Torres Strait Fisheries Regulations 1985

The Regulations introduce and define several key concepts that underpin the management of Torres Strait fisheries. “Licensing authority” means the Minister or the Protected Zone Joint Authority, and includes a delegate of either under ss 9(1) or 38(1) of the Act. This body is responsible for granting, renewing and transferring licences, assigning distinguishing numbers, and performing other regulatory functions. A “1 year licence” is a licence whose expiry date falls within 12 months of commencement, while a “5 year licence” is any other licence; Part 2 reg 4A provides that all licences granted under ss 19(1) and 19(2) of the Act are for a period of 5 years.

The concept of a “distinguishing number” is central to vessel identification. For an Australian boat, the number consists of a letter or number (or letters and a number) followed by the letter “T”. For a foreign boat, the number is the boat’s international radio call-sign followed by “T” (reg 7). This number must be displayed conspicuously and legibly in black on a yellow ground, sized according to Schedule 3, and positioned to be clearly visible from aircraft and surface vessels. Failure to display the number, or to remove the “T” after a licence ceases, is an offence of strict liability.

The “log-book” system is a statutory reporting mechanism. The Minister may publish forms of log-books appropriate to fish kind, fishing activity and area. Once a log-book form is designated by notice in the Gazette and a newspaper circulating in Queensland, the master of a licensed boat must enter information concerning the taking, processing, sale or disposal of fish no later than the day after the fishing day, and must furnish the folios to an officer or the Department as soon as practicable (reg 12). The information that may be required includes the master’s name, certificate of competency, fishing experience, crew numbers, boat identification, catch details, and circumstances of the fishing operation (reg 10(3)). The log-book period cannot exceed three years from the notice date, and the obligation does not commence until at least 14 days after publication (reg 11).

The concept of “personal identifiers” appears in Part 3 for the purpose of identifying detainees and non-citizens. The Regulations set out an exhaustive list: for detainees, it is audio/video recordings (excluding certain video recordings under Schedule 2 clause 37 of the Act), iris scans, handwriting samples, and photographs of identifying marks (reg 17). For non-citizens who are required to undergo identification tests, the list also includes fingerprints and handprints (including digital livescanning), height and weight measurements, photographs of face and shoulders, and signatures (reg 18). The Regulations draw a clear boundary against intimate forensic procedures as defined in s 23WA of the Crimes Act 1914. Additionally, the concept of “short methods of reference” in Schedule 2 allows notices under ss 14, 16 and 17 of the Act to refer to defined jurisdictional lines such as the Fisheries Jurisdiction Line and the Seabed Jurisdiction Line without repeating full coordinates (reg 14).

The Regulations directly impose obligations on a range of persons and entities engaged in fishing in the Torres Strait region. The primary duty-holders are the masters and owners of Australian and foreign fishing boats that are licensed under s 19 of the Act, or that hold an endorsement under s 20 for fishing in the Protected Zone. Masters must ensure the boat displays a distinguishing number (reg 7), comply with collision prevention measures (reg 8), maintain logbooks and furnish folios (reg 12), and, where the boat is operated by a non-citizen, submit to identification tests upon detention (regs 18-19). Owners are jointly liable with masters for the distinguishing number offence (reg 7(3)). Commercial fishers, fish processors, and persons involved in the sale or disposal of fish taken in the Torres Strait will also be affected by the logbook reporting obligations, as the information that may be required includes particulars of sale or disposal.

The Regulations also affect government officers and agencies. The Secretary must issue identity cards to officers other than Defence Force members, AFP members, or Queensland Police (reg 9). Officers who cease their role must return the card immediately. Authorised officers and detention officers must complete the minimum training prescribed in reg 15 before exercising detention powers. The Australian Fisheries Management Authority (AFMA) is given a central role under Part 3: AFMA provides the Authorised Officer Training course, and may authorise the disclosure of identifying information to a list of 38 Australian bodies (including state police, DPPS, AUSTRAC, ASIC, and various state fisheries departments) and to numerous international organisations and regional fisheries bodies (regs 24-26). The Australian Human Rights Commission may receive video recordings for the purpose of inquiring into the operation of identification test provisions (reg 21). Non-citizen detainees are directly affected by the identification provisions: they must provide personal identifiers after being informed of the reasons, use, and their rights under privacy and freedom of information legislation. Minors and incapable persons receive special procedural protection (reg 19(1)(d) cross-referencing Division 3 of Part 5 of Schedule 2 to the Act). Broader Commonwealth agencies such as the Department of Foreign Affairs and Trade, the Customs department, and bodies listed in reg 25 may be authorised to access and disclose identifying information, meaning data flows extend across law enforcement, national security, and fisheries management networks.

