taking, processing or carrying bêche‑de‑mer in the prescribed fishery area (s 6(1)).
• Method prohibition: only collection by hand is allowed; the taking, processing or carrying of bêche‑de‑mer using methods other than collection by hand is prohibited (s 8(1)-(2)).
• Equipment prohibition: the use of mechanical underwater propulsion devices and any underwater breathing apparatus are prohibited for taking, processing or carrying bêche‑de‑mer (s 9(1)-(2)).
• Boat‑specific prohibition: possession or control of underwater breathing apparatus on board a boat in the bêche‑de‑mer fishery is prohibited where a person is also carrying bêche‑de‑mer on that boat (s 10).

Exemptions and measured limits

• Licence exemption from the general prohibition: a person holding a bêche‑de‑mer licence (granted under s 19(2), 19(3) or 19(4A) of the Act) is exempt from the s 6(1) taking/processing/carrying prohibition (s 6(2)(a)). The instrument does not set out the content, conditions or issuance mechanism of that licence; it references the Act for the source of the licencing power.
• Small‑possession exemptions: persons without use of a boat may possess up to three bêche‑de‑mer (s 6(2)(b)); a boat with a single person may have up to three bêche‑de‑mer on board (s 6(2)(c)); a boat with at least one other person may have up to six bêche‑de‑mer on board (s 6(2)(d)). Those limits are expressed as absolute numeric caps and are framed as exemptions to s 6(1).
• Size‑limits: the table in s 7 prescribes minimum lengths in centimetres for 16 species. The measurement rule is explicit: the minimum length is measured in the bêche‑de‑mer’s original living form at its longest point.

Relationship with traditional fishing and intergovernmental arrangement

• The instrument explicitly preserves traditional fishing rights recognised under the PZJA Arrangement. Multiple provisions contain a note that the prohibition does not apply to traditional inhabitants engaged in traditional fishing due to the application of the PZJA Arrangement (notes under ss 6(1), 7, 8(1), 9(1), 10). The instrument also defines “PZJA Arrangement” by reference to 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 (s 4).

Primary affected groups

• Persons taking, processing or carrying bêche‑de‑mer in the area prescribed as the bêche‑de‑mer fishery are directly affected by the instrument (s 6(1)). That includes commercial operators, recreational harvesters and crew on boats operating in the area, subject to the statutory exemptions and limits in the instrument.
• Holders of a bêche‑de‑mer licence under ss 19(2), 19(3) or 19(4A) of the Torres Strait Fisheries Act 1984 are explicitly treated differently from unlicensed persons for the statutory prohibition on taking, processing or carrying bêche‑de‑mer (s 6(2)(a)). The instrument does not restate licence conditions or the licensing regime; it references the Act.

Traditional inhabitants and traditional fishing

• The instrument repeatedly states that the prohibitions do not apply to traditional inhabitants engaged in traditional fishing due to the PZJA Arrangement (notes to ss 6(1), 7, 8(1), 9(1), and 10). That means traditional inhabitants engaging in recognised traditional fishing practices under the PZJA Arrangement are exempt from the instrument’s prohibitions. The instrument defines the PZJA Arrangement and directs readers to the arrangement as published on the Federal Register of Legislation as at commencement (s 4).

Operators reliant on methods or equipment now prohibited

• Anyone who used mechanical underwater propulsion devices or underwater breathing apparatus (including hookah gear and SCUBA) to take bêche‑de‑mer is directly affected by s 9, which prohibits use of that equipment in taking, processing or carrying bêche‑de‑mer. The instrument also forbids possessing or controlling underwater breathing apparatus on a boat where bêche‑de‑mer are being carried (s 10).
• Persons or businesses that relied on diving methods other than hand collection will need to change techniques, because s 8(2) provides that the subsection applies to all fishing methods apart from collection by hand.

Recreational fishers and small‑scale harvesters

• The numeric possession exemptions in s 6(2)(b)-(d) directly affect individuals and small groups: a person without the use of a boat may possess up to three bêche‑de‑mer; a single person in a boat may have up to three; a boat with at least one other person may have up to six. These absolute caps affect small‑scale participants in the fishery and make explicit the threshold between permitted small possession and prohibited possession.

Statutory duties imposed by the instrument

• Do not take, process or carry bêche‑de‑mer in the bêche‑de‑mer fishery unless an exemption applies (s 6(1)). That is the foundational statutory duty created by the instrument.
• Do not use, for the taking, processing or carrying of bêche‑de‑mer in the bêche‑de‑mer fishery, any fishing method other than collection by hand (ss 8(1)-(2)). This is a duty to limit technique to manual collection.
• Do not use mechanical underwater propulsion devices or underwater breathing apparatus to take, process or carry bêche‑de‑mer (ss 9(1)-(2)). This is a duty to remove certain classes of equipment from the operation of those activities.
• Do not use, possess or control underwater breathing apparatus on a boat in the bêche‑de‑mer fishery where a person is carrying bêche‑de‑mer on that boat (s 10). This duty applies to carriage contexts on vessels.

