“It shall be the duty of every elector to vote at each election.”

That is S245(1) of the Commonwealth Electoral Act 1918.

In the Why are elections bad things post the issue of compulsory voting has come up. Several threadsters have the view that voting per se is not mandatory, just turning up and having your name struck off the roll is mandatory. To be fair this is a common view that is actively promoted in the community. So what is the legislation?

S233:

Vote to be marked in private
(1) Except as otherwise prescribed the voter upon receipt of the ballot paper shall without delay:

(a) retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot paper;

(b) fold the ballot paper so as to conceal his or her vote and:

(i) if the voter is not an absent voter–deposit it in the ballot-box; or

(ii) if the voter is an absent voter–return it to the presiding officer; and

(c) quit the booth.

That is the secret ballot – an Australian innovation – and the flaw in the system.

S240:

Marking of votes in House of Representatives election
(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by:

(a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and

(b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person’s preference for them.

(2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

So far we have established that voters must mark their ballot paper in private and second how they must mark their ballot paper.
S245:

Compulsory voting
(1) It shall be the duty of every elector to vote at each election.

(2) The Electoral Commissioner must, after polling day at each election, prepare for each Division a list of the names and addresses of the electors who appear to have failed to vote at the election.

(3) Subject to subsection (4), within the period of 3 months after the polling day at each election, each DRO must:

(a) send a penalty notice by post; or

(b) arrange for a penalty notice to be delivered by other means;

to the latest known address of each elector whose name appears on the list prepared under subsection (2).

As it happens S233(1)(b) makes it difficult for the Electoral Commissioner to comply with with S245(2). The best the Electoral Commissioner can do is make a list of people who didn’t turn up to vote but he should be making a list of everyone who failed to comply with S240 for House elections and/or S239 in Senate elections. S 238 deals with spoilt papers that occur by “mistake or accident”.

So in answer to the question

Are you saying a deliberate informal vote (e.g. blank paper) is against the law?

my answer is “Yes”. Not just blank, but any deliberate violation of S239 and S240 is against the law (the legislation for those who distinguish between “law” and “legislation”).

A few years ago two of my RMIT colleagues and I published a paper in Policy on this very issue:

Despite the plain language of the Act, many Australians are under the impression that voting per se is not compulsory. Rather it is compulsory to simply turn up to the voting booth, and have your name struck off the register. Whenever compulsory voting is discussed in the media, the letters pages of the newspapers are filled with correspondents claiming voting is not compulsory, while attendance is compulsory. Before discussing this notion in greater detail, consider the case of Krosch v Springell: ex parte Krosch [1974] QdR 107. Mr Springell arrived at a polling booth and handed the electoral officer a note saying he did not wish to vote for any candidate, as he found them all to be unworthy. He was prosecuted, and fined, for not voting despite the fact he had made the effort to turn up on Election Day. In its submission to the JSCEM Inquiry into the 2004 election, the AEC makes the claim “Because voting is compulsory in Australia, turnout is regularly in the vicinity of 95%.” Clearly, the AEC takes the view that compulsory voting leads to high turnout, not compulsory turnout leads to high voting.

Colin Hughes – the Australian Electoral Commissioner between 1984 and 1989 – has argued that voters were not compelled to vote for any candidate, they could always spoil their ballot. Kim Beazley – leader of the opposition – has argued voters can simply put the ballot in their pocket and leave the polling booth (in apparent defiance of section 339(1) that explicitly defines this behaviour as an offence). While Chris Puplick AM – former Liberal Senator – has written, voters “have an absolute right not to vote by placing a blank or spoiled ballot paper in the ballot box.” Judges enforcing the law, however, appear to be unaware of this “absolute right” – especially with regard to blank votes. Chief Justice Barwick, for example, wrote that voters must actually mark the ballot paper, and deposit that ballot into a ballot box. While Justice Blackburn was of the opinion that casting an invalid vote was a violation of the Act. Justice Blackburn’s view, however, is obiter, and is even regarded as heretical. Both views, however, are consistent with section 233 of the Electoral Act where the process of voting is described.

