The difference between unfair treatment and unlawful discrimination

Many people with disabilities face barriers in accessing systems and are treated unfairly. But when is it simply unfair or unjust treatment, and when is it unlawful? Is it a breach of disability discrimination law or is it a breach of other disability laws?

In this Advance Your Advocacy Practice session, Julie Phillips, Manager of Disability Discrimination Legal Service, explores the fine line where unfair treatment tips into unlawful disability discrimination. She clarifies when to seek legal advice and how the complaints process works in Victoria compared to the federal process.




Good morning, everyone. Apologies for the delay. We’ve had some major tech issues and hopefully it will be smooth sailing from now on.

Welcome to the Advance your Advocacy Practice. I’m the Manager of the Disability Advocacy Resource Unit for this session today. Before we start I’d like to acknowledge that we’re meeting today on the land of the – unceded lands of the Wurundjeri people of the Kulin nation and pay my respects to their Elders past and present. I’d also like to pay my respects to all other Aboriginal and Torres Strait Islander people today.

Today’s session is about advancing your advocacy practice. Please ensure you add to your learning by asking your questions in the Q&A box and I’ll put them to our presenter. If we run out of time our presenter will follow up after the session concludes. This session will be recorded and available on the DARU website for your reference along with any other resources that are mentioned today.

For advocates we often see many people with disabilities facing barriers in accessing systems and being treated unfairly in our society. When is it simply unfair or unjust treatment and when is it unlawful. Is it a breach of discrimination law or other disability laws. At what point do you seek legal advice and where do you go.

Julie Phillips, the Manager of the Disability Discrimination Legal Service explores the fine line where unfair treatment tips into unlawful discrimination and what you as advocates can do about it. Please extend a warm welcome to Julie Phillips.

Hi everyone. Apologies from me as well. Look, for those of you who have to leave at 11.30, please do. Feel free to contact Melissa or myself if you – I know the video is accessible but if you want to chat about anything.

Just a warning but it is a little on point to the presentation. I was in a VCAT mediation yesterday and when it was my turn to outline my client’s position my dog started barking and obviously that was not acceptable in such a forum and I had to throw treats. So now if any of you have heard me talk about behaviours in school, I think I did a session some of you might have come, you might know I’ve taught my dog to bark at me and interrupt me when she wants to. Because everything has gone wrong today I’m just worried that might happen again so I’m going to apologise in advance.

So I’ve got a PowerPoint – here we are. Great. So as Melissa said we’re talking about when treatment of a person with a disability is just unfair and unjust or when it’s unlawful and even though I am the Manager of the Disability Discrimination Legal Service I’m not a lawyer so there are some questions that you might ask me that I might not be able to answer or I think I shouldn’t answer but, you know, feel free to go ahead and ask them anyway.

So I’m just going to forge forward on that understanding. So when do you decide that what someone is telling you is actually – in a legal behaviour on behalf of somebody else and when should you direct your client to get legal advice?  So I’m just going to talk about the very basics because this topic is huge and the laws are very complex, even just discrimination law is very complex but I think if I just talk about the basics we can start from there.

So in terms of whether some treatment of a person with a disability is discriminatory, in other words illegal, these are the questions that you have to kind of go through to see if you do meet that standard. So firstly, does your client have a disability?  I mean, usually that’s pretty obvious but it actually gets more subtle. So one thing is is the disability imputed?  Does someone believe your client has a disability when perhaps they might not?

Now, I know your disability agencies and so, all of your clients will have a disability but as we know a lot of people have more than one disability and they can be discriminated upon on the basis of a particular disability, not the other. So, for example, your client uses a communication device so it’s assumed that he or she has an intellectual disability. Or your client is gay so it’s assumed that he or she has aids or hep B.

My green tick here is probably saying isn’t this good because they’re on a lot of slides but the check is that you’ve met the criteria. Continuing on the same topic, the law also covers people that have had a diagnosed disability. Your client doesn’t have to have a diagnosis from a doctor but as long as someone has written something that says they’ve got a problem or an impairment or difficulties that affect them, either psychologically or physically, and the law goes into more detail on that. You still meet the definition of having a disability. It also includes whether your client might develop a disability and is likely to in the future, maybe because of a genetic family condition. And the law also covers behaviours of concern that are a symptom of a disability.

