Torres Strait Prawn Fishery (Bycatch Reduction Devices) Instrument 2024

The instrument is a statutory determination titled the Torres Strait Prawn Fishery (Bycatch Reduction Devices) Instrument 2024. It amends regulatory requirements for fishing gear in the Torres Strait Prawn Fishery by prescribing which bycatch reduction devices (BRDs) count as compliant equipment and making installation of a prescribed BRD a condition of lawful fishing in the fishery. Mechanically, the instrument does four things.

First, it creates a prohibition on engaging in taking, processing or carrying of fish by a method or with equipment or a boat in the Torres Strait Prawn Fishery unless a BRD specified in Schedule 1 is installed in each of the concession holder’s net rigged for fishing (section 5). That prohibition is expressed as made pursuant to paragraph 16(1)(c) of the Torres Strait Fisheries Act 1984 (the Act) (section 5 and section 3).

Second, it defines the circumstances in which a net counts as “net rigged for fishing” for the purposes of the requirement: part or all of a net in the water, or a net shackled, tied or otherwise connected to any trawl door, trawl board, tow rope or cable either on board the boat or attached in any manner to the boat (section 4, definition). This definition extends the obligation beyond nets physically deployed, to nets connected to trawl gear even when on board.

Third, it lists the specific BRDs that are recognised as compliant in Schedule 1. Schedule 1 identifies several named device types (Fisheye, Bigeye, Tom’s Fisheye, Kon’s Covered Fisheyes, FishEX 70, Popeye Fishbox) and sets detailed physical and installation specifications for each, including dimensions, mesh-location limits measured in meshes from the codend drawstrings, weights/float requirements, frame orientation and unobstructed escape-gap requirements.

Fourth, it provides a limited exemption: a try net is expressly exempt from the prohibition (section 6). The instrument also repeals Torres Strait Fisheries Management Notice No. 82 via Schedule 2 (Schedule 2). The instrument takes effect the day after it is registered on the Federal Register of Legislation (section 2). It is dated 29 May 2024 and signed on behalf of the Protected Zone Joint Authority (front matter).

The instrument contains no standalone offence or penalty provisions. The prohibition in section 5 creates a condition of lawful fishing but enforcement, offences and penalties are not prescribed in this instrument; the making power is identified (paragraph 16(1)(c) of the Act) and other statutory machinery in the Act will supply offences and enforcement mechanisms, not the instrument itself (see section 3).

The instrument operates through a small set of technical concepts that determine legal effect.

Bycatch reduction device (BRD): The instrument treats BRDs as the regulated object. It lists recognised BRDs in Schedule 1 and sets technical specifications that an escape opening device or opening in a net must meet to qualify. The instrument notes that some expressions, including “bycatch reduction device” and “try net”, are defined in section 3 of the Act and in section 1.3 of the Plan, but the instrument itself supplies precise dimensional and installation requirements for the listed devices (section 4, note; Schedule 1).

Net rigged for fishing: The instrument defines the trigger condition for the BRD requirement. A net is “rigged for fishing” when any part of it is in the water, or when it is shackled, tied or otherwise connected to trawl doors, trawl boards, or tow ropes or cables either while on board or attached in any manner to the boat (section 4). That definition is operationally significant because it captures nets that are physically connected to fishing gear while stowed, as well as nets actually deployed.

Concession holder: The obligation in section 5 attaches to “the concession holder’s net rigged for fishing”, so the regulated party is the concession holder (section 5). The instrument does not define “concession holder” itself in its text, but it uses that term; the reader must look to the Act or the Plan for the formal definition (section 4, note).

Device specifications and placement: Schedule 1 sets concrete physical characteristics: frames, cones, escape-gap dimensions, mesh-distance placement from the codend drawstrings (numerical mesh counts such as “no more than 66 meshes” or specific mesh positions such as 55, 60, 65, 70, 78 meshes), requirements that openings be unobstructed during trawling, weights and approved-chain link counts and float sizes for certain devices, and material and figure references for FishEX 70 (Schedule 1, various items). Many requirements are expressed in millimetres and mesh counts.

Exemptions and repeal: Try nets are explicitly exempt (section 6). Schedule 2 repeals a prior management notice in full: Torres Strait Fisheries Management Notice No. 82 (Schedule 2).

