Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2024

The Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2024 (the Instrument) makes a mechanical change: it repeals and replaces the Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023 and imposes the same basic legal obligation on the master of a licensed boat used for commercial fishing in a Protected Zone Joint Authority fishery - that master must keep, maintain and furnish a logbook containing information about the taking, disposal or sale of fish. The Instrument specifies which physical logbook form must be used for each fishery: the HC01 Logbook for bêche-de-mer and pearl shell; the NP16 Logbook or, optionally, an e-log meeting the ADC EPRAWN electronic schema for the prawn fishery; the TRL04 Logbook for tropical rock lobster; and the TSF02 Logbook for finfish and mackerel. The prawn fishery is the only fishery where an e-log alternative is offered. The Instrument also prescribes the detailed content of the ADC EPRAWN e-log schema in Appendix 1, including for each trip, each shot, non-fishing periods, and interactions with marine and threatened species. Logbook information must be furnished to AFMA by email, post, or in person at specified addresses, within the time period set out in the relevant logbook instructions. For e-logs, the obligation is tighter: furnish to AFMA before the boat docks at the end of each trip, or when rendezvousing with a mothership, whichever occurs sooner. The Instrument exempts a person who is a traditional inhabitant engaged in community fishing. It contains a sunset clause: it ceases to have effect on 31 August 2027 unless earlier revoked. In practice, this replaces a nearly identical 2023 regime with updated logbook references (the TSF02 Logbook is a new Gazette notice from 2024) and maintains the e-log schema for prawn fishers who choose that option. The compliance burden therefore renews annually by replacement of the previous year’s instrument, which imposes ongoing administrative costs on fishers and AFMA but substantively changes little.

The Instrument defines several interlocking concepts. A “logbook” means the HC01, NP16, TRL04 and TSF02 Logbooks and includes an e-log, but each of those paper forms is a specific published document incorporated by reference as it applied on the date of commencement. “E-log” means a logbook kept in electronic form which has the form and content of an “electronic schema”. The electronic schema for the Instrument is “ADC EPRAWN”, and its required content is set out in Appendix 1. This schema mandates recording vendor name, application name and version, concession holder identification, trip dates and ports, shot numbers, fishing method, species targeted, and highly detailed data on marine species and threatened species interactions - including latitude, longitude, life status, band or tag details, and any further information the holder considers relevant. For prawn trawl shots the schema goes further: net type, number of nets, average bottom depth and temperature, fishing ground, hours trawling per 24-hour period, head rope length, and species-level weights for target species and species-group weights for by-product species and mackerel retained or discarded. “Commercial fishing” (defined in the Act) is distinguished from “community fishing” (also defined in the Act). The term “traditional inhabitant” is defined in the Act and is critical because the Instrument exempts such persons engaged in community fishing. “Protected Zone Joint Authority fishery” takes its meaning from the Act; it covers fisheries within the Torres Strait Treaty area. The Instrument lists specific fisheries: bêche-de-mer, pearl shell, prawn, tropical rock lobster, finfish, and mackerel - each defined by reference to Schedule 2 of the Torres Strait Fisheries Regulations 1985. Marine species and threatened species are defined by reference to declarations under the Environment Protection and Biodiversity Conservation Act 1999. Note that “master” is not defined in the Instrument, so the ordinary meaning applies - the person in charge of the boat - and that person bears the strict liability offence if information is not furnished. “Licensed boat” means a boat with a licence under section 19 or an endorsement under section 20 of the Act. These concepts together create a regime where the duty attaches only to masters of licensed boats in commercial fishing within defined fishery areas, with a categorical exemption for traditional community fishing.