So if your client ticks the boxes for that we move on to other criteria. If your client is being mistreated because they use a guide dog or because they use an Auslan interpreter or because they use a particular piece of equipment that assists their disability, like a walker, that also counts, in terms of being able to make a discrimination complaint. But there are also distinct categories in which discrimination can apply and outside of those categories it’s not discrimination and so – I’ve covered most of the categories but there are a couple of other random ones that I haven’t covered but obviously – these are the obvious ones.

Work, the provision of goods or services, which is very, very broad, as you can imagine. Education. Accommodation. Sport. Local government or Council. Accessing a public building and clubs. So if the action or the treatment occurred in one of those environments, you’re on your way to be using discrimination law.

This is an example of what’s not covered and we have a lot of people calling us who are very aggrieved and understandably so because a number of things have happened to them. They’ve been treated very poorly because of their disability but because they don’t fit into those categories there’s nothing we can do to help them which distresses them further unfortunately. And so here’s some examples.

Your neighbour refers to you as a spastic. Well, your neighbour isn’t one of those. You don’t have a formal relationship covered by law when it’s just your neighbour. So that’s not going to work. Your mother cuts you out of her will because you have a disability. Again, that’s a family member not covered by law. A person on the train starts yelling at you for holding the train up because you have to wait for the driver to get a ramp. And that’s referred to often as vilification and the government actually is discussing new vilification laws as we speak and to specifically include people with disabilities, which is great, but that will be a different law anyway. It won’t be discrimination, unless they pop it in there.

So if we’ve satisfied those criteria then the next questions to ask are these: What sort of treatment is it?  And these are – I’m just going to go briefly through the three areas of – or definitions of discrimination. The first one is what we call direct discrimination which is kind of like very obvious. Is your client being – well, actually, it’s not always obvious. Sometimes it’s quite subtle and you can probably infer or make an assumption if you look at all the facts that you’re right, that you’re being treated worse or your client is being treated worse because of their disability.

So, for example, they applied for a job and didn’t get it because they disclosed they had Bipolar Disorder. Or they weren’t invited to the club dinner because they have Tourette’s and the organisers were worried they might embarrass themselves. Now, sometimes people are stupid enough to actually come out and say to a person with a disability, you know, we were worried you might swear at the dinner so we didn’t invite you but smart people don’t. They just make up a reason but sometimes people with disabilities can follow – follow the trail, if you like,.

And I recall one of my clients who believed they had been discriminated against because they were deaf and through the Commission process we actually obtained the other resumes for the others – for the other applicants and indeed she was – she had the better qualifications and they had told her that she hadn’t and so they certainly didn’t tell her that she didn’t get the job because she was deaf but when she – she just had that feeling and lodged the claim and she was right and so that was a successful claim. But often you won’t know and so that does make it difficult. So that’s direct discrimination.

This is called indirect discrimination. It’s when something’s been imposed upon someone and because of their disability it’s a disadvantage. So if you like the first type of discrimination was someone treating you differently because of the disability, saying well you can’t apply for the job because you’ve got the disability. This is a little bit the opposite and this is when you treat everyone the same and you expect everyone to do the same thing but the person with the disability can’t comply.

So an example is, everyone in the university architectural course has to make an oral presentation on their project to pass the semester and your client stutters. And so your client is not going to be able to make an oral presentation and will need to do it some other way. and if they say no that would be indirect discrimination.

And the third type of discrimination is the failure to provide reasonable adjustments, which is just easily referred to as supports. And so, for example, deaf employee at work needs an Auslan interpreter for work meetings so they can understand what is being said. A blind student needs screen reading software installed on the school computer.

So they’re the three types of discrimination and there are exceptions to discrimination so people can legally discriminate against you and this is why if it’s not clear, well perhaps even if it is, you should always see a lawyer because it’s tricky sometimes.

So, for example, if someone can’t afford not to discriminate against you then they have an exemption and this is an example. The Neighbourhood House is offering a pottery course for free over a semester and you want them to pay for an interpreter. So Neighbourhood Houses are usually voluntary. They don’t have any money and the Auslan interpreter might cost, you know, $5,000. Another example might be your local milk bar is not accessible because of steps and it might cost them to put a proper ramp in $50,000 and they might not have that money so that’s called unjustifiable hardship, when someone can’t afford to make things accessible for you.