Temporal operation and authority: The instrument commences the day after registration (section 2) and is made under paragraph 16(1)(c) of the Act (section 3). It is dated 29 May 2024 and signed by the Minister for Agriculture, Fisheries and Forestry, acting on behalf of the Protected Zone Joint Authority.

These concepts determine the compliance trigger (net rigged for fishing), who must comply (concession holders), what counts as compliance (installation of a Schedule 1 BRD in each applicable net), and where/when the rule applies (Torres Strait Prawn Fishery from commencement date).

Primary regulated parties

• Concession holders in the Torres Strait Prawn Fishery. Section 5 makes installation of a Schedule 1 BRD a precondition of engaging in taking, processing or carrying of fish in the fishery; it explicitly ties the obligation to “the concession holder’s net rigged for fishing”. The instrument therefore directly affects the legal obligations of concession holders who deploy or possess nets that meet the “rigged for fishing” definition (sections 5; 4 definition).

• Boat masters, skippers and crew who operate nets that are shackled, tied or otherwise connected to trawl doors, trawl boards, tow ropes or cables are indirectly affected because the definition of “net rigged for fishing” covers nets connected while on board or attached to the boat (section 4).

Equipment suppliers and manufacturers

• Producers, fabricators and suppliers of the listed devices (Fisheye, Bigeye, Tom’s Fisheye, Kon’s Covered Fisheyes, FishEX 70, Popeye Fishbox) are affected because the instrument prescribes device designs and dimensions. The device specifications create a purchase and retrofitting market for those particular designs (Schedule 1). The instrument also references Figure 1 for FishEX 70, including material (marine grade aluminium), which is a specification relevant to manufacturers (Schedule 1, FishEX 70 figure).

• Net makers and repair yards will need to fit devices in accordance with the mesh-distance and dimensional requirements; repair and refit activity will be shaped by the device specifications.

Regulatory and compliance actors

• Inspectors, authorised officers and fisheries monitors will be the practical enforcers. The instrument itself does not specify who enforces; it is made by the Protected Zone Joint Authority (front matter; section 3). Enforcement competence and penalties will derive from the Act and other statutory instruments; the instrument imposes substantive gear standards for inspection.

Other affected interests

• Parties who rely on try nets will note the explicit exemption (section 6) and should check the underlying definitions in the Act/Plan to confirm the activities that qualify as a try net.

• Holders or users of the instrument being repealed, Torres Strait Fisheries Management Notice No. 82, will be affected because Schedule 2 repeals that instrument in full (Schedule 2). Any practices authorised or described in that notice will no longer be operative to the extent they conflict.

Duties created by the instrument

• Install a BRD in each net rigged for fishing: Section 5 makes it unlawful to engage in taking, processing or carrying of fish in the Torres Strait Prawn Fishery unless a BRD specified in Schedule 1 is installed in each of the concession holder’s net rigged for fishing. The operative duty therefore is to ensure every net that meets the “rigged for fishing” definition has one of the listed BRDs correctly installed.

• Ensure BRD installation meets Schedule 1 specifications: Schedule 1 provides precise installation and construction requirements for each device type. Examples include placement measured in meshes from the codend drawstrings (e.g. no more than 66 meshes; specified aft edges at 55, 60, 65, 70 or 78 meshes depending on device), dimensional minimums in millimetres (e.g. 350 mm wide by 150 mm high for the semicircular frame in the Fisheye), orientation instructions (e.g. apex of the isosceles triangle-shaped frame points towards the opening, Schedule 1 fisheye requirements), and requirements that openings be unobstructed during trawling (Schedule 1, repeated).

• For Bigeye devices, fit approved weights and floats: The Bigeye entry requires the part of the opening closest to the mouth to be weighted by an approved chain or 300 g of other weights, and the part closest to the codend drawstrings to be buoyed by at least two floats each of minimum dimensions; the instrument also defines what counts as an “approved chain” by link count and weight (Schedule 1, Bigeye).

• Maintain escape gaps clear of obstructions: Several device specifications require the escape gap to be clear of obstructions, explicitly including mesh ties (e.g. Tom’s Fisheye, FishEX 70, Kon’s).