Rights, exemptions and authorised activities

• Licence holders: a person granted a bêche‑de‑mer licence under subsections 19(2), 19(3) or 19(4A) of the Torres Strait Fisheries Act 1984 is explicitly exempt from the general prohibition on taking, processing or carrying bêche‑de‑mer set out in s 6(1) (s 6(2)(a)). The instrument uses the Act as the source of the licence and does not attempt to restate licence entitlements or conditions.
• Small‑scale possession: persons without the use of a boat may have up to three bêche‑de‑mer in their possession (s 6(2)(b)). Boats with a single person on board may have up to three bêche‑de‑mer (s 6(2)(c)). Boats with at least one other person on board may have up to six bêche‑de‑mer (s 6(2)(d)). Those numerical exemptions are rights to possess small numbers of bêche‑de‑mer despite the general prohibition.
• Traditional fishing: traditional inhabitants engaged in traditional fishing are not subject to the prohibitions by reason of the PZJA Arrangement (notes to ss 6(1), 7, 8(1), 9(1), 10). The instrument repeatedly signals that the PZJA Arrangement governs the interface with traditional fishing rights.

Measurement and species‑specific duties

• For the species listed in s 7, the instrument imposes a duty not to take, process or carry individuals below the listed minimum lengths, which are measured in the bêche‑de‑mer’s original living form at its longest point. That places a precise measurement duty on fishers and controllers of product who might otherwise handle individuals smaller than the prescribed thresholds.

What the instrument itself says

• The instrument contains no penalty provisions and sets no enforcement powers within its text. It establishes prohibitions and exemptions but does not prescribe sanctions, inspection powers, seizure authorities or enforcement procedures. The lack of internal penalty clauses means that any enforcement and sanctioning mechanisms must be found in the Torres Strait Fisheries Act 1984 and the Torres Strait Fisheries Regulations 1985, or other applicable Commonwealth law. The instrument was made under section 16 of the Act and in accordance with section 40, indicating that enforcement will operate within the broader statutory framework under the Act (ss 3, 4 notes).

Consequences for persons breaching the instrument

• Because the instrument itself does not specify penalties, the legal consequences of a breach must be determined by reference to the Torres Strait Fisheries Act 1984 and any associated Regulations. The instrument’s prohibitions create legal obligations; non‑compliance will therefore engage whatever administrative or criminal regimes are available under the parent legislation. Affected parties must consult the Act and Regulations to identify the relevant offences, penalty levels, and enforcement authorities.

Who is likely to enforce (as indicated by the instrument)

• The Protected Zone Joint Authority is the maker of the instrument, but the instrument does not describe operational enforcement functions. Enforcement responsibility, prosecutions and administrative actions are matters to be effected under the Act. The instrument’s references to the Act and Regulations indicate that the existing enforcement architecture of the Torres Strait fisheries regime is the instrument’s intended enforcement pathway, not any novel enforcement apparatus created by the instrument.

Enforcement practicalities implied by the instrument

• The instrument creates several easily observable compliance markers which enforcement authorities can use:
  • Presence or absence of a bêche‑de‑mer licence as an exemption to the general prohibition (s 6(2)(a)).
  • Counting of numbers on persons and boats to determine whether a possession cap is exceeded (s 6(2)(b)-(d)).
  • Measurement of individual specimens against the species minimum lengths in s 7, measured in original living form at the longest point.
  • Observation of methods: whether collection by hand alone was used (s 8).

Primary statutory references within the instrument

• The instrument is made under section 16 and in accordance with section 40 of the Torres Strait Fisheries Act 1984 (s 3 and the preamble). It therefore sits as an instrument within the statutory framework established by the Act.
• The instrument cross‑references definitions in section 3 of the Act. The definitions note in s 4 identifies that expressions such as “community fishing”, “fish”, “traditional inhabitant” and “traditional fishing” are defined in the Act. That means interpretive issues regarding those terms must be resolved by consulting the Act.

Interaction with the Torres Strait Fisheries Regulations 1985

• The instrument’s spatial scope depends on an external regulatory instrument: the “bêche‑de‑mer fishery” is the area prescribed in item 1 of Schedule 2 to the Torres Strait Fisheries Regulations 1985 (s 4). Compliance therefore requires reading the Regulations to determine whether a given activity takes place within the regulated area. The instrument does not reproduce those territorial boundaries.

PZJA Arrangement and traditional fishing

• The PZJA Arrangement is defined in the instrument and is repeatedly invoked as the reason traditional inhabitants engaged in traditional fishing are not subject to the prohibitions (s 4 and notes to ss 6(1), 7, 8(1), 9(1) and 10). The instrument therefore deliberately integrates an intergovernmental arrangement into its legal operation. Any interaction between the instrument and traditional fishing rights necessarily depends on the content and application of the PZJA Arrangement.

