Set aside by Appeal : Set aside by Appeal on 19/12/2002 CITATION: Oliver & Thomson -v- Minister for Fisheries [2002] NSWADT 28 DIVISION: General Division APPLICANTS Gregory John Oliver PARTIES: Christopher John Thomson RESPONDENT Minister for Fisheries FILE NUMBER: 013147 HEARING DATES: 08/10/2001, 08/02/2002 SUBMISSIONS CLOSED: 02/11/2002 DATE OF DECISION: 02/26/2002 BEFORE: Higgins S - Judicial Member APPLICATION: Fisheries Management Act - fishing licence - revocation of conditions on licence - Fisheries Management Act - fishing licence - revocation of endorsement on licence - Fishing licence - revocation of conditions on licence - Fishing licence - revocation of endorsement on licence MATTER FOR DECISION: Principal matter Fisheries Management (General) Regulation 1995 LEGISLATION CITED : Fisheries Management Act 1994 Administrative Decisions Tribunal Act 1997 CASES CITED: Minister for Fisheries v Sneesby [2001] NSWADTAP 33 Cootes v Director, New south Wales Fisheries [2001] NSWADT 65 APPLICANTS REPRESENTATION: J Priestley, barrister RESPONDENT R Lancaster, barrister ORDERS: 1. The Minister's decision to revoke the endorsement allocated to Messrs Oliver and Thomson's commercial fishing business and to revoke the conditions, other than those prescribed by the regulation on the boat licence of their fishing boat the "Sandalee" (LFB 98) is set aside; 2. In substitution the decision is made not to revoke the endorsement allocated to Messrs Oliver and Thomson's commercial fishing business and not to revoke the conditions, other than those prescribed by the regulations, on the boat licence of their fishing boat the "Sandalee" (LFB 98). A: BACKGROUND 1 This is an application to review the decision, of 7 May 2001, by the delegate of the Minister for Fisheries ("the Minister") to revoke the endorsements allocated to Messrs Oliver and Thomson's commercial fishing business and to revoke the conditions, other than those prescribed by the regulations, on the boat licence of their fishing boat the "Sandalee". The basis for the revocation was the voluntary "transfer/surrender" to the Government of Queensland by Messrs Oliver and Thomson of their Queensland fishing licence that was attached to the "Sandalee". The Minister's delegate stated that this "transfer/surrender" was "inconsistent with the NSW licence splitting policy and the objects of the Fisheries Management Act 1994 and could result in an increase in fishing effort in NSW waters". 2 On 5 May 2001 Messrs Oliver and Thomson made an application to the Tribunal seeking review of the Minister's decision. At the same time they made an urgent application for a stay of the Minister's decision. That application was granted and has continued in operation. 3 Messrs Oliver and Thomson are the owners of a commercial fishing business that involves ocean prawn trawl fishing and other types of fishing. They have been in business for over 20 years and until early 2001 they fished in New South Wales and Queensland waters. They were what the Department of NSW Fisheries has described as "dual licenced operators", which is a common situation. This means that their fishing activities in waters off NSW are governed by the Fisheries Management Act 1994 (NSW) ("FM Act") and the Fisheries Management (General) Regulations 1995 ("FMG Regs") and their fishing activities in Queensland waters are governed by the Fisheries Act 1994 (Qld)("Queensland Act"). New South Wales fishing activities 4 Messrs Oliver and Thomson are the owners of fishing business no 1241. Mr Thomson is the nominated fisher of the business and Mr Oliver is the general skipper. They are both holders of a commercial fishing licence under the FM Act, which are due to expire on 26 March 2002. 5 Mr Oliver's licence contains a "Skipper Endorsement" which authorises Mr Oliver to take fish for sale in restricted fisheries; namely ocean prawn trawl restricted fishery and ocean and line restricted fishery. The ocean prawn trawl restricted fishery endorsement provides: "Inshore This endorsement authorises the holder to use an otter trawl net (prawns) to take fish (other than deepwater prawns) for sale from ocean waters beyond three nautical miles from the baselines of the territorial sea, and the waters of Coffs Harbour and Jarvis Bay. Offshore This endorsement authorises the holder to use an otter trawl net (prawns) to take fish (other than deepwater prawns) for sale from ocean waters beyond three nautical miles from the baselines of the territorial sea." 6 The endorsement in respect of ocean and line restricted fishery provides: "Line fishing (western zone) This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are less than 183 metres in depth. The endorsement does not authorise the holder to take school of gummy shark from waters that are south of a line drawn due east from the northern point of the entrance of the Moruya River." 7 The ocean and line restricted fishery endorsement also contains 2 conditions. These restrict the area in which fish can be taken and prohibits the taking of certain species of fish. No conditions were attached to the ocean trawl prawn restricted fishery. 8 Mr Thomson's commercial fishing license contains the same endorsements, however they are described as being endorsements of the fishing business No 1241. 9 Messrs Oliver and Thomson are owners of two fishing boats, the "Sandalee", and the "Sandalee II". The "Sandalee" is licensed under the FM Act and is the holder of licence No LFB 98. The "Sandalee II" is a smaller vessel and is also licensed under the FM Act and is the holder of licence No. LFB 102. Both licences are due to expire on 26 March 2002. 10 Boat licence LFB 98 is subject to conditions, including a condition that the boat may be used to trawl for prawns in ocean waters in accordance with the terms of an offshore prawn trawl endorsement. This means that the "Sandalee" boat licence has attached to it a condition that enables it to be used in the offshore prawn trawl restricted fishery in accordance with the abovementioned offshore prawn trawl restricted endorsement. Boat licence LFB 102 contains no conditions for offshore prawn trawl fishery and is used in the ocean and line fishery (western zone). Queensland fishing activities 11 Messrs Oliver and Thomson also held a Queensland licence for prawn trawl fishery. That licence was attached to the "Sandalee", LFB 98. 12 In late 2000, as part of a structural adjustment scheme for the east coast trawl fishery of Queensland, the Queensland Government introduced an integrated package of management arrangements to cap and reduce by 15% the fishing effort, in this fishery ("the Queensland scheme"). The scheme introduced a system whereby fishers licensed to fish in these waters were given a specified number of days per year for which they could use their commercial fishing vessel to fish in the Queensland managed waters. The scheme also included an offer for voluntary "transfer/surrender" to the Government of existing Queensland commercial fishing licences. Messrs Oliver and Thomson were entitled to participate in the voluntary "transfer/surrender" scheme, as they were the holders of the relevant Queensland licence that was attached to the "Sandalee" (LFB 98). 13 Invitations to participate in the scheme were made in early October 2000 and closed on 10 November 2000. To participate in the scheme, licence holders were required to make a tender offer identifying their Queensland licence(s) and a value for which they were prepared to "transfer/surrender" their licence(s) to the Queensland Government. 