The other exceptions are in employment if you can’t perform the most important and basic parts of the job and it’s often referred to legally as you not being able to perform the inherent requirements of the job but it just means the main part of the job. For example, you apply for the job of a lifeguard and you have cerebral palsy and you can’t swim very well. There’s probably not going to be any exceptions for you if you can’t save someone in the water, which is the main part of the job. Or you apply for a job as a process worker which requires you to look at the products on the conveyor belt as they go through and throw out the ones that are misshapen and you have a visual impairment.

Now, that doesn’t mean that all the time there can’t be some adjustments made that can’t help you do the main parts of the job but for these ones, for example, it’s going to be really difficult to find a reasonable adjustment and so the employer is allowed to discriminate against you.

And just some others but this isn’t the full list, when there’s another law that allows discrimination and, for example, the NDIA Act, Migration Act, you’ve probably seen a lot of sad stories in the newspaper when a family from another country is about to get chucked out of Australia because they have a child with a disability.  Child protection, and this is really annoying because as you might know a lot of parents with intellectual disability have their children taken from them on the basis of their intellectual disability and we can’t use unfortunately discrimination law to assist them.

There’s also occupational health and safety reasons that might trump discrimination. In relation to pensions and benefits, so for example you might be applying for the disability support pension and they might say no, you don’t meet the criteria. That doesn’t mean that discrimination has taken place.

Insurance there can be and also when someone has taken a measure to specifically provide for a certain type of person with a disability. So a person with a visual impairment, if they apply to enrol in a deaf school, the deaf school is allowed to say, no, you can’t because you’re blind. We can’t allow you to enrol. There’s probably some other – you know, if there’s a conference for blind people and someone’s not blind but has cerebral palsy they might say – well, they probably wouldn’t care – see there’s my dog barking. You probably get the gist of that but that’s also a measure that is exempt from discrimination law.

Okay. My clicker is not working, if there’s a technical person there. Connection lost…

Yeah. What other unfair treatment is not discrimination?  I just have to ignore my dog and I hope you can’t hear her. These are some of the calls we get a lot and you might too.

People very distressed about state trustees and we’ve seen a lot of publicity about them in the last week – last year, sorry. A lot of exposes on television shows like Four Corners. That sort of thing is not discrimination. Guardianship and administration orders which are nearly always over people that have a disability. Family matters. We have people who say they’re losing custody because their partner is saying they can’t look after the children on the basis of their disability.

And NDIS decisions. And so NDIS decisions aren’t covered by discrimination law because the Commissions won’t entertain them because they say that there is an alternative remedy for you which is the tribunals, the AAT, but the only thing that you can do, you can make a discrimination complaint against the NDIS itself if its services aren’t accessible.

So, for example, perhaps they’ve got information about their services and they are not accessible to you because you have a vision impairment. That is able to be the subject of a discrimination claim.

So if you think it’s discrimination but you’re not sure or you want to help your client make a complaint but you’re not familiar enough with the law to know what to write, if your clients make their own complaint and they have to attend a mediation and there’s a whole lot of other lawyers on the other side or your client has a VCAT hearing, these are the situations where you might need a lawyer.

Now, some advocates are familiar enough with the law to be able to do some of these things themselves but what I find is that sometimes even when you’re very familiar with discrimination something else, some other law might come into play which you have no idea about at all and so it’s really – it’s really helpful to get a lawyer. It’s also important to realise that most respondents, so most people that you might have made a complaint about, they’re usually organisations. It’s not often they might be a person and so usually they have insurance companies and they will come with, not only sometimes one lawyer but a team, and you know sometimes it’s about feeling more confident if you have a lawyer there.

It doesn’t mean as an advocate that you – if your client wants you to go as well that you can’t. You might have to sort out who talks, who speaks if there’s a mediation, but you can still be very involved in any discrimination complaint if you get lawyers involved but sometimes it’s tricky doing it on your own, and just even getting advice to rest assured that, yes, it is or no, it’s not discrimination because sometimes, as I said, it’s tricky and you think it is but it’s not.

If I can have the next slide, technical person, that would be great. Thank you. So that’s probably just what I’ve said already so let’s move to the next one.

