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On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.

From the Wellington Writers’ Walk:

“It’s true you can’t live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”

– Lauris Edmond, from The Active Voice

Could the earthquakes reduce Kiwirail distortions?

  • November 16th, 2016

The Kaikoura railway destruction has an economic silver lining.

There is now a possibility of less future waste on irrational and distorting transport subsidies.

Coastal shipping should have been getting much more of NZ’s long distance heavy freight. Shipping was long strangled by government fears of enforcing laws against maritime union thuggery, theft and anti-competitive conspiracy. Since union power waned shipping had been hamstrung by the unfair propping up of Kiwirail after Michael Cullen’s rescue of Toll Holdings. Political fear of challenging irrational rail sentiment has meant wasting $7k per household on Kiwirail since. The weird left political love for rail has been reinforced by understandable popular dislike of truck dominated roads.

Now that a sea link to Lyttelton will be needed for 6 months minimum, shippers will get used to the schedules, and Govt might have the courage to not waste capital restoring the uneconomic Picton to Christchurch rail leg.

Indeed shipping direct from Auckland and Tauranga to Christchurch should suit many who distribute nationwide.

Other experiments could be freed from unfair competition.
The proposed Wanganui to Nelson service could use the fast ferries eliminated by Sounds nimbyism.
We could then use much more of the Sounds for what God intended – mussel and salmon farms.

This is not necessarily good for Wellington’s Centre Port. But it has more than enough to worry about in remedying its quake damage.

And from a national perspective the less capital we have tied up under the control of woeful performer Greater Wellington Regional Council the better.

More on that in another post to come.

The Rugby Union’s clerical duties

  • October 6th, 2016

Have I lost touch with my country? Where am I?

When did it become an obligation on an employer to discipline an employee for what could be a fleeting airport toilet shag with a woman not his ‘partner’, thousands of miles from the ‘workplace’ with no evidence (so far) that it could affect workplace performance.

I’m especially baffled when the nation’s most economically illiterate lawyers (employment specialists) have created rules that block and reverse the most simple and efficient measures by employers to uphold honesty and other ethical standards, and even basic courtesy.  These idiots will expensively second guess the natural disciplinary steps  that have for generations made workplaces civilised (and civilising) places for association among non-kin of disparate cultures and backgrounds.

Yet today our media have been reporting the the Rugby Union’s latest venture into controlling off field conduct without a hint of irony or criticism. I feel for the rugby bosses. Last week the media rage focused on them for failing to give the justice to victims which the justice system denied. Media castigation should have been exclusively on the judging class who think they are therapists for criminals, freed from their duty to do justice by their superior compassion. Instead it turned into a witch-hunt on rugby.

And even better directed would be a spotlight on the politicians who make the rules that allow the lawyer elite to pervert justice in secret. The government was about to announce that 17 year olds would come under the Youth Court. That court is a secret court. It could not survive without secrecy. If that change had been made last year it would have been illegal for TV 3 to break last week’s story of the unpunished rugby thug. It would have suppressed the subsequent public debate. The four victims would have been gagged, lest their complaints identify the thug.

Instead of more secrecy, we need less. We only know about the two rugby cases because of the high profile of the protagonists. How many hundreds of other court cases (or “Family” Group Conferences) are telling youngish thugs they get a free hand until they are 18?

So will the media ask why that government announcement has been mysteriously delayed? Do they not care that they will be effectively confined to reporting the official pap they get on the Youth Justice system’s woeful performance?  Respectfully parroting St Andrew Becroft that the Youth Court is not a milk and milo court is not journalism. It does not defend the free speech right of the people to know who is beating up who, and getting away laughing, and which judges are too gullible for their work?

So it is perhaps not surprising that the Rugby Union is struggling to work out how it should respond to demands that it accept responsibility for the morals of its players. The neo-witchhunters now demand tangible denunciations for offences that are not even unlawful. The courts can only punish law-breaking (so far). I guess that means the clerical class must hound others to display their virtue (and to enforce their hypocritical morality).