14 Prior to these changes, the Queensland east coast trawl fishery had been managed in a similar manner to that which this fishery is and has been managed in NSW waters under the FM Act and the FMG Regs. ADT Hearing 15 Messrs Oliver and Thomson's application was heard in Lismore on 8 October 2001. Mr Thomson and Mr Oliver both gave oral evidence and they relied on their previous signed and filed statements. The respondent, NSW Fisheries, tendered into evidence a series of documents, many of which are referred to hereafter in this decision, including a statement of reasons for the decision dated 7 May 2001 which was filed pursuant to s.49 of the Administrative Decisions Act 1997 ("ADT Act") (Exhibit 12). 16 Both parties also provided detailed written submissions for the 8 October 2001 hearing. 17 On 8 February 2002, I again listed the matter for directions so that I could clarify some minor issues that had arisen in the preparation of my decision having regard to all the material that had been filed by NSW Fisheries and which had not been made available to me at the hearing in Lismore and to amend the previous orders I had made in respect of the stay of the Minister's decision. Present at the directions hearing was Ms Cory on behalf of NSW Fisheries and Mr Fuggle participated by telephone from Lismore. 18 After outlining my preliminary views I invited the parties to make further written submissions should they wish to. NSW Fisheries forwarded some short additional written submissions on 11 February 2002. B: ISSUES 19 The parties have raised several issues in this application. The first issue relates to the nature of the Minister's power of revocation under ss 104(6) and 108(6) of the FM Act. Mr Priestly for the applicants argued that the effect of the Minister's decision was to cancel Messrs Oliver's and Thomson's commercial fishing licence and "Sandalee's" fishing boat licence, and that cancellation on the grounds of contravening the licence splitting policy were beyond the Minister's express powers of cancellation as provided in ss. 104(4) and 108(4) of the FM Act. That is, Mr Priestly submitted that the Minister has used the revocation powers to do what he could not do under his powers of cancellation. 20 In the alternative, Mr Priestly argued that the Minister's powers of revocation were something short of cancellation of a licence. 21 The next issue is whether the "transfer" or "surrender" of Messrs Oliver & Thomson's Queensland licence was in fact contrary to the licence splitting policy. Mr Priestly submitted that it was not a "transfer" but that it was a "surrender" and not covered by the licence splitting policy. Mr Lancaster for the respondent submitted that it did not matter whether there was a "transfer" or "surrender", the essence of the licence splitting policy was preventing increased commercial fishing effort, in NSW managed fisheries. He also submitted that the onus rested on the applicants to satisfy the Minister that the "transfer/surrender" of their Queensland entitlements did not give rise to an increased commercial fishing effort in the respective New South Wales managed fisheries for which they had been endorsed. 22 The final issue, in the event it is found that the Minister had exercised his power of revocation correctly and the "transfer/surrender" of the Queensland licence was contrary to the licence splitting policy, was whether the decision was unjust in any event. C: JURISDICTION OF THE TRIBUNAL 23 Section 126 of the FM Act makes provision for certain decisions under that Act to be reviewable by the Tribunal. That section insofar as it is relevant provides: "s.126(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned: (a) the refusal to issue a relevant authority to the person or to renew the person's relevant authority; (b) the imposition of conditions on the person's relevant authority (otherwise than by regulation); and (c) the suspension or cancellation of the person's relevant authority. 24 The term "relevant authority" is defined in s. 125 of the FM Act to mean a commercial fishing licence, an endorsement on a commercial fishing licence, a fishing boat licence, the registration of a member of the crew of a boat, or a fish receiver's registration. 25 The powers of the Tribunal in determining an application for a review of a reviewable decision is set out in s.63 of the ADT Act. S.64 of that Act provides: "64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy procedures on unjust decisions in the circumstances of the case." 26 The term "Government policy" is defined in s.64(5) to mean a policy that is adopted by the Cabinet, or the Premier or any other Minister and which is to be applied in the exercise of discretionary powers by administrators. S.64(2) provides that the Premier or any other Minister may certify, in writing that a particular policy was government policy in relation to a particular matter and s.64(3) provides that the Tribunal is to take judicial notice of the contents of that certificate. In this case, no such certificate was in existence, however there is no dispute that such a policy formed part of the 1996 Licensing Policy of NSW Fisheries. 27 Initially, the respondent submitted that the decision for which the applicants were seeking review was not a reviewable decision coming within the meaning of s. 126 of the FM Act. That position was subsequently abandoned following the decision of the Appeal Panel in Minister for Fisheries v Sneesby [2001] NSWADTAP 33. D: LICENCE SPLITTING POLICY 28 The licence splitting policy is described in the NSW Fisheries Licensing Policy (Exhibit 2) dated November 1996 as follows: "The Commonwealth and the State have a general policy of not allowing licences to be split. For example, where a boat is licensed by both a State and the Commonwealth or by more than one State, or has multiple authorisations attached to the boat or owner, no transfer can take place, unless all the boat licences, endorsements and fishing authorisations for the boat are being transferred to the same new owner or are surrendered . Similarly, a boat replacement cannot take place unless all facets of a licence or licences are being placed on the new boat or are surrendered. The licence splitting policy is considered essential at this stage and will strictly apply to fishing businesses and other related policies outlined in this document. Proposals regarded as licence splitting or contrary to the intention of the policy will not be approved. " (Underline added) 29 Originally, a licence splitting policy grew out of a national approach to the increasing number of limited or restricted fisheries through the Australian Fisheries Council ("the Council"). The Council is made up of Commonwealth, State and Territory Ministers responsible for fisheries and the initial policy was formulated by way of resolution in 1984 (Exhibit 4). The introduction to the resolution states: "Council considered a report by Standing Committee which noted that with the increase in the number of limited entry fisheries and the number of boats with licences endorsed for two or more such fisheries, the potential for increased fishing capacity by allowing the transfer of endorsements individually to separate boats (or licence splitting) was a cause of concern ." 