The primary class of persons affected are masters of boats that hold a licence under section 19 or an endorsement under section 20 of the Torres Strait Fisheries Act 1984 and that are being used to take fish in a Protected Zone Joint Authority fishery in the course of commercial fishing. This encompasses commercial fishers operating in the Torres Strait region, including those targeting prawns, tropical rock lobster, finfish, mackerel, bêche-de-mer, and pearl shell. Within this group, the prawn sector faces a marginally different compliance option: they may choose between the paper NP16 Logbook and an e-log conforming to ADC EPRAWN. All other fisheries are limited to paper logbooks. Traditional inhabitants engaged in community fishing are wholly exempt, which reduces the regulatory burden on that group. The Instrument also indirectly affects AFMA, which receives and processes the furnished information. AFMA’s definition under the Fisheries Management Act 1991 means its officers may enforce the obligation. The Instrument also affects software developers who create e-log programs for the prawn fishery: section 7(5) requires that any e-log program used must conform with detailed specifications available through the AFMA e-log developer portal. This creates a technical barrier to entry for new software providers, as they must navigate AFMA’s proprietary portal and maintain compliance with specifications that may change (though the Instrument incorporates the portal as at the date of commencement). Finally, buyers of fish and downstream participants may be indirectly affected because the logbook must record disposal and sale of fish, but the duty to furnish that information lies with the master, not the buyer. The exemption for traditional community fishing means that small-scale fishing for sustenance or customary exchange is not captured. However, the line between commercial and community fishing may be blurred in practice, and the onus is on the master to establish the exemption, which could generate disputes. Overall, the compliance burden falls most heavily on commercial operators in remote Torres Strait communities, where access to email, post, or in-person lodgement at Thursday Island may be costly or unreliable. The e-log option for prawn fishers adds technology costs (hardware, software, data transmission) but may reduce the administrative burden of paper forms and postage.

The central duty under the Instrument is imposed by section 9: the master of a licensed boat used for commercial fishing in a PZJA fishery must keep and maintain a logbook in the prescribed form for that fishery, provide all information required relating to the taking, disposal or sale of fish, secure and store the logbook in accordance with the instructions in the relevant logbook, and furnish the information to AFMA in the manner set out in section 10. The duty applies on a daily basis: information must be recorded for each calendar day upon which commercial fishing activities occur (section 9(4)). For prawn fishers there is a right of choice: the master may use either the NP16 Logbook or an e-log that complies with ADC EPRAWN. For all other fisheries, only the specific paper logbook is permitted. The Instrument does not explicitly grant the master any right to correct or amend an e-log after submission. The duty to furnish e-log information is notably more urgent: it must occur before the boat docks at the end of each trip, or when rendezvousing with a mothership - whichever is sooner. This contrasts with paper logbooks, where the time period is that specified in the logbook instructions (which may allow for a period after the trip). A master using a paper logbook has four options for furnishing: email to licensing@afma.gov.au, post to Thursday Island or Canberra, or in person at the Thursday Island AFMA office (section 10(1)). There is no requirement to use a particular method; any one method will satisfy the obligation, provided it is within the time period. The right to choose the furnishing method reduces the compliance burden for masters able to use email, but those without reliable internet must resort to post or personal delivery, which may be slower and create risk of missing the furnishing deadline. The exemption in section 8 is a right for traditional inhabitants engaged in community fishing - they are not subject to the Instrument at all. This is a significant carve-out, but the definitions depend on the Act, and the master bears the onus of establishing they fall within the exemption. The Instrument also implies a right to use the incorporated logbook documents as they existed at the date of commencement, which provides some certainty. However, because the Instrument incorporates those documents “as it applies on the date this legislative instrument commences”, any later revision to those documents would not be automatically incorporated, which creates a static reference point and could lead to outdated forms if AFMA updates them.

