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HFM045 v The Republic of Nauru [2017] HCA 50

Bell, Keane, Nettle JJ
Date: 15 Oct 2017 Case Number: M27/2017
Migration – Refugees – Appeal from Supreme Court of Nauru – Procedural fairness – Where Refugee Status Review Tribunal must act according to principles of natural justice – Where Refugee Status Review Tribunal did not provide appellant with notice of adverse country information relevant to Tribunal's determination on which it ultimately relied – Whether failure by Tribunal to put substance of information to appellant constituted breach of requirements of procedural fairness.

Words and phrases – "complementary protection", "natural justice", "procedural fairness".

Appeals Act 1972 (Nr) – s 44.

Nauru (High Court Appeals) Act 1976 (Cth) – s 5, Schedule, Art 1.

Refugees Convention Act 2012 (Nr) – ss 37, 40(1).

Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr) – s 24.

Refugees Convention (Amendment) Act 2017 (Nr) – s 4.

Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

Thorne v Kennedy [2017] HCA 49

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 8 Nov 2017 Case Number: B14/2017
Family law – Financial agreements – Family Law Act 1975 (Cth), Pt VIIIA – Pre-nuptial agreement – Post-nuptial agreement – Where fiancé wealthy – Where fiancée had no substantial assets – Where fiancée moved to Australia for purposes of marriage – Where fiancée had no community or connections in Australia – Where fiancée relied on fiancé for all things – Where pre-nuptial agreement provided to fiancée shortly before wedding – Where fiancé told fiancée that if she did not sign agreement wedding would not go ahead – Where independent solicitor advised fiancée against signing – Where pre-nuptial agreement signed – Where substantially identical post-nuptial agreement signed – Whether agreements voidable for duress, undue influence, or unconscionable conduct – Whether primary judge's reasons adequate.

Words and phrases – "adequate reasons", "duress", "financial agreement", "illegitimate pressure", "independent legal advice", "maintenance order", "post-nuptial agreement", "pre-nuptial agreement", "property adjustment", "special disadvantage", "unconscionable conduct", "undue influence", "vitiating factor".

Family Law Act 1975 (Cth) – ss 90F, 90G, 90K, 90KA.

Van Beelen v The Queen [2017] HCA 48

Bell, Gageler, Keane, Nettle, Edelman JJ
Date: 8 Nov 2017 Case Number: A8/2017
Criminal law – Appeal against conviction – Second or subsequent appeal – Application for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) – Where appellant convicted of murder – Where expert evidence of time of death given at trial based on stomach contents of deceased – Where new evidence demonstrated expert estimation of time of death at trial erroneous – Where new evidence required to be fresh and compelling in order to be admitted – Where evidence compelling if reliable, substantial and highly probative in context of issues in dispute at trial – Whether new evidence substantial – Whether new evidence highly probative in context of issues in dispute at trial – Whether in interests of justice to consider new evidence on appeal – Whether admission of evidence based on stomach contents at trial occasioned substantial miscarriage of justice – Whether significant possibility jury acting reasonably would have acquitted had new evidence been before it.

Words and phrases – "compelling", "fresh evidence", "highly probative in the context of the issues in dispute at the trial", "second or subsequent appeal", "substantial", "substantial miscarriage of justice".

Criminal Law Consolidation Act 1935 (SA) – s 353A.

Re Barrow [2017] HCA 47

Edelman J
Date: 7 Nov 2017 Case Number: M122/2017
Practice and procedure – Leave to issue or file document – Where applicant seeks declaration various steps are reasonable in order for him not to be incapable under s 44(i) of Constitution of being chosen as Senator – Whether declaration involves a justiciable matter.

Words and phrases – "advisory opinion", "all steps that are reasonably required", "declaration", "foreign citizenship", "hypothetical facts", "incapable of being chosen", "matter".

Constitution – s 44(i).

High Court Rules 2004 (Cth) – r 6. 07. 2.

Cecil v Director of Public Prosecutions (Nauru) [2017] HCA 46

Kiefel CJ, Gageler, Keane JJ
Date: 20 Oct 2017 Case Number: S117/2017 S118/2017 S119/2017
Criminal law – Appeal – Supreme Court of Nauru – Appeals Act 1972 (Nr) – Where Act entitles Director of Public Prosecutions to bring appeal against sentence – Where Act gives Supreme Court discretion on appeal to substitute own sentence for sentence of District Court – Where Supreme Court substituted own sentences for sentences of District Court without identifying error by District Court – Where sentences substituted by Supreme Court significantly higher than sentences passed by District Court – Where Supreme Court wrongly concluded it was not required to find error affecting District Court's exercise of sentencing discretion – Where possible to infer Supreme Court considered it would give significantly higher sentences if sentencing afresh – Whether discretion to substitute sentence enlivened – Whether possible to infer Supreme Court considered District Court's sentences manifestly inadequate.