30 And the resolution went on to state: "Council therefore ENDORSED the general concept that where a boat was permitted to operate in more that one fishery where access rights were restricted and these involved management regimes other than limited entry, the separate transfer of such access rights be considered on a fishery-by-fishery basis." 31 This policy was revised in 1987 to take into account the proposed Offshore Constitutional Settlement (OCS) (Exhibit 3). The OCS arose out of an agreement between the Commonwealth and the States whereby they each agreed to exchange powers of control over certain fisheries. For example, management of the entire prawn trawl fishery and the line and trap fishery came under the control of the States. That is, under the OCS, NSW became responsible for these fisheries not only in its own waters but also those directly beyond its waters that had previously been the responsibility of the Commonwealth. 32 The 1987 revised licence splitting policy provided as follows: "The Commonwealth, States and Northern Territory shall ensure that, where a boat is authorised to operate in one or more fisheries, transfers of licences, authorisations and/or endorsements, or any other fishing entitlement will not be permitted that would result in a separation of any part of the licensed package unless there is prior agreement from all the authorities which may reasonably be expected to be affected by such an agreement. In particular this means: (i) Where a boat is authorised to operate in a managed fishery or fisheries (Commonwealth, State, Northern Territory or joint authority), the package of licence, authorisations/or endorsements which are in force for that boat shall not be broken regardless of whether the buyer is VAS or the transaction is characterised as a lease or short-term transfer; (ii) In other fisheries, a person holding a state boat licence and Commonwealth boat licence shall not separate those licences; (iii) Where a fishery arrangement under OCS has been introduced, a vessel which, prior to the arrangement, required both a Commonwealth and State licence, authorisation and/or endorsement, that package shall not be separated after the Offshore Constitutional Settlement is introduced, except to surrender part of the package. NOTE : Exceptions to (i), (ii) or (iii), must be endorsed by the appropriate management advisory committee(s) and must be approved by the appropriate Commonwealth or state management authorities. (amendments in italics) 33 In this case only paragraph (i) applies as the "Sandalee" (LFB 98) was authorised to fish in the NSW and Queensland managed fishery. E: 1990 & 1994 OCEAN PRAWN TRAWL MANAGEMENT RULES 34 In December 1990, NSW Fisheries issued a Fisheries Management Plan ("the 1990 Management Plan") for East Coast Trawl Fishery, in preparation for the formal transfer of the Commonwealth controlled east coast ocean trawl fishery, adjacent to the NSW waters, to NSW under the OCS (Exhibit 10). Part A of the 1990 Management Plan related to the newly acquired responsibility, which was described as "offshore prawn trawl fishery". 35 The management objectives of the 1990 Management Plan are described in paragraph 2.2.1 as being: · to protect the resources and to maintain the resource at a high sustainable level. · to maximise the economic and social benefits from the resources, for commercial and recreational fisherman and the local and general community through the development and maintenance of a balance between the catching capacity of the fleet and the yield obtainable from the resource. 36 The 1990 Management Plan at paragraph 2.2.1 goes on to state: "In the longer term the major aim is to reduce capacity to ensure that no additional pressure is placed on the resource through improved technology. The target or desirable level of capacity for the various fisheries is unknown and it is seen as essential that this target be determined through additional research" 37 The main feature of the 1990 Management Plan was to: (a) prohibit entry to the NSW managed ocean trawl and ocean line fishery and other managed fisheries to fishers who owned a NSW licensed fishing boat which had attached to it an endorsement as provided under the Plan. In respect of prawn trawling there were 2 categories of endorsement, an inshore and offshore endorsement; (b) provide a right to transfer certain classes of endorsement on the sale or replacement of a licensed fishing boat. In respect of a transfer, the endorsement was transferable on the sale of the licensed vessel but the transfer was subject to the national policy on licence splitting (Exhibit 10 at A5); (c) restrict the type and size of fishing gear that could be carried on the licensed fishing boat. Some of these restrictions were already in force; (d) require the unitisation of all endorsed licensed fishing boats. What was to be unitised was the hull size and engine capacity of every vessel that was endorsed to fish in this managed fishery. 38 In respect of an offshore endorsement for prawn trawling, the 1990 Management Plan created 4 classes for this category of endorsements; a P1, P2, P3 and concessional zone classes. Only class P1 and P2 offshore endorsements were transferable. As mentioned above an endorsement under this Plan was attached to the licensed fishing vessel and authorised that vessel to fish in these fisheries. To be eligible for a class P1 offshore endorsement, the boat had to have held the relevant Commonwealth Fisheries endorsement and satisfy the prescribed catch history of king prawns over the prescribed period. 39 In this case, the "Sandalee" (LFB 98) was granted a class P1 offshore endorsements for prawn trawling as it had previously held the relevant Commonwealth Fisheries endorsement and it satisfied the requisite catch history.. 40 A class P2 endorsement was available to vessels which did not meet the class P1 eligibility criteria, but which were committed to and dependent on the offshore prawn trawl fishery as demonstrated by the licensee. 41 A concessional zone endorsement was available to vessels licensed in Queensland, which had a history of cross border fishing between Queensland and New South Wales. This endorsement only entitled the vessel to be used to catch fish in a small area close to the Queensland boundary. 42 In September 1994, NSW Fisheries issued revised management rules for offshore prawn trawling (Exhibit 9). These revised rules provided no new eligibility criteria for the various classes of offshore prawn trawl endorsements. However, the concessional zone class was now described as a class P4 authorisation and the P1, P2 and P3 categories of offshore endorsement were also described as authorisations. 43 Under the revised rules class P1, P2 and P4 authorised vessel entitlements for the offshore prawn trawl fishery were stated to be transferable, subject to the national policy or licence splitting (Exhibit 9 – A4). The revised rules also state that only P1 authorisations were upgradeable. This meant that the licensed fishing boat could be upgraded within the terms of the revised rules. 44 From the material filed with the Tribunal, I note that the June 1994 licensing policy of NSW Fisheries provided that no new vessels would be licensed to fish in NSW managed fisheries other than for the replacement of an existing licensed boat. Prawn trawl fishery was such a managed fishery. 