Like Disney movies, the more nursery rhymes I recall from my childhood, the more I realise just how many of them can be applied to real life.
Half a pound of tuppenny rice,
Half a pound of treacle,
That’s the way the money goes,
Pop! goes the weasel.
Up and down the City road,
In and out the Eagle,
That’s the way the money goes,
Pop! goes the weasel.
In harder, historical times, this nursery rhyme was a reference to people having to pawn their goods to make ends meet while predators (the weasel and the eagle) surround chasing their prey (debtors). In many ways, this could be understood to be the national VET regulator today (weasel and eagle) and the regulated (debtors, prey).
Or perhaps I should have stuck with the three little pigs and the big bad wolf who's going to huff and puff and blow your house down? Mmmm...food for thought!
As we embark on another attempt at implementation of yet another ASQA reform process, I thought it might be an important time to revisit some key issues before the prey is completely overwhelmed and absorbed into never-never land.
Earlier this year, on 6 April 2021 to be precise, ASQA released its ‘Regulatory Risk Framework’. The framework largely revolved around the following documents:
Ordinarily, RTO Doctor would welcome such significant changes to the regulation of Australia’s VET system, however, some of these changes risk misleading the larger VET community; especially those who will be the most impacted (private providers). What’s more, RTO Doctor believes that these changes are not in the public interest nor are they procedurally fair. Let me explain…
Remember this nursery rhyme?
Let it be known that RTO Doctor sincerely and genuinely supports any bona fide positive change for reform that ASQA’s Chief Executive Officer (“CEO”) Ms Saxon Rice is trying to implement.
Unfortunately, however, just because the CEO might believe in those reform measures, (while they may have merit) and legitimately seek to have them implemented, it does not necessarily follow that everyone below her feels the same way and will actually implement her sought agenda. For too long there have been people within ASQA itself who are toxic to the system and seek to engage in self-promotion, have narcissistic personalities, play to their own agenda and simply do not abide by the concept of natural justice. So let's take a look at ASQA's 'new' Approach to Compliance.
In the VET world on the ground, it’s unfortunate that many people consider that these changes are just in name only. A performance assessment is just the same thing with a different name, an assessor is no different to an auditor; you can change the name but unless the change truly impacts the overwhelming problem that stares at you in the face, you could change the name a thousand times and it will still stink.
Apart from changing the name of auditors to assessors, one of the biggest issues outside the toxic and narcissistic attitudes of many people within the agency is auditor competency (remember, this is not my finding alone, the Joyce and Braithwaite reviews discussed this issue at length). As was highlighted in both the Joyce and Braithwaite reviews, various Senate Estimates Committee meetings, my 2nd book and now my third:
ASQA engages various staff and consultants to undertake these regulatory functions, including audits in accordance with ss 182-184 of the Act. While ASQA does use its own staff where possible to conduct its regulatory functions, in the 2017/2018 Annual Report, ASQA spent $968,000 on its panel auditors and a further $687,000 on ‘Consultants’. (Bartlett, R. 2021, The Human Toll: Is the nature of ASQA’s regulation destructive?, pages 32-33).
The reason why this remains one of the most critical issues related to reform efforts lies within the understanding that your ability to receive procedural fairness is potentially compromised and you may actually be agreeing to something that you should not be agreeing to because of nothing more than auditor incompetence and your desire to do the right thing and abide by your registration obligations and cooperate with the regulator.
You see, in that round of changes to the National Vocational Education and Training Regulator Act 2011 (“NVR Act”) that I wrote about recently, there was a fundamental amendment made to the legislation in relation to the reconsideration process and stays of ASQA decisions, pushed by ASQA, presumably because they were losing so many cases at the AAT. An excerpt from my latest book that discusses this issue in slightly more detail is provided next:
Most importantly, as has been seen through the sector in the past 12 months at least, providers’ access to merits review, while already significantly hampered as identified in National Vocational Education and Training Regulator Act 2011 (Cth): An Investigation into Access to Merits Review, was about to be completely changed and ASQA had been completely and utterly silent on how and why. Ordinarily, the explanatory memoranda would clarify any changes for parliament as the Bill passes through its process but nowhere was it highlighted that the rules for accessing merits review were about to change significantly. It was not discussed anywhere, the change was proposed and it was left for people like the writer to identify it, bring it to the forefront, which she and other individuals did and NOBODY acted on any of the feedback provided. Just to be clear, the writer provided this feedback to a range of people whose role it was to provide the feedback including, but not limited to:
One of the alleged peak bodies of this sector;
So why was this whole issue regarding reconsideration a game-changer for VET Providers? What was the big deal and why does the writer say our peak bodies let providers down?