So – now it’s working again. So obviously who can afford a lawyer so you want free legal assistance. So obviously there’s us. Any other community legal centre should in theory be able to assist you if your client does not want to go to the Disability Discrimination Legal Service but they may and probably won’t be very familiar with the law but nevertheless they are available and they are free. And your client may be able to access Legal Aid but, you know, they’ve got a pretty severe means test. Assets, your client would have to fit into their means test.

So just in terms of what we do. We are Victoria-wide and we only do disability discrimination until recently where we’ve received funding to do sexual harassment in the workplace for women but we provide legal advice and people don’t have to come in. It can be on the phone or by Zoom. If there’s a reason they want to come in they can but usually we have legal advice appointments where they don’t and sometimes if it’s not discrimination and the person’s come in from the country they’d probably prefer not to spend the time coming in but you should be able to get an advice appointment within a couple of weeks but if it’s urgent for some reason you can just tell us that and someone will talk to you beforehand.

So we have case work that’s just really referring to what the lawyers do. So we help lodge complaints, and look complaints are often just lodged at VCAT or a Commission by filling in a form. So if you’re doing it yourself with your client make it as broad as you possibly can because, for example, with the Australian Human Rights Commission if your client lodges at the Federal Court and then you get a lawyer in and the lawyer says, well, you know, you should have actually added this and added that it’s kind of too late to add things because after you’ve lodged you’re only allowed – the complaint at the court can only cover what you’ve done at the Australian Human Rights Commission.

A bit different with VCAT and the Victorian Equal Opportunity and Human Rights Commission because they are not linked anymore. They used to be. You can actually lodge straight at VCAT and so it doesn’t really matter if your complaint is a bit different.

So we attend mediation with people. We run cases in court if they meet our merits test, in other words we think they’re going to win, and as I said we’re happy to work with advocates.

Now, Villamanta, they probably refer discrimination to us but they also have disability-related legal and justice workers. So, for example, they might assist with guardianship matters and state trustees. They’re also Victoria-wide and they also assist sexual harassment women with disabilities and their focus is sheltered workshops and business enterprises, so I thought I’d just fling them in because they’re another community legal service that only work with people with disabilities and are free.

So that’s us. So now I suppose it’s any questions you like, happy to answer them if I can, back to you Melissa.

Thank you so much, Julie. That was really useful. It’s so interesting how it depends on the system and the type of person that is doing something wrong that determines whether it’s unfair treatment or discrimination so there’s quite a lot involved.

So the first question is…

QUESTION: What things would you change about discrimination laws to make them stronger and fairer for people with disabilities?

Oh my god, I could probably spend an hour on this one.

The first thing to say is the Disability Discrimination Act, the Federal Act that covers Australia is so hopeless that I wouldn’t even use it anymore.  There’s a couple of reasons but the main one – apart from the system requiring lots of money to be spent. So you must have a lawyer to go there. You will have a cost order made against you automatically if you lose.

But there are – in terms of the reasonable adjustments section of the law, because the law has been drafted so badly, and there’s been a campaign that we were involved in with PWDA to try and address this but nothing’s happened, the case law on this is that in terms of reasonable adjustments you now have to prove that the person didn’t give you a reasonable adjustment because of your disability.  And if you think about that it just does not make sense at all. And so if a person comes up with another reason why they didn’t want to give you the reasonable adjustment then you’ve lost your case.

So as an example it’s like saying, we didn’t give the person – we didn’t build the ramp for the person in the wheelchair because they were in a wheelchair, because they had cerebral palsy. Or we didn’t give Frank the sign language interpreter because he was deaf. So that doesn’t make sense and as soon as they say no, we didn’t build the ramp or we didn’t give the interpreter because of financial reasons, even if they do have enough money, they’ve cleared themselves from reasonable adjustments.

Also the disability standards for education, there are so many problems with that that I can’t even go into it. I don’t know whether, Melissa, we’re going over or we’re trying to stick to time, I don’t mind going over, you tell me, but they are so flawed with again the drafting that, for example, they don’t allow you to use them in a segregated school for kids with disabilities. It’s a bit technical but kids in segregated schools aren’t covered. So that’s the whole Disability Discrimination Act needs to be reviewed and changed and the standards, in my opinion, and our organisation’s opinion should just be scrapped and someone needs to start again.