Relationship with existing instruments and repeal

• Schedule 1 repeals the Torres Strait Fisheries Management Instrument No. 15 (F2017L00370) in full. The instrument therefore replaces or updates the regulatory position previously set out in that instrument. Practitioners must reconcile prior compliance practices and licensing conditions with the new instrument’s terms.

Licencing regime and the Act

• The instrument relies on the licensing provisions of the Act by exempting “bêche‑de‑mer licenced person[s]” under subsections 19(2), 19(3) or 19(4A) of the Act (s 6(2)(a)). It does not restate licence terms, eligibility criteria, or regulatory conditions; those remain in the Act. The interaction means that rights to take, process or carry bêche‑de‑mer under the instrument are conditional upon statutory licences granted under the Act.

Instrument creation and commencement

• The instrument is titled Torres Strait Fisheries (Bêche‑de‑mer) Management Instrument 2022 and is dated 11 February 2022; it commenced in full on 1 March 2022 (s 1 name; s 2 commencement table).

Authority and legal basis

• The instrument states it is made by the Protected Zone Joint Authority under paragraph 35(1)(a) of the Torres Strait Fisheries Act 1984 and under section 16 of the Act, and in accordance with section 40 (preamble and s 3). Those citations identify the statutory delegation permitting the PZJA to make management instruments of this kind.

Repeal of the prior instrument

• Schedule 1 of the instrument repeals Torres Strait Fisheries Management Instrument No. 15 (F2017L00370) in its entirety. The schedule states: “The whole of the instrument , Repeal the instrument.” This is an express repeal, so the 2022 instrument displaces the prior instrument in full.

Compositional notes and statutory mechanics

• Section 5 sets out the general mechanism for amendments and repeals of instruments specified in a Schedule, stating that each instrument specified in a Schedule is amended or repealed as set out in the applicable items and that any other item in a Schedule has effect according to its terms. That creates a standardised approach to future schedules and ensures that any schedule in the instrument has binding amendment/repeal effect.

Commencement table and recording

• Section 2(1) contains a commencement table indicating the whole instrument commenced on 1 March 2022. The instrument also includes a Note that the table relates only to the instrument as originally made and will not be amended to deal with later amendments. Section 2(2) explains that information in column 3 of the table is not part of the instrument, and may be edited in any published version.

No subsequent amendments recorded in the instrument text

• The instrument text as provided contains no entries for later amendments, variations or revocations. It therefore represents the original instrument as made and commenced on 1 March 2022. Any later amendments would require separate instruments and appropriate entries in a subsequent published version.

Documented signatory and administration

• The instrument is dated and signed as made by the Assistant Minister for Forestry and Fisheries and Chair of the Protected Zone Joint Authority, Senator the Hon Jonathon Duniam. That documents the administrative authority and the making date.

Material in the instrument

• The instrument text contains no references to case law, judicial decisions or litigation proceedings. There is no litigation history recited, and no judicial interpretations of the instrument are cited.

What can be said from the document

• Because the instrument is silent on litigation and contains no citations or notes about prior judicial consideration, there is no recorded litigation history within the instrument itself. The absence of litigation history in the instrument does not mean litigation could not arise; it simply means that the instrument, as drafted and presented, provides no internal record of judicial engagement.

Points that commonly generate litigation risk, based on provisions in the instrument

• The instrument contains provisions that are fact‑sensitive and potentially contestable in litigation, which is relevant for risk assessment even though no cases are cited:
  • Measurement disputes under the species minimum lengths: the instrument mandates measurement “in their original living form at their longest point” (s 7). That phrase could lead to disputes about how to measure an individual specimen, whether post‑mortem shrinkage is relevant, and what constitutes the specimen’s “original living form”.
  • The definition and application of the traditional fishing exemption under the PZJA Arrangement: the instrument repeatedly excludes traditional inhabitants engaged in traditional fishing from the prohibitions, and enforcement or prosecution may generate disputes over whether particular persons and activities fall within the PZJA Arrangement’s scope.
  • Interaction between the licence exemption in s 6(2)(a) and the method/equipment prohibitions in ss 8-10: because the instrument grants a licence exemption for the general prohibition but does not repeat that exemption in the method and equipment prohibitions, litigation might arise over whether a licence authorises use of banned methods or equipment.
  • Proving use, possession or control of underwater breathing apparatus on board in the presence of bêche‑de‑mer (s 10) may involve evidential questions about control, custody and knowledge.

What is not in scope here

• The instrument does not list any judicial decisions that have construed it, nor does it summarise any litigation outcomes. Practitioners seeking case law on interpretation, enforcement or penalties must therefore consult judicial records and the Torres Strait fisheries enforcement docket rather than the instrument.