Words and phrases – "discretion to substitute a sentence", "manifestly inadequate", "sentencing discretion".

Appeals Act 1972 (Nr) – ss 3(3), 14(4), 43.

Judiciary Act 1903 (Cth) – s 26.

Nauru (High Court Appeals) Act 1976 (Cth).

Re Canavan [2017] HCA 45

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 27 Oct 2017 Case Number: C11/2017 C12/2017 C13/2017 C14/2017 C15/2017 C17/2017 C18/2017
Constitutional law (Cth) – Parliamentary elections – References to Court of Disputed Returns – Where referred persons elected to Commonwealth Parliament – Where evidence to suggest each held dual citizenship at date of nomination for election – Whether each person incapable of being chosen or of sitting as senator or member of House of Representatives by reason of s 44(i) of Constitution – Proper construction of s 44(i) of Constitution – Whether s 44(i) contains implied mental element in relation to acquisition or retention of foreign citizenship – Whether each person subject or citizen of foreign power or entitled to rights or privileges of subject or citizen of foreign power for purposes of s 44(i).

Words and phrases – "a subject or a citizen … of a foreign power", "constitutional imperative", "foreign citizenship", "incapable of being chosen", "knowledge", "natural-born", "naturalised", "reasonable steps", "voluntariness", "voluntary act", "wilful blindness".

Constitution – ss 16, 34, 44(i), 45(i).

Commonwealth Electoral Act 1918 (Cth) – ss 163, 376.

BRF038 v The Republic of Nauru [2017] HCA 44

Keane, Nettle, Edelman JJ
Date: 18 Oct 2017 Case Number: M28/2017
Appeal – Supreme Court of Nauru – Where Refugees Convention Act 2012 (Nr), s 43(1) confers right to "appeal" to Supreme Court against a decision by Refugee Status Review Tribunal not to recognise person as a refugee – Whether Supreme Court was exercising original jurisdiction when determining "appeal" from Tribunal – Whether appeal from Supreme Court to High Court lay as of right.

Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 3 adopts definition of "refugee" under Refugees Convention as modified by Refugees Protocol – Where Refugees Convention requires "well-founded fear of being persecuted" – Where Tribunal found harm appellant and family faced constituted discrimination, but not persecution – Whether Supreme Court erred in failing to hold that Tribunal applied wrong test in determining whether appellant suffered persecution – Whether Tribunal required total deprivation of appellant's human rights to find persecution.

Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 22(b) provides that Tribunal "must act according to the principles of natural justice and the substantial merits of the case" – Where appellant stated that Somalian authorities were unwilling to assist him and his family due to ethnicity – Where Tribunal relied on country information indicating that there are police from every tribe in Somaliland to conclude appellant would have "some redress from the acts of others" – Whether failure by Tribunal to put substance of information to appellant constituted breach of requirements of procedural fairness.

Words and phrases – "appeal", "country information", "credible, relevant and significant", "original jurisdiction", "persecution", "procedural fairness", "well-founded fear of persecution".

Appeals Act 1972 (Nr) – s 44.

Nauru (High Court Appeals) Act 1976 (Cth) – ss 5, 8.

Refugees Convention Act 2012 (Nr) – ss 3, 5(1), 6(1), 22(b), 31(1), 37, 43(1), 44.

Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr) – ss 5, 6, 24.

Refugees Convention (Amendment) Act 2017 (Nr) – ss 4, 5, 6, 7.

Agreement between the Government of Australia and the Government of the Republic of Nauru Relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (1976) – Art 1.

Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) – Art 1A(2).

Brown v Tasmania [2017] HCA 43

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 18 Oct 2017 Case Number: H3/2016
Constitutional law (Cth) – Implied freedom of political communication – Workplaces (Protection from Protesters) Act 2014 (Tas) – Where Act empowers police officers to direct protesters to leave and stay away from business premises and business access areas under pain of arrest and criminal penalties – Where business premises include forestry land – Where Act allows police officers to give such directions if they reasonably believe protester is preventing, hindering or obstructing business activity, has done so, or is about to do so – Where Forestry Tasmania authorised to undertake forest operations in Lapoinya Forest – Where plaintiffs protested in vicinity of forest operations – Where plaintiffs directed to leave and stay away from forestry land – Where plaintiffs arrested and charged, purportedly under Act, as result of protest activity – Whether Act restricts otherwise lawful protest activity – Whether implied freedom burdened – Whether Act, or provisions thereof, impose impermissible burden on implied freedom in their operation in respect of forestry land and related business access areas – Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) – Where plaintiffs charged under Workplaces (Protection from Protesters) Act 2014 (Tas) – Where charges not pursued – Where plaintiffs intend to engage in conduct unless conduct validly proscribed by Act – Whether plaintiffs have standing to challenge validity of Act.

