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TORRES STRAIT FISHERIES ACT 1984 - SECT 3 Interpretation

TORRES STRAIT FISHERIES ACT 1984 - SECT 3

Interpretation

  (1)   In this Act, unless the contrary intention appears:

"AFMA" means the Australian Fisheries Management Authority.

"AFMA staff member" has the same meaning as in the Fisheries Administration Act 1991 .

"area of Australian jurisdiction" means:

  (a)   any area of waters in the Protected Zone (other than an area within the Protected Zone coastal waters of Queensland) to the south of the line described in Annex 8 to the Torres Strait Treaty;

  (b)   if there is in force a Proclamation under subsection   15(1) or (2) in relation to an area of waters--so much of that area of waters as is not within the Protected Zone coastal waters of Queensland; and

  (c)   if there is in force an arrangement under Part   V that provides that a particular fishery, being a fishery that is so defined that it is or may be carried on wholly or partly within the Protected Zone coastal waters of Queensland, is to be managed in accordance with the law of the Commonwealth--that part of the Protected Zone coastal waters of Queensland to which the arrangement relates;

but does not, except to the extent necessary for the purposes of giving effect to an arrangement of the kind referred to in paragraph   ( c), include, in relation to any act or thing done for the purposes of fishing for sedentary organisms, any part of the Protected Zone to the north of the line described in Annex 5 to the Torres Strait Treaty.

"area of Papua New Guinea jurisdiction" means any area of waters in the Protected Zone (other than an area within the Protected Zone coastal waters of Queensland) to the north of the line described in Annex 5 to the Torres Strait Treaty, but does not include, in relation to any act or thing done for the purpose of fishing for fish other than sedentary organisms, any area to the south of the line described in Annex 8 to the Torres Strait Treaty.

"Australian boat" means a boat that is not a Papua New Guinea boat and the operations of which are based on a place in Australia and which is wholly owned by a natural person who is a resident of, or by a company incorporated in, Australia, being a boat that:

  (a)   was built in Australia ;

  (b)   has been lawfully imported into Australia , otherwise than for a limited period; or

  (c)   has been sold, or otherwise disposed of, in Australia after having been forfeited or distrained under a law of the Commonwealth or of a State or Territory.

"Australian resident" means:

  (a)   a person who holds a permanent visa (as defined in the Migration Act 1958 ) that is in effect; or

  (b)   a New Zealand citizen who is usually resident in Australia or a Territory and who holds a special category visa (as defined in the Migration Act 1958 ) that is in effect; or

  (c)   any other person who is usually resident in Australia or a Territory and whose continued presence in Australia or a Territory is not subject to a limitation as to time imposed by law.

"boat" means any kind of vessel used in navigation by water, however propelled or moved, and includes:

  (a)   a barge, lighter or other floating vessel; and

  (b)   an air - cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.

"carrying" , in relation to fish, includes preserving for the purpose of carriage or storing for that purpose.

"CEO" has the same meaning as in the Fisheries Administration Act 1991 .

"commercial fisher" means the holder of a commercial fishing licence.

"commercial fishing" means fishing for commercial purposes, but does not include traditional fishing.

"commercial fishing licence" means a licence that is in force under subsection   19(2) or (4).

"community fishing" means commercial fishing carried on by:

  (a)   a person who is, or 2 or more persons each of whom is, both a traditional inhabitant and an Australian citizen (not being a person who is, in the course of that fishing, under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person who is not both an Australian citizen and a traditional inhabitant); or

  (b)   a person or persons of the kind referred to in paragraph   ( a) and another person or other persons employed by:

  (i)   the first - mentioned person or persons; or

  (ii)   the Commonwealth, Queensland , an authority of the Commonwealth or an authority of Queensland ;

    to provide the first - mentioned person or persons with training or advice in relation to fishing techniques.

"evidential material" means a thing relevant to an indictable offence, or a thing relevant to a summary offence, against this Act or the regulations, including such a thing in electronic form.

"executing officer" , in relation to a warrant, means:

  (a)   the officer named in the warrant by the magistrate who issued the warrant as being responsible for executing the warrant; or

  (b)   if the officer so named does not intend to be present at the execution of the warrant--another officer whose name has been written in the warrant by the officer so named; or

  (c)   another officer whose name has been written in the warrant by the officer last named in the warrant.

"fish" means all the natural resources of the sea and seabed, including all swimming species and all sedentary organisms, but does not include cetaceans or minerals.

"fishing" means:

  (a)   searching for, or taking, fish; or

  (b)   attempting to search for, or take, fish; or

  (c)   engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or

  (d)   placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or

  (e)   any operations at sea directly in support of, or in preparation for, any activity described in this definition; or

  (f)   aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or

  (g)   the processing, carrying or transhipping of fish that have been taken.

"fish receiver licence" means a licence that is in force under subsection   19(4B).

"foreign boat" means a boat other than an Australian boat or a Papua New Guinea boat.

"master" , in relation to a boat, means the person in charge or command of the boat.

"master fisherman's licence" means a licence granted under subsection   19(1).