45 The 1994 revised rules differ form the 1990 Management Plan in that they provide for "Units in the Fishery "(Exhibit 9 at A3). As mentioned above, the 1990 Plan required all licence holders to have their licensed boats unitised. I assume that this task was completed as the 1994 revised rules state "The New South Wales East Coast Trawl Fishery is a limited unitised fishery" and provide details of the actual distribution of the respective engine and hull capacity units for the total number of licensed vessels in each class of authorisation (Exhibit 9 –A3). Included in those units are the units allocated to the "Sandalee" (LFB 98) as it carried the relevant endorsements at that time. F: FISHERIES MANAGEMENT ACT AND REGULATIONS 46 The provisions of the FM Act and the FMG Regs have been in force since January 1995, and they adopt some of the management rules which applied previously. In order to deal with the issues raised in this application it is necessary to go cite provisions relevant to this application. Objects of FM Act 47 Subsection 3(1) of the FM Act provides that the objects of the Act are to "conserve, develop and share the fishery resources of the State for the benefit of the present and future generations". 48 Subsection 3(2)(a),(b)&(c) of the FM Act provides that the abovementioned objects include, conserving fish stocks and key fish habitats (s. 3(2)(a)), conserving threatened species, populations and ecological communities of fish and marine vegetation (s. 3(2)(b)) and to promote ecologically sustainable development (s. 3(2)(c)). 49 Subsection 3(2)(d), of the FM Act provides that consistently with the abovementioned objects, the object of the Act is also "to promote viable commercial fishing and aqua-culture industries" (s. 3(2)(d)), to promote quality recreational fishing opportunities (s. 3(2)(e)) and to "appropriately share fisheries resources between the users of those resources" (s. 3(2)(f)). 50 S. 222A of the FM Act provides that the Minister for Fisheries and the Director of NSW Fisheries are to administer the Act in accordance with the objectives of the Act. 51 In accordance with the abovementioned objectives the FM Act and the FMG Regulations contain provisions that provide for the management of commercial fishing. The main provisions relate to share management fisheries (Part 3 FM Act) and restricted fisheries (s. 111(1) FM Act and Part 8 FMG Regs). Until recently, the share management fisheries provisions of the FM Act had not been brought into operation by the Minister and commercial fishing has been regulated through the creation of various categories of restricted fisheries. The FM Act also contains other provisions to manage commercial fishing such as the setting of a total allowable catch history (Part 2 Div 4), and closures of fisheries (Part 2 Div 1). Licensing Provisions 52 Underpinning the management of commercial fishing, is the requirement to be licensed. This includes licensing of the commercial fisher and the boat that is to be used for commercial fishing. 53 Commercial Fishing Licence: S 102 of the FM Act requires a commercial fisher to be licensed and if he wishes to take fish in a restricted fishery he must be authorised to do so, by the Minister, by means of the relevant endorsement on his licence (s. 112(1) FM Act). The Minster's powers in respect of issuing, cancelling and suspending an endorsement to fish in a restricted fishery is contained in Part 8 of the FMG Regs. These are discussed more fully below. 54 S. 104 of the FM Act makes provision for licensing commercial fishers. S. 104(4)(a) provides that a commercial fishing licence is subject to such conditions as are prescribed by the regulations (cl. 138 FMG Regs) or as specified in the licence. In this case, the licences of Messrs Oliver and Thomson are each stated to be subject to the conditions set out in cl. 138 of the FMG Regs and two additional conditions, which are not relevant to this application. 55 S. 104(4)(b) of the FM Act provides that the licence remains in force for one year or such other period as is specified in the licence. S. 104 provides that the licence may be renewed in accordance with the regulations and s. 104(4)(d) provides that the licence is not transferable. 56 S. 104(4)(e) of the FM Act provides that the Minister may cancel or suspend a commercial fishing licence in the circumstances authorised by the regulations. These circumstances are set out in cl. 140 of the FMG Regs and they include where the licence holder has: (a) been convicted of an offence under the FM Act, the FMG Regs, or an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand; (b) been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to gear or a boat; (c) been convicted of an offence relating to an assault on a fisheries official; (d) in the opinion of the Minister, contravened a condition of the licence or of an endorsement on that licence; (e) sold or disposed of his licensed fishing boat and the Minister is of the opinion that the holder is not able to maintain a viable fishing operation because the holder has insufficient number of licensed boats or catch history. 57 Subsection 104(6) of the FM Act provides: "The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements . This subsection does not apply to conditions described by the Regulations". (emphasis added) 58 The Act does not define the term "endorsement" for the purposes of this section and the term is also used in ss. 68 and 70 of the Act in respect of a share management fishery. 59 Fishing Boat Licence: A fishing boat cannot be used to take fish for sale from waters to which the FM Act applies or to land fish in New South Wales that were taken from other waters unless the boat is licensed under the Act (s. 107(I) FM Act). 60 The issue of a boat licence is governed by s 108 of the FM Act and s. 108(4)(a) provides that the licence for a boat is subject to such conditions as are prescribed by the FM Regs or specified in the licence. The prescribed conditions are those contained in cl. 145 of the FMG Regs. In respect of a licence that authorises the use of a boat for prawn trawling in offshore waters cl. 145(1)(f) contains restrictions in respect of the power rating of the boat to no more than 10% of what applied as at 5 November 1985, or the boat which it replaced. 61 Paragraph 108(4)(b) of the FM Act provides that a licence for a boat remains in force for the period of 1 year or such other period as is specified in the licence. Paragraph 108(4)(c) provides that a boat licence may be renewed form time to time in accordance with the regulations (se cl.146 of the FM Regs). 62 Paragraph 108(4)(d) of the FM Act provides that the Minister may cancel or suspend a boat licence in the circumstances authorised by the FMG Regs. These are contained in cl. 148 of the FMG Regs and are similar in terms to those contained in cl. 140 in respect of the cancellation and suspension of a commercial fishing licence, with the additional ground of the licence holder having transferred his right to the licence in accordance with cl 150 (cl 148(g)) or if the boat is lost at sea or otherwise disposed of by the licence holder. 