The Regulations create a series of specific duties, most of which are backed by criminal penalties. The master of a licensed boat must, before using the boat for fishing in an area of Australian jurisdiction, ensure the boat bears its assigned distinguishing number displayed in the prescribed manner: black letters and figures on a yellow ground, in accordance with Schedule 3, positioned to be visible from aircraft and surface vessels (reg 7(3)). The master must also comply with Marine Orders Part 30 (Prevention of Collisions) concerning lights and signals (reg 8). The duty to complete logbooks is one of the most operationally demanding: for each day the boat is used in relation to taking or processing fish, the master must cause catch and processing data to be entered in the appropriate logbook no later than the following day, and must then cause the folios to be furnished to an officer or the Department “as soon as practicable” (reg 12). The Regulations leave the precise format and content of the logbook to be determined by the Minister through published notices, but the master’s duty to comply attaches once the notice has taken effect.

The licensing authority has a duty not to grant, renew or transfer a licence until the prescribed fee has been tendered (reg 5). The Secretary must issue identity cards to officers (reg 9(1)). Officers who cease their appointment must return the card “forthwith” (reg 9(2)), failure being an offence of strict liability.

The Regulations also confer rights, particularly for non-citizen detainees. Before any identification test is conducted, the authorised officer must inform the non-citizen of: the reason the identifier is required, how it will be collected, how it may be used, and, where the person is a minor or incapable, how the identifier will be obtained (reg 19(1)). The officer must also inform the non-citizen that the identifier may be produced in evidence in court or tribunal, that the Privacy Act 1988 applies and gives a right of complaint to the Information Commissioner, and that the Freedom of Information Act 1982 gives rights of access and amendment (reg 19(2)). If a form is given, it must be provided in enough time for the person to read and understand it (reg 19(3)). These procedural rights ensure that identification evidence is gathered transparently and with informed consent. Additionally, the secrecy provision in reg 13 protects logbook information concerning the affairs of another person, prohibiting its recording or communication except in the performance of duty under the Act or Regulations or by court order. This gives third parties (such as fish sellers or crew members named in logbooks) a right to confidentiality.

The Regulations establish a suite of offences with fines expressed in penalty units. Under the distinguishing number regime, if a boat is used without the number displayed, or if the “T” is not removed after licence expiry, the master and the owner are each guilty of an offence: a natural person faces up to 20 penalty units; a body corporate up to 100 penalty units (reg 7(3)). This dual liability means both the person in control of the vessel and the legal owner are independently exposed. The offence is one of strict liability, meaning no fault element needs to be proved; the defence of reasonable excuse is not available for this offence (the note references s 6.1 of the Criminal Code).

Failing to comply with Marine Orders Part 30 (collision prevention) attracts a maximum fine of 20 penalty units (reg 8(2)). Again, strict liability applies (reg 8(2A)). Notably, reg 8(3) expressly states that the imposition of a criminal penalty does not relieve the person from civil liability for any damage caused by the failure. This preserves the possibility of tort claims for negligence or breach of statutory duty.

Logbook offences carry a maximum of 20 penalty units, strict liability, but with a defence of “reasonable excuse” (reg 12(5)). The defendant bears an evidential burden in raising this defence (note referencing s 13.3 of the Criminal Code). The reasonable excuse defence is not available for the distinguishing number or collision offences. Secrecy violations under reg 13 are punishable by a maximum fine of 5 penalty units, strict liability, with an exception for performance of duty or court order (reg 13(1B)). Finally, the failure of an officer to return an identity card upon ceasing to be an officer carries a penalty of 1 penalty unit, also strict liability (reg 9(3)).

Enforcement is primarily through prosecution in a court of summary jurisdiction. The Regulations do not specify which court, but typically such matters would be heard in a Magistrates Court. The offences are all relatively low-level, but the strict liability design makes conviction straightforward once the conduct is proved. The practical enforcement picture would also involve the use of the identification and detention powers in Part 3, which are separate from the criminal penalty regime but integral to investigating suspected illegal foreign fishing.

The Regulations operate within a complex web of Commonwealth and international legal instruments. Their enabling statute is the Torres Strait Fisheries Act 1984, under which the regulations are made. Specific provisions of the Act are referenced throughout: ss 19, 23, 24, 25 for licensing; ss 14, 16, 17 for notices; and Schedule 2 for the detention of suspected illegal foreign fishers. The term “licensing authority” incorporates delegates under ss 9(1) or 38(1) of the Act. The “Protected Zone Joint Authority” is defined by reference to Part V of the Act. The “Act” is defined in reg 2 as the Torres Strait Fisheries Act 1984.