Words and phrases – "burden", "business access area", "discriminatory effect", "implied freedom of political communication", "proportionality testing", "protest activity", "protester", "reasonably appropriate and adapted".

Forest Management Act 2013 (Tas) – ss 8, 9, 13, 21, 22, 23.

Workplaces (Protection from Protesters) Act 2014 (Tas) – ss 6, 8, 11, 13 and Pt 4.

Koani v The Queen [2017] HCA 42

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 18 Oct 2017 Case Number: B20/2017
Criminal law – Murder and manslaughter – Act causing death – Where appellant convicted of murder – Where death occasioned by discharge of shotgun held by appellant – Where alternative prosecution case for murder put to jury on basis that shotgun may have discharged as result of unwilled act – Whether unwilled, criminally negligent act or omission can result in conviction for murder where jury satisfied accused possessed intention to kill or inflict grievous bodily harm – Whether breach of duty to use reasonable care and to take reasonable precautions in use and management of dangerous thing can found conviction of murder.

Words and phrases – "act causing death", "breach of duty", "criminally negligent", "intention", "intentional offence", "manslaughter", "murder", "omission", "reasonable care", "unwilled act".

Criminal Code (Q) – ss 289, 302(1)(a).

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41

Kiefel CJ, Bell, Gageler, Keane, Gordon JJ
Date: 11 Oct 2017 Case Number: M1/2017
Criminal law – Sentencing – Current sentencing practices – Incest – Crown appeal on ground of manifest inadequacy – Where s 5(2) of Sentencing Act 1991 (Vic) provided that in sentencing an offender a court must have regard to current sentencing practices – Where Court of Appeal held that sentence not wholly outside permissible range reflected in current sentencing practices – Where Court of Appeal held that current sentencing so low as to reveal error in principle – Whether latter conclusion required appellate intervention to correct error reflected in sentence the subject of appeal.

Words and phrases – "comparable cases", "current sentencing practices", "manifest inadequacy", "maximum penalty", "reasonable consistency".

Sentencing Act 1991 (Vic) – s 5(2).

Wilkie v The Commonwealth [2017] HCA 40

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 28 Sep 2017 Case Number: M105/2017 M106/2017
Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Where Finance Minister made determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Where determination sought to provide funding for postal survey – Whether s 10 of Appropriation Act (No 1) 2017-2018 (Cth) invalid – Whether appropriation for purpose Parliament lawfully determined may be carried out.

Statutes – Construction of Appropriation Act (No 1) 2017-2018 (Cth) – Power of Finance Minister to make determination under s 10(2) of Appropriation Act (No 1) 2017-2018 (Cth) – Whether determination made by Finance Minister authorised by s 10 – Whether Finance Minister satisfied urgent need for expenditure not provided for or insufficiently provided for because expenditure unforeseen – Whether Finance Minister erred in law by conflating satisfaction as to urgent need for expenditure with satisfaction as to expenditure being unforeseen – Whether s 10 limited by description of Appropriation Act (No 1) 2017-2018 (Cth) as Act for ordinary annual services of Government.

Statutes – Delegated legislation – Validity – Whether direction to Australian Statistician exceeded power of Treasurer under s 9(1)(b) of Census and Statistics Act 1905 (Cth) – Whether information to be collected statistical information – Whether information to be collected in relation to matters prescribed in s 13 of Census and Statistics Regulation 2016 (Cth) – Whether Treasurer had power to specify from whom information to be collected – Whether s 7A of Commonwealth Electoral Act 1918 (Cth) gave Australian Electoral Commission authority to assist Australian Bureau of Statistics in implementing direction.

Constitutional law (Cth) – Appropriation of moneys from Consolidated Revenue Fund – Standing to bring action for declarations and injunctions – Whether necessary or appropriate to determine if plaintiffs have standing – Standing of Member of House of Representatives – Standing of Senator – Standing of elector – Standing of incorporated body – Standing of association.