63 S. 108(6) provides that: "The Minister may, at any time by notice in writing to the holder of a licence for a boat, revoke or vary the conditions of the licence or add new conditions . This subsection does not apply to conditions prescribed by the Regulations." (emphasis added) 64 Unlike a commercial fishing licence, a boat licence is transferable. Such a transfer is governed by cl. 150 of the FM Regulations. Cl. 150(1) gives the Director of NSW Fisheries a discretion to approve the transfer of the right to a fishing boat licence in accordance with that clause. Cl 150(5) provides that the Director may refuse to approve a transfer on any of the grounds on which the Minister may refuse to issue a fishing boat licence (see cl 144). Restricted Fishery 65 As mentioned above, s 111(1) of the FM Act provides that the regulations may declare that a fishery, other than a share management fishery, to be a restricted fishery for the purpose of the FM Act. These provisions are contained in Part 8 of the FMG Regs, which came into force on 1 March 1997 as a whole new regime of managed fisheries under the FM Act. 66 This Part creates various classes of restricted fishery, including ocean prawn trawl restricted fishery and ocean and line restricted fishery. The relevant provisions for these two classes of restricted fishery are contained in Division 2 and 2B respectively (cl. 175 & 191B). 67 The FM Act provides that a licensed commercial fisher is only permitted to take fish for sale in a restricted fishery if he is authorised to do so by the Minister by an endorsement on his licence (s. 112 FM Act). S. 113 of the FM Act provides that eligibility for an endorsement for a restricted fishery is to be determined in accordance with the regulations and s. 114 of the Act provides that an endorsement on a commercial fishing licence is not transferable unless authorised by the regulations. 68 The term "endorsement" is defined in the various divisions of Part 8 of the FMG Regs to mean "an endorsement on a commercial fishing licence authorising the holder of the licence to take fish for sale in the restricted fishery" (see cl. 174 and 191A FMG Regs). 69 The FMG Regs also prescribe what species of fish the holder of the endorsement is entitled to take for sale, from where he is to take that species of fish and the method he must use in taking them. They also prescribe the eligibility criteria for each type of endorsement (see cl. 178 & 191E). 70 The eligibility criteria for an inshore endorsement for ocean prawn trawl restricted fishery includes a requirement that the applicant owns a licensed fishing boat which has an endorsement from the Director of NSW Fisheries authorising prawn trawling in waters closed to prawn trawling under the fishing closure notification known as "OPI" or the boat was subject of an ocean going survey certificate for one of the years between 1986 and 1990 and the person has submitted to the Director, the specified catch returns, or catch history (cl. 178(1) FMG Regs). In this case, as I have already mentioned the "Sandalee" (LFB 98) was granted a PI endorsement from the Director under the 1990 Management Plan for ocean trawl fishing. This I understand to be the same as an OP1 endorsement. 71 Determination of catch history for all categories of restricted fishery is prescribed under cl. 135(3) of the FMG Regs. This clause also provides that catch history (including the catch history of the vessel authorised to fish in the restricted fishery) is transferable, subject to guidelines, which are issued from time to time. The Tribunal was not provided with any guidelines. 72 The eligibility criteria for an offshore endorsement for ocean prawn trawl restricted fishing is limited to owning a licensed fishing boat with the abovementioned OPI endorsement (cl. 178(2) FM Regs). 73 The eligibility criteria for a line fishing (western zone) endorsement for ocean traps and line restricted fishery is limited to satisfying the specified catch returns (catch history) as prescribed in cl 191E(2) of the FMG Regs. 74 The Minister is given a discretion to endorse a commercial fishing licence where the applicant satisfies the eligibility criteria (cl. 179(3) & 191E(3) FMG Regs) and once the Minister has endorsed the licence, cl. 180 and 191G of the FM Regs provides that an "endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled". The grounds on which the Minister may suspend or cancel an endorsement are set out in cl. 182 and 191I(1) of the FMG Regs and these include where the holder of the endorsed licence has ceased to be entitled to the endorsement. This power of cancellation or suspension is discretionary and the transfer of the fishing boat, which made the fisher eligible for such an endorsement is a matter coming within this sub-clause. 75 Cl 181 and 191H of the FMG Regs makes provision for an application for an existing endorsement to be issued for a further period. The Minister is given power to refuse the application if the applicant has been convicted of specified offences, failed to pay the requisite fees or if the applicant ceases to be entitled to an endorsement (cl 181(4)(d) and (191H(4)(d) FMG Regs). 76 Division 4B of Part 8 of the FMG Regs provides for special classes of endorsements. Cl. 212 of the FMG Regs makes provision for a "Skipper's endorsement" which is available for specified restricted fishery, including "ocean prawn trawl restricted fishery" and "ocean and line fishery". Eligibility for a "Skipper's endorsement" is provided for in cl. 212R(3) & (4) of the FMG Regs and a special endorsement remains in force for the period specified in the endorsement unless it is suspended or cancelled (cl 212V). 77 The Minister's power to cancel or suspend a "Skipper's endorsement" is contained in cl. 212W of the FMG Regs. The grounds on which the Minister may cancel or suspend such an endorsement include where the holder of the endorsed licence ceases to be entitled to the endorsement (e.g. where the person ceases to be a commercial fisher or ceases to be a part owner of the fishing business on which his application was based - cl. 212R(4)(a) & (b) of the FMG Regs and where any part of the fishing business is sold as provided in cl 212Y(1)). 78 Cl. 212Y of the FMG Regs provides: "(1) a person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example if a person sells the licensed fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement. (2) a person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director." G: EVIDENCE AND FINDING OF FACTS 79 I find that in August 2000, Messrs Oliver and Thomson were formally advised by NSW Fisheries that they were entitled to the endorsements that are attached to their current commercial fishing licences. These entitlements were granted as a result of their 1996 application to fish in these restricted fisheries and after a successful review application to the review panel established by the Minister pursuant to the FMG Regs, division 6 of the FMG Regs (see Dept. File No. 880173). This notice confirmed their entitlement to fish in these restricted fisheries. They had been fishing in these fisheries since before 1990 when NSW became responsible for the offshore prawn trawl fishery that had been under Commonwealth jurisdiction. 80 The Director's "Notice of Entitlement" to the endorsement contains the following statement: "This entitlement remaining in force unless revoked by the Director or replaced by the issue of another entitlement. The holder of this entitlement must retain current fishing licenses and/or boat licenses in order to be eligible for and to continue to hold validated catch history and endorsement (s) associated with the fishing business in accordance with the Fisheries Management (General) Regulations 1995 and the New South Wales Licensing Policy" 81 Ms Cory on behalf of the respondent informed me at the directions hearing that the entitlement as contained in notices of this kind remained in force and were not re-applied for each year on re-applying for a commercial fishing licence. That is, the notice was the basis on which an endorsement was attached the a commercial fishing licence when the fisher came to renew his licence each year as required under the FM Act. 82 Messrs Oliver and Thomson have continued to be the holders of current commercial fishing licences and fishing boat licence for the "Sandalee". 