The Instrument does not itself prescribe penalties; instead, it relies on the enforcement provisions of the Torres Strait Fisheries Act 1984. Section 9 of the Instrument provides a note expressly stating that failure to provide information as required is a strict liability offence under subsections 14(12) and (12A) of the Act. Strict liability means the prosecution does not need to prove fault (intention, knowledge, or recklessness); it is enough that the master failed to keep, maintain, or furnish the required information. This significantly increases the risk of inadvertent non-compliance. A master who genuinely misplaces a logbook, inadvertently uses the wrong form for a fishery, or misreads the e-log schema requirements could still be convicted. The maximum penalty for a strict liability offence under section 14 of the Act is not stated in the Instrument, but the Act provides for penalties - typically a fine. The Instrument also creates a second layer of potential enforcement: the requirement to furnish information to AFMA could also be enforced through directions or suspension/revocation of licences under the Act or the Fisheries Management Act 1991. AFMA has discretion to take less severe action, but the strict liability note suggests a low tolerance for non-compliance. Notably, because the e-log must be furnished before the boat docks, a master who suffers a technical failure (e.g., no mobile signal, software crash) could be in breach even if they intended to comply. The Instrument does not provide a defence of reasonable excuse or force majeure. There is also a risk that a master who furnishes paper logbooks by post but the postal service delays delivery beyond the logbook’s required time period could be held liable, despite the master having taken reasonable steps. The exemption for traditional inhabitants engaged in community fishing (section 8) removes those persons from the offence altogether, but if AFMA disputes that a person is a traditional inhabitant or that the fishing was community fishing, the burden of proof would be on the defendant. Given the strict liability nature, a master should ensure they have evidence to support the exemption claim if they rely on it. Repeated non-compliance could lead to licence conditions or loss of authorisation under the Act. The Instrument’s sunset date (31 August 2027) means that enforcement may wane if a replacement instrument is not made in time, but non-compliance during the life of the Instrument remains enforceable.

The Instrument is made under subsection 14(1) of the Torres Strait Fisheries Act 1984 (the Act). It must be read in conjunction with the Act’s provisions on logbooks, including the strict liability offence in subsections 14(12) and (12A). The note in section 9 cross references those provisions. The Instrument also interacts with the Torres Strait Fisheries Regulations 1985, which prescribe the fishery areas for each fishery (e.g., bêche-de-mer fishery in Schedule 2, item 1). The definitions of “prawn”, “target species”, and “by-product species” are drawn from the Torres Strait Prawn Fishery Management Plan 2009, a legislative instrument made under the Act. For the finfish and mackerel fishery, the Instrument references the finfish and mackerel fishery areas prescribed in the Regulations. For the finshery logbook, the TSF02 Logbook is defined by a Gazette notice (C2024G00630), which is incorporated by reference as at the date of commencement, per paragraph 14(1)(b) of the Legislation Act 2003. That Act’s incorporation rules mean the logbook document is treated as part of the Instrument but does not change if the document is later amended - unless a new instrument is made. The e-log schema incorporates the AFMA e-log developer portal, again as at commencement. This creates a static snapshot, but if AFMA later changes the portal, the version incorporated might become inconsistent with new requirements or software updates, leading to uncertainty. The Instrument also cross references the Environment Protection and Biodiversity Conservation Act 1999 for “marine species” and “threatened species” definitions (section 5). Masters who encounter listed species must report according to the e-log schema (Appendix 1, item 3(e)), which could create a dual reporting obligation if the EPBC Act separately requires reporting. The exemption for traditional inhabitants engaged in community fishing depends on the Act’s definitions of “traditional inhabitant” and “community fishing”, which may themselves interact with the Torres Strait Treaty and the Native Title Act 1993 - though those Acts are not mentioned in the Instrument. The Fisheries Management Act 1991 defines AFMA and may confer additional enforcement powers. The Instrument also interacts with the annual cycle of legislative instruments: it replaces the 2023 version, and a new version may be made each year or at intervals. This annual renewal creates a regulatory churn that imposes recurring costs on fishers and AFMA to track which version applies. The sunset of 2027 gives a fixed end date, which is useful for long term planning but means a new instrument must be made before then to avoid a gap.