• Do not cover openings during trawling: Multiple device entries state that during trawling nothing must cover any part of the opening (Fisheye, Bigeye, Popeye Fishbox, and others).

Rights and permissible exceptions

• Try net exemption: Section 6 expressly exempts a try net from the prohibition in section 5. The instrument does not elaborate on the definition of “try net” within the instrument; the instrument notes that the term is defined in section 3 of the Act and section 1.3 of the Plan (section 4, note; section 6). The exemption gives operators using try nets the right to operate without installing a Schedule 1 BRD in those try nets.

What the instrument says and what it omits

• No penalties in the instrument: The instrument does not itself specify offences, penalties, infringement notices, or exact enforcement mechanisms. Section 5 frames the requirement as a prohibition under paragraph 16(1)(c) of the Act , that is, it makes certain methods or equipment prohibited unless compliance with the BRD requirement is met. The instrument does not attach specific monetary fines, suspension regimes, or other sanctions; those will arise under the Act and any associated regulatory instruments (section 5; section 3).

• Enforcement responsibility implicit in authorship: The instrument is made by the Protected Zone Joint Authority (front matter) and dated and signed by the Minister for Agriculture, Fisheries and Forestry acting as Chair of the Authority. While the instrument does not name enforcement officers, the Protected Zone Joint Authority is the instrument-making body and enforcement would proceed under the Act’s enforcement framework.

Compliance-monitoring mechanisms implicit from the text

• Inspection and gear checks: The substantive requirements , mesh counts from codend drawstrings, precise physical dimensions, orientation, weights and floats, and clearance of mesh ties , create obvious inspection tasks. Inspectors will likely need to visually and physically inspect nets and BRDs to confirm compliance (Schedule 1; section 4 definition of net rigged for fishing). The instrument’s repeated requirement that “nothing must cover any part of the opening” during trawling implies inspectors may examine nets during or immediately after trawling or depend on at-sea observers or recorded evidence.

• Evidence by measurement and photographic records: Because compliance turns on concrete measurements (millimetres, mesh counts, and counts of chain links), enforcement will rely on demonstrable physical evidence. The instrument’s inclusion of a figure for FishEX 70 suggests authorised officers will validate against documented figures.

Potential enforcement gaps and operational questions

• Enforcement resources not specified: The instrument contains no provision for inspection frequency, observer placement, or the practical means of verifying compliance; those functions reside in the Act and fisheries administration protocols external to this instrument (section 3).

Express references within the instrument

• Made under the Torres Strait Fisheries Act 1984: The instrument explicitly states it is made under paragraph 16(1)(c) of the Act (section 3). Accordingly, the instrument is subordinate legislation operating within the legislative architecture and enforcement powers of the Act.

• Definitions drawn from the Act and the Plan: The instrument notes that a number of expressions used are defined in section 3 of the Act and section 1.3 of the Plan, including “prawns”, “bycatch reduction device or BRD”, “try net”, and “turtle excluder device or TED” (section 4 note). The instrument therefore functions alongside the Plan and the Act for interpretive and application purposes.

• Repeal and replacement relationship: Schedule 2 repeals Torres Strait Fisheries Management Notice No. 82 in full. This is an explicit interaction: the instrument replaces that instrument’s regulatory effect and should be read as the operative management instrument where conflict would otherwise arise (Schedule 2).

Where responsibilities and procedures lie outside this instrument

• Enforcement and penalties under the Act: The instrument does not set penalties or enforcement procedures; those mechanisms will be supplied by the Act and other instruments under it. Practitioners must consult the Act and the Plan to determine offences, powers of authorised officers, evidence rules, administrative review mechanisms, and appeal rights.

• Definitions may shift interpretation: Because the instrument relies on definitions in the Act and the Plan, interpretation of key terms (e.g. “try net”, “BRD”, “concession holder”) must refer to those instruments. The instrument’s application therefore depends on cross-instrument interpretation.

Interplay with management planning and operational rules

• Plan provisions may have complementary gear or spatial rules: The instrument refers to the Torres Strait Prawn Fishery Management Plan 2009 (the Plan) and uses the Plan’s definitions. The Plan may contain ancillary operational rules that affect how this instrument operates in practice , for example, vessel permit conditions, reporting obligations, observer coverage provisions, or specific zone rules. The instrument should be treated as a gear standard nested within the Plan and Act framework.