83 The endorsements to which Messrs Oliver and Thomson were entitled did not contain any restrictions on the number of days they were able to fish in the respective restricted fishery. That is, subject to any closure to these fisheries by the Minister under Division 1 of Part 2 of the FM Act, they were entitled to take fish for sale from these restricted fisheries for 365 days each year they if chose to do so. The only restrictions placed on them were those contained in the P1 authorisation attached to the "Sandalee" (LFB 98) boat licence, the limits on their fishing gear and the maintenance of the prescribed validated catch history for this class of endorsement. 84 According to a document prepared by Narelle Caldwell, Principal Manager Fisheries Services (Exhibit 14), the days fished, during 1988 to 1999, by Messrs Oliver and Thomson using the "Sandalee" in Queensland and NSW waters were as follows: - 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 QLD 81 60 75 76 132 84 109 107 116 112 115 - NSW 110 72 70 83 100 130 114 99 117 126 130 111 85 These figures were not disputed by the applicants and during cross examination no questions were asked of Messrs Oliver and Thomson on the number of days they had fished or intended to fish in NSW waters during 2001. While the question was not asked I find that Messrs Oliver and Thomson will in fact fish more days in NSW managed fisheries now that they no longer hold a Queensland licence. How many more days is not necessary to determine, but the abovementioned figures it would be about 200 days. 86 In the document prepared by Ms Caldwell in which the abovementioned figures are contained she states: "Regardless of their previous fishing patterns the fact remains that they can shift all their available time into fishing in NSW waters. Until such time as NSW adopts a similar management regime of days fished there is no way Messrs Thompson (sic) and Oliver's effort can be capped at historical levels." 87 It is not disputed that on about 26 October 2000, Steve Dunn, Director of Fisheries issued a notice addressed to "All NSW Licensed Queensland Ocean Prawn Trawl Fishery concessional endorsement holders concerning the "Queensland East Coast Trawl Fishery Structural Adjustments Scheme – 2000" (Exhibit 7). The notice stated that if as a result of participation in the Queensland scheme a prawn trawl operator "disposes of the Queensland component of their fishing business (as defined by NSW) then NSW Fisheries will revoke the associated NSW endorsements". 88 The notice also stated that "If as a result of trading quota allocated for fishing days, the holder of a quota allocation disposes of a significant part their quota allocation, then the NSW Fisheries will revoke the associated NSW endorsements. At this stage the figure of 50% of quota has been discussed as being significant but no final level will be set without further consultation with the Management Advisory Committee." 89 I find that the terms of the notice were such that the reader of the notice could only interpreted the notice to apply to concessional endorsement holders and not all NSW endorsement holders who also held Queensland entitlements ("the dual licence holders"). No oral evidence was called by NSW Fisheries, however, I accept that after this notice was written, a decision was made to adopt this position for all dual licence holders. 90 I find that Messrs Oliver and Thomson became aware of their entitlement to participate in the Queensland scheme in early October 2000. I find that Mr Thomson spoke to Darren Hale on 30 October 2000 by telephone. They discussed the 26 October 2000 notice and that Mr Hale advised Mr Thomson that the Director would revoke the associated entitlements of any dual licence holder that was successful in their participation in the Queensland scheme and he would be relying on the licensing splitting policy to do so. 91 I find that Mr Thomson was provided with a copy of the 26 October 2000 notice and the 1987 revised national licence splitting policy and other relevant policy documents. After receiving these documents Mr Thomson again telephoned Mr Hale to say that in his opinion the Director would be acting contrary to what he understood the original intent of that policy to be. 92 I find that on about 8 November 2000, Messrs Oliver and Thomson lodged an application with the Queensland Authorities. That application was entitled "Transfer of Commercial Fishing Boat Licence" and related to the "transfer" of their Queensland licence, attached to the "Sandalee" (Exhibit 14, page 10). The transferee is stated to be "The Chief Executive", who according the scheme documentation was the Chief Executive of the Department of Primary Industry of Queensland (see Exhibit 5 page 11 and 12). 93 I find that on or about 2 January 2001, Messrs Oliver and Thomson were advised by the Queensland authorities that their application had been successful. The Tribunal was not informed about how much they were paid for the "transfer/surrender" nor was there any evidence to the effect that what they had been paid represented the value of their business, either in whole or part. 94 I find that some time prior to 4 February 2001, NSW Fisheries became aware that Messrs Oliver and Thomson and two other dual licensed fishing business had been successful in their participation in the Queensland scheme (Exhibit 14). 95 I find NSW Fisheries's position at the time they became aware of these 3 dual licensed commercial fishing businesses having succeeded in the Queensland scheme was that which is stated in a briefing paper prepared by Darren Hale, and signed by the Director, and dated 4 February 2001 (Exhibit 14). This position being: "To ensure that fishing effort does not increase in NSW waters and consistent with the principles of the National Policy on Licence Splitting, operators that have disposed of their Queensland boat licence through tender or transfer of effort units, will not be permitted to maintain access to NSW fisheries. Variation to licence splitting policy may be considered where it can be shown that an increase in NSW fishing effort will not result". 96 The same briefing paper makes reference to ss. 104(6) and 108 (6) of the FM Act and in respect of endorsements states: " where endorsements are cancelled, there is nothing in the Act to prevent the business owner re-applying for those endorsements at a later date. To ensure that the businesses above cannot re-enter the industry the OPI boat licence conditions must be cancelled and the validated catch history revoked". 97 It was on the basis of this briefing note that Messrs Oliver and Thomson were forwarded a letter from NSW Fisheries advising them of the Directors' position and inviting them to show cause why the Director should not revoke their fishing business endorsements and the OP1 conditions on their "Sandalee" (LFP 98) boat licence. 98 On 27 February 2001, the solicitor's for Messrs Oliver and Thomson wrote to the Director in response to the show cause request. 