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					  Coronial and related issues in the
  Australian Defence Force (ADF)

Overview of Defence policy on ADF deaths since WWII
   and Defence – Coronial interactions since 2001
        Lieutenant Colonel Rosemary Landy




       Defence presentation for Asia-Pacific Coroners Society Conference
                     Defence presentation to Asia-Pacific
                      Hobart Tasmania 31 October 2007
                     Coroners Society Conference Hobart
                                      History


• WWI, WWII and other conflicts, casualties buried
  overseas in Commonwealth War Graves
• 309 casualties of Korean War
• Few ADF deaths on operations since Vietnam




                                Defence presentation to Asia-Pacific
Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007
                                Coroners Society Conference Hobart
                                        ADF deaths*

                   100000




                 Deaths




                      100
                            Boer W ar    WWI      W W II         Korea   Vietnam   Peacekeeping
                                                                                    /Gulf W ars

                                                           War

                            Army               Navy              Air Force              TOTAL

                                                             * Sourced from National Archives 2007


                               Defence presentation to Conference
Defence presentation for Asia-Pacific Coroners Society Asia-Pacific Hobart Tasmania 31 October 2007
                               Coroners Society Conference Hobart
   Afghanistan Iraq




Defence presentation to Asia-Pacific
Coroners Society Conference Hobart
                  ADF’s current activities
                                                                         approx pers

•   Operation Catalyst – Iraq                                           1575
•   Operation Astute – Timor-Leste                                      1100
•   Operation Slipper – Afghanistan                                      970
•   Operation Resolute – Australia’s offshore maritime areas             450
•   Operation Anode – Solomon Islands                                    140
•   Operation Mazurka – Sinai Peninsula, Egypt                            25
•   Operation Azure – Sudan                                               15
•   Operation Paladin – Middle East                                       12
•   Operation Tower – Timor Leste                                          4
•   ADF support to the United Nations Office in Timor Leste (UNOTIL)
•   Recent Past Operations: Operation Sumatra Assist | Operation Pakistan Assist | Operation
    Cranberry | Operation Relex 2 | Operation Celesta | Operation Ramp ADF support to Tonga |
    ADF support to Australian citizens in Fiji



Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
                                         Now


•   Increased operational tempo since 1990’s
•   Duty of care by ADF
•   Intense media scrutiny
•   Changing public expectations
•   Political interest



Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
                            ADF legislation


•   Defence Act 1903
•   Naval Defence Act 1910
•   Air Force Act 1923
•   Defence Force Regulations Part IV
•   Defence (Certification of Death) Regulation



Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
                                 ADF policy


• Defence policy re deaths ▼since WWII
    – ? Changing social attitudes, casualties not acceptable
    – By 1990’s, nothing applicable to all three Services
• Nothing of the scope to cope with today’s scenarios
    – HMAS Westralia 1998, Bali bombings
    – ? Terrorism on home soil, multiple locations throughout
      the world

Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
                                 ADF issues


• Media and political attention
    – Private Kovco’s death and repatriation
    – Funeral for Trooper Pearce (? Sergeant Locke)
          • Attended by PM, Minister, CDF, Leader of Opposition

• Defence has constant changeover of personnel,
  most have no experience of handling deceased

Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
Coronial and related issues in the Australian Defence Force
                          (ADF)


 Overview of Defence Instruction (General) Personnel 20-6
 Deaths within and outside Australia of Australian Defence
                        Personnel
              Wing Commander Jim Lewis
          Directorate Military Personnel Policy




          Defence presentation for Asia-Pacific Coroners Society Conference
                        Defence presentation to Asia-Pacific
                         Hobart Tasmania 31 October 2007
                        Coroners Society Conference Hobart
           ADF management of fatalities


• Defence policy re deaths ▼since WWII
    – ? Changing social attitudes, casualties not acceptable
    – By 2000, no appropriate policy

• Now – Defence Instruction – Deaths within and
  outside Australia of Australian Defence personnel