As I predicted, the proposed legislative change meant that the entire process by which a provider could access merits review changed. Up until the passage of the Bill unopposed with NO objections, upon receipt of an ASQA decision, for the majority of decisions, a provider could apply to the Administrative Appeals Tribunal (“AAT”) for a stay of the decision or decisions and a review of those decisions, effectively, an appeal to the Tribunal to review those decisions that had been made because the provider disagreed with ASQA’s findings.
What this change meant was that now, as is currently the case, a provider MUST apply for a reconsideration of the decision by ASQA within 28 days. The decision or decisions come into effect within 35 days. ASQA has up to 90 days to consider the application for reconsideration. You can apply to ASQA for a stay of the decision however it is entirely discretionary upon ASQA to provide a stay of the decision and it usually only does so after you have submitted your evidence (when you work with sanction management consultants such as RTO Doctor, however, we are experienced in managing these issues for you more effectively). If you are near the 28 days and need to appeal that decision in the Tribunal, that decision may come into effect in 35 days, or worse, if ASQA accepts the application for reconsideration but deny the stay and the provider doesn’t challenge the denial of the stay because they don’t understand the implications (which in our experience has been the most common outcome of this change), the decision or decisions actually come into effect while ASQA is considering the application for reconsideration.
In other words, you can no longer just go to the AAT and seek a stay, you must apply for an appeal via ASQA’s processes first and if ASQA says the stay is denied, the decision will come into effect within 35 days and ASQA has up to 90 days to review the application. If ASQA responds that they affirm the decision under review (which in our experience is most of the time), it’s too late to seek a stay from the AAT because the decision has already come into effect 35 days after it was made. The only way to appeal ASQA’s refusal of the stay at this point is to go to the Federal Court which is far more inaccessible to the majority of providers due to the costs involved. This change, which went unopposed despite warnings, requires an explanation just so that the consequences of this change are clearly understood and how the national peak providers neglected and let down the sector they are supposed to represent.
Sunshine RTO has just received a Decision to cancel their NVR registration and their ESOS registrations because subsequent to an ASQA audit, ASQA believes that Sunshine RTO remains critically not compliant (believe it or not, this is a very common scenario, ASQA would tell you that any breach of clause 1.8 alone is a critical non-compliance).
Sunshine RTO wants to apply to appeal to the AAT and get a stay and review of the decisions. It does so around day 23 after receiving the decision letter. (It should be noted that several providers at this point did actually pay to have their applications heard by the AAT but they were denied because the AAT could not hear the case due to legislation which now meant that as the next step has not been completed).
The AAT hears the application of Sunshine RTO around day 27 or 28. Sunshine RTO is advised that it can no longer apply to the AAT until it has applied for reconsideration with ASQA and ASQA have affirmed the decision.
If there is time before the 28 days arrive, Sunshine RTO applies for reconsideration by ASQA but doesn’t realise that it needs to seek a stay from ASQA. The decision comes into effect on day 35. ASQA has up to 90 days to consider the application for reconsideration. As the decision has come into effect, the RTO would be cancelled and so would their ESOS registration unless ASQA overturns the decision after 90 days by which time, the damage is done anyway.
If 28 days have passed since the decision letter and Sunshine RTO has not yet been able to apply for reconsideration with ASQA, the decision comes into effect because the appeal needs to be lodged within 28 days.
As per the feedback provided at the time the Bill was available for consultation* and upon which NOBODY acted:
A provider can go to the Tribunal and seek a stay and often fight for no or limited conditions. A provider should always be given the benefit of the doubt and the opportunity to exercise natural justice before having conditions placed on them and their right to a stay compromised. At no point should a provider be found guilty and then have to demonstrate their innocence, the foundation of Australia’s legal system is innocent until proven guilty. Many providers do not get an opportunity to demonstrate their innocence before the decision is made.**
That a provider should always be given the benefit of the doubt was strongly reiterated by the AAT when they said that:
“We have concluded that in future cases where there is a contest about non‑compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.”