The Regulations cross-reference the Criminal Code twice: s 6.1 (strict liability) is noted for many offences, and s 13.3 (evidential burden) is noted for the reasonable excuse defence in logbook offences. This means the general principles of criminal responsibility under the Code apply. The definition of “intimate forensic procedure” in reg 16 is taken directly from s 23WA of the Crimes Act 1914, and the note reproduces the full list of such procedures to clarify what is prohibited without a warrant or higher authority.

The Regulations also intersect with other Commonwealth fisheries legislation. The minimum training specified in reg 15 includes training on the use of powers under both the Torres Strait Fisheries Act 1984 and the Fisheries Management Act 1991. This reflects the fact that AFMA officers exercise powers under both regimes. The Customs Act 1901 is referenced in reg 24: AFMA may authorise the Department administered by the Minister administering Part XII of that Act to disclose identifying information. The Privacy Act 1988 and Freedom of Information Act 1982 are incorporated by reference in the identification test information requirements (reg 19(2)). These Acts give non-citizens rights regarding the handling of personal information and access to government documents.

Internationally, the Regulations give effect to aspects of the Torres Strait Treaty between Australia and Papua New Guinea. The “Seabed Jurisdiction Line” is defined by reference to Annex 5 of the Treaty, and the “Fisheries Jurisdiction Line” is drawn from the Act’s definition of “area of Australian jurisdiction”. The Protected Zone is a directly relevant concept. The disclosure provisions in reg 26 allow sharing of identifying information with 46 intergovernmental organisations known as Regional Fisheries Bodies, many of which are created by multilateral treaties (e.g., CCAMLR, CCSBT, IWC). This positions the Regulations as part of Australia’s compliance with international fisheries obligations.

The text of the Regulations as provided does not contain any amendment history, commencement dates, or explanatory statements. The instrument is titled the Torres Strait Fisheries Regulations 1985, suggesting it was originally made in 1985, but no subsequent amendment details are included in the source. A practitioner or researcher would need to consult the Federal Register of Legislation (legislation.gov.au) to obtain the current compilation showing all amendments, the date of effect of each amendment, and the enabling provision under which each change was made. Typical amendments might have been needed to update penalty unit amounts, to align with changes to the Criminal Code or the Torres Strait Fisheries Act, or to revise the lists of authorised bodies and international organisations in regs 25 and 26. The reference to “Multicultural and Indigenous Affairs” in the table of Australian bodies (item 15) indicates that department has been renamed; this suggests the Regulations have been amended at least once since 2007 when that portfolio existed. However, the source text does not record any specific amendment history, so no further detail can be provided from the document itself.

The Regulations do not reference any case law or litigation history. There are no mentions of court decisions, tribunal rulings, or judicial consideration of any regulation within the provided text. This is typical for delegated legislation: it does not normally contain a table of cases. However, it is possible that certain provisions of the Regulations have been considered by Australian courts in prosecutions for fisheries offences, particularly the strict liability offences in regs 7, 8 and 12. The availability of the reasonable excuse defence in reg 12(5) may have been litigated, and the definition of “overall length” in reg 6(2) could have been disputed. The identification provisions in Part 3 may have been challenged under administrative law or human rights grounds, but the Regulations themselves provide no historical record. A legal researcher would need to search for cases citing the Torres Strait Fisheries Regulations 1985 in the Australasian Legal Information Institute (AustLII) or similar databases. From the text alone, no litigation history can be described.

Several features of the Regulations are likely to catch out persons who do not read them carefully. First, reg 7 imposes liability on both the master and the owner for the distinguishing number offence, and it is strict liability. An owner who never sets foot on the boat can still be fined up to 100 penalty units if the boat is used without proper marking. The requirement that the number be visible from aircraft as well as surface vessels is a high bar; it is not enough that it is readable from another boat.

Second, the logbook obligation under reg 12 requires daily entry “not later than the day immediately following that day”. This is an unusually tight timeline for a fishing operation that might be at sea for weeks. The master must cause entry to be made each day, not merely at the end of the trip. The same regulation also requires folios to be furnished “as soon as practicable” - a phrase that gives some flexibility but could be interpreted strictly by a court. The reasonable excuse defence is available, but the master bears the evidential burden of proving it.

Third, the secrecy provision in reg 13 (maximum 5 penalty units) applies to “information concerning the affairs of another person” contained in a logbook. This could catch a boat owner who shares catch details with a buyer or a family member. The exception is limited to performance of a duty under the Act or Regulations, or a court order. There is no broad “business purposes” exception.