Words and phrases – "Advance to the Finance Minister", "appropriation", "Australian Bureau of Statistics", "Australian Electoral Commission", "Australian Statistician", "Consolidated Revenue Fund", "departmental item", "Electoral Commissioner", "expenditure", "Finance Minister", "ordinary annual services of the Government", "plebiscite", "Treasurer", "unforeseen", "urgent need for expenditure".

Constitution – ss 53, 54, 56, 81, 83.

Appropriation Act (No 1) 2017 –2018 (Cth), ss 3, 6, 7, 10, 12, Sched 1.

Audit Act 1901 (Cth) – s 36A.

Australian Bureau of Statistics Act 1975 (Cth) – s 16A.

Census and Statistics Act 1905 (Cth) – s 9.

Census and Statistics Regulation 2016 (Cth) – s 13.

Commonwealth Electoral Act 1918 (Cth) – ss 7, 7A.

Legislation Act 2003 (Cth) – ss 15G, 15H, 15J, 38, 39.

Public Governance – Performance and Accountability Act 2013 (Cth), ss 74, 75.
Re Roberts [2017] HCA 39
Date: 22 Sep 2017 Case Number: C14/2017

Hamra v The Queen [2017] HCA 38

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 13 Sep 2017 Case Number: A14/2017
Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence requires prosecution to prove two or more acts of sexual exploitation – Whether generalised nature of complainant's evidence meant that not possible to identify two or more acts of sexual exploitation – Whether no case to answer.

Criminal law – Permission to appeal – Where orders made included granting application for permission to appeal – Whether majority of Court of Criminal Appeal failed to consider question of permission to appeal.

Words and phrases – "acts of sexual exploitation", "distinct occasion", "distinct transaction", "double jeopardy", "extended unanimity", "no case to answer", "particularity", "particulars", "permission to appeal", "persistent sexual exploitation of a child".

Criminal Law Consolidation Act 1935 (SA) – s 50.

Chiro v The Queen [2017] HCA 37

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 13 Sep 2017 Case Number: A9/2017
Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days - Where jury required to be unanimous (or agreed by statutory majority) as to same two or more acts of sexual exploitation - Where alleged acts of sexual exploitation ranged from kissing in circumstances of indecency to inserting penis into complainant's mouth - Where jury returned general verdict of guilty by statutory majority - Where not known which alleged acts of sexual exploitation jury agreed had been proved by prosecution - Whether conviction uncertain - Whether judge should have requested special verdict - Whether, after general verdict returned, judge should have asked questions of jury to identify acts of sexual exploitation found to be proved - Whether appellant should have been sentenced on view of facts most favourable to appellant in circumstances where factual basis of jury's verdict unknown.

Words and phrases – "acts of sexual exploitation", "actus reus", "course of conduct offence", "extended unanimity", "general verdict", "jury directions", "persistent sexual exploitation of a child", "special questions", "special verdicts".

Criminal Law Consolidation Act 1935 (SA) – s 50.

The Queen v Dookheea [2017] HCA 36

Kiefel CJ, Bell, Gageler, Keane, Nettle, Edelman JJ
Date: 13 Sep 2017 Case Number: M159/2016
Criminal law – Criminal procedure – Jury directions – Standard of proof – Where jury directed that Crown required to prove accused's guilt not beyond any doubt but beyond reasonable doubt – Whether such direction error of law – Whether such direction productive of substantial miscarriage of justice.

Words and phrases – "any doubt", "beyond reasonable doubt", "fanciful doubt".

The Queen v Holliday [2017] HCA 35

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 6 Sep 2017 Case Number: C3/2017
Criminal law – Incitement – Aiding, abetting, counselling or procuring – Criminal Code 2002 (ACT), ss 45, 47 – Where respondent charged with offence of incitement – Where prosecution alleged that respondent intentionally urged another person to procure third person to commit offence of kidnapping – Where offence of kidnapping not committed – Whether respondent urged commission of offence – Whether offence of incitement to procure offence exists under Criminal Code – Whether aiding, abetting, counselling or procuring commission of principal offence a discrete offence.

Words and phrases – "discrete offence", "incitement", "incitement to incite", "incitement to procure", "principal offence", "substantive offence".

Criminal Code 2002 (ACT) – Pt 2. 4.

Criminal Code (Cth) – s 11. 4.

Crimes Act 1914 (Cth) – ss 5, 7A.