Instrument creation and replacement action

• New instrument dated 29 May 2024: The instrument is dated 29/05/2024 in the front matter and purports to be made by the Protected Zone Joint Authority, signed by the Minister acting for the Authority (front matter).

• Commencement timing: It commences the day after registration on the Federal Register of Legislation (section 2). The instrument therefore has an immediate commencement mechanism tied to registration rather than a specified future date.

• Repeal of Torres Strait Fisheries Management Notice No. 82: Schedule 2 expressly repeals the whole of that instrument (Schedule 2 item 1). The repeal is absolute: “The whole of the instrument” and “Repeal the instrument”. No transitional provisions are included in this instrument itself.

Absence of recorded amendments or transitional provisions

• No amendments to this instrument are recorded within the text provided: The instrument stands as a single determinate instrument. Because this text is the instrument itself, it contains no later amendment entries. Any subsequent amendments would be recorded in later instruments or legislative instruments amending or repealing it; none are present here.

• No transitional or staged implementation: The instrument prescribes device specifications and requires installation in “each of the concession holder’s net rigged for fishing” without listing transitional timeframes or staged compliance deadlines. The only temporal detail is commencement the day after registration (section 2). The lack of an explicit transitional schedule means immediate compliance obligations apply upon commencement, unless the Act or the Plan provides an alternative transitional mechanism not reproduced here.

Predecessor instrument and replacement effect

• The repealed instrument was Torres Strait Fisheries Management Notice No. 82. The fact of a full repeal indicates that any specifications or permissions in that Notice are no longer operative where inconsistent with this instrument (Schedule 2). Practitioners should compare the previous notice’s content to the new Schedule 1 to identify changes in permitted device lists, measurement standards or exemptions. The instrument itself does not provide a side-by-side comparison.

Authority under which the instrument was made

• Paragraph 16(1)(c) of the Act is cited as the enabling provision (section 3). Any procedural requirements for making or amending such instruments (consultation, publication, ministerial approval) would be set out by the Act; the instrument notes the authority but does not recite procedural history. The front matter records the signatory and the date which may be relevant for validating procedural compliance under the Act.

No litigation recorded in the instrument

• The instrument itself contains no record of litigation, judicial consideration or dispute about its content. It is presented as a determination made by the Protected Zone Joint Authority and dated 29 May 2024 (front matter).

Implications for legal risk and precedent

• No cases named: The text includes no references to judicial decisions, interpretive rulings, or disputes about the devices, definitions, or enforcement measures. Accordingly, there is no litigation history internal to this instrument that can be cited for interpretive guidance.

• Reliance on the Act for judicial history: Any legal challenges or prosecutions arising from contraventions of the prohibition in section 5 would be governed by the Torres Strait Fisheries Act 1984 and its enforcement provisions. The instrument provides the substantive standards likely to be the subject of any future compliance disputes, but the instrument itself does not contain litigation decisions.

Points to monitor for potential litigation

• Interpretive disputes likely to focus on technical terms and measurements: Because compliance with the instrument turns on counts of meshes, orientation of frames, positioning relative to codend drawstrings, and unobstructed escape gaps, disputes in enforcement proceedings would likely concentrate on how those technical requirements are measured and applied in practice. The instrument does not define “mesh” in its own text; any ambiguity in definitions inherited from the Act or the Plan could be a litigated issue.

• Device-specific compliance and proprietary device naming: The instrument lists named devices with exact specifications. If a supplier or operator fits a variant device that differs marginally from a listed specification but performs similarly, litigation may arise over whether the variant is compliant. The instrument provides no mechanism within its text for authorising variants or approving new designs; any legal contention would proceed under the Act.

• Repeal effects: Disputes arising from the repeal of the prior notice (Torres Strait Fisheries Management Notice No. 82) could arise if operators relied on transitional arrangements in the repealed notice. The instrument contains no transitional provision, and absence of transitional arrangements could be a ground for administrative challenge if procedural fairness or legitimate expectations under the Act or administrative law principles are argued; however the instrument contains no record of such litigation.