Defence presentation for Asia-Pacific Coroners Society Conference Hobart Tasmania 31 October 2007
                               Defence presentation to Asia-Pacific
                               Coroners Society Conference Hobart
Defence Instruction (General) Personnel 20-6 –
Deaths within and outside Australia of Australian
Defence personnel.
 •Applies to Navy, Army, Air Force, and applicable to
 Defence Public Servants and Defence Civilians

 •Issued by or with the authority of the Secretary and CDF
     •Always applicable to Defence members,
     • May be applicable to Defence employees and external
     service providers
 •Enforceable instructions intended as long-term (three or
 more years duration) policies

                                Defence presentation to Asia-Pacific
Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007
                                Coroners Society Conference Hobart
                                    ADF issues


     • Size and diversity of Defence
     • Posting cycle
       • Perishable corporate knowledge
       • The need for written instructions
     • Our Death Policy




                                Defence presentation to Asia-Pacific
Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007
                                Coroners Society Conference Hobart
Coronial and related issues in the Australian Defence Force
                          (ADF)


 Overview of new ADF DVI capability/DNA repository for
                    ADF personnel
               Commodore Robyn Walker
   Director-General Strategic Health Policy and Plans




          Defence presentation for Asia-Pacific Coroners Society Conference
                        Defence presentation to Asia-Pacific
                         Hobart Tasmania 31 October 2007
                        Coroners Society Conference Hobart
Defence presentation to Asia-Pacific
Coroners Society Conference Hobart
                   Background

• Busiest operational period for many years
• Risk to our people is very real particularly in
  MEAO
• Involvement with Bali I, Sumatra and potential for
  mass casualties led to a review of our DVI
  capabilities




                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
              DNA Repository

• Visual identification is not reliable
• Dental material may not be recovered
• Fingerprints – not collected by the ADF and may
  not be possible post incineration
• DNA- antemortem
• DNA repositories exist in the US and UK Defence
  Forces


                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
     DNA Repository – ADF experience

•   RAAF Institute of Aviation Medicine
•   Black Hawk Board of Inquiry
•   Current legislation
•   Voluntary vs Compulsory




                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
       Interim Voluntary Repository

• Obtain consent
• Blood spot on Whatman’s FTA paper
• Tamper proof envelope
• Central storage facility
• Recorded in medical records and personnel
  records (PMKEYS)
• Operational preparation, annual health assessment,
  time of entry
• No analysis until time of death
                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
               Required Actions

• Identify and procure/establish a central storage
  facility
• Develop detailed policy regrading collection,
  storage, retrieval and destruction of samples
• Develop a detailed implementation and
  communication strategy
• Seek legislative change to allow the compulsory
  collection of blood

                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
              Where are we at?

• RFT for a commercial storage service released but
  only one tender submitted
   – Requirement for storage facility to require
     National Association of Testing Authorities
     Accreditation (NATA)
• Tender has been re-released




                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
 ADF Forensic Identification Capability

• Primary mission is the recovery and identification
  of the remains of ADF personnel who die on duty
  whilst overseas
• Scope exists under DACC to assist in any
  domestic identification operation
• At this stage the capability of mounting a formal
  DVI operation from within the ADF does not exist



                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
            Immediate capability
• Each core ADF forensic identification team
  consists of one forensic pathologist and two
  forensic odontologists
• Force prepared and ready for deployment
• Equipment issues




                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
       Medium to long term capability
• The ADF should develop a DVI capability to enable a
  response to intermediate incidents (incidents involving 5-
  20 fatalities)
• Service police investigators and service police to be trained
• Close liaison with the AFP to access this training
  continuum and a secondment program
• Workforce planning to recruit and train the forensic health
  specialists required
• Equipment issues
• Operational zone coordination
• Large incidents (greater than 20 fatalities) – will need
  assistance