Voters, increasingly, do spoil their ballots. [Figure showing this is in the link above]. This, of course, begs the question, ‘What does happen to individuals who vote informally?’ Nothing. Australia was the first country to employ the secret ballot (often referred to as the ‘Australian Ballot’). According the Australian Electoral Commission, it is not “an offence to vote informally in a federal election.” After all, there is a secret ballot (section 233(1) of the Electoral Act); in principle the authorities should be unable to identity any voter from their actual ballot. For example, any ballot where the voter has written their name is invalid. Furthermore, many voters may ‘legitimately’ spoil their ballot through confusion and error. This view, however, is not entirely consistent with an AEC Research Report where the author writes, “While compulsory voting avoids a high degree of abstention, there is no guarantee that everyone will comply with the electoral laws and vote formally” (emphasis added). Similarly, the JSCEM report into the 2004 election states, “Because of the secrecy of the ballot, it is not possible to determine whether a person has filled out their ballot paper prior to placing it in the ballot box. It is therefore not possible to determine whether all electors have met their legislated duty to vote” (emphasis added).

This inconsistency may well explain the confusion. Voters are legally required to vote, but there is no penalty for spoiling your ballot. Indeed, given that failing to vote because the voters dislikes all candidates equally, or cannot decide between them, is not a valid and sufficient for not voting, many voters may well have to spoil their ballots, or pay a fine. A reading of some of the court cases involving compulsory voting is instructive. The definitive case is Judd v McKeon (1926) 38 CLR 380 where the general principle of “valid and sufficient” was determined to be a “personal physical inability to record a vote.” Of course, the court left open the notion that “valid and sufficient” cause was a function of the circumstances, yet it is difficult to understand what these other circumstances could be. They are not, for example, an ideological objection to voting (Judd v McKeon), nor is a lack of preference for any candidate (Faderson v Bridger 1971 126 CLR 271), or even ignorance of the candidates (O’Brien v Warden 1981 37 ACTR 13). The latter cases are quite remarkable. Mr Faderson indicated he had no preference for any of the candidates, and to say he had would constitute a lie. High Court Chief Justice Barwick indicated that voters are not expected to express an opinion of what they want, but merely to indicate, from the choice available to them, what they must have. This neatly sidesteps the issue of voters being forced to lie. The Warden case is even more damning. Here the issue of voters lying is not sidestepped. Mr Warden arrived in the ACT just prior to an election, and was ignorant of the candidates, and their policy platforms. Nonetheless, he was found not to have a “valid and sufficient” reason for not voting. In the words of Chief Justice Blackburn of the ACT Supreme Court: “In my opinion the Act does not oblige the elector to make a true expression of his preference among the candidates. On one view he must make an expression of apparent preference; on another he need not express himself intelligibly or at all.”

So voting is compulsory in Australia. Deliberate spoiling of ballot papers is illegal but detection methods make this part of the law difficult to enforce.

Compulsory voting is popular amongst the political classes and the more honest of those argue that yes voting is compulsory, but that it should be compulsory. But that is a completely different argument.

John Hirst has a quick history of compulsory voting here.

Tim Evans of the Australian Electoral Commission has a backgrounder here.

The Australian Electoral Commission provide arguments for and against compulsory voting here.

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296 Responses to “It shall be the duty of every elector to vote at each election.”

  1. It makes sense that if you receive the majority of you payment from the Government you should not be able to be able to influence Government spending decisions, unless you are risking your life or person on the community’s behalf.

    I don’t know that I’d make the exclusion even then. Once you start making exclusions they tend to grow.

    Also, everyone should get the vote in the lower house – that is for representation, and it’s not a principle you want lost either.

    Different houses, different principles, different conditions for electors.

  2. Rococo Liberal

    Numbers

    You still don’t say how Gough had anything to do with the change of culture in Qld regarding the education of disabled children.

    You even gave the start date of the change as 1971, when Gorton and the McMahon were in the Lodge. Did you mention Gough because of the timing of the change? Could it you are guilty of the fallacy of post hoc ergo propter hoc?

  3. Rococo Liberal

    Driftforge

    Your idea of restricting the vote only in the Senate has some merit.

    But if we did that, the Senate’s power to reject or hold up Money Bills must be written into the Constitution. If it is left to convnetion, I can just see Lefty MHRs arguing that the Senate shouldn’t be allowed to overrule the lower house, as the Senate franchise is narrower than the ‘democratically’ elected house.