The Instrument is a new legislative instrument made on 8 October 2024, registered, and commencing one month after registration. It wholly repeals the Torres Strait Fisheries (Furnishing of Logbooks) Instrument 2023 (Schedule 1). The Instrument does not amend any other legislation; it simply replaces the 2023 version with an updated text. The major differences between the 2024 and 2023 instruments are not enumerated in this instrument, but the TSF02 Logbook reference has been updated from an earlier Gazette notice to C2024G00630. The 2023 instrument itself would have replaced an earlier instrument, creating a pattern of annual or biannual updates. There is no explanatory statement available with this instrument, but the making and repeal of successive instruments suggests that AFMA updates the logbook forms and the e-log schema periodically to reflect changes in fishery management, technology, or reporting fields. The sunset date of 31 August 2027 provides a built-in five year maximum life, subject to earlier repeal. This likely aligns with a desire to force a review before that date. The instrument was made by the Chair of the Protected Zone Joint Authority (the federal Minister for Agriculture, Fisheries and Forestry), exercising the power under section 14(1) of the Act. There is no mention of consultation, but the instrument is a disallowable legislative instrument under the Legislation Act 2003, meaning it could be disallowed by Parliament. Because the Instrument does not confer new substantive duties beyond those in the 2023 instrument, the amendment history is primarily procedural: updated references, a new sunset date, and the repeal of the 2023 instrument. Practitioners should be aware that future versions may be made, and the precise form of the logbook may change with each new Gazette notice. There is no transitional provision in this instrument; the requirement to keep logbooks presumably applies to the new forms immediately upon commencement. Masters who began a trip under the 2023 instrument may need to switch to the 2024 form mid-trip, creating a potential gap or overlap. The instrument does not address this.

The Instrument itself is new and has no litigation history. The underlying legislation (Torres Strait Fisheries Act 1984, section 14) and previous instruments may have been the subject of prosecutions for failure to furnish logbooks. However, the source material does not cite any cases. Because the offence is strict liability, the main litigation risks would be challenges to the validity of an instrument (e.g., whether it was properly made, whether incorporation by reference was compliant with the Legislation Act 2003) or defences based on the exemption for traditional inhabitants. There is a known tension between Commonwealth fisheries law and Native Title rights in Torres Strait, and the exemption for community fishing may be tested in cases where AFMA alleges commercial fishing and the fisher claims community fishing. The strict liability nature also means that a magistrate may consider whether the prosecution has proven that the master did not fall within the exemption - a fact that can be the subject of litigation. The requirement to furnish e-logs before docking may also produce cases where a master argues that the e-log was ready but technical failure prevented transmission; depending on the Act’s interpretation, a court might read in a defence of impossibility, but that is speculative. The absence of a definition of “master” could also be litigated if a person claims they were not the person in charge at the relevant time. Because the Instrument is a legislative instrument (delegated legislation), there is a risk of a constitutional challenge if it is alleged to infringe the Act or exceed the power granted by section 14(1). However, no such challenge has been recorded in publicly available sources. The sunset date of 2027 is a legislative choice and is unlikely to be litigated. For compliance purposes, the absence of litigation history signals that the regime is well established and accepted, but it does not mean the Instrument is immune from challenge. Practitioners should advise clients that strict liability creates a high risk of conviction if the letter of the Instrument is not followed, and that the exemption for traditional community fishing will be narrowly interpreted by AFMA.

The Instrument contains several traps for the unwary. First, the e-log option is available only for the prawn fishery; a master in the finfish fishery who attempts to use an e-log instead of the TSF02 Logbook would be in breach, because section 9(2)(e) only allows the TSF02 Logbook (a physical form). The definition of “logbook” includes e-logs, but that does not override the specific fishery requirements. Second, the e-log must be furnished to AFMA before the boat docks at the end of each trip, or when rendezvousing with a mothership - whichever is sooner. This is much faster than the time allowed for paper logbooks (which is dictated by the logbook instructions, potentially days after the trip). A master who delays submission even a few hours after docking faces strict liability. Third, the content requirements in Appendix 1 for the e-log schema are extensive and detailed. For each interaction with a marine or threatened species, the master must record 11 fields including latitude, longitude, life status, number of animals, and any band or tag details “to the extent possible in the circumstances”. The catchall clause “any further information considered by the holder of the fishing concession to be relevant” (items 3(e)(xi), 4(a)(xiii)) creates an open ended duty: the holder must volunteer whatever else they think is relevant, and failing to do so could be non-compliance. Fourth, the exemption for traditional inhabitants engaged in community fishing only applies if both conditions are met. The term “traditional inhabitant” is defined in the Act, and a master must be able to prove that status and that the fishing was not commercial. If AFMA later determines the fishing was commercial, the exemption disappears, and the master may be liable for the past failure to keep logbooks. Fifth, the Instrument incorporates several external documents (the logbook forms and the AFMA e-log developer portal) “as it applies on the date this legislative instrument commences”. This creates a static reference point, but a master who relies on a later version of a form (e.g., an updated TSF02) might be using a document that is not legally the logbook prescribed - increasing the risk of non-compliance. Conversely, if AFMA updates the e-log portal after commencement, a master using the old specifications might be unable to submit data that meets the “detailed specifications” required by section 7(5). Sixth, the Instrument does not specify what happens if a master loses a paper logbook or it is destroyed. The duty to keep and maintain a logbook appears to require the master to have the logbook on hand; loss may itself be an offence, and the master would have no record to furnish. There is no provision for obtaining a replacement or for estimating data from memory. Seventh, the obligation to secure and store the logbook “in accordance with the instructions provided in the relevant logbook” (section 9(3)) means that the instructions in each logbook become legally binding. A master who stores the logbook differently (e.g., in a different location) could be in breach even if the information is still recorded. Finally, the instrument has a sunset of 31 August 2027, but if AFMA does not make a replacement before expiry, the requirement to keep logbooks under this instrument would cease, but the underlying Act may still contain a power to require logbooks, potentially leaving a gap or creating a different regime.

