Torres Strait Fisheries Management Instrument No 16 [F2017L00371]-Concluded matters [2017] AUSStaCSDLM 207 (14 June 2017)

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Instrument	Torres Strait Fisheries Management Instrument No. 16 [F2017L00371]
Purpose	Prohibits the taking of Sea Turtles or Dugong in the Torres Strait region
Authorising legislation	Torres Strait Fisheries Act 1984
Department	Agriculture and Water Resources
Disallowance	15 sitting days after tabling (tabled Senate 9 May 2017) Notice of motion to disallow must be given by 16 August 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 5 of 2017

Description of consultation

The committee previously commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or,

if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the instrument provides the following information:

Consultation
Native title notification was undertaken in relation to the Instrument.

While the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In this case, noting that the ES appears to address only the native title notification requirements in relation to the instrument, the committee considers that it does not provide adequate information regarding consultation for the purposes of the Legislation Act 2003.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 1.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Minister's response

The Assistant Minister for Agriculture and Water Resources advised:

In developing the Instrument, AFMA notified representative Aboriginal
and Torres Strait Islander bodies under section 24HA(7) of the Native Title
Act 1993. An objection was received from one respondent, the Torres Strait Regional Authority Native Title Office, on behalf of Malu Lamar (Torres Strait Islander) Corporation Registered Native Title Body Corporate and the Torres Strait Regional Sea Claim (Part A). This objection was on
the basis that, among other things, the Instrument interfered with, and may well make it unsafe for, native title holders to continue to exercise their native title, community and social activities on their traditional land and waters, including the right to hunt, fish, and collect traditional food and to generally access the area.
The Protected Zone Joint Authority (PZJA) considered this objection. However, the PZJA decided that the Instrument is necessary to ensure there is sustainable use of turtle and dugong in the Torres Strait, particularly in a way that protects the traditional way of life and
livelihood of traditional inhabitants and the protection of indigenous fauna. In making its decision, the PZJA also committed to a general review of the impact of lnstruments on Native Title rights in the Torres Strait
by April 2018.
The explanatory statement for this Instrument has been updated to provide clarity on the consultation and is enclosed. Subject to your endorsement, my department will arrange for the updated explanatory statement to be registered on the Federal Register of Legislative Instruments [sic].
The updated ES states:
The relevant stakeholders for consultation in relation to the Instrument are Aboriginal and Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants...
To inform the relevant stakeholders about the Instrument a Native title notification under section 24HA(7) of the Native Title Act 1993 was undertaken. The notification was provided in writing to the Cape York Land Council, including for the Kaurareg Native Title (Aboriginal) Corporation Registered Native Title Body Corporate (RNTBC); Carpentaria Land Council; Malu Lamar (Torres Strait Islander) Corporation RNTBC; and the Torres Strait Regional Authority Native Title Office. The notification included a copy of the Instrument and details of the prohibition of fishing and exemption to the prohibition for traditional fishing.
There was one respondent to the Native Title notification, the Torres Strait Regional Authority Native Title Office, on behalf of Malu Lamar (Torres Strait Islander) Corporation RNTBC and the Torres Strait Regional Sea Claim (Part A). The respondent expressed, on their behalf, objection to the Instrument on the basis that, among other things, the Instrument interferes with, and may well make it unsafe for, native title holders to continue to exercise their native title, community and social activities on their traditional land and waters, including the right to hunt, fish, collect traditional food and to generally access the area.
The Protected Zone Joint Authority (PZJA) considered this objection. However the PZJA decided that the Instrument is necessary to ensure there is sustainable use of turtle and dugong in the Torres Strait, particularly in a way that protects the traditional way of life and livelihood of traditional inhabitants and the protection of indigenous fauna.
In making its decision, the PZJA also committed to a general review of
the impact of instruments on Native Title rights in the Torres Strait by
April 2018.

Committee's response

The committee thanks the assistant minister for her response and has concluded its examination of the instrument.

The committee notes the assistant minister's undertaking to register the revised ES which addresses the committee's concerns regarding consultation on the Federal Register of Legislation.

Senator John Williams (Chair)