    I would therefore argue that it is the House of Reps for which the vote is restiricted and the Senate for which everyone over 18 who isn’t a felon can vote. Then I would leave the Senate’s power as bound by convention as it is now. You could still then argue that the Senate isn’t any more democratic than the lower House because of the Statewide electorates for the Upper House. A system with this little bit of grit in it (adided by the continued existence of the Monarchy which adds a bit more of a question re legitimacy) would make our politcal arrangement really first class. We would also drop compulsory voting (or more accurately compulsory putting a ballot paper in the ballot box).

  4. Scapula

    You people talk such proto-fascist nonsense when you try to strip away the fundamental rights of citizens.

  5. 1971 coincides with my discharge and entry into special education. I was in a very good position to observe events because I was part of them. I developed a design brief for a school in 1983 and used the UN declaration of the rights of the child as part of the basis for the brief. It was also based on the Whitlam legislative reforms. This brief was successful but it took until 1987 for the school to be built because the Qld govt of the day stuffed around with the Commonwealth grant which again was predicated in the Labor reforms under Whitlam. In 1987 i had the great good fortune to open (as founding principal) the school (built at Mundingburra in Townsville) for $2.8 million, lots of dosh in those days.
    Incidentally, you read like a lawyer.
    Had lots of fun last year with one of your profession when I was pro bono advocate for a lad with a disability who had been treated very badly by a very posh private school.
    We won the case (hearing before HREOC) in the first 5 minutes because the school’s very expensive brief had no knowledge of the application of the relevant legislation.
    The refund of fees and apology to the lad’s father was gratifying.
    Your gratuitous use of the dead language to cast doubt at my reading of history is entertaining, but irrelevant. I’m iPadding on the road so can’t link, but Google Geoff Swan’s paper. You’ll find it backs up everything I’ve posted.

  6. Rococo – interesting inversion of the houses there. I’d go with your first option, and do the constitutional changes such that appropriation bills can only originate in the senate.

    This can be done at a state level, and through the state delegation to the senate a degree of control placed over the federal government.

    You people talk such proto-fascist nonsense when you try to strip away the fundamental rights of citizens.

    Actually, what we are talking about here is the re-establishment of the fundamental right of those who are paying the bills to have a say in how big those bills are.

  7. .

    Allowing governors to set electoral boundaries within their state to whatever they want has got to be on of the more stupid aspects of the US electoral system. It explains how Republicans can lose the popular vote in the Congress and yet still get a majority of the seats in the House.

    You are out of your mind Chris.

    The Dems got 225 000 more votes nationwide.

    Look at CA-11.

    George Miller won by a huge margin.

    http://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections_in_California,_2012#District_11

    152 690 votes for Miller (Dem)
    68 160 votes for Fuller (GOP)

    That’s 84 510 popular votes in the House alone from ONE district alone, out of 435.

  8. Scapula

    Varieties of property qualification have not and never have been a fundamental right.

    They were the product of laws designed by the privileged to protect their position by force if necessary.

  9. .

    In 1987 i had the great good fortune to open (as founding principal) the school (built at Mundingburra in Townsville) for $2.8 million, lots of dosh in those days.
    Incidentally, you read like a lawyer.

    Yeah right dickhead previously you reckoned you were a teacher in remote areas and the sun shone out of your arse in those poor, remote communities. Somehting like “the school ought to be the focal point of community life”.

    Had lots of fun last year with one of your profession when I was pro bono advocate for a lad with a disability who had been treated very badly by a very posh private school.
    We won the case (hearing before HREOC) in the first 5 minutes because the school’s very expensive brief had no knowledge of the application of the relevant legislation.

    More pathological lying. Lawyers are stupid. Private schools offer poor service. I’m smarter than lawyers and beat them in court cases in five minutes.

    Fuckwit.

  10. Rococo Liberal

    Voting isn’t a fundamental right, it’s a privilege given us by the Monarch so she can justify obtaining supply from us in the form of taxation.

    The only fundamental right involved in this discussion, Scapula, is the fundamental right of a person to keep what is his and not be forced to give it up to someone else as a result of the promise of lots of freebies for the weak-willed and the indigent.