Maybe there is more to come. One suggestion in my office is that it is relevant that it was a disabled toilet. What about the responsibility of the airport company for not supervising access to it? Will we see demands for precautionary modifications of all toilets? Welfare offices must all now be rebuilt because a judge has decided the bosses are responsible for the actions of a mad and bad shooter. Are disabled toilets too inviting? I must confess to liking all that space. Strategically located spikes like those that deter pigeons on statues might help discourage misuse.

In this new country anything is possible.

Social and economic rights in a NZ constitution

  • September 26th, 2016

My last post mentioned the risks and problems arising when social and economic “rights” are created in law.  The Palmer/Butler draft constitution tries to allay those concerns by saying that such rights are “non-justiciable” (presumably meaning not enforceable in court). It then lays out in draft section 106 a glittering array of new rights – without solving the fundamental political problem – whose duty is it to provide the goodies, at whose cost.

106 Social and economic rights
In making provision for the social and economic welfare of the people, Parliament
and the Government shall be guided by the following non-justiciable principles:
(a) the right of everyone to an adequate standard of living, including
adequate food, clothing and housing:
(b) the right of everyone who requires it to social security for the provision
of financial and other support that clearly establishes the entitlements
that may be claimed:
(c) the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health:
(d) the right of every worker to resort to collective action in the event of a
conflict of interests, including the right to strike:
(e) the right of every worker to enjoy satisfactory health and safety conditions
in their working environment:
(f) the right of workers to earn their living in an occupation freely entered
upon.

Those rights could provide an entire new generation’s lawyers’ with the upkeep for pampered families, hobby vineyards, yachts and holidays overseas.  That is, if ‘non-justiciable’ fails to stop lawyers from getting to decide what taxpayers must provide.

I look forward to seeing in the book how the authors expect our courts to handle “non-justiciable”. Twenty years ago our Court of Appeal did not take long to invent cost liabilities to ’enforce’ provisions of the New Zealand Bill of Rights Act, despite the clear Parliamentary expectation that it would not be enforceable directly.

So how long would ‘non-justiciable’ survive? Judges can start with a common law  assumption that Parliament must be assumed to have meant the law to have effect, and that a court’s task is to ensure it does get effect in accordance with its words.

Perhaps the Palmer/Butler draft constitution will acquire the kind of useful authority  which European courts give to eminent scholars’ texts. On many topics the draft constitution codifies the net effect of the mix of statute, common law, convention and customary approaches to the exercise of power – that is our “unwritten” constitution.

The Palmer/Butler constitution could be cited in that way, as a convenient and concise formulation of rules and prescriptions that must otherwise be drawn from a range of sources. Indeed it is such a good compilation of best practice rules on things like Cabinet composition and structure, for example, that it may fossilise features  that should remain open to evolution. It locks in a contemporary view without analytically identifying the mischiefs addressed by “best practice”.

So the draft unapologetically goes much further than codifying current practice or crystallised consensus.  It is substantially normative or aspirational. It says what the authors think the law should be in areas of substantial dispute internationally, let alone here.

That does not mean it could not serve as a guide in court, even in those areas. Civil law scholars expect good writing to steer judges in determining disputes. They resolve uncertainties left by Civil Codes, toward decisions that will enhance the consistency and power and ‘morality’ of the law. If New Zealand courts take account of the Palmer/Butler formulations when faced with ambiguity or gaps in our law, and use it to support their reasoning, the Palmer/Butler draft could be useful, without condemning New Zealand to the profitless “conversation” I wrote about here.

For example, judges have been increasingly assertive in telling the government what it should do for care-givers of disabled relatives, for special needs students in school. I predict cases where the lawyers (and the judges) will draw on EU law and UN documents, to assert a legitimate “common law” evolution in the dangerous territory of comprehensive social and economic “rights”.

And perhaps until Parliament shows plainly that it will not tolerate de facto legislating, elements of the Palmer/Butler constitution will creep into judges’ development of our common law.

 

Sir Geoffrey’s draft constitution

  • September 23rd, 2016

I have yet to read Andrew Butler’s and Sir Geoffrey Palmer’s book.

From what I have seen of their draft constitution there are admirable elements, some badly needed, such as the proposed protection of property rights. Section 104 is well drafted, as one might expect from the intelligence and experience of those authors.