                    Defence presentation to Asia-Pacific
                    Coroners Society Conference Hobart
Defence presentation to Asia-Pacific
Coroners Society Conference Hobart
Coronial and related issues in the Australian Defence Force
                          (ADF)


     Defence legislation with implications for coroners
                      Mr Greg Styman
            Deputy Defence General Counsel




          Defence presentation for Asia-Pacific Coroners Society Conference
                        Defence presentation to Asia-Pacific
                         Hobart Tasmania 31 October 2007
                        Coroners Society Conference Hobart
AUSTRALIAN DEFENCE FORCE
INQUIRIES & ADMINISTRATIVE
ARRANGEMENTS FOR DEFENCE
     MEMBER DEATHS




       Defence presentation to Asia-Pacific
       Coroners Society Conference Hobart
 WHAT IS AN ADF INQUIRY?
• ADF Inquiries are:
– administrative not discipline processes
– designed to support the command and control of
  the ADF
– internal to the ADF
– held to determine the facts and circumstances
  surrounding an incident or situation
– not to investigate civilian criminal offences or
  offences under the Defence Force Discipline Act
  1982
                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
       LEGAL BASIS FOR ADF
           INQUIRIES
• ADF Inquiries are:
– Authorised by the Defence Act 1903 s124(2A)
  AND S124(2c) and appointed and conducted
  under the Defence (Inquiry) Regulations 1985
  (D(I)R)
– appointed by the Chief of the Defence Force
  (CDF), CDF and the Secretary of Defence,
  Service Chiefs, or Commanding Officers -
  depending on the type of Inquiry
– governed by the Terms of Reference drafted by
  the Appointing Authority, which determines the
  scope of an Inquiry presentation to Asia-Pacific
                 Defence
                 Coroners Society Conference Hobart
    D(I)R - TYPES OF INQUIRIES
• General Courts of Inquiry
• Combined Boards of Inquiry
• Boards of Inquiry (BOIs)
• Chief of Defence Force Commissions of Inquiry
  (CDFCOIs)
• Inquiry Officer Inquiries (IOIs)

The purpose of these inquiries is to determine the facts and
  circumstances surrounding an incident to allow Defence to
  find out what happened and why, and if possible, to
  prevent a recurrence.
The most common inquiries are IOIs, BOIs and CDFCOIs
                   Defence presentation to Asia-Pacific
                   Coroners Society Conference Hobart
       BOARDS OF INQUIRY
APPOINTMENT
A BOI may be appointed by:
• CDF and the Secretary of Defence, acting concurrently, to
  inquire into “matters concerning the administration of the
  Defence Force” (reg.23(1)(a))
• CDF, to inquire into “matters concerning the Defence
  Force” (reg.23(1)(b))
• Service Chiefs, to inquire into matters concerning their
  respective service (reg. 23(1)(c))
• A delegate of CDF or a Service Chief (reg. 24)
The Terms of Reference determine the scope of an Inquiry
                   Defence presentation to Asia-Pacific
                   Coroners Society Conference Hobart
      BOARDS OF INQUIRY
CONDUCT
• A Board is made up of two or more persons who
  can be ADF or civilians (reg. 26)
• The President of a BOI can summon civilians and
  ADF members to appear at an inquiry to give
  evidence (reg.30)
• BOIs are not conducted in public unless directed
  to by the Appointing Authority (reg. 29(1)&(2))
• There is no set inquiry format (reg. 28)
• Evidence is not given on oath or affirmation
  (reg.31(1))
                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
      BOARDS OF INQUIRY
WITNESSES
• Civilians and CDF members can be compelled to
  attend and give evidence (reg.32)
• Witnesses cannot claim privilege against self-
  incrimination (reg.32(5))
• Defence Act 1903 s124(2C) provides witnesses
  with immunity from prosecution in civil or
  criminal courts for evidence they give to an
  inquiry, except in the case of false testimony
                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
     BOARDS OF INQUIRY
REPORTS
• A BOI provides a report to the Appointing
  Authority setting out the findings and
  recommendations (reg. 36)
• The Appointing Authority will decide what
  action should be taken on the agreed
  findings and recommendations and
  appropriate implementation
              Defence presentation to Asia-Pacific
              Coroners Society Conference Hobart
                      CDFCOIs
APPOINTMENT