(Trades College Australia Pty Ltd and Australian Skills Quality Authority  AATA 812 (16 April 2020) at para 13).
I have highlighted that sentence again because of its importance. Prior to the Tribunal making this finding, Trades Colleges Australia Pty Ltd had 2 stay hearings, a Federal Court hearing and another final hearing at the AAT. The entire court proceedings were based on the opinions of auditors who had made recommendations to ASQA Commissioners about their findings. So, if this RTO had to go through all of this and spend all that money on fighting for justice (even though their RTO was canceled and couldn’t be reinstated, what luck do you think you will have of getting the right result from a reconsideration application (with or without a stay decision). The stay isn’t automatic. You have to apply for it and it is now discretionary upon ASQA if they want to approve it. Has ASQA taken into consideration the Tribunal Member’s findings in paragraph 13 of Trades College Australia Pty Ltd and Australian Skills Quality Authority  AATA 812 (16 April 2020)? Absolutely not!
This legislative change was completely preventable; or at least, it had the potential to be substantially amended to ensure procedural fairness. The question that must be asked of the peak bodies and the relevant Ministers is why were there no objections submitted when they at least had the objections in writing from at least RTO Doctor on behalf of the #enoughisenough campaign at the time?
This is all of significant concern for providers though who likely are unaware of what that means in terms of ASQA’s updated and recently launched ‘Regulatory Risk Framework’. This particular article is going to focus on a component of the document ‘Approach to Compliance. Regulatory Practice Guide. Issue 1, April 2021’.
While at face value image 1 above in the regulatory practice guide does not appear to be too problematic and in some ways, reflects historical practice, as we go through the individual sections that follow in this regulatory practice guide, in relation to section 3 ‘Our tools to promote and ensure compliance’ we see a regulator who states explicitly that their role is to educate and encourage through these tools - despite the fact that ASQA may very well be wrong, as Deputy President Rayment stated at paragraph 13. ASQA’s approach to compliance is very much based on the complete opposite of what the Tribunal found and yet your opportunity to appeal has been completely altered so that you may not even be able to stay the decision until you can contest the precision of ASQA’s findings after ASQA’s reconsideration of your response and the effective decision comes into play. How can ASQA truly educate and encourage when its own findings have a greater chance of being flawed than not?
But how can ASQA’s findings have a greater chance of being flawed than not? Let’s take another extract from my latest book.
In November 2020, the author of this book published an article on LinkedIn that was directly relevant to the competency of ASQA auditors. With over 90 comments on a public forum, it demonstrates just how out of touch the national VET regulator is and how big an issue this is for the sector. Amongst these comments is an update after this information went to the Senate Estimates Committee. On 29 January 2019, Education Issues Australia reported that:
Just last year ASQA enrolled 28 regulatory employees (30%) to acquire mandatory qualifications. Even if they did meet the requirements of ELICOS Standard P6.4 and held the Sch 1 requirements of the Standards for VET Regulators 2015, surely this loophole needs to be closed? Surely the person who is qualified under that Standard should be responsible for writing that section of the audit report where they operate in a team? (e.g. Just because someone is identified as a Lead Auditor, does not mean that they should be writing the entire report, making recommendations based on that audit report etc. where they are not qualified to do so). ASQA told @Louise_Pratt they had 93 Audit Staff and "on occasion ASQA employs staff that do not hold all of the mandatory qualifications.
This finding from Education Issues Australia was also supported by the following evidence from the publicly available ASQA Annual Report 2018-2019:
(Screenshots from Education Issues Australia, Twitter)
All of this got me thinking...
Just because a section of the ESOS Act (for the purposes of the ELICOS Standards 2018 for example) provides them with the authority to, does not equate to them being qualified. Surely this is an abuse of power and in a court of law, could be considered invalid evidence? This leaves the door open for absurd abuses of power. Source: Education Issues Twitter Page, 29 January 2019.
Again, the question must be asked. In what other regulatory system does such physical, psychological, emotional and financial harm occur where those responsible for the audit process and therefore findings were under such a cloud of validity and reliability but the destruction occurred anyway? In what world would this be acceptable?