I expect the book to make a strong case for the benefits of a good constitution. I could even prefer for New Zealand to have such safeguards, despite the risks that it would increase the power and arrogance of our lawyer class.

But there are three compelling reasons to oppose this attempt to propel New Zealanders into a constitutional debate.

The first is simple – there is no guarantee that we would get a good constitution. It is highly likely we would end up with deliberately uncertain words designed to grant rewrite/trumping powers to the elite groups that already show they despise ordinary people, and democracy.

Second – even a good constitution will only be as safe as the quality and integrity of the watchdogs given the enormous power to interpret and enforce it. Our judiciary have shown repeatedly that they cannot be trusted with such powers. See for example the sophistry with which they have contrived to nullify the clear Parliamentary intention of the three strikes law.

Thirdly, the process of adopting a constitution can be highly damaging. In the absence of forces compelling us to remember our shared interests and to put them ahead of all the things that could divide us, it could end with a generation poisoned and divided into the irreconcilable ‘tribes’ we see emerging elsewhere in the Anglo political world.

I will revert in future posts to dangers in particular suggestions in the Palmer/Butler draft. The proposed bald proposition for founding (supreme?) authority to the Treaty of Waitangi has already attracted plenty of attention. It seems foolish to entrench it without anything to remedy the constitutional and practical problems  stacking up from abuse of the invented so-called principles.

But I focus here on the third objection.

The process of gaining a written constitution, if conducted without the unifying exhaustion of a just concluded civil war, or a major external threat, could distract us into division and dispute for which there is no end, and no solution.
The attempts to get a constitution for the EU ended with a vast document including the wish-list promises and guarantees of a host of lobbyists and single issue political fanatics. They all saw the chance to get their cause entrenched beyond normal democratic challenge, without having to first win the hearts and minds of a majority, let alone the overwhelming majority needed for true foundation value status.

The document was so unweildy and controversial it became an instrument of division. It was among the reasons why voters in founder members of the EU started voting against ever-closer union. That document played an important part in the respectability of some of the parties and politicians now wanting to break up the EU.

Deciding on what is in, and what is out of a constitution is a fight to ensure that courts and lawyers make very difficult and controversial decisions, instead of elected representatives. Once a rule is in the constitution, many of the policy preferences it embodies become effectively non-debateable. So, for example socialists have incorporated “rights” to adequate housing, leaving it up to courts (not elections and democratic leaders) to decide who pays, where, what contribution should be expected of the beneficiary, how they qualify, what kind of housing, and what behaviour (if any) might disqualify.

Constitutions should be the fundamental rules agreed when the constituents are closely focused on the values they share and the purposes that unite them. Nothing more This applies whether it is a club, company, or country.

So it is breath-taking naivete to steer a country (or a company or club) into trying to decide such matters midflight, without a compelling uniting objective, or external threat or pressure to compromise and agree. Every group senses the chance to get trump status for their favourite rule or privilege, getting it safely beyond normal democratic question, challenge and evolution.

A society cursed with a constitutional debate becomes consumed by the issues that divide them. It will divide over the potentially permanent consequences of a loss on an issue to the majority or ruling clique of the time.
That is corrosive of the essential mutuality ethic of democracy – that each of us accepts adverse rulings of our elected rulers for the time being, in support of a greater rule. That greater rule is agreement in advance that if some can persuade a majority of our fellow citizens to replace the current subordinate rules and rulers, the latter and their supporters will respect that decision and mechanism, no matter how passionately they feel it is wrong. They do so in expectation that the new winners will reciprocally accept replacement when they too are displaced under the same due procedure.

The procedural rules of the game are the proper primary subject of a constitution. The Butler/Palmer draft highlights the dangers of a process that as well sets out to entrench a selected sample of the policy prejudices and preferences of a current elite. Their draft makes sure the process could never be safely confined.

Poo and bum

  • September 20th, 2016

I was recently asked for a legal perspective on the RHOA Boat Nigger story, but told expressly not to use the N***** word when talking about it.

I declined to speak under that gag.

Nigger is not a word I’ve used for years, since it was part of Eeny Meeny Miny Mo. I have no interest in using it. But I will not appear to show respect for a gag. Not a gag imposed by people who have no problem with broadcasting words like ‘motherfucker’ in songs.