In terms of the Equal Opportunity Act, it’s easier to use. It doesn’t have that reasonable adjustment problem. All you have to do is prove that a reasonable adjustment – you’ve got to prove that the adjustment was reasonable and it wasn’t provided. So you haven’t got that extra hurdle but there are still some problems with that which we’ve made submissions about that just make it a little too hard, swayed against the person with the disability.

So there are some things that we will change about it to make it more – to make the law more commensurate for its objectives. Its objectives are to create a level playing field for people with disabilities. The intents and objectives are all lovely but then the devil is in the detail and I just think there’s a lot of things in it that need to be changed. We don’t have great laws but the state laws at the moment are more superior

Yeah. Hopefully with the Disability Royal Commission they will hopefully recommend that we review and change those laws to make them more accountable. We’ll go to the next question:.

Who do you contact currently for vilification cases?  Can the police do anything?

Well, because vilification of people with disabilities is not against the law that makes it difficult to go anywhere but it probably depends on the behaviour of the person vilifying you. So, for example, let’s pretend that your boss – no, let me give you another example.

Let’s just say your neighbour every second day, as soon as you come out your front door is yelling at you. That kind of repeated behaviour, you can probably see if you can get an intervention order against them because if you say that it’s frightening and you’re intimidated and you’re scared for your safety then it might be that the police or the court will grant you that intervention order.

But in terms of vilification per se there’s not really – you know, if it’s a once off, for example, by your neighbour there’s nothing you can do because it’s not illegal unfortunately, except move.

Ridiculous. Next question.

What is the difference in outcomes between lodging at VCAT or the Equal Opportunity Commission?

That’s a good one.

Yeah, it is a good one.

In terms of mediation, most matters mediate. 95% of them settle at mediation for a whole lot of different reasons. I mean, a lot of respondents don’t want the embarrassment of a public hearing, et cetera. Now, when something – and you have – the mediation process at VCAT is similar to the mediation process at the Equal Opportunity Commission and mediation you can often be much more flexible with what you can ask for because obviously if it doesn’t settle you must go to VCAT if you decide you want to pursue it and VCAT has powers to order things but they probably wouldn’t order things, for example, such as policy change. That’s what I’m guessing anyway.

And so – but when you’re in a mediation in both of those organisations you can be more creative about the sorts of things that you want. You can ask for apologies. You can ask for training but I suppose the main difference is that the Equal Opportunity Commission is – it has no powers to make – you know, you don’t have a hearing there. You’re only in a mediation. It has no powers to orders anything and, of course, VCAT is like a court. It’s a tribunal. So, you know, at the end of the day you have a public finding. You go through a hearing. You have a public finding and some orders.

Yeah. I hope that answers the question.

And it will help make decisions about which one to lodge with. Our next question, Julie.

can you explain if it is better to lodge a discrimination complaint with the Victorian Equal Opportunity Commission or the Australian Human Rights Commission?

Yeah. Look, I just want to add something to the last question as well. Before recent changes you had to go to the Victorian Commission and then you went to VCAT. Now you can go straight to VCAT. You have a mediation in both areas and so sometimes if you want to give – let someone know you’re serious but probably you want to make sure you’ve got lawyers first. Sometimes it’s better just to go straight to VCAT.

But in terms of this question, what’s the difference between the Victorian Commission and the Australian Commission, in terms of their processes virtually nothing. So you front up with either your advocate or your lawyer. You sit down. There’s a facilitator, a mediator and they will try and help you work out but the biggest question before you lodge at either of those is if the matter doesn’t settle and you know you want to take this further, with the Victorian Commission you can only go to VCAT, and with the Australian Commission you can only go to the Federal Court.

And so if you’ve already decided, well, I’m not going to the Federal Court because the law is pretty crummy. I don’t want a cost order against me for $50,000 or $200,000 you don’t start there. But having said this, just to get a bit more tricky, if you lodge at the Victorian Commission you cannot swap over to the Australian Human Rights Commission and the Federal Court system. But if you lodge at the Australian Commission you can go back to the Victorian Commission but you’ve just got to watch out for your timing because even though the Victorian Commission and VCAT are fairly flexible you’ve got a year from the discrimination occurs to make your complaint but, you know, if you’ve got a really good reason why.

Maybe you’ve just never heard of discrimination legislation, maybe you were very sick with cancer for a long time and just were not in the position to do anything, they will usually be flexible.