  11. catnip

    You’ll find it backs up everything I’ve posted.

    Fantastic life experiences 1735099. People who have lived with a tale worth recounting and reading are a rare treat on blogs.

    You’re right about the pre-Whitlam treatment of disabled/handicapped kids in the school system in Qld and presumably other states. They simply weren’t there.

  12. Scapula

    The rich and the powerful, corporates mainly but also individuals, benefit the most from state largesse.

  13. Rococo Liberal

    Incidentally, you read like a lawyer.

    Surely all sighted humans read in the same way, i.e. with their eyes. SO your statement is as uselsss as saying; “you breathe like an ornithologist”

  14. Rococo Liberal

    Ah the old lie about the ‘rich’ and the corporates getting something from the state. Is that why the aged care, health and social security expenditures are by far the biggest Commonwealth budget expenditures?

    It is quite clear that Government largesse is being used to buy votes of the less well off to rip money off from the the better off.

  15. Scapula

    You’ve jsut admitted that the rich and powerful benefit from state largesse, but just not quite as much.

    Howard used to specialise in ‘middle class welfare’, which is only called such by the right after the Liberals lose power.

  16. catnip

    Surely all sighted humans read in the same way, i.e. with their eyes.

    The dumbest assertion I’ve seen in a long while.

    The stupid: it burns.

  17. Chris

    You are out of your mind Chris.

    The Dems got 225 000 more votes nationwide.

    Look at CA-11.

    I don’t think that’s true. If you look at the presidential popular vote, the Democrats got about 3 million more votes than the Republicans nationwide. Look at Pennsylvania for the House specifically:

    http://www.politico.com/2012-election/results/house/pennsylvania/

    The Democrats got about 2.7 million votes (for the House), and the Republicans about about 2.65 million. But the Republicans ended up with 13 house seats and the Democrats 5. How did this occur? The Democrats won their districts with 60-85% of the vote – 2 were won with 85% of the popular vote. The districts that the Republicans won were won with popular votes of 51-65%.

    So the Democrats get > 50% of the popular vote, but only 27% of the house seats.

    Do you really think that was just good luck on behalf of the Republicans or perhaps there’s a bit of gerrymandering going on….?

  18. The rich and the powerful, corporates mainly but also individuals, benefit the most from state largesse.

    Obviously this is true, but do you know the the mechanism by which that is obtained?

  19. The Democrats got about 2.7 million votes (for the House), and the Republicans about about 2.65 million. But the Republicans ended up with 13 house seats and the Democrats 5. How did this occur? The Democrats won their districts with 60-85% of the vote – 2 were won with 85% of the popular vote. The districts that the Republicans won were won with popular votes of 51-65%.

    Fools don’t like to stand out?

  20. Jarrah

    “Do you really think that was just good luck on behalf of the Republicans or perhaps there’s a bit of gerrymandering going on….?”

    The Democrats do it too. Just not as much, but that’s not for want of trying.

    In any event, from a practical point of view McGhee has a plausible claim that:

    even under the most generous assumptions, redistricting explains less than half the gap between vote share and seat share this election cycle.

    And there’s this important point:

    But if the explanation is incumbency or political geography, all it means is that our single-member district majoritarian system distorts outcomes in ways that are difficult to eradicate without moving to a different system entirely.

  21. Rococo Liberal

    Scapula

    You said that cororates and rich individuals benefited most from the largesse of the state. The when I prove you wrong you say that’s OK because the rich and the corporations get some largesse, and the government pays the middle classes some welfare.

    Your response is the response of the typical illogical lefty.

  22. Scapula

    Prove wrong? – you just muttered your displeasure! – these facts concerning the state largesse that corporates and the well off receive are well known but I made no comparative assessment.

    My statement stands unchallenged and no comparative assessment can contradict it. It has to be challenged on its merits, and you can’t just change the question.

  23. Scapula

    From today’s press but it could be any day of the week:

    MULTINATIONAL companies such as Google are exploiting different tax jurisdictions in Ireland and the Netherlands to pay minimal tax on the revenue they earn in Australia, says assistant treasurer David Bradbury.