Many will recall the article that I wrote about ASQA Auditor Competency, some of which is included above but other parts I have not repeated here. If you’re looking for that article, it can be found here.
What many probably do not realise, is that in addition to these new regulatory risk framework documents, along with the new Standards that will be coming, as per the recent Question on Notice response provided by ASQA, the competency requirements for auditors will be removed! Yes, you read that correctly.
Question on Notice AO165 Education and employment Additional estimates, Education, Skills and Employment on page 13 of 14, right at the bottom says (and I am quoting) below:
Engage on amendment to VET Standards with DESE and other regulators to remove minimum qualifications for auditors and course accreditation assessors and replace with outcome focussed skills and competency matrix.
I have provided the emphasis by bolding and underlining the relevant wording. So that’s how ASQA fixes its problem of not being able to recruit suitably qualified staff? It removes the minimum qualification requirements. WHAT THE??? Such a statement is so beyond belief that I have provided a screenshot of the relevant section of the
Question on Notice below:
Question on Notice A0165 - Education and Employment Additional Estimates, Education, Skills and Employment, Portfolio Number SQ21-000172 - asked by Senator Louise Pratt on 21 March 2021.
Well, how about, RTOs are finding it difficult to find trainers and assessors who meet ASQA’s minimum qualification requirements? Shall we just remove those minimum qualification requirements too? Seriously, you can’t make this stuff up!
In all seriousness, if there was a lack of Quality from the regulator before, there most certainly will be in the weeks and months to come. One can only question whether the findings will be accurate or worse still if nobody has to have minimum qualification requirements.
Going back to the beginning of this article, we were discussing how the NVR Act was updated (without any objections whatsoever, despite there being many) to reflect that before a provider appeals to the AAT now, they MUST apply for reconsideration and a stay of the effective decision from ASQA first. While this request has to be made within 28 working days, after you submit your application for appeal (and your supporting evidence if there is any), ASQA has up to 90 days to review its original decision. If you are unfortunate and have not secured a stay (preferably without conditions, albeit, unlikely to be without conditions), your decision becomes effective on day 35 - unless you secured that precious stay. Meaning, that if ASQA take the full 90 days, you have up to 85 days of the decision being in place.
The first example
If the decision was to cancel and you did not secure a stay upon submitting your evidence, within 7 days of the 28th day when you most likely submitted your evidence, the cancellation decision comes into effect. It stays there until ASQA overturns its own decision. There’s little point going to the Tribunal to seek a stay of the decision because you’re already canceled, you don’t want to stay the cancellation decision. There’s a strong chance you might end up like Trades College Australia Pty Ltd did. They won their case but because they were already canceled, they have to again apply for registration.
The second example
If the decision is to cancel registration, however, this time, you may be given a stay but it may likely have conditions such as no marketing, no new enrolments, no new course commencements for example (these are the common conditions sought by ASQA). For a CRICOS provider with a pipeline of international students, this sort of decision is disastrous because you can’t maintain compliance with your registration conditions in relation to ESOS reporting, you will have students whose visa applications are jeopardised, they might have arrived and been completing an ELICOS course somewhere and because of your no-commencement condition, your international students will soon find themselves in breach of their visa conditions for nobody’s fault but ASQA’s. But hey, we’re here to educate and encourage aren’t we? Surely the shoe should be on the other foot and the industry educates the regulator and Ministers about how this sector works before they go making these ridiculous decisions!
Anyway, continuing with the theme, your stay was granted but with conditions. You remain cancelled with conditions until ASQA makes a final decision within the next 55 days. When the decision arrives, it may not be favourable but now you can appeal to the AAT and you can seek a stay of the cancellation decision.
If you already had conditions previously, it will take a very talented legal team and sanction management specialist to have those conditions overturned, but it can be done.
All of this of course to be undertaken by auditors who will have NO minimum qualifications!
So bearing this process in mind, ASQA’s new approach is to have a raft of different regulatory options available to them to use before things get to the court phase. It is critically important that as you continue to look at these additional regulatory options available to ASQA, that you remember the concerns that even the Senate Estimates (Education, Skills and Employment) Committee has in relation to ASQA auditor competency which currently is not great but will become even more concerning as auditors will not even have to have any minimum qualifications!
ASQA provides the following image as a method of explaining the emphasis on its new regulatory toolbox.