"offence against this Act" includes an offence against section   136.1, 137.1, 137.2, 148.1, 148.2, 147.1 or 149.1 of the Criminal Code that relates to this Act.

"officer" means:

  (a)   a person, or a person included in a class of persons, authorised under subsection   ( 4) to perform duties under this Act;

  (b)   a member of the Defence Force; or

  (c)   a member or special member of the Australian Federal Police or a member of the Police Force of Queensland; or

  (d)   an officer of Customs (as defined in the Customs Act 1901 ).

"Papua New Guinea" boat means:

  (a)   a boat in respect of which a Papua New Guinea licence is in force; or

  (b)   a boat that is being used by a traditional inhabitant who is a citizen of Papua New Guinea in the course of traditional fishing.

"Papua New Guinea licence" means a licence in force under the laws of Papua New Guinea in respect of a boat, being a licence granted pursuant to the Torres Strait Treaty that authorises the use of the boat for commercial fishing in an area of Papua New Guinea jurisdiction (whether or not the licence also authorises the use of the boat for fishing in any other area).

"Papua New Guinea Minister" means the Minister of the Government of Papua New Guinea for the time being administering the laws of Papua New Guinea relating to fishing in and in the vicinity of the Protected Zone, and includes a delegate of that Minister.

"PPSA security interest" (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1:   The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:

(a)   section   8 (interests to which the Act does not apply);

(b)   section   12 (meaning of security interest );

(c)   Chapter   9 (transitional provisions).

Note 2:   For the meaning of transitional security interest , see section   308 of the Personal Property Securities Act 2009 .

"premises" includes any land, place, vehicle, vessel or aircraft.

"private purposes" means purposes other than commercial purposes or scientific purposes.

"processing" , in relation to fish, includes the cutting up, dismembering, cleaning, sorting or packing of the fish.

"Protected Zone" means the area the boundaries of which are described in Annex 9 to the Torres Strait Treaty, and includes:

  (a)   in relation to any act or thing done for the purposes of commercial fishing--any area adjacent to the first - mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is outside but near the Protected Zone for the purposes of commercial fishing; and

  (b)   in relation to any act or thing done for the purposes of traditional fishing--any area adjacent to the first - mentioned area and to the north of the line described in Annex 5 to the Torres Strait Treaty, being an area that is, under the laws of Papua New Guinea, declared to be an area that is in the vicinity of the Protected Zone for the purposes of traditional fishing.

"sedentary organism" means any species of marine organism that, at the harvestable stage, is:

  (a)   immobile on or under the seabed; or

  (b)   unable to move except in constant physical contact with the seabed or the subsoil.

"take" includes catch or capture.

"territorial sea" , in relation to Australia , has the same meaning as in Division   1 of Part   II of the Seas and Submerged Lands Act 1973 .

"Torres Strait Treaty" means the 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 the Torres Strait, and related matters that was signed at Sydney on 18   December 1978, being the treaty a copy of which, apart from Annexes 2, 4, 6 and 7 to that treaty, is set out in the Schedule.

"traditional fishing" has the same meaning as in the Torres Strait Treaty, but does not include fishing by a method, or with the use of equipment or a boat, of a kind specified in an instrument in force under subsection   ( 2).

"traditional inhabitant" means:

  (a)   a person covered by the definition of traditional inhabitants in Article 1 of the Torres Strait Treaty (as affected by subsection   ( 3)); or

  (b)   a person prescribed by the regulations.

"Treaty endorsement" means an endorsement of a Papua New Guinea licence made under subsection   20(1).

"warrant premises" means premises in relation to which a warrant is in force.

  (2)   The Minister may, by legislative instrument, declare that the taking by traditional inhabitants of fish by a method, or with the use of equipment or a boat, of a kind specified in the instrument is not traditional fishing.

  (3)   For the purposes of this Act:

  (a)   the reference in the definition of traditional inhabitants in Article 1 of the Torres Strait Treaty to the adjacent coastal area of Australia shall be read as a reference to any area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty that is declared by the Minister, by legislative instrument, to be part of the adjacent coastal area of Australia; and

  (b)   the reference in that definition in that Article to the adjacent coastal area of Papua New Guinea shall be read as a reference to any area adjacent to the Protected Zone and to the north of the line described in Annex 5 to the Torres Strait Treaty that is declared by the Minister, by legislative instrument, to be part of the adjacent coastal area of Papua New Guinea.

  (4)   The Minister may, by writing under his or her hand:

  (a)   authorise a person, or a person included in a specified class of persons, being a person who is:

  (i)   an officer or employee of the Commonwealth or an officer or employee of an authority of the Commonwealth or of a Territory; or

  (ii)   an officer or employee of Queensland or of an authority of Queensland ;

    to perform duties under this Act; or

  (b)   authorise a person nominated by the Papua New Guinea Minister to perform duties under this Act.

  (5)   References in this Act to activities carried on for private purposes or to fishing for private purposes shall be read as not including references to activities carried on in the course of traditional fishing.

  (6)   References in this Act to the holder of a Treaty endorsement shall be read as references to the holder of the Papua New Guinea licence in respect of which the Treaty endorsement was made.