    Addressing the Institute of Chartered Accountants’ tax conference in Sydney, he said he didn’t usually name companies but said “there is a strong public interest in drawing attention to practices that have the potential to undermine the future sustainability of Australia’s corporate tax base’’.

  24. John Mc

    What is wrong with that? These other countries want to be the home of these multinational firms and are willing to compete more aggressively for their business. Furhermore, these companies don’t exist to give money to the Australian government.

  25. Carpe Jugulum

    MULTINATIONAL companies such as Google are exploiting different tax jurisdictions in Ireland and the Netherlands to pay minimal tax on the revenue they earn in Australia

    OMG OMG OMG, how dare a company act in the interests of itself and its shareholders.

    How dare they stop having the money they earned forcibly taken by the government.

  26. Scapula

    Google – they spy on us, steal our data, take our money and pay no taxes.

    Sounds like a good deal!

  27. John Mc

    Don’t use them if you’re not happy. They are incredibly responsive to customer sentiment.

  28. Scapula

    Taxis want to audiotape your conversations now, so there won’t be an alternative taxi service will there?

    I can’t remember authorizing Google to invade my privacy, and theyve admitted to that already.

  29. .

    You are out of your mind Chris.

    The Dems got 225 000 more votes nationwide.

    Look at CA-11.

    I don’t think that’s true.

    You are out of your fucking mind. Look at the House votes and not Presidential votes. They have single member, winner takes all electorates.

    So what? They don’t have PR. Why compare it to Presidential votes which uses the antiquated, barely applicable EV system and doesn’t use local or national preferential voting?

    Let’s assume that PR is the be all and end all. The US LP got 1.63% of the vote in 2000 and got zero out of 435 seats. By rights, they should have gotten seven seats.

    Presuming they would have gotten nominally GOP seats, the House in 2001 and 2002 would have looked like this:

    GOP 214
    Dems 213
    LP 7
    Ind 1

    Well actually the Greens might have gotten 1 seat and the Indeps/others (Reform, Constitutionalist etc) might have blown out to about 25-30 seats.

    They would have held the balance of power. They key issue in America is that they don’t use preferential voting of any kind (in a significant manner).

    The Senate could weigh votes as an inverse of average population per Senator to appoint by a list if they really wanted to (it would be convoluted but it could be done without an amendment. We could do the same here (and although simpler might require a referendum).

    The US 2012 results for the US House

    Democratic 49.0%
    Republican 48.2%
    Libertarian 1.2%
    Green 0.35%

    Democratic 213 seats
    Republican 210 seats
    Libertarian 5 seats
    Green 2 seats
    Ind (past performance) 2 seats
    Const. 3 seats

    It’s likely the GOP would be the majority even if the Indeps. broke left.

  30. Scapula

    The Netherlands is also the place where James Hardie decamped to in order to try to avoid their legal obligations.

  31. Carpe Jugulum

    Google – they spy on us, steal our data, take our money and pay no taxes.

    That explains the suspicous looking character in the lamplight. Oh wait – i don’t use google. mmmmmmmm, the plot thickens.

  32. .

    The Netherlands is also the place where James Hardie decamped to in order to try to avoid their legal obligations.

    No they didn’t you fuck knuckle. They set up a fund which wasn’t solvent (to ostensibily deal with such obligations).

  33. Scapula

    They decamped to the Netherlands while leaving behind an insolvent fund, so they might have had other reasons for decamping as well, (it does appear a tax haven of choice according to the ATO), but I don’t have access to the vast and disgusting obscurity of their thoughts.

  34. .

    They decamped to the Netherlands while leaving behind an insolvent fund, so they might have had other reasons for decamping as well, (it does appear a tax haven of choice according to the ATO), but I don’t have access to the vast and disgusting obscurity of their thoughts.

    You’re an idiot.

    They went there before they (as part of) the attempt to list in the US. During the same process, they set up the fund.

    They screwed up and it ended badly for them.

  35. Scapula

    You’re just an apologist, so drone on with your ‘oops we just made a little mistake that we really didn’t mean’.

  36. Carpe Jugulum

    You’re just an apologist, so drone on with your ‘oops we just made a little mistake that we really didn’t mean’.