Compliance begins with identifying the fishery in which the boat operates and whether a licence under section 19 or an endorsement under section 20 of the Act is in force. If the master is a traditional inhabitant and is only engaged in community fishing, the Instrument does not apply, and no further action is needed - though evidence of that status should be retained. For all other masters engaged in commercial fishing, the following steps are required. Step one: obtain the correct physical logbook for the fishery. For bêche-de-mer or pearl shell, the HC01 Logbook (as published in Gazette GN23 on 15 June 2011). For tropical rock lobster, the TRL04 Logbook (Gazette C2015G00269). For finfish or mackerel, the TSF02 Logbook (Gazette C2024G00630). For prawns, the master may choose either the NP16 Logbook (Gazette GN23 2011) or an e-log that conforms to the ADC EPRAWN electronic schema. The e-log must be implemented using an e-log program that conforms with specifications available through the AFMA e-log developer portal. Step two: for each calendar day on which commercial fishing occurs, record all information required by the relevant logbook instructions. This includes catch details, disposal, sale, and, for e-logs, the detailed data in Appendix 1 - including shot numbers, species weights, interactions with protected species, and all fields for non-fishing periods. Step three: secure and store the logbook according to the instructions within that logbook (e.g., keep it on board, store in a waterproof container). Step four: furnish the completed information to AFMA. For paper logbooks, choose one of the four methods (email, post to Thursday Island or Canberra, or in person at Thursday Island). The logbook must be furnished within the time period specified in its instructions - this period should be checked carefully. For e-logs, the information must be furnished to AFMA before the boat docks at the end of each trip, or when rendezvousing with a mothership, whichever is earlier. Masters using e-logs should have a reliable data transmission plan (satellite, mobile) to meet this deadline. Step five: retain copies of logbooks or submission receipts for proof of compliance. The Instrument does not specify a retention period, but keeping records for at least the life of the instrument (to 2027) is prudent. Additional considerations: masters should monitor the Federal Register of Legislation for any new instrument replacing this one, and check that the logbook form they use corresponds to the current prescribed version. If using e-logs, ensure the software is updated to meet any changes in the AFMA developer portal, because while the portal is incorporated as at commencement, AFMA may technically accept only data that matches the current portal. The strict liability nature means that intention is irrelevant; a master who inadvertently uses the wrong logbook form or misses the submission deadline is liable. Therefore, it is advisable to build in buffers - e.g., submit the e-log well before docking to allow for technical delays. For paper logbooks, using registered post or sending a scanned copy by email ahead of the deadline reduces risk. Masters who encounter marine or threatened species should record all required fields as soon as practical after the interaction, as memory fades. Where the catchall “further information considered relevant” applies, masters should err on the side of inclusion. If any doubt exists, professional advice from a fisheries lawyer or AFMA liaison should be sought. The federal government provides the AFMA website with logbook forms and e-log details; using those official sources is essential.