Federal Register of Legislation - Australian Government

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Determinations/Fisheries as made
This instrument amends the Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Determination 2019 to increase the total allowable catch (TAC) of tropical rock lobster determined in the Tropical Rock Lobster fishery for the 2019/20 fishing season which commenced on 1 December 2019.
Administered by: Agriculture, Water and the Environment
Registered 22 May 2020
Tabling HistoryDate
Tabled HR10-Jun-2020
Tabled Senate10-Jun-2020
Date of repeal 24 May 2020
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

Issued by authority of the Minister  

Torres Strait Fisheries (Quotas for Tropical Rock Lobster (Kaiar)) Management Plan 2018

Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Amendment Determination (No. 2) 2020

Legislative authority

Subsection 14(1) of the Torres Strait Fisheries (Quotas for Tropical Rock Lobster (Kaiar)) Management Plan 2018 (Management Plan) provides that the Minister may increase the total allowable catch determined for a fishing season.

The Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Amendment Determination (No. 2) 2020 (Amendment Determination) is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).  Due to application of subsection 44(1) of the Legislation Act, the Amendment Determination is exempt from parliamentary scrutiny.

Purpose

The Amendment Determination amends the Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Determination 2019 to increase the total allowable catch (TAC) of tropical rock lobster determined in the TRL fishery for the 2019/20 fishing season which commenced on 1 December 2019.  The TAC for the TRL Fishery is determined by the Minister to be increased from 392,917.5 kilograms (unprocessed weight) to 434,785 kilograms (unprocessed weight).

Consultation

Subsection 14(2) of the Management Plan provides that the consultation processes set out in subsections 13(2) and 13(3) of the Management Plan apply to determining an increase in the TAC.  Subsection 13(2) of the Management Plan stipulates that in making a TAC determination, the Minister must consult with any advisory committee that the Protected Zone Joint Authority (the Authority) has established under subsection 40(7) of the Torres Strait Fisheries Act 1984 (Fisheries Act) to provide advice relating to the TRL fishery; and have regard to Australia’s obligations under the Torres Strait Treaty[1].  Further, subsection 13(3) of the Management Plan provides that in making the determination, the Minister may consider the views of any person with an interest in the TRL fishery or the ecological sustainable use of the TRL fishery; and take into account the amount of tropical rock lobster taken as a result of other fishing such as traditional or recreational fishing.    

The Authority, on behalf of the Minister, consulted the Torres Strait Tropical Rock Lobster Resource Assessment Group (TSTRLRAG) and Torres Strait Tropical Rock Lobster Working Group (TSTRLWG) on 10-12 December 2019, concerning determination of a TAC for the TRL Fishery and also increases to the TAC during the fishing season in accordance with catch sharing arrangements under the Torres Strait Treaty.  Taking into account relevant scientific information, TSTRLRAG and TSTRLWG recommended and supported the TAC setting process which included support for Australia seeking preferential entitlement of allowable catch and making subsequent increases to the TAC during the season.  TSTRLRAG and TSTRLWG were established under subsection 40(7) of the Fisheries Act.  Memberships of TSTRLRAG and TSTRLWG comprise of an independent Chair, Authority agencies (Australian Fisheries Management Authority, Torres Strait Regional Authority and Queensland Department of Agriculture and Fisheries), scientists (including an economist), and industry (from both the traditional inhabitant and non-traditional inhabitant sectors). 

TAC Increase

On 5 March 2020 the Minister amended the Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Determination 2019 to increase the TAC determined for the TRL Fishery for the 2019/20 fishing season from 200,000 kilograms to 392,917.5 kilograms.  This increase was consistent with catch sharing arrangements between Australia and Papua New Guinea (PNG) agreed under the Torres Strait Treaty. 

On 5 May 2020, in accordance with Article 25 of the Torres Strait Treaty, a further agreement was reached on PNG’s utilisation of the allowable catch that PNG was entitled to in areas under Australian jurisdiction.  Australia and PNG agreed that PNG would have access to 60,000 kilograms of allowable catch (a total of 101,867.5 kilograms) that PNG was entitled to in these areas.  It was further agreed that Australia would have preferential entitlement of the remaining 41,867.5 kilograms.  This agreement results in a final allowable catch of 434,785 kilograms of tropical rock lobster for the 2019/20 season that Australia is entitled to in areas under Australian jurisdiction.  Accordingly, the Minister increases the TAC determined for the TRL Fishery for the 2019/20 season from 392,917.5 kilograms to 434,785 kilograms.

Native Title

The determination of the increase in the TAC by the Minister is a future act for the purposes of the Native Title Act 1993 (the Native Title Act).  Section 24HA of the Native Title Act relevantly provides that the making of legislation in relation to the management or regulation of living aquatic resources is a valid future act, insofar as the Amendment Determination is validly made.

Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

As the Amendment Determination is exempt from disallowance through the process of parliamentary scrutiny, by application of subsection 44(1) of the Legislation Act, a statement of compatibility with human rights does not have to be prepared for the purpose of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Regulation impact statement

Consistent with agreed carve out arrangements, the Office of Best Practice Regulation advised that a Regulation Impact Statement was not required for the Amendment Determination, (OBPR reference numbers 14421 & 25743).

Details of the Amendment Determination are set out in Attachment A.


 

ATTACHMENT A

Details on provisions

Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Amendment Determination (No. 2) 2020

Section 1

Provides that the name of this instrument is the Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Amendment Determination (No. 2) 2020.

Section 2

Provides that this instrument commences on the day after registration on the Federal Register of Legislation.

Section 3

Provides that this instrument is made under section 14 of the Torres Strait Fisheries (Quotas for Tropical Rock Lobster (Kaiar)) Management Plan 2018.

Section 4

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1

Schedule 1 sets out the amendment to the Torres Strait Fisheries Tropical Rock Lobster (Total Allowable Catch) Determination 2019.

Item 1 of Schedule 1

Omits 392,917.5 kilograms and substitutes 434,785 kilograms.

 



[1] Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters.