Farewell sitting of the Full Court for the Honourable Chief Justice Allsop AC

Melbourne

9.41 AM, Wednesday, 8 March 2023

THE HONOURABLE JAMES ALLSOP AC, Chief Justice
THE HONOURABLE JUSTICE KENNY AM
THE HONOURABLE JUSTICE BROMBERG
THE HONOURABLE JUSTICE MURPHY
THE HONOURABLE JUSTICE MORTIMER
THE HONOURABLE JUSTICE BEACH
THE HONOURABLE JUSTICE MOSHINSKY
THE HONOURABLE JUSTICE O'CALLAGHAN
THE HONOURABLE JUSTICE LEE
THE HONOURABLE JUSTICE WHEELAHAN
THE HONOURABLE JUSTICE O'BRYAN
THE HONOURABLE JUSTICE SNADEN
THE HONOURABLE JUSTICE ANDERSON
THE HONOURABLE JUSTICE ROFE
THE HONOURABLE JUSTICE McEVOY
THE HONOURABLE JUSTICE HESPE
THE HONOURABLE JUSTICE BUTTON

ALLSOP CJ: May I welcome you all to this sitting of the Court. First, and importantly, I acknowledge the traditional custodians of the land on which we gather, the people of the Kulin nation and pay my respects to the Elders past, present and emerging. This is not a ceremonial sitting of the Court to mark my retirement from judicial office, though, I am retiring and there will be a ceremonial sitting on 31 March in Sydney. This sitting of the resident Judges from Melbourne together with Justice Lee who is visiting, is to allow me to thank publicly, the legal profession, the Chief Justice and Judges of the Supreme Court, the Judges of the Federal Circuit and Family Court, as well as my present and former colleagues in the presence of their local profession.

I acknowledge the presence here today of my Chief Justice, the Honourable Michael Black KC, Chief Justice Alstergren of the Federal Circuit and Family Court, Chief Justice Ferguson, President Emerton of the Court of Appeal, Deputy Chief Judge Mercuri of the Federal Circuit and Family Court, and the Judges of the Court of Appeal and the Judges of the Supreme Court and of the Federal Circuit and Family Court. Also, the Honourable Susan Crennan AC KC. Many of my former colleagues, the Honourable Ron Merkel KC, the Honourable Ray Finkelsetin AO KC, the Honourable Mark Weinberg, the Honourable Tony Pagone KC, the Honourable Jennifer Davies Supreme Court. Paul Anastassiou, my friend and former colleague could not be here today, but representing him, if I may put it that way, is Sandra, his wife. And so many friends from the profession. Thank you all for coming. You honour the Court by your presence, and I am touched. I appreciate very much each and every one of you coming today.

May I first thank the Profession. I begin with the Profession because of its importance to the administration of justice. There is a natural harmony and symmetry between the Profession of the State and its admitting Supreme Court. On the other hand, there is a certain asymmetry between a National Court and a State Profession. That asymmetry can inspire a slightly weaker sense of association or relationship. I struggled with this in New South Wales in the first few years after 2013, until I realised it was natural. A system of federation places upon and demands of its citizens a duality of consciousness, State and Nation. We are Australians, but also, Victorian or Western Australians, etcetera. However, the existence of the State does not deny the existence of the Nation, nor the Nation the State. So this Court is also the Court of the professions of other States and territories, and the Court of the Australian polity and people.

In a perhaps different, though nonetheless meaningful way, as all Supreme Courts are Court of the federation. So you are our Profession as much as any other Court. The central place of an independent and learned profession in the administration of justice cannot be overlooked. It is part of the common law foundation of the Constitution. The independence of the judiciary as a functioning third arm of government cannot be healthy and robust without an independent cast of mind of duty and freedom of influence from the power of others. These are not considerations to justify protection of the profession from scrutiny and criticism. They are the consideration that give rise to the demands by the courts of the profession for lifelong learning, duties of unremitting honesty and service shaped by undivided loyalty to the client, but within the framework of the duty to the Court. To paraphrase the great Cardozo, not the morals of the marketplace being mere honesty alone, but the punctilio of an honour the most sensitive.

The power of executive government, of wealth and privilege, and of popular sentiment and opinion, cannot be faced effectively by the Courts without an independent and learned profession to stock its numbers and to assist in its deliberations by fearless advocacy. Since I became a Judge in 2001, I have always received and seen this Court receive the highest standards of assistance from the profession in this State, and in all States of the Commonwealth. And for this, I wish to express my personal gratitude and the gratitude of the Court. The profession of this State, especially the Bar, if I may say so, has always given the Courts of this country, the fearless, scholarly, acute and wise advocacy for which it is famous around the country.

May I turn to the Supreme Court and the Federal Circuit and Family Court. I would first like to thank Chief Justice Ferguson, President Emerton and all the Judges of the Court of Appeal and the Supreme Court for their friendship, collegiality and cooperation in my time as Chief Justice. I very much appreciate it.

I also wish to thank Chief Justice Alstergren and the Federal Circuit and Family Court Judges for his and their cooperation and warm welcomes in the times that I have visited Melbourne over the years. The overlapping political and social organisation of the federated nation requires the difference in unity, local and national, be reconciled and worked through in a daily process of mutual respect, friendship, collegiality, and a proper rejection of institutional hubris drawn from the essential humility we must display that on a daily basis, is demanded of us by the expressed skill and talent of those around us in all Courts. Whilst regular meetings of the Council of Chief Justices of Australia and New Zealand are an important factor in this regard, they are buttressed by their respectful, harmonious and collegiate relationships among the judges of State and Federal Courts. Such, of course, should be assumed as natural, but that does not mean that such should not be remarked upon and be the subject of expressed thanks. This does not merely reflect good professional manners among colleagues. This is a feature that is part of the Constitutional reality of an integrated Federal – that is, State and Commonwealth – judiciary.

It is the duty of judges from all polities to give unsparing respect and support to each other. This was a vision of the first Chief Justice of this Court, Sir Nigel Bowen, whose intellect, calm, patience, grace and tact stamped the court with a character that is has not lost, one of politeness and intellectual practicality, in an integrated national judicial system with strong and collegiate Supreme Courts beside it. That Sir Nigel's vision has come to pass after early tribulations is a tribute to the same qualities of patience, grace and tact of later Chief Justices, State and Federal, such as Chief Justice Black and Chief Justice Ferguson, for which I thank them personally but publicly today.

You will forgive me if I say something more about Sir Nigel Bowen. His associate, I was lucky enough to be. He was a kind and gentle man, a gentleman, acutely intelligent, but made of tough fibre that allowed him, in New Guinea, in the late hostilities, to undertake reconnaissance behind Japanese lines, accompanied by a pair whose company only war or – either in – war or Anthony Powell novel could throw up, Captain Frank, later Sir Frank Packer, and Corporal Ninian, later Sir Ninian Stephen. Nigel Bowen understood our Commonwealth. He understood the place of the courts in it and he understood the law. He understood, respected and admired the Supreme Courts, on one of which he sat as a judge of appeal and then the Chief Judge in equity, and their place in the preservation of our democracy. Although that admiration for the Federal Court was not always at first entirely reciprocated, he knew that mutual respect and admiration would come as it has, thanks to Chief Justices such as Ferguson and Black.

May I also thank the judges of the Federal Circuit and Family Court for their collegiality and friendship shown to me and my colleagues at all times in Melbourne. And may I particularly thank Chief Justice Alstergren for his friendship and cooperation in our working together in the years we have had. His task is an enormous one, in one of, if not the most, important court in the country, in which at least, I think, finally, Parliament and the executive government, now recognises the proper need for funding.

May I turn to colleagues and former colleagues.

One of the great gifts and privileges of the position of Judge and Chief Justice is to work closely with some remarkable people. Here today are some of those remarkable people. When I joined the court in 2001, former justices Merkel, Finkelstein and Weinberg and Justice Kenny were already here and well-known to me from my time at the Bar, appearing against and before them, and reading their judgments. I admired their capacity, skill and wisdom as lawyers and judges. Those views only became stronger as I grew to know them as colleagues. Similarly, all my colleagues have exemplified all the qualities of great Federal Court judges, and have given me the warmth of friendship and confidence from their wisdom, for which I thank them. It has been a privilege to be the colleague of such a group of people, and I thank them.

In almost 22 years that the Commonwealth and the State of New South Wales have given me as a Judge have provided me with the opportunity to think about and experience law and justice in a way and from a mode of attention that one does not experience in practice. That is, that law is justice, that law is to be experienced, not only by reducing ideas through abstract thought and taxonomical arrangement to rules and principles, but also by recognising the human realities of experience, and that law is concerned primarily with power and its limit, and the protection of the individual of the community and of a just, democratic society.

That law is or can be seen as justice and not abstractedly separate from it in some reductionist, defined way. It comes from the recognition of deep human values that reside in the common law and in equity. Such values are derived from human exchange and experience, from a rejection of unfairness, from the dignity of the individual and the group, from the urge in humans for the requisite degree or certainty for the context or purpose at hand and from human decency borne of basal kindness and mercy. One lives these ideas and physical reality of their experience in the daily work of this Court – and all Courts. Here, the migration, the Native Title, the bankruptcy, the employment and industrial relations, the commercial and regulatory work, the constitutional problems and statutory construction, to a greater or lesser degree in all the Court's work. This is so because these deep human values and their sources comprise the human tissue of the law which envelops, saturates and binds abstract ideas, rules and principles, otherwise expressed in bold text with all the power of text, but with all the limits of text.

Courts are places where catastrophic experiences take place for litigants every day. That is the nature of the potential harm bound in the results of every case. This potential catastrophe is inextricably bound with the ever-present humiliation of powerlessness and being cast into the hands of others, cast into the hands of lawyers and judges. The Judges of this Court – and may I say the Judges and former Judges of this Registry – taught me this, for which I will always be grateful. This is not the occasion to thank all my family and all those close to me for what they have done. I will do this at my farewell and ceremonial sitting. But my partner, Sandy, is here today, and I wish to thank her for her love and support over the last six years in which I have been lucky enough to be with her and share my life with her.

Mr Hay, President of the Victorian Bar Association.

MR S. HAY KC: May it please the court. I also acknowledge the traditional owners of the land and pay my respects to their Elders, past and present. I appear on behalf of the Victorian Bar to farewell your Honour as Chief Justice of this court. While your Honour has been Chief Justice, it has been a court of great courtesy and civility, and of clarity in its judgments. Your Honour has led by example in that regard. Your Honour once described administrative law as "time-worn, barely coherent rules to be memorised", "boring, "archaic" and "esoteric".

Perhaps, as a result, at university, you abandoned law, finished your arts degree and taught English and history at secondary school for long enough to realise that, in your own words, you "may have been a tad hasty" in rejecting law out of hand. So back to university, initially part-time, where your Honour earned a law degree with first class Honours from the University of Sydney and won the prestigious university medal in law.

Your Honour's early career saw you as an associate to the Chief Judge of the Federal Court of Australia as was then the title, the indomitable Sir Nigel Bowen. His mentorship had a considerable influence on you, as we have heard today. Your Honour was called to the bar in 1981 and read with the equally invulnerable Roger Giles KC, later a Judge of the Court of Appeal of the New South Wales Court. You took silk in 1994 and enjoyed a distinguished 20 year career at the New South Wales bar, practising mainly in commercial law, including insurance matters and maritime law matters. You were remembered by colleagues from this time as a model of Courtesy and patience. Indeed, these are recurring themes in your Honour's career. In 2001, your Honour was sworn in as a Chief Justice of the Federal Court of Australia, the first Federal Court Associate to be appointed to the Federal Court. You earned the nickname "The Admiral" for your Honour's pioneering work as a convenor of the national panel of maritime Judges.

It is said by some that your Honour advanced the profile of the Court over that of the State Supreme Courts that had concurrent admiralty jurisdiction. After seven years of distinguished service as a judge of the Federal Court, your Honour was poached by New South Wales to be President of the New South Wales Court of Appeal. This was a prolific and happy time in your professional life. Then in 2012, your Honour was announced as the fourth Chief Justice of the Federal Court of Australia. Many of us vividly remember your initial welcome to Melbourne as Chief Justice by Fiona McLeod Supreme Court in 2013. As a form of blatant inducement, your Honour was offered a membership at the Collingwood Football Club.

Some may have wilted, but your Honour, quite rightly, rejected the bribe, and as a result, you remained extremely popular with about 99 per cent of the Court ever since. The other one per cent probably not worth bothering about. Your Honour was recognised in the Australia Day Honours in 2013 as an officer of the Order of Australia for your distinguished service to the judiciary, to the law, as a judge, to reforms to equity and access through contributions to the administration of maritime law and legal education. Earlier this year, you were prompted to a companion of the order of Australia for eminent service to the judiciary and to the law, to organisational and technological reform, to legal education and to insolvency law.

These are well-deserved tributes. They reflect that your leadership has extended an exceptional intellectual contribution to our jurisprudence and to the thoughtful and determined reform of the ordinance and administration of justice. Your Honour has also received international recognition, being a master of the bench of the middle temple in London and honorary bencher, and you have also been elected to the American Law Institute. Your achievements as Chief Justice are many, but perhaps you provided an insight into an area of particular focus at your 2013 welcome to this Court, when your Honour said:

One of the most significant changes, I think, since the establishment of this Court has been the change in relationship of the Courts. When this Court was established, relations with the State Courts in a number of States was, to put it mildly, less than warmly congenial. That, perhaps, was understandable in human terms, but if one appreciates the importance of chapter 3 of the constitution, section 77 in particular, one realises the importance, indeed, constitutional importance of good cooperative and collegiate arrangements and relationships between the Courts of the different polities in the one nation. We are all a part of one integrated federated legal system.

There is no question that your Honour has worked tirelessly to grow a cooperative and collegiate approach. Your Honour's judgments remain a great source of learning and guidance to current and future generations. They display deep and patient legal scholarship, considerable industry and the principal manner in which you set out about resolving disputes. Over the years, your Honour has been a great friend to our bar. We have spoken about the Victorian bar taking a higher profile in mentoring and also in equity. We have listened, we are taking action, and we will continue to do so. As retirement beckons and you leave behind the challenges of the bench, we all look forward to continuing our association with you. On behalf of the bar, I wish your Honour a long and happy retirement. May it please the Court.

ALLSOP CJ: Thank you, Mr Hay. Ms Wolff, just before I call on you, once again, I have done it. I was rude enough to overlook the former Governor one day, and today, I have overlooked the Solicitor-General and my dear colleague, Peter Gray. I do apologise. Ms Wolff.

MS T. WOLFF: May it please the Court. I appear on behalf of the Law Institute of Victoria and the solicitors of this State, to farewell your Honour as Chief Justice of this Court. A further respectful acknowledgement of the traditional owners of the lands on which we gather, the Wurundjeri people of the Kulin nation, and also pay my deep respects to Elders past, present and emerging, and extend that to any Aboriginal or Torres Strait Islander person here today. Your Honour, it is a privilege and a great pleasure to speak today on your retirement from the Federal Court after 10 years of serving as its Chief Justice. You are renowned as an exemplary jurist, highly regarded across many fields of law, and your tenure as Chief Justice has been credited with transforming the Federal Court into a truly national Court.

Many have lauded your achievements which have been formally recognised, as we have just heard, when you were made an officer of the order of Australia in 2013, and when you were made a companion of the order of Australia in the 2023 Australia Day honours, for eminent to the judiciary and to the law, or organisational and technological reform, to legal education and to insolvency law. As an illustration of your impact beyond these shores, we spoke with Professor Doug Jones AO, a leading international commercial arbitrator and an international judge of the Singapore International Commercial Court who has described you as the intellectual leader of Australian jurisprudence on international arbitration.

Mr Jones says that when Australia was in its first throes of developing as a credible seat of international arbitrations in the region, your Honour's support was crucial. You offered your time and contribution outside the judicial space to this working to advance Australia's role in international arbitration across the world. As a result of what Mr Jones describes as your Honour's unstinting support, there are now many international firms and local firms practicing international arbitration in Australia, but here, Chief Justice, I would like to take the opportunity to do so, particularly on behalf of the profession, the solicitor branch of the profession, for your support in this State.

As everyone in this Court knows, the last few years have been particularly tough for practitioners in Victoria, as pandemic lockdowns threw justice system into disarray and with the advent of virtual hearings which taxed even the most technology savvy of judicial officers and practitioners alike. As backlogs grew, the judiciary and the profession were deeply concerned about the impact on the community in accessing justice in a timely fashion. Into this environment of disruption, uncertainty and frankly, chaos, your Honour strode resolutely, with conviction and with compassion. Your Honour expertly orchestrated the Court's rapid adaptation to pandemic-induced restrictions. Within days of the COVID-19 first lockdown, you sent out memoranda to the profession informing them of the new video conferencing arrangements and urging them to be patient with the new system and the inevitable difficulties that that would throw up.

In these early days when many were struggling with technology and with the challenges to traditional conventions brought about by virtual hearings, your Honour communicated weekly, almost, with the profession, instituting new practice directions to bring about an entirely new way of working. And as virtual hearings became the norm, you also delicately, and gently, reminded practitioners that these were, in fact, real hearings, and that the Court was not a causal engagement. Usual Court formalities should continue to be observed and hearings are no less professional exchanges, no less important, no less meaningful, of no less consequence because they are online.

You also played a pivotal role in supporting and reassuring the profession here in Victoria, writing in September 2021, during the state's six lockdown, on behalf of the judges of the court, expressing your appreciation of how difficult lockdowns had been, acknowledging the personal and the professional strains, difficulties and pressures. You demonstrated empathy and compassion for many in the profession who are juggling family commitments, home schooling and other domestic pressures that exacerbated the difficulties of undertaking the court – the tasks required of the.

You may it known that the court and all the judges were alive to the difficulties, and that members of the profession should not feel constrained to bring these matters to the attention of the court. We also thank the profession for how they've assisted the court in meeting the demands of the pandemic and in meeting the expectations and the needs of the Australia community in maintain accessing to justice. Your Honour's words, and those of the Chief Justice of Victoria, who's here today, and the Chief Justice of the Federal Circuit Court and Family – the Federal Family Court of Australia, as he is now known, were received with sincerity and appreciation across the profession.

We know this because practitioners from across the state, from large firms and small firms alike, contacted us to let us know, and because the – that daily addition of our LIV Law News Net, which carried those letters, was the most opened of all communications that year. Your Honour has been keen to embrace and retain the improvements and efficiencies brought by the technological innovations of the – as the court adapted to COVID. However, your Honour has also reminded participants that the court should never lose its humanity, and that special care should also be taken with those who are disadvantaged by the changes brough about by technology.

Your Honour's legacy is impressive, including, as your Honour's friend and former Federal Court judge, the Honourable John Middleton says, transforming the court from a collection of different registries, all doing their own thing, into a truly unified national court. Restructuring the court's administration has also required a restricting of judge's expectations to be nationally focused, rather than restricted to their local jurisdiction. Your Honour, although you retire as Chief Justice of this court, no one expects your Honour to retire from professional life or from the hearts and minds of a very grateful profession.

We thank your Honour for your service and for your immense contribution, and warmly wish you and your family all the best as you head into retirement. May it please the court.

ALLSOP CJ: Thank you, Ms Wolff. Justice Kenny.

KENNY J: May I begin by acknowledging the traditional custodians of the land on which we gather, and pay my respects to their Elders, past, present and future.

Chief Justice, Mr Hay, Ms Wolff, and everyone:

It is a privilege and pleasure to speak on behalf of the Victorian Judges this morning.

We thank you, Chief Justice, for all you have done to support, encourage and guide us during the past decade. We have indeed flourished under your leadership.

First, we have benefitted from your energy and enthusiasm. These are invaluable attributes for the leader of strong-minded individuals, as judges typically are. Indeed, you showed your energetic and enthusiastic side when we first met in Melbourne in 2001, as junior judges. We both attended a meeting in Melbourne arranged by Justice Finkelstein, as he then was, to discuss the modernisation of the Federal Court's Library, and you proposed another meeting in Sydney, this time during the weekend. There was some disagreement about the weekend aspect of your proposal, but my recollection is that your energetic insistence and enthusiasm prevailed. The ultimate outcome was a National Court Library fit for decades into the future, and a collection in Melbourne that has sustained and invigorated the work of the Judges of the Court in Melbourne and beyond to this day.

You brought the same energy and enthusiasm to being our Chief Justice. When you returned to this Court in 2013, aspects of the Court's practice and procedure varied in different ways across Australia, from Registry to Registry. Judicial case management varied too, sometimes significantly. Save for appeals, cases were docketed mostly within the relevant State Registry on the basis of the availability of the resident Judges. You made the case for change. Not all agreed upon a more national approach. Judicial views in Melbourne differed: some were supportive, some doubtful, and others firmly opposed.