Specific drafting features and areas where compliance surprises commonly arise

• Licence exemption vs equipment/method prohibitions: s 6(2)(a) exempts a “bêche‑de‑mer licenced person” from the general prohibition in s 6(1). However, ss 8-10 that prohibit methods and equipment include notes only exempting traditional inhabitants, not licenced persons. That creates a drafting asymmetry that could catch licence holders who assume the licence authorises the use of previously relied upon methods or equipment. Practitioners should not assume a licence automatically permits the use of underwater breathing apparatus or mechanical propulsion in the bêche‑de‑mer fishery without checking the licence conditions and the instrument together (see ss 6(2)(a), 8(1)-(2), 9(1)-(2)).

• Numeric possession caps are absolute and apply to boats and persons: the instrument permits up to three bêche‑de‑mer per person when not using a boat, up to three bêche‑de‑mer in a boat with one person, and up to six bêche‑de‑mer in a boat with at least one other person (s 6(2)(b)-(d)). These are absolute caps and do not appear to be pro rata or cumulative by species; exceeding them could convert otherwise legal small‑scale possession into prohibited conduct.

• Measurement rule is specific and operationally tricky: the minimum lengths in s 7 must be measured “in their original living form at their longest point”. The instrument does not define measurement protocols, nor does it provide tolerance margins for post‑harvest shrinkage or processing. That raises enforcement and evidential ambiguity when specimens are found on board or in processing contexts.

• Spatial scope is external to the instrument: the “bêche‑de‑mer fishery” area is prescribed in item 1 of Schedule 2 to the Torres Strait Fisheries Regulations 1985 (s 4). The instrument does not reproduce coordinates or a map, so an operator who relies solely on the instrument could be uncertain whether their activity falls inside the regulated area.

• “Collection by hand” is not defined: s 8(2) states that the method prohibition applies to all fishing methods apart from collection by hand, but the instrument contains no definition or guidance on what actions constitute collection by hand. Does the use of gloves, baskets, rakes in shallow water, or shore assists amount to “hand collection”? The instrument does not clarify, so enforcement and compliance will require interpretation by regulators or courts.

• Underwater breathing apparatus possession on board is broadly worded: s 10 prohibits using, possessing or having under control underwater breathing apparatus on a boat in the bêche‑de‑mer fishery where a person is also carrying bêche‑de‑mer on that boat. The provision could catch a range of factual situations: e.g., apparatus stowed on board but not in use, apparatus in a locked locker, or apparatus belonging to a non‑participating third party. The instrument does not provide exemptions or de minimis exceptions.

Step‑by‑step compliance checklist derived directly from the instrument

1. Confirm spatial applicability: consult Schedule 2, item 1 of the Torres Strait Fisheries Regulations 1985 to confirm whether your activity is taking place in the area prescribed as the bêche‑de‑mer fishery (s 4 definition of bêche‑de‑mer fishery). The instrument’s prohibitions apply only in that prescribed area.

2. Determine if you qualify for an exemption:

   • Licence check: ascertain whether you are a “bêche‑de‑mer licenced person” granted a licence under subsection 19(2), 19(3) or 19(4A) of the Torres Strait Fisheries Act 1984. If so, you are exempt from the general prohibition on taking, processing or carrying bêche‑de‑mer (s 6(2)(a)). Do not assume the licence permits method or equipment choices unless that is explicit in the licence and consistent with ss 8-10.
   • Traditional fishing: if you are a traditional inhabitant engaged in traditional fishing, confirm your status and the activity’s qualification under the PZJA Arrangement. The instrument repeatedly notes that prohibitions do not apply to traditional inhabitants engaged in traditional fishing by virtue of the PZJA Arrangement (notes to ss 6(1), 7, 8(1), 9(1), 10).
   • Small possession limits: if not licensed, rely only on the small possession exemptions in s 6(2)(b)-(d): up to three bêche‑de‑mer if not using a boat; up to three in a boat with a single person; up to six in a boat with at least one other person.

3. Ensure species and size compliance:

   • For any bêche‑de‑mer handled, identify the species against the list in s 7.
   • Measure specimens in their "original living form at their longest point" and ensure they meet or exceed the minimum length in the table in s 7. If a specimen is smaller than the prescribed length, do not take, process or carry it.

4. Restrict methods to collection by hand:

   • Use only collection by hand as the method of taking bêche‑de‑mer (s 8(1)-(2)). Because “collection by hand” is not defined in the instrument, seek written guidance from the administering authority if your technique uses any adjuncts (gloves, bags, tongs, shallow‑water aids).

5. Prohibit specified equipment:

   • Do not use any mechanical device that provides underwater propulsion for taking, processing or carrying bêche‑de‑mer (s 9(2)(a)).