99 In a briefing paper (Exhibit 13), prepared by Narelle Caldwell, Principal Manager Fisheries Services, dated 10 April 2001, it is noted that there was no legislative basis to revoke catch history or that would prevent business owners fro re-applying for an endorsement, which had been revoked. In respect of the latter it is also stated that on re-application for an endorsement "there was nothing preventing the Department from issuing them and revoking them again under 104(6) and 108(6)." 100 In February 2001, NSW Fisheries also advised dual licence holders who had not participated in or had not been successful in the "transfer/surrender" of their Queensland licence would be able to retain their NSW entitlements so long as they retained 50 fishing days in Queensland managed waters. Those who did not retain that number of days by transferring them to another owner, those persons were required to transfer all their NSW entitlements to that new owner. If they failed to do so the Minister would rfevoke their NSW entitlements. REASONS FOR DECISION 101 The FM Act, the FMG Regs and the administrative arrangements that surround them are complex and as stated by Ms Caldwell, if NSW had a similar management scheme to that which was introduced in Queensland under the Queensland scheme the matters that are in issue in this application may not have arisen. 102 Notwithstanding this comment, the task before the Tribunal is to determine whether the decision of the Minister is the correct and preferred decision having regard to the factual material before it and the relevant provisions of the legislation and any policies or administrative arrangements under which the decision was made (s. 63(1) ADT Act). Power of Revocation 103 In this case the Minister made his decision on the basis of Messrs Oliver and Thomson's successful participation in the Queensland scheme and he has purported to have made his decision in the exercise of his discretion under ss. 104(6) and 108(6) of the FM Act. The parties have not been able to point to any decisions on or relevant to these particular sub-sections. Other than s. 224 of the FM Act, which provides that the Minister must administer the Act in accordance with its objectives, the Act does not provide any express limitations on how this discretion is to be exercised. 104 The objectives set out in s. 3 of the FM Act, in my opinion, place primary emphasis on the conservation of fish stocks and at the same time, consistently with that objective, to promote viable commercial fishing. The difficulties this creates for the administrators in administering the Act cannot be underestimated. Since 1990, and after the enactment of the FM Act and its regulations, substantial changes have been made to rationalise the commercial fishing industry with a focus on conserving fish stocks by reducing the number of commercial fishermen in the expanded NSW managed fisheries and placing restrictions on fishing capacity of licensed fishing vessels. These changes are ongoing with steps being taken to bring into operation the commercial share management provisions in Part 3 of the Act with further reductions. 105 To date, the changes have come about through the creation of restricted fisheries with entry being limited to those persons or businesses who have been able to satisfy the prescribed fishing catch history (Part 8 FMG Regs). It is this catch history, which has formed the basis of demonstrating that a fisher has a commitment to and dependence on the restricted fishery to which that fisher has access. 106 At the same time caps have been placed on the fishing capacity of those fishers who have been given entry to these NSW restricted fisheries. These include, the unitising of vessels, restrictions on upgrading, replacing and transferring licensed fishing vessels and restrictions on the fishing gear that is to be used. 107 In being given access to restricted fisheries under the FM Act and FMG Regs the Minister has given commercial fishers a right that is of commercial value in the form of entitlements, endorsements and authorisations. At the same time the FM Act and FM Regs provide that the Minister is not able to cancel or suspend those rights unless specific circumstances have arisen (e.g. cl. 181, 182, 191F, & 191H of the FMG Regs). In the case of an offshore and inshore prawn trawl endorsement, a ground for the cancellation of such an endorsement or entitlement is the transfer of the fishing boat licence, which made the fisher eligible for that endorsement (cl. 182 FMG Regs). In this case a transfer by Messrs Oliver and Thomson of the "Sandalee" (LFB 98) fishing boat licence would entitle the Minister to cancel the endorsement on their commercial fishing licence. 108 In my opinion a P1 authorised endorsements under the 1990 and 1994 revised offshore prawn trawling management rules fall into the same category in that the commercial fisher has been given a right that is of commercial value and which cannot be cancelled or forfeitable except on specified grounds (e.g. transfer of the fishing boat licence to which these endorsements are attached). 109 In my opinion, as a matter of construction, the fact that the legislation expressly sets out the basis on which fishers are eligible for these rights and on what grounds they may be cancelled or suspended by the Minister, indicates that these powers of cancellation and suspension are distinguishable from the power to revoke or remove these rights. As can be seen from the various powers of cancellation and suspension the grounds for exercising that power relate to unlawful conduct by the licence holder, breaches of conditions attached to that licence and changed circumstances of the licence holder which no longer makes him eligible for the particular endorsement. An example of the latter is the transfer of the fishing boat licence to which the endorsement is attached. 110 Accordingly, in my opinion, the Minister's power of revocation under ss. 104(6) and 108(6) of the FM Act must be read down to exclude a revocation that would in effect be a cancellation, suspension or forfeiture of an endorsement or entitlement giving a licensed fisher access to a restricted fishery or an endorsement attached to a licensed fishing boat to the restricted fishery. 111 Accordingly, the question is whether Messrs Oliver and Thomson's successful participation in the Queensland scheme is in fact contrary to the license splitting policy, as it applies in NSW. If the answer is yes the next question whether such a contravention is a matter to which the Minister is to have regard in the exercise of his discretion to cancel, suspend or forfeit the relevant entitlements or is it a matter to which the Minister may have regard in the exercise of his discretion to revoke these entitlements. Licence Splitting 112 Mr Priestley for the applicants submitted that the licence splitting policy was directed at preventing owners of licensed commercial fishing boats that were licensed to fish in more than one managed fishery (one or more State and or Commonwealth managed fishery) from making two boats out of one. Or in other words, creating two commercial fishing business in these managed fisheries where previously there had been one. 113 Mr Lancaster for the respondent argued that it was directed at preventing increased commercial fishing effort in any one of the managed fisheries for which the vessel was licensed. 