• A CDFCOI is appointed by CDF (reg. 108)
• It is mandatory in the event of a “death or suicide of a
  member of the Defence Force that appear to have arisen
  out of, or in the course of, the member’s service” (reg. 109)
• The Minister may, however, direct that in specific
  circumstances a CDFCOI is not required (reg.109(2))

The Terms of Reference determine the scope of an Inquiry

                    Defence presentation to Asia-Pacific
                    Coroners Society Conference Hobart
                          CDFCOI
CONDUCT

• The President of a CDFCOI must be a civilian with judicial experience
  (reg.112(2))
• CDFCOIs are conducted in private unless the Appointing Authority
  directs that it is to be public (reg.117(1)&(2))
• There is no set inquiry format (reg. 115)
• CDFCOIs are not bound by the rules of evidence (reg.50)
• The President can obtain information on any matter relevant to the
  inquiry in any manner the President thinks fit (reg. 116)
• The president can summon ADF members or civilians to given
  evidence at the inquiry (reg. 118)
• Evidence is not taken on oath or affirmation (reg. 119(1))

                       Defence presentation to Asia-Pacific
                       Coroners Society Conference Hobart
                       CDFCOI
WITNESSES
• Civilians and Defence members can be compelled to attend
  and give evidence (reg.120)
• Statements given by witnesses during a CDFCOI are not
  admissible against the witness in any civil or criminal
  proceedings in any Federal, State or Territory court
  (reg.120(17))
• Defence Act 1903 s124(2C) provides witnesses with
  immunity from prosecution in civil or criminal courts for
  evidence they give to an inquiry, except in the case of false
  testimony
                    Defence presentation to Asia-Pacific
                    Coroners Society Conference Hobart
                   CDFCOI
REPORTING

• At the conclusion of the CDFCOI a report
  containing findings and recommendations is
  provided to CDF (reg. 123)
• CDF receives the report & may decide whether or
  not to accept the recommendations and what
  further action is required

                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
             INQUIRY OFFICER
                INQUIRIES
APPOINTMENT

• Inquiry Officers may be appointed to “inquire into a matter
  concerning a part of the Defence Force” (reg. 69(1))
• They can be appointed by a commanding officer, an officer with the
  powers of a formation commander under the Australian Military
  Regulations 1927, or a superior officer, provided that the matter being
  inquired into is under the “command or control of the officer” (reg.
  70A(1))
• An Inquiry Officer can be an ADF member, and APS employee or a
  civilian (reg.70)

The Terms of Reference determine the scope of the Inquiry


                        Defence presentation to Asia-Pacific
                        Coroners Society Conference Hobart
        INQUIRY OFFICERS
            INQUIRY
CONDUCT

• Evidence is not taken on oath or affirmation (reg.
  73)
• The inquiry is not conducted in public (reg. 72)
• There is no set inquiry format (reg. 71)



                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
         INQUIRY OFFICER
            INQUIRIES
WITNESSES
• ADF members can be compelled to attend and
  give evidence (reg.74 and 74A). Civilians cannot
  be compelled
• Witnesses cannot claim privilege against self-
  incrimination (reg.74(3A))
• Defence Act 1903 s124(2C) provides witnesses
  with immunity from prosecution in civil or
  criminal courts for evidence they give to an
  inquiry, except in the case of false testimony
                Defence presentation to Asia-Pacific
                Coroners Society Conference Hobart
        INQUIRY OFFICER
           INQUIRIES
REPORTING

• On completion of the inquiry, the Inquiry
  Officer must provide the Appointing
  Authority with a report containing findings
  and any recommendations from the findings
  (reg. 75)