For me it would be demeaning  to submit to the media airheads manufacturing the uproar. The recent invention of new taboos around words, not even words that have been important in New Zealand, is insulting to New Zealanders. People who pander to those who claim to feel faint at the ghastliness of a verboten word are abandoning their own dignity (and accelerating the loss of freedoms to the neo-puritans).

The effete  elite have found a way to recreate the frisson they got as weedy kids running screeching to Mummy that ‘Alfie’ is using rude words after they’d got him to say “album”, and “shampoo”.

So I won’t add support to their neo-puritan religion. Accepting that kind of gag to pretend respect for an alien culture, from New Zealand, is implicit support for the book burners. It is endorsement of those who think free speech comes second to not giving “offence”. People refused to play rugby with race selected teams and decline to appear on stage in line-ups where prejudice has eliminated a view-point, for the same reason.

“Dear Sirs”ť banned by global law firm

  • September 19th, 2016

I abandoned that salutation in my correspondence over 20 years ago.

I notified my partners that I was dropping salutations completely. I hoped others would too, but Chapman Tripp was so tolerant of diversity that though few did (some of my staff) no one objected (at least to me).

Nor did I get any client or counter-party objections until someone on the other side of an acrimonious exchange noticed and assumed I had done it just to be aggressive/offensive.

I dropped the common salutation “Dear Sirs” partly because it seemed pointlessly discourteous to women in other firms, but also because I was irritated by my dithering over salutations generally. We agonised over just how familiar to be. We worried about being too matey, or not matey enough with addressees of lower or higher status, or of the opposite sex.

I’d seen colleagues getting letters completely retyped (or reprinted) just to change from a Dear ‘firstname’ to Dear ‘surname’, and vice versa.

I’ve got more relaxed. If a staff member has prepared a letter or message for me, I may not bother now to delete the salutation. And “Hi” seems to work without thought.

Twenty-something years ago I thought my example might catch on more widely. It didn’t.

But better late than never Freshfields – unless instead people are wasting time dithering among a slew of PC replacement terms. Just drop the pointless salutation!

The article from NZ Lawyer does not say whether Freshfields have replaced it:

“Global law firm Freshfields Bruckhaus Deringer has banned the use of “Dear Sirs”ť in its communications and documents.
The magic circle firm has taken the move as a “relatively small”ť but “significant”ť move designed to highlight how the language used in legal communications may alienate clients and peers.
A Freshfield’s associate in London discovered that in recent IPO activity the exclusive use of “Dear Sir(s)”ť was widespread among law firms, banks and corporates.

Politicians lying?

  • July 10th, 2016

Andrea Vance and others in RNZ’s MediaWatch this weekend have been bewailing the absence of public concern about their allegations (or disclosure) of politician lying.
They are right to be anxious that democracy may not be safe if lies have no cost. The questioning in the programme tested the concern.

But most revealing was an incredible lack of elite awareness of their own intellectual limitations (or blinkers). Some journalists are intelligent enough to understand that ordinary citizens will not care what is thought by journalists who despise them and their values. But few political journalists know why ordinary people think as they do.

When they find out they despise them. A remarkable demonstration last week of elite arrogance from a Treasury pet intellectual reminded me of my experience with political journalists. Bernard Cadogan has been paid to advise Treasury on Brexit, from his English academic perch. In an extraordinary hour he sneered and preened in a revealing display of why ordinary English voters would have ceased to listen to his class. Toward the end he purported to illustrate how stupid were the Leave advocates and popular referenda generally with a comparison to the  NZ “Law and Order referendum” of 1999. According to him it “rabbited on and rabbited on and rabbited on…” and was “impossible for a judge to apply”.

It read “Should there be a reform of our Justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?”. This measure passed by 91.78%.

In fact that vote reverberated in Parliament, and helped overcome the status quo defense of the Justice establishment. It played a significant role in the toughening up that may have belatedly helped reverse our climbing serious violent crime rates.

I spent my years in Parliament with virtually no media interest whatsoever in criminal justice facts, research or policy analysis. As a typical swot, I fondly thought when I entered Parliament that they would be important. Instead all the work I put into criminal justice policy was repaid by constant repetition of the media’s brand of me and ACT as “far right”. In fact most of the policy innovations I advanced were drawn from Bill Clinton’s 1996 reforms, and much of the political language from the UK Labour Party website.