Now, I cannot say, Chief Justice, whether you are a Star Trek person, but this was indeed your Captain Kirk moment: "to boldly go where no man has gone before". And you did.

The Judges of the Court, including the Melbourne Judges, ultimately agreed to the National Court Framework. Your energy, enthusiasm and intellect drove the change and its subsequent implementation. The Framework changed us in this Registry, as we, in Melbourne, took our place in a court that was even more national in practice and outlook than before.

You have taken care, however, to ensure that the national character of the Court does not lead to disengagement from the community of the Court, both locally and in our region. In keeping with your consultative approach, you have encouraged our involvement in the legal community of Victoria, especially through your support for education, information exchanges and joint celebrations, including your joint hosting with Chief Justice Ferguson and Chief Justice Alstergren of Silks Bows in 2022. You have also encouraged an international outlook, especially through your strong support for cooperation with national courts in the Pacific and elsewhere. Through your involvement, the Court currently has active partnerships and programs with 12 Pacific countries and several Asian nations.

Chief Justice, we in Melbourne have also enjoyed the gift of your scholarship. In this regard, you have clearly led by example. I shall not forget the scholarly exposition of maritime law in Ship Sam Hawk v Reiter Petroleum Inc.[1] Did a maritime lien arise from the supply of necessaries, which includes bunkers, to a ship? If anyone thought this a simple question, they would be wrong. 

You, Chief Justice, with Justice Edelman, wrote a scholarly account of this difficult area of the law, which led to the ultimate conclusion that our law did not recognise a maritime lien arising from the supply of necessaries. Below this apparently straightforward conclusion, however, the law report reader will find considered, extraordinarily wide-ranging research, and the most careful evaluation of competing considerations.

There are of course many more cases I might mention. Haritos v Federal Commissioner of Taxation[2] springs to mind and is close to my heart. Here, you led the Court to take a principled, in substance approach to the identification of what was a 'question of law' sufficient to support an appeal from the Administrative Appeals Tribunal to this Court. Although past jurisprudence was messy, your approach throughout the proceeding was clear, and anchored in an appreciation of the history and purpose of a statutory appeal of this kind. 

Your writing and scholarship adorn the Federal Court Reports, as orchids do nature; they are spots of delight! These spots of delight have inspired us all in Melbourne to try a little harder and care a little more.

Your scholarly interests have also enhanced our judicial education where, as Justice Moshinsky reminded me recently, you encouraged us to think about topics of wider intellectual interest relevant to our understanding of our work, such as, for example, Dr Iain McGilchrist's presentation on the working of the human brain with respect to problem-solving, with its capacity to attend to detail and also to see things as a whole.

Chief Justice, you have, through your judgments, show a singular ability to express how these elements of legal reasoning intersect with and inform the other. No better example can be found than the often cited passage in your reasons in Hands[3], where you explained that a lawful exercise of executive power under our system of law entails an obligation to confront the human consequences of its exercise – an obligation born out of common decency and shared humanity, which cannot be discharged by recourse to decisional checklists or formulaic expressions. 

Your concern that the law recognise individual dignity is not found only in your judgments. Justice Mortimer reminded me that, as Chief Justice, you have driven the expansion of the Court's pro bono assistance scheme, particularly for unrepresented applicants in immigration detention. What started as a measure to aid them pro tempore during the COVID-19 pandemic has, under your leadership, become a hallmark of the Court.

To conclude, not long ago, Chief Justice, you advised a litigant in person that they would be given a full opportunity to put what they wanted to the Court. I was there: that opportunity was given. Your patience and courtesy in that case reminded me again that we administer the law principally to protect people from the unlawful exercise of power whether by the State or private interests. By word and action, you have always reminded us of the human dimension of the law, and that we, Judges, are here for everyone.

Chief Justice, we regret your departure from the Court. We thank you for all you have done for us as Chief Justice, and we wish you much happiness and satisfaction in your life after the Court.

ALLSOP CJ: Thank you, Justice Kenny. For the last time, in this beautiful courtroom, with the Constitution on the window thanks to former Chief Justice Black, I now adjourn the Court.

[1] [2016] FCAFC 26; 246 FCR 337.

[2] [2015] FCAFC 92; 233 FCR 315.

[3] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628.

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