              Defence presentation to Asia-Pacific
              Coroners Society Conference Hobart
DISCLOSURE OF D(I)R INQUIRY
    RECORDS OR REPORTS
• The President of an Inquiry may give directions relating to
  evidence given during an Inquiry, such as suppression
  orders (reg. 62(1)&(2))
• Records or reports of an Inquiry may not be disclosed
  without Ministerial approval (reg. 63(1)&(3))
• It is a defence to prosecution if the person who discloses a
  record or report is “acting in the performance of the duties
  of his or her office” (reg. 63(2A))
• No action can be taken against the publication of “a fair
  and accurate account of all or part of the proceedings” of
  an inquiry that is held in public (reg.64(2))

                    Defence presentation to Asia-Pacific
                    Coroners Society Conference Hobart
 INTERACTION BETWEEN ADF
   AND CIVILIAN INQUIRIES
• An ADF inquiry does not preclude and does
  not interfere with a Coronial or other
  civilian inquiry such as Comcare, HREOC,
  and police investigations.
• A Coroner has the discretion to include any
  findings of an ADF inquiry into their final
  report on an incident

              Defence presentation to Asia-Pacific
              Coroners Society Conference Hobart
    DEFENCE FORCE REGULATIONS 1952
                 AND
     THE DEFENCE (CERTIFICATION OF
       DEATHS) REGULATIONS 1953



• An examination of the capacity for Commissioned Officers to
  give directions for the disposal of a body and to issue a
  certificate of death


                     Defence presentation to Asia-Pacific
                     Coroners Society Conference Hobart
      Defence Force Regulations
               Part VI
• Defence Force Regulations Part VI sets out
  the requirements of the disposal of dead
  bodies of members of ADF.
  – A Commissioned officer may give directions as
    to the disposal of dead bodies, subject to
    Ministerial Direction (Reg 27)
  – An ADF Medical Officer may (Reg 29):
     • Perform a post-mortem; and
     • May sign a certificate of death.
                  Defence presentation to Asia-Pacific
                  Coroners Society Conference Hobart
      Regulation 27 – Ministerial
              Direction
• Ministerial Direction of 5 May 2004, signed by
  the Minister Assisting the Minister for Defence,
  Mal Brough.
• Expressly limits a Commissioned Officer’s
  authority to issue a direction to periods of armed
  conflict or where the death occurs outside
  Australia.
• Must consider whether it is possible/ appropriate
  to comply with State and Territory Coronial laws.
• Mandates that the direction will be in writing .
                 Defence presentation to Asia-Pacific
                 Coroners Society Conference Hobart
   Defence (Certification of Deaths)
          Regulations 1953


• A Certificate of Death:
   – The Minister may authorise a person to issue such
     certificates (Reg 6);
   – May be issued by a competent authority where a
     member of the ADF has died, or is missing and is
     presumed to have died (Reg 7);
   – Once issued is prima facie evidence of death (Reg 9).

                   Defence presentation to Asia-Pacific
                   Coroners Society Conference Hobart
Coronial and related issues in the Australian Defence Force
                          (ADF)


 Current status of the Military Justice System in the ADF
               Rear Admiral Mark Bonser
      Head Military Justice Implementation Team




          Defence presentation for Asia-Pacific Coroners Society Conference
                        Defence presentation to Asia-Pacific
                         Hobart Tasmania 31 October 2007
                        Coroners Society Conference Hobart
ADF Military Justice System

•Discipline – Defence Force Discipline Act
   •Administration – Inquiries/Adverse
    Administrative Action/Redress and
                Complaint




            Defence presentation to Asia-Pacific
            Coroners Society Conference Hobart
        The Senate Report

              • Bipartisan
• Numerous Previous Reviews and Inquiries
         • Common Criticisms
          • Wholesale Review