None of that stopped routine reports as if of fact that our policy was cynical populism we could not possibly believe (because we were perceived as intelligent) . I recall not one attempt over 6 years to investigate the policy details or the material my digging got out of official statistics.

The journalists who are realising that most voters no longer care what the media and elite say to each other, will not find a route back to public respect. They despise the public who voted for the Norm Withers referendum too much to apply open minds and sympathy to ordinary values, beliefs and fears.

The media bubble is oblivious to how thoroughly it has suppressed the expression of ordinary people’s real opinions, even by their Members of Parliament. Only Winston Peters can defend  many common sense expressions without a collective media swoon then hysterical screeching. Even within families ordinary people often keep their thoughts to themselves to avoid derision from the bien pensant family members.

In consequence politicians and media can lie to each other without the rest of us caring much at all.

Genetic challenges for genuine liberalism

  • July 6th, 2016

Hive Mind: How Your Nation’s IQ Matters So Much More Than Your Own by Garett Jones has attracted little public attention in New Zealand, despite celebration of the Otago Longitudinal Study, and the international fame of Otago University’s Prof Jim Flynn. The book draws heavily on the research conducted after his shattering insight established the Flynn Effect.

The Hive Mind thesis is that a nation’s average intelligence can predict and probably determines whether a society can reliably achieve economic and cultural and political institutions and outcomes that we commonly consider good.

Hive Mind wisely steers clear of deep discussion of genetics (and race) in its astonishing nation to nation comparisons. They correlate high wealth and successful institutions, with high national average IQs (and low with low).

Hive Mind is essentially upbeat, because it is clear that average intelligence can be raised. It argues that nations with low averages could and will achieve much more as conditions are changed to generate higher average intelligence.

But now Nature.com summarises current science reporting on one of the issues so prudently avoided by the author of Hive Mind.

Genetics and intelligence differences: five special findings says that nature (genes) trump nurture conclusively for intelligence. And of course nearly everyone has heard something of the many studies showing that intelligence is the best predictor for common relative measures of individual economic, social and health success.

This area of science is a slow slip intellectual earthquake. It could collapse some of our the key political verities (sacred and immune from question since eugenics and Nazis discredited all challengers) the way Darwin undermined established religion. The Nature.com report is not dumbed down enough for me to understand it confidently. But there is enough to tell me we are heading toward some knowledge that could be as awkward for democracies (and as tempting to dark forces) as Darwinism was for the Victorians.

The liberal establishment may try to ignore the contradictions for as long as possible. Currently for non-scientists it is simply a heresy to be marginalised. It has not even reached the challenger status of bio-engineering, which the Green clerics are fighting to keep out of disciplined national debate. But religious loons, even establishment ones, eventually get swept away if they fail to develop intellectual ways to reconcile (abandon or render meaningless) wishful falsehood (Adam and Eve) with established fact (evolution).

That at least is the confident expectation of our civilisation.

But other outcomes are possible. The Islamic world was far ahead of the warrior culture primitives from Europe for several hundred years. But when it came to competition between the priestly class and the other intellectuals the former won. They banned knowledge that could imply the Koran did not contain all that was necessary for a [virtuous] life. I was fascinated in Samarkand by the astronomy developed by one of their great rulers. He calculated the circumference of the earth while Europeans were still worrying about falling off the edge.

But even he could not survive when the imans ganged up and had him and his brilliant scholars killed, to create a Central Asia version of the Dark Ages.

Hopefully our establishment will respond as it did eventually to 19th century science. There are very good reasons for concern about connecting inheritance, including racial inheritance, to intelligence. Racism needs little encouragement. But we need to work out how to live with inherited differences without embedding inherited privilege in our law and government.

The US Founding Fathers (some of whom were as near to atheist as political prudence allowed them) were concerned that their constitution could not work without the social glue and bounds of fervent Christian belief. We may be right to wonder if it is possible to keep racism out of the exercise of coercive state power, if there is widespread disbelief in the fond official conviction that we can all be born with equal potential.