    Coming from a Google conspiracy theorist i shall do the only reasonable thing.

    aaaaaaaahahahahahahahahahahahahahahahaha

  37. dd

    By the way, the reason I made the earlier error about Australia’s uniqueness in having compulsory voting is because John Hirst said this in a talk I listened to – or to be more precise, I recall him saying it.

    Perhaps I misheard.

    At any rate, I lazily assumed that what I heard in Hirsts talk was accurate. Hirst, by the way, is against compulsory voting.

  38. .

    You’re just an apologist, so drone on with your ‘oops we just made a little mistake that we really didn’t mean’.

    I never said that dickhead. I said they stuffed up and paid a high price for it.

    You don’t read well, do you, bloated northern beaches whale, Bob?

  39. Scapula

    I read when someone has something to say, and you don’t!

  40. .

    You are a stupid fat fuck who got the chronology wrong. How about another essay about how it is important to find our gay side?

  41. Chris

    The Democrats do it too. Just not as much, but that’s not for want of trying.

    No doubt. The only reason they don’t do it more is because they can’t. Its the electoral system itself which is flawed. The independence of the Australian Electoral Commission is something we should be very proud of. Complaints about bias or corruption by any of the political parties are extremely rare.

    In any event, from a practical point of view McGhee has a plausible claim that:

    btw its worth reading the comments on that post. Someone pointed out that his assumptions do have one flaw in that they assume that the 2008 district boundaries were neutral. The analysis that the commenter links to is quite interesting.

    Democratic 213 seats
    Republican 210 seats
    Libertarian 5 seats
    Green 2 seats
    Ind (past performance) 2 seats
    Const. 3 seats

    It’s likely the GOP would be the majority even if the Indeps. broke left.

    That may be true that the GOP would still have a majority, but it would be tiny and very vulnerable to defections depending on the actual legislation unlike the 30 seat majority.

    And one party (whether they be Republican or Democrat) getting 50% of the popular vote, but less than 30% of the seats in a state is not a particularly healthy sign in a democracy.

  42. wreckage

    If compulsory voting gets a better turnout and higher rates of voting, then it’s a good thing WRT statistics, since it gets a bigger sample.

  43. wreckage

    So the Democrats get > 50% of the popular vote, but only 27% of the house seats.

    If you have safe seats that you win by large numbers, this is gonna happen. Lesser examples kept Bob Carr in power in NSW.

  44. Chris

    If you have safe seats that you win by large numbers, this is gonna happen. Lesser examples kept Bob Carr in power in NSW.

    Yes, distribution is never going to be perfect especially where there are strong geographic differences (urban/rural) in voting patterns. And the electoral commission can only adjust the boundaries so often.

    Still, if the ALP ends up with 70% of the lower house seats next election with less than 50% of the popular vote I predict there will be riots around here about the illegitimacy of the Gillard government :-)

  45. John Mc

    If compulsory voting gets a better turnout and higher rates of voting, then it’s a good thing WRT statistics, since it gets a bigger sample.

    This notion is debatable as well. It’s like the ‘Observer Effect’; you probably shouldn’t expect that you’ve got the same result by forcing people to turn up, that you would have got if they had all of turned up voluntarily. The most obvious reason is that some people are definitely just voting randomly, and there’s almost certainly a myriad of more subtle effects on someones decision on where to put the ’1′. Although you will get a higher percentage of the population turning out, you are probably not getting the same thing you would have got in a voluntary election, you are getting another thing. How much greater or lesser value or meaning that ‘thing’ has is subject to another debate, but you can be pretty much certain method A is not the same thing as method B.

    Then there’s the people who don’t turn up, of which I can include myself. I would vote from time to time if it was voluntary, but because it’s not I’ve stayed off the electoral roll because I don’t want to vote every time and I’m willing to accept the cost that I never will be able to vote for a candidate I do like (unless they’re exceptional and I go and enrol, which I will do if they are exceptional). There are 1.5 million people in this country who are eligible to be on the electoral roll but aren’t, out of a total eligible voting population of less than 15million (I think it’s around 12 million but that does seem low). How many of them are like me? Do you still think that result is now more representative of the community?

    Overall, the Australian democracy is quite OK, but really there’s not much special about it in any particular area.

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