114 In my opinion, having regard to the terms of the 1984 national licensing policy and its 1987 revised terms, the objective of the policy was to prevent owners of licensed fishing boats, with entitlements to fish in one or more managed fishery, from making two or more boats out of one, without the approval of the relevant authorities responsible for these fisheries. That is, the focus of the policy was in effect to limit the number of licensed commercial fishing boats operating in managed fisheries. A reason for introducing that policy was the perceived potential for increased fishing effort in these fisheries. This perception was not an imagined one, but at the time, fishing effort in the fisheries the subject of this application, were not measured in days fished by the fisher or his business, it was measured by the number of commercial fishing boats that were licensed to fish in these fisheries. Consequently, a splitting up of the licences to or more boats meant that this in itself was an increase in fishing effort. 115 The national licence splitting policy, however, did not have any application to endorsements attached to commercial fishing licences, such as those provided by the FM Act and the FMG Regs for restricted fisheries. 116 In this case the relevant policy for consideration is the 1996 NSW Licensing Policy, which in my opinion, is consistent with the national policy that had been formulated previously. 117 As stated by Judicial Member S Rice in Cootes v Director, New south Wales Fisheries [2001] NSWADT 65, a policy such as the 1996 Licensing Policy can not be applied by the administrator, including this Tribunal, inconsistently with the provisions of the relevant law. I find that the policy is consistent with the provisions of the FM Act and the FM Regs in so far as it relates to the transfer of fishing boat licences and the entitlements attached thereto, but not to the extent argued by the respondent. 118 The 1996 Licensing Policy expressly defines the term "transfer" to mean "the change in ownership of a fishing boat licence from one party to another as recognised by the Act" (at page 8 of the policy). The "Act" referred to is the FM Act and the relevant provisions in respect to the transfer of such a licence are those contained in cl. 150 of the FMG Regs. While this relates only to the transfer of the right to a fishing boat licence, as a matter of practice it will also include any entitlements attached to that fishing boat licence such as a PI authorised endorsement for access to the NSW ocean prawn trawl fishery and ocean line restricted fishery. For this reason the 1996 policy on license splitting equally applies to the transfer of these types of endorsements. 119 While NSW has no jurisdiction in respect of managed fisheries coming within the jurisdiction of other states, such as Queensland, the 1996 NSW Licensing Policy contains a requirement that a person when seeking to transfer his NSW boat licence, which has attached to it entitlements from another or other states or the Commonwealth, that person must lodge a transfer application in respect of these other entitlements with the relevant State or Commonwealth authorities. The policy also requires the person to acquire approval of these other authorities to its proposed transfers before the Minister will approve the transfer under the FM Act and its regulations (section 5.1.1 at page 28 of the 1996 Licensing Policy). 120 This provision in the policy expressly addresses the issues of concern under the national licence splitting policy. However, in this case, as Messrs Oliver and Thomson did not make an application to transfer the NSW fishing boat licence for "Sandalee" (LFB98), the question is whether Messrs Oliver and Thomson were required to surrender their NSW fishing boat licence by reason of their participation in the Queensland scheme. 121 In my opinion, they were not required to do so for the following reasons: (a) they did not create two boats out of one. Their successful participation as a matter of fact did not create the entry of a new licensed fishing boat in the corresponding Queensland managed fishery. The effect of their successful participation in the scheme was that they surrendered their Queensland licence even though they were compensated for it. (b)participation in the Queensland scheme was not dependent on the surrender of their NSW entitlements; (c) there is no provision in the FM Act or FM Regs requiring them to surrender their NSW entitlement of a P1 authorised endorsement for inshore and offshore prawn fishery and the ocean and line endorsement. 122 Accordingly, in my opinion Messrs Oliver and Thomson's successful participation in the Queensland scheme does not contravene the 1996 NSW license splitting policy. Even if it did, in my opinion, such a transfer would be a matter, which related to the licence holder's eligibility to hold the particular endorsement and therefore come within the power to cancel or forfeit the NSW endorsements. However, as the respondent acknowledges, there is no express provision enabling the Minister to cancel or suspend an endorsement on such grounds. Increased Fishing Effort 123 I understand the Minister's concern about increased fishing effort in the NSW restricted fisheries and in my opinion, in certain circumstances, where it can be shown as a matter of fact that commercial fishing effort in this or any other restricted fishery is detrimentally affecting the objective of conserving fish stocks and fish habitats, this may form a ground to exercise the power of revocation under ss. 104(6) and 108(6) of the FM Act. 124 However in this case, no evidence was adduced in regard to the question of conserving the resource for which Messrs Oliver and Thomson were given endorsements, other than the fact that Messrs Oliver and Thomson were now free to fish exclusively in NSW managed waters. In my opinion, without the respondent having produced any environmental evidence of what impact this would have on these particular resources, the Tribunal is left with the fact that the applicants' entitlements in respect of fishing effort in NSW managed waters has not changed. They have always been entitled to fish in these restricted fisheries for 365 days each year and their eligibility for these entitlements were not dependent on them fishing part of each year in Queensland managed waters. As I have stated I can understand the concerns of the Minister, but to remove Messrs Oliver and Thomson's entitlements to the NSW restricted fisheries because they may now fish in these fisheries for more days than they have previously, but still within their allocated time, would appear to be unfair. This is particularly so when in my opinion they have not breached any conditions of their entitlements. 125 Messrs Oliver and Thomson on the other hand have availed themselves of a commercial opportunity which I am sure they knew would only exist during the transition in Queensland managed systems as the new system was being brought into effect. However, for the reasons I have stated they have not breached any provisions of the FM Act and FMG Regs, which protect their interests. 126 Accordingly, in my opinion the Minister's decision is not the correct and preferred decision and should be set aside. REVISED 11/03/2002-paragraph 3, line 3; replace '10' with '20'; paragraph 32-amendments in italics inserted; paragraph 55-'s. 104' amended to 's. 104(4)'; and various other typographical changes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.