We should be trying to develop a coherent reset now, to avoid being swept away by the forces we’ve rightly fought for decades. The winners could be neo-clerical oppressors (suppressing unwelcome knowledge and ruling as the arbiters of what may be thought and said) or the more commonly feared meritocratic indifference to the poor, or even racists who think they no longer need to apologise.

What if “the poor are always with you”ť by birth-decreed definition despite the very best a determined welfare state can do.  With Bill English and Paula Bennett trying mentoring, social investment and other “interventions”, the hand-up is getting a good fresh go.

But assortative mating (e.g at tertiary education campuses) may be stretching the tails at both ends of the distribution.  Is it making the vital capacities to postpone gratification, and persistence (for example) less evident and less possible for many? Can institutions that assume and rely on general self respect, self reliance and self control survive if they must cater for people who would prefer, and prosper better in, more paternalistic (authoritarian) environments? Can we create new institutions or mechanisms that respond to such differences? Without the risk of us being all put in them, or the unwanted or dangerous aspect of their cultures infusing all institutions? There is literary and folk memory of satisfaction for many in military careers and master/servant relationships we now officially regard as demeaning.

Such institutions or mechanisms might not be compatible with the pervasive hind sight lawyer exposure and micro-management we have evolved.

I suspect the drunken and drug addled despair of Aboriginal communities in Australia could be how our families might respond if our intelligence in tracking and living in an impossible environment suddenly became irrelevant, and a significant proportion of our whanau were unlikely to be able to follow and contribute to the conversation of those who’ve rendered our special skills and aptitudes worthless. From Australia’s struggles, it is not obvious that liberal individualism, or  ”non-judgmental” (values indifferent, non-authoritarian?) welfarism can create a setting to remedy that despair.

It might need a more realistic recognition of the wish of some communities for a kind of chosen rule that is more paternalistic and communitarian. Can such communities co-exist alongside communities that want more individualistic liberty, (and its accompanying self-reliance)?

 

Constitutional reforms sought by ‘progressives’

  • July 1st, 2016

A much younger and more beautiful friend tells me:
“According to my Facebook feed, Brexit has highlighted some obvious flaws in the democratic system. This is what I’ve learned these past few days:

(1) Votes should be weighted in favour of the professional and cosmopolitan classes
(2) Better still, only the above classes should be allowed to vote at all, as the rest are either not uber-cool or can’t be trusted to know what’s good for them
(3) Exceptions to (1) and (2) would apply to anyone who identifies with being female, LGBT, of a non-Caucasian ethnicity or religious persuasion (other than Christianity or Judaism) or who has a physical or mental disability as that would be obviously discriminatory
(4) If anyone under 25 elects not to vote, it’s not their fault and they should be able to cast a late vote if they don’t like the outcome
(5) While we’re at it, anyone under 25 should get at least two votes, as they have more of a future than the rest of us
(6) If we must have a one person-one vote referendum, then MPs should be given a power of veto to prevent any Silly-Billyness
(7) Well, maybe not every MP …”

W Peters rising at Peter Cullen’s Breakfast

  • June 29th, 2016

Rt Hon Winston Peters this morning delivered his stump speech to a Wellington Club room stuffed to the gills with the city’s elite. He called on his great memory of events to keep them absorbed, despite random barbs for them as his natural enemies.
Chatham House rules prevail as Peter Cullen has reminded me. But I can say there was nothing I heard which would surprise anyone who has heard him speak recently, including his invitation speech on Brexit in London.
Election themes were foreshadowed with no surprises – inequality, immigration, arrogance and faults of government on behalf of a shadowy elite.

The significance of this is the huge number who got along at 7am to hear him, and the serious attention he is receiving. Peter Cullen tells me there was a large waiting list. They don’t turn up for a free breakfast. The courteous donate expense contributions. And the “breakfast” is token

Accordingly I see even lower prospects that Winston Peters will not decide who governs after the next election.

And we may be grateful. The media will not cover anyone else who calls out the NatLabGreen ruling consensus on immigration, and race entitlements that trash equality before the law. He alone may be able to ensure we do not need a Brexit style uprising against the elite before such stupidities are reversed.

If he does not find it just all too much work.

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