I want us to begin at stage 2 of the compliance triangle that ASQA provide in the triangle above. We’re going to be looking at point 2 - Directing Compliance.
One of the biggest things I want people to take away from this is that as ASQA has rightly indicated in this document, these ‘contraventions’ that they find are allegations. They are not yet proven. They cannot be proven until you have exhausted all of your appeal options and the ultimate finding is either affirmed or set aside. So when we look at warning letters that identify alleged contraventions, you still have every right to appeal those findings before a decision is affirmed or set aside. It’s just that the manner in which you go about exercising those appeal rights has now substantially changed.
An important feature of 3.2.1 Warning letters however is the document makes it clear that ‘these create a useful record of our concerns...and confirm that these concerns have been raised with the provider...this record can help inform our future approach to non-compliance with the NVR and ESOS Acts. So while a warning letter is in the regulatory toolbox as a way of ‘directing you to compliance’, it is also very clearly going to be maintained on your file as a record of intervention and depending on how you manage the warning letter, it will inform future regulatory activity. N many ways, this is nothing new in the regulatory toolbox, warning letters always existed because they are mandatory under the legislative framework. ASQA must notify you of their intention to do something before they do as part of the natural justice process. The difference here is merely that they’re being a bit more transparent about how it operates.
Again, this action from the ASQA regulatory toolbox is available for use when they identify non-compliance. It is certainly interesting that there is no use of the word ‘allegation’ here. You are not compliant end of story. These agreements are destined to:
The concerns around this are numerous and include (but are not limited to):
Interestingly, if we were to consider ASQA’s infamous Response Option Action Tool (“ROAT”), there are very few cases where non-compliance does not pose a significant risk to students or their vocational outcomes. In fact, ASQA has advised time and time again that any breach in relation to training and assessment is a critical breach. According to ASQA’s ROAT, where the student doesn’t achieve the training product skills and knowledge as issues centre directly around matters related to actual delivery of training and the actual conduct of assessment, which is effectively every breach of clause 1.8 ASQA has ever identified, this is considered ‘Major’ or ‘Severe’ so either the interpretation of the impact has changed or ASQA’s alignment of issues that may fall under an agreement to rectify are in conflict. According to ASQA’s Risk ratings VET Standards and the Act, clauses 1.1-1.6 are considered high or extreme, 1.7 is medium, 1.8 is extreme, 1.13-1.24 is also extreme. Something doesn’t add up in relation to ‘Agreements to rectify’.
A written direction is supposedly the next level up from giving you the opportunity to agree, this one is a requirement to rectify a breach a condition of registration (effectively any breach then) and you are required to provide evidence of that breach at a future regulatory activity. Like the previous example, there are many of the same issues which are a concern. The one major concern that appears throughout all of these is that issue that ASQA auditors are usually not subject matter experts, don’t use technical experts as they should and don’t believe they need to and that situation will only get worse because as we saw earlier in the response to a question on notice, ASQA is seeking to remove the minimum qualifications for auditors!
So where does that leave you with your written direction to rectify? How do you know it is even valid? Lawful? I have been part of written directions to providers that have been unlawfully issued as well as other providers who have been issued with a written direction that had they followed it, would be breaching other, more serious legislation! Again, who signs off on these? Do they even make it past middle management? And, for the purposes of transparency, again, ASQA identify that this regulatory tool will be used where ‘the risk to students is low’. Let me repeat what I explained earlier about ASQA’s identification of risk in VET...
According to ASQA’s Risk Ratings VET Standards and the Act, clauses 1.1-1.6 are considered high or extreme, 1.7 is medium, 1.8 is extreme, 1.13-1.24 is also extreme. Something doesn’t add up in relation to ‘Written Directions to rectify’.