Fourth, the definition of “overall length” for fee calculation (reg 6(2)) includes any appendage that effectively increases hull length, but excludes anchor rails, bowsprits, etc. This could be ambiguous - whether a particular fitting “effectively increases the length of the hull” may be open to argument. The measurement is from vertical lines at front and rear points of the hull in a horizontal plane.

Fifth, the identification test provisions in Part 3 require the officer to inform the non-citizen of specific matters before conducting the test. If the officer fails to give that information, the test may be unlawful and evidence derived from it may be inadmissible. However, the Regulations do not provide a statutory remedy for breach; it would be left to common law or human rights legislation.

Sixth, the list of Australian bodies to which identifying information may be disclosed (reg 25) includes items with gaps in numbering (items 3 and 5 are missing). This may be a drafting error or reflect repealed bodies, but it is not explained in the text. A disclosing officer should check the current version of the Regulations.

Finally, the Regulations use the Australian Geodetic Datum 1966 (AGD66) for geographical coordinates. Modern GPS uses GDA94 or GDA2020, so coordinates in notices or schedules may need conversion. A user relying on the coordinates without correcting for datum shift could be several hundred metres off, potentially crossing jurisdictional lines.

Compliance with the Torres Strait Fisheries Regulations 1985 requires a systematic approach by boat owners, masters, and operators. First, ensure that the boat is licensed under s 19 of the Torres Strait Fisheries Act 1984 and that the licence is current. The licensing authority will not grant, renew or transfer a licence until the prescribed fee has been tendered (reg 5). The term of the licence is five years (reg 4A), so renewal should be initiated well before expiry.

Second, obtain and display the assigned distinguishing number. For Australian boats, the number is a letter or number (or letters followed by a number) ending with “T”. It must be painted in black letters and figures on a yellow ground, and the dimensions must comply with Schedule 3. The number must be positioned so it is clearly visible from aircraft and from surface vessels. If the licence expires or is surrendered, the “T” must be completely obliterated or removed; leaving a partial “T” will still expose the master and owner to a strict liability offence (reg 7(3)(c)). A routine pre-departure checklist should verify the number’s presence, legibility and correct colouring.

Third, comply with marine collision prevention measures. The master must ensure the boat carries and uses lights and signals as required by Marine Orders Part 30 (Prevention of Collisions) as in force at the commencement of these Regulations (reg 8). Note that this refers to the version at commencement, not the current version unless amendments have been incorporated into the Regulations (which is not stated). If any doubt exists, consult the latest Marine Orders and the relevant Navigation (Orders) Regulations.

Fourth, manage the logbook system. The Minister publishes forms of logbooks by notice in the Gazette and a newspaper circulating in Queensland. The master must obtain the appropriate form for the fish kind, fishing activity and area. For each day the boat is used for taking or processing fish, the master must cause the required information to be entered in the logbook no later than the following day (reg 12(1)-(2)). At the end of the period (or as soon as practicable), the completed folios must be furnished to an officer or the Department (reg 12(3)). A system of daily data entry and secure storage of completed folios is essential. The logbook must not be altered other than as specified. Remember that the secrecy provision (reg 13) prohibits unauthorised disclosure of another person’s affairs contained in the logbook; do not share logbook data with third parties without a lawful basis.

Fifth, if the boat is operated by a non-citizen who is detained by an authorised officer, the master and crew must cooperate with identification procedures. The officer must first inform the detainee of the matters in reg 19: reason for collection, method, use, and rights under privacy and FOI laws. The detainee may then be required to provide personal identifiers such as fingerprints, iris scans, photographs, audio/video recordings and handwriting samples. No intimate forensic procedures may be conducted. The detainee should be given enough time to read any form provided. If an authorised officer requests access to or disclosure of identifying information, AFMA’s authorisation is required, and the information may only go to bodies or international organisations listed in regs 25 and 26.

Sixth, if you are an officer who ceases to hold that appointment, return your identity card to the Secretary immediately (reg 9). The offence is punishable by 1 penalty unit and is strict liability, so it is not enough to simply stop using the card; it must be physically returned.

Finally, maintain up-to-date records of all licences, distinguishing numbers, logbooks, and any identification data collected, and ensure that any disclosure of identifying information is properly authorised by AFMA. Regularly check the Federal Register of Legislation for amendments to the Regulations, as the lists of bodies and international organisations are liable to change. Where coordinates are used for jurisdictional lines, confirm the correct geodetic datum (AGD66) and convert if necessary to avoid accidental incursions into prohibited zones.