The Australian Human Rights Commission, they reduce their time to six months and everyone kicked up a stink about that because it just wasn’t long enough and now they’ve gone out to 2 years. And so these are the other differences between them. But in my opinion if you’re not going to use – if you’re not going to go to the Federal Court, which I would recommend you not doing, you sort of need to think, well, should I start at the Australian Human Rights Commission, or maybe you want to give them a scare with the federal nature of your complaint and then zip across if it doesn’t settle to the Victorian Commission. But as I said you’ve got to work out your times and you’ve got to be very careful about that.

Yeah. It sounds like, yeah, you need to sort of work that one out first. So I think we’ll go to the last question now.

What about intersectionality?  Are you able to assist clients who may have been discriminated against due to a combination of attributes, for example, gender, parental status and disability?

Yes. That’s an easy one. We have done that before. Sometimes it’s difficult to extricate what is the reason. Let’s just pretend someone was blind and gay and they have been discriminated against at work. Sometimes it’s really hard to pick on which attribute they’re being discriminated against and so we would just cover both if it’s unclear. We’ve done that before and there’s no problem with that.

Okay. Great. Thank you very much, Julie. It’s been very, very useful. We’ve had more questions come through the chat but what we will do the team will gather them up. Send them through and post the responses on the resource page if that’s okay with you. Thank you very much for your presentation today.

You’re very welcome.

Thank you. To everyone we’ve come to a close. I would like to thank Julie for bringing the session to us today. It’s been really useful for all of our work. Thank you to everyone who attended the session. Please watch out for a survey that will make it into your inbox shortly after this session so we can see what other topics you want to learn about to advance your own advocacy practice.

Thank you to the Auslan interpreter and captioners and Show Division for bringing the session to you today. Thank you, everyone, we’ll see you next time.


Additional Q&A

there was not enough time to get through all the questions on the day.  Julie has provided responses to those that weren’t addressed below.  Note that this is NOT legal advice.

Q:  Does a person with disability have the obligation to disclose this information when starting a job? Only if their disability impact on their role?

A:  A very vexed question. It depends. Will your disability affect your job performance at all? If it won’t, you need to. Have a look at what the Victorian Equal Opportunity and Human Rights Commission say in this link:
Disability and the workplace | Victorian Equal Opportunity and Human Rights Commission

Q:  Who has the burden of proof when it comes to reasonable adjustments and is there an “at fault” scenario, e.g., a school does not provide appropriate supervision or supports as stated in their HIPs / IEPs and the student reacts with unsafe behaviour and is subsequently punished / suspended? The student is not at fault, the school / teacher failed him, however, school will use OHS as the reason for everything without investigating further.

A:  If you’re meaning how will the Tribunal/court decide if an adjustment is “reasonable” it depends which law you’re using. If you’re using the Disability Discrimination Act, the case law says that the court has no authority to make decisions about interpreting the word “reasonable”, unless there is an unjustifiable hardship argument. When you bring the Disability Standards for Education into the mix, there is an entirely different test. If you’re looking at the Equal Opportunity Act, there is yet a different test again.

In the above three examples, there is the added complication of defining what is an “adjustment”.

The question in relation to a student is very complex. It is worth noting that the case law says that a behaviour plan is not a reasonable adjustment – it doesn’t fit the definition of an adjustment because it is a plan which should contain the reasonable adjustments. However if one of the reasonable adjustments was, for example, an aide to supervise the child during lunch, then that could be seen to be the reasonable adjustment. Unfortunately discrimination law doesn’t work quickly enough to stop suspensions and punishments occurring in response to the type of issue you describe, but you could make a complaint about the failure to provide a reasonable adjustment in this situation. There’s nothing stopping the school from making an OHS argument as to why they suspended the child, they do this all the time, however if ultimately they were told to make a reasonable adjustment and they didn’t, then in relation to “fault” it’s the school’s.

If you decided to make a discrimination complaint, your complaint would be the failure to provide the reasonable adjustment, not the actual suspension/punishment (which would be a consequence of not providing the reasonable adjustment).

From an advocacy perspective, I suppose it reinforces the fact that we as advocates need to act quickly when we can see the writing on the wall (in relation to the refusal to provide a reasonable adjustment which we believe will be very risky and “end in tears”).

Tuesday 18th July, 2023

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