Ambiguities and operational pitfalls arising from the text

• “Mesh” is used repeatedly but not defined in this instrument: Schedule 1 repeatedly locates devices at specified distances from the codend drawstrings in meshes (e.g. “no more than 66 meshes”, “60 meshes”, “78 meshes”, “55 meshes”, “65 meshes”, “no further forward than 70 meshes”). The instrument’s note (section 4) lists some defined expressions taken from the Act and the Plan, but “mesh” is not among the listed terms. If “mesh” is not defined in the Act or the Plan, how to count meshes (stretched vs unstretched, single vs double counts, measurement from which chain/stitch) is not settled by this instrument. This creates a concrete compliance ambiguity and enforcement risk.

• “Net rigged for fishing” covers nets on board if connected: The definition in section 4 includes nets “shackled, tied or otherwise connected to any trawl door or trawl board, or to any tow rope or cable, either on board the boat or attached in any manner to the boat.” This means nets stored but connected may still require BRDs. Operators who previously considered stowed nets out of scope must reassess their practices to avoid being caught by the prohibition.

• No transitional period stated: The instrument commences the day after registration (section 2) and prescribes installation in “each” net rigged for fishing. There is no phased compliance window in the text. If concession holders cannot procure or retrofit equipment immediately, they may face an abrupt compliance deadline. The instrument also repeals a prior notice with no transitional clause (Schedule 2).

• Device naming and specification may favour existing models: The Schedule lists particular device designs by name and gives detailed specs (Tom’s Fisheye, Kon’s Covered Fisheyes, FishEX 70, Popeye Fishbox). If operators wish to use alternative devices not named but whose characteristics are similar, the instrument does not provide an internal approval pathway for unlisted devices. That may constrain procurement choices.

• “Nothing must cover any part of the opening” during trawling: Several entries repeat this rule. Practical maintenance tasks such as mesh ties, repairs, or temporary rigging that could partially obstruct openings are expressly prohibited during trawling. Crews must be trained and pre-trawl checks implemented to avoid inadvertent obstruction.

Specific technical gotchas in Schedule 1

Concrete compliance checklist derived from the instrument

1. Confirm commencement date and update compliance calendar: The instrument commences the day after registration on the Federal Register of Legislation (section 2). Operators should confirm the registration date and set the compliance date accordingly.

2. Inventory nets and identify “net rigged for fishing”: Review all nets to identify every net that will be “rigged for fishing” as defined: any net partly or fully in the water, or shackled, tied or otherwise connected to trawl doors, trawl boards, tow ropes or cables either on board or attached to the boat (section 4). Treat connected stowed nets as potentially in scope.

3. Select a Schedule 1 BRD for each net: Choose one of the recognised devices in Schedule 1 for each net: Fisheye, Bigeye, Tom’s Fisheye, Kon’s Covered Fisheyes, FishEX 70, or Popeye Fishbox. The instrument allows selection among these recognised devices but does not provide an internal pathway to approve alternative devices (Schedule 1).

4. Ensure device meets the listed technical specifications: For the chosen device, ensure the following as applicable:

   • Mesh position from codend drawstrings: Measure and confirm the aft edge or opening location in meshes relative to the codend drawstrings as required by the device (e.g. “no more than 66 meshes” for Fisheye and Bigeye; Tom’s Fisheye at 60 meshes aft edge; Kon’s at 78 and 55 meshes; FishEX at 65 meshes; Popeye no further forward than 70 meshes) (Schedule 1).

   • Dimensions and orientation: Fit frames, cones and openings to the millimetre dimensions and orientation requirements specified (e.g. fisheye semicircular frame at least 350 mm wide x 150 mm high; apex of isosceles triangle points to the opening; Tom’s rigid cone dimensions and escape gap; Kon’s specific dimensions) (Schedule 1).

   • Weights and floats for Bigeye: Fit an approved chain (meeting minimum weight and link counts for given link diameters) or at least 300 g of other weights at the mouth side of the Bigeye opening, and fit at least two floats of minimum dimensions on the codend side as described (Schedule 1, Bigeye).

   • Escape gap unimpeded: Ensure escape gaps are free of obstructions, including mesh ties (Schedule 1 entries for Tom’s Fisheye, FishEX 70, Kon’s and others).

   • No covering during trawling: Establish procedures to ensure that nothing covers any part of the opening during trawling (multiple Schedule 1 entries).