Apart from the fact that some of the conditions of registration proposed are often sought by ASQA at stay hearings, the one really MAJOR concern that I have identified with the use of conditions on registration as a regulatory tool is that ASqA has listed as a condition that may be used is ‘not accept recognition of prior learning’. Now, excuse me while I choke for a second! Clause 1.12 of the Standards for Registered Training Organisations (RTOs) 2015 alone makes it explicitly clear that, hold on...no...surely not? It can’t be true? ‘The RTO offers recognition of prior learning to individual learners.’ What? Say that again? Clause 1.12 states that the RTO offers recognition of prior learning to individual learners. It is a requirement of the Standards that a provider offers RPL but here, ASQA is causing the regulated provider to breach their registration conditions by placing this condition of the provider’s registration. You can’t make this stuff up! To prove it, see the screenshot below:
Again, the one major concern that appears throughout all of these is the issue that ASQA auditors are usually not subject matter experts, don’t use technical experts as they should, may not even have suitable audit qualifications or meet the current Schedule 1 requirements of the Standards for VET Regulators 2015. What’s more, they usually don’t believe they need to and that situation will only get worse because as we saw earlier in the response to a question on notice, ASQA is seeking to remove the minimum qualifications for auditors! Enforceable undertakings are described as a more time and cost-effective way of creating a legally binding agreement without going to court.
Yes, it is more time and cost-effective - for ASQA only! Before you enter into ANY enforceable undertaking, you should seek legal advice. Why? Because if you breach an enforceable undertaking, ASQA will be taking you to the Federal Court and apply for a court order against you. The Federal Court is NOT a cheap and time-effective exercise for most providers. And again, let’s take a look at when ASQA intends using enforceable undertakings as a regulatory tool:
It might be used when the seriousness of the breach is not high? Misleading statements on a provider’s website? According to the same Risk Ratings VET Standards and Act, clause 4.1 and clauses 5.1-5.3 are all assigned as high risk. So which is inaccurate? Which document is misleading?
Again, the issues are the heading of ‘sanctions’ are equally problematic.
When you have unqualified people making recommendations or even potentially issuing the regulatory tool, it becomes a very dangerous exercise. It becomes even more dangerous because most people don’t consider getting independent, external expert advice before agreeing to some of these unbelievable tools to ‘direct compliance’.
You should obtain legal advice early and if you’re still unclear, get a second opinion however, I strongly recommend that you don’t just agree to something to get ASqA off your back. The truth is, such a decision today could literally kill your business tomorrow.
While there are other, more serious regulatory options that ASQA has described in this ‘Regulatory practice guide’, it is hoped that if a provider was issued with a suspension, cancellation, written direction to notify students, etc. that they would have the sense to seek expert advice. They are beyond the scope of this already very lengthy article.
It seems that ASQA has dressed up this regulatory toolbox to look like mutton done up as lamb however, providers should be aware. Not everything here makes sense and you might very easily be misled.
The sector has demanded better regulation. The Joyce and Braithwaite reviews, even the Rapid review of ASQA demanded better regulation. All this practice guide does is take us for a bunch of fools who don’t know better. If ASQA really wants to address the recommendations of those reports, it must try harder and do so with genuine rectification and not thinking it can get away with something so silly as changing the names of things and making the pages prettier. That kind of behaviour should not be tolerated and will only lead to relapse as opposed to reform. ASQA’s stakeholders deserve better. The public interest deserves better. The tens of millions of dollars invested in a failing regulator deserve to be better spent.
What's your opinion on these issues? Share your feedback below.
RTO Doctor purchased the image of the big bad wolf blowing down the house of the Three Little Pigs for the purpose of using it as an explicit reference to this nursery rhyme in addition to Pop Goes The Weasel. Readers might also be interested in a book published by Tamara Simon called 'The Five Little RTO Pigs', please contact her via her website.
This article is not legal advice and should not be construed as legal advice. RTO Doctor is Australia’s leading sanction management specialist whose knowledge and understanding of the NVR and ESOS Acts is unequalled. Before you accept any decision or proposal from ASQA, do yourself a favour and seek some expert advice. Where the issues are legal in nature, seek appropriate legal advice from a lawyer who specialises in RTO law. If you would like to have a confidential discussion or referral, contact RTO Doctor today.
#ASQA #proceduralfairness #AAT #regulation #howmanymore #CRICOS #vetreform #law #enoughisenough
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RTO Doctor assists VET & international education providers around the country to ensure their compliance with their regulatory requirements; a critical issue for RTOs around the nation currently experiencing a very hostile and punitive regulatory environment. Raelene Bartlett, Founding Director of RTO Doctor published the book CRICOS CPR: Top 5 Tips to Rescue Your RTO as a way of supporting providers in navigating this minefield.
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