             Defence presentation to Asia-Pacific
             Coroners Society Conference Hobart
   Report Recommendations
         • 40 Recommendations
       • Disciplinary Investigations
• Prosecutions and Defence Legal Services
         • Disciplinary Tribunals
 • Administrative Reviews of Complaints
        • Administrative Inquiries


            Defence presentation to Asia-Pacific
            Coroners Society Conference Hobart
    Premise of Senate Report
       Recommendations

• All recommendations are based on the
 premise that the prosecution, defence and
adjudication functions should be conducted
    completely independent of Defence


            Defence presentation to Asia-Pacific
            Coroners Society Conference Hobart
A Separate Military Justice System

   • Discipline, Efficiency and Morale
      • Operational Effectiveness
          • Speed and Severity
      • In Australia and Overseas
           • In Peace and War
         • A Stand Alone Code

            Defence presentation to Asia-Pacific
            Coroners Society Conference Hobart
     Preferred Premise

• Ensure the right balance between
 maintaining effective discipline and
protecting individuals and their rights


          Defence presentation to Asia-Pacific
          Coroners Society Conference Hobart
  Disciplinary Investigations
• Timeliness, Quality and Independence of
       Service Police Investigations
         • ADF Provost Martial
           • Tri-Service Police Unit
            • Civilian Secondments
             • Enhanced Training
           • Professional Standards
   • Inspector General ADF Oversight
             Defence presentation to Asia-Pacific
             Coroners Society Conference Hobart
 Prosecutions and Defence
     Counsel Services
• Timeliness, Quality and Independence of
               Prosecutions
   • Director of Military Prosecutions
           • Statutory Appointment
             • One Star Officer
             • Permanent Staff
  • Director Defence Counsel Services
        • Line Position outside Services
        • National vice Regional Service
            Defence presentation to Asia-Pacific
            Coroners Society Conference Hobart
     Disciplinary Tribunals
 • Timeliness, Independence and Impartiality
• Perceived Independence of Trial and Review
                    Processes
• Chapter III of the Constitution – Limitations
    • Permanent Australian Military Court
              • Security of Tenure
           • Statutory Appointments
          • Security of Remuneration
                  • Registrar
  • Military Judge or Judge and Military Jury
             • Appeals to DFDAT
              Defence presentation to Asia-Pacific
              Coroners Society Conference Hobart
   Administrative Review of
        Complaints
   • Not Independent of Chain of Command
   • Potential and Real Conflicts of Interest
            • ADFARB Limitations
  • Streamline Complaint Mechanism - CRA
 • Internal and External Review and Oversight
               • Single Register
        • Transparency and Timeliness
• Primary Responsibility with Unit Commanders
              Defence presentation to Asia-Pacific
              Coroners Society Conference Hobart
Administrative Inquiries

• Perceived Lack of Independence
  • AAT/ADFARB Limitations
  • CDF Commission of Inquiry
     • Suicide and Deaths in Service
• Civilian with Judicial Experience Presiding


           Defence presentation to Asia-Pacific
           Coroners Society Conference Hobart
        Implementation
• Two year period until end 2007
       • Key Initiatives
         • Australian Military Court
       • CDF Commission of Inquiry
      • Tri-Service Investigation Unit
• Streamlined Complaints and ROG System
• 23 Recommendations Complete
   • Effective Administration
           Defence presentation to Asia-Pacific
           Coroners Society Conference Hobart
Military Justice System


The means to an end…Operational
         Effectiveness.



        Defence presentation to Asia-Pacific
        Coroners Society Conference Hobart
                               Questions?
                                Contact details
              – mark.bonser@defence.gov.au
              – gregory.styman@defence.gov.au
              – robyn.walker@defence.gov.au
              – jim.lewis@defence.gov.au
              – rosemary.landy@defence.gov.au



                                Defence presentation to Asia-Pacific
Defence presentation for Asia-Pacific Coroners Society Conference - Hobart Tasmania 31 October 2007
                                Coroners Society Conference Hobart

				
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