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 6 Sep 2017 Case Number: S272/2016 S273/2016
Migration – Protection visa – Complementary protection – Cruel or inhuman treatment or punishment – Meaning of "intentionally inflicted" – Degrading treatment or punishment – Meaning of "intended to cause" – Where Refugee Review Tribunal found appellants would likely be imprisoned for short period if returned to Sri Lanka – Where prison conditions in Sri Lanka may not meet international standards – Where definition of "cruel or inhuman treatment or punishment" in s 5(1) of Migration Act 1958 (Cth) requires intentional infliction of pain or suffering – Where definition of "degrading treatment or punishment" in s 5(1) of Migration Act requires intention to cause extreme humiliation – Whether Sri Lankan officials intend to inflict pain or suffering or cause extreme humiliation – Whether intention established by knowledge or foresight of pain or suffering or extreme humiliation.

Words and phrases – "complementary protection regime", "cruel or inhuman treatment or punishment", "degrading treatment or punishment", "foresight of result", "intended to cause", "intention", "intentionally inflicted", "oblique intention".

Migration Act 1958 (Cth) – ss 5(1), 36.

Criminal Code (Cth) – s 5. 2(3).

Graham v Minister for Immigration and Border Protection [2017] HCA 33

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Sep 2017 Case Number: M97/2016 P58/2016
Constitutional law (Cth) – Legislative power of Commonwealth – Constitution, s 75(v) – Where s 503A of Migration Act 1958 (Cth) prevents Minister for Immigration and Border Protection from being required to divulge or communicate certain information to courts – Whether s 503A requires courts to exercise judicial power in manner inconsistent with essential function of courts to find facts relevant to determination of rights in issue – Whether ss 501(3) and 503A(2) inconsistent with s 75(v) of Constitution – Whether s 503A(2)(c) denies High Court and Federal Court ability to enforce legislated limits of power – Whether s 503A(2)(c) curtails capacity of court to discern and declare whether legal limits of power conferred on Minister observed.

Migration – Jurisdictional error – Power of Minister to cancel visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – Where decisions to cancel visas took into account information purportedly protected from disclosure under s 503A – Where Minister's understanding of s 503A erroneous – Where error was as to whether Minister's decision would be shielded from review by court in so far as based on information protected from disclosure under s 503A – Whether decisions invalid as consequence of error.

Words and phrases – "authorised migration officer", "character test", "fact-finding", "gazetted agency", "judicial power", "national interest", "protected from disclosure", "protected information", "public interest immunity", "purported exercise of a power", "substantial criminal record".

Constitution – ss 75(v), 77(i), 77(iii).

Migration Act 1958 (Cth) – ss 476A, 501, 501A, 501B, 501C, 503A, 503B.

Transport Accident Commission v Katanas [2017] HCA 32

Kiefel CJ, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: M160/2016
Accident compensation – Transport accident – Statutory compensation scheme – Where respondent involved in motor vehicle accident and subsequently suffered mental disorder or disturbance – Where mental disorder or disturbance required to be "severe" to allow bringing of common law proceedings – Where respondent did not require inpatient psychiatric treatment – Where respondent found not to have suffered symptoms of psychological trauma at upper echelon of range – Whether severity of mental disorder or disturbance assessed only by reference to extent of treatment – Whether narrative test laid down in Humphries v Poljak [1992] 2 VR 129 followed by Court of Appeal.

Words and phrases – "mental disturbance or disorder", "narrative test", "range or spectrum of comparable cases", "serious injury", "severe", "symptoms and consequences".

Transport Accident Act 1986 (Vic) – s 93.

Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: S195/2016
Migration – Regional processing – Where plaintiff "unauthorised maritime arrival" – Where plaintiff taken to regional processing centre in Papua New Guinea pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangements with Papua New Guinea and took other actions in relation to regional processing functions – Where Supreme Court of Papua New Guinea held treatment of unauthorised maritime arrivals at Manus Island regional processing centre contrary to law of Papua New Guinea – Whether Commonwealth had power to enter into arrangements – Whether certain past and potential future actions of Commonwealth, its officers, and Minister invalid under Constitution or s 198AHA of Migration Act 1958 (Cth) by reason of Supreme Court decision – Whether arrangements entered into by Commonwealth not "arrangement[s]" for purpose of s 198AHA by reason of Supreme Court decision.

Constitutional law (Cth) – Legislative and executive power – Whether Constitution denies Commonwealth legislative or executive power to authorise or to take part in activity in another country that is unlawful under domestic law of that country.

Words and phrases – "domestic law of another country", "ministerial designation", "ministerial direction", "regional processing arrangements", "regional processing country", "regional resettlement arrangement", "unauthorised maritime arrival".

Migration Act 1958 (Cth) – ss 198AB(1), 198AD, 198AHA.

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