If you believe the rhetoric, then Prime Minister Tony Abbott understands the widespread anger at the execution this morning of Andrew Chan and Myuran Sukumaran, two of the ‘Bali 9’ caught trying to smuggle 8.3kg of heroin out of Denpasar Airport in April 2005.
“I would say to people yes, you are absolutely entitled to be angry, but we've got to be very careful to ensure that we do not allow our anger to make a bad situation worse,” Abbott told reporters.
But don't believe it. It is just rhetoric.
It's the sort of thing politicians say when they want you to focus on their words, and not their actions.
And it’s not just Abbott. In truth, what our government is saying publicly, and what it, and a succession of governments before it have done quietly, are two very different things.
For despite what both sides of Australian politics will tell you today, Australia does support Indonesia’s policy of executing drug traffickers, and we have done for more than two decades.
There’s one simple reason for this: politics.
Executing drug dealers is popular in Indonesia. A 2006 poll found more than three-quarters of the nation believed that drug dealing should be a capital crime.
Equally, opposing the execution of drug dealers is good politics in Australia, particularly drug dealers who are Australian, and have clearly reformed. It’s the sort of issue that won’t lose a government votes, but might just win them a few.
Of course, Indonesia President Joko Widodo – the man with the power to stop the killings – knows all this. He knows that when Foreign Minister Julie Bishop threatens him with sanctions, they’ll likely be mild, and brief.
Widodo also knows that whatever price Bishop decides to extract – and whatever personal damage he’s done to his relationships with Australian politicians – the storm will pass. The executions are worth their weight in political gold for Widodo.
Above all else, he also knows that when the Australia Government says publicly it opposes the death penalty, privately, it harbours a much more pragmatic view.
Widodo knows this because he has the signatures of multiple Australian officials (some elected, some not) on a succession of treaties (some public, some not) which outline how far Australia is prepared to go in support of Indonesia’s ‘tough on drugs’ approach.
This story is about those treaties, and the bureaucratic and diplomatic weasel words which, two decades ago, helped set in train a political process that would ultimately pave the way for the deaths of Myuran Sukumaran and Andrew Chan.
AUSTRALIA’s first treaty with Indonesia was signed way back in 1959, when Robert Menzies was still Prime Minister.
As you might expect, it was linked to trade.
Over the years, Australia’s relations with Indonesia have grown. As we sit today, we’ve notched up just over 200 treaties, and the agreements cover everything from joint efforts to fight terrorism, the construction of roads and bridges to helping Indonesia secure water supplies for poverty stricken populations.
Ironically, one of those water supply treaties was signed in February 1981, just two months before the birth of Myuran Sukumaran. It’s entitled, ‘Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia relating to the Cilacap Water Supply Project in Indonesia’, and saw Australia tip in $7,000,000 to the project, a very significant foreign aid contribution by 1980s standards.
Cilacap, of course, was the scene of a grim circus yesterday and early this morning. It’s the small-town staging post for families, police and media waiting for the ferry to travel the few hundred metres across a channel to Nusakambangan Island, the final stop for prisoners awaiting execution.
It was the site of gut-wrenching scenes, as the families of Chan and Sukumaran arrived for their final visit.
But back to the treaties. Australia signed eight of them with Indonesia in 1981, and just one in 1984, the year Chan was born. But by the mid 1990s, the pace had increased considerably, with almost 50 signed by 1995.
The most significant of those – and the one that would underpin the relationship between Australian and Indonesian officials for the next two decades – was signed on October 27, 1995. It’s also the one that ultimately signed Chan and Sukumaran’s death warrant.
It’s called the ‘Mutual Assistance in Criminal Matters (Republic of Indonesia)’ Treaty, and it formalizes how Australia and Indonesia would work together to tackle trans-national crime, in particular drug trafficking.
It was Australia’s first major crime fighting treaty with Indonesia, and was hailed at the time as a breakthrough in relations between the two countries.
What wasn’t publicly promoted is that while the treaty states that Australia must refuse any request for assistance from Indonesia if we suspect it relates to “prosecuting or punishing [a]person on account of [their]race, sex, religion, nationality or political opinions….”, on the question of capital punishment for drug traffickers, Australia left the door wide open.
While Australia today officially opposes the death penalty in all circumstances, the Mutual Assistance Treaty (MAT) notes that the Australian Government may assist Indonesia in requests that “relate to the prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed or carried out”.
The MAT was negotiated between the Keating and Suharto governments, Suharto reportedly having a close relationship with Keating, despite the fact Suharto was universally regarded as a brutal dictator, and oversaw the slaughter of more than 100,000 East Timorese and West Papuans.
Enter the Howard government, which, in 1999, passed regulations in Australian Parliament to give legal affect to the agreement negotiated by its predecessor.
Those regulations honour the original treaty, and make clear that Australia was prepared to have a bet each way on Indonesia’s death penalty.
Australia has another series of treaties it has signed with Indonesia, and like the MAT, they also afford plenty of wiggle room for Australian officials to assist Indonesians on capital crimes.
But unlike the MAT, the details of these treaties are not publicly known. They remain a closely guarded state secret.
In 2002, the Australian Federal Police (AFP) and the Indonesian National Police (INP) negotiated a separate treaty detailing how both agencies would work together to tackle trans-national crime. Drug trafficking, in particular, was a focus of the agreement.
The treaty is called, ‘Memorandum of Understanding Between the Government of the Republic of Indonesia and the Government of Australia on Combating Transnational Crime and Developing Police Cooperation’, and was an extension of a similar treaty signed in August 1997.
Every Australian government since Howard has been a signatory to it. It was re-signed by the Howard government in 2005, before the Rudd government re-signed it in 2008, and the Gillard government re-negotiated and re-signed it in 2011.
A spokesperson for the AFP confirmed to New Matilda that although this treaty expired in November last year, it is still in force today.
Requests by New Matilda to access the treaties were denied by the AFP.
“[No documents] will be made publically available as the documents were developed in confidence with a foreign government and their publication would disclose police methodology,” a spokesperson said.
But while we don’t know what’s in them, their timing provides an important backdrop to the Bali 9 case.
On August 31, 2004, Minister for Justice, Chris Ellison wrote to Australian Federal Police Commissioner Mick Keelty, directing him to forge closer ties with foreign agencies.
Ellison said that one of the expectations of the Howard Government was for the AFP “to be active in pursuing opportunities for cooperation and strategic alliances with… international partners in law enforcement, to support effective action against multi-jurisdictional crime.”
Ellison specifically directed the AFP to give “special emphasis” to “preventing, countering and investigating trans-national and multi-jurisdictional crime [involving]illicit drug trafficking”.
The Bali Nine were captured just seven months after Ellison’s directive.
Seven months after that, on November 19, 2005, Australia renewed the 2002 agreement between the AFP and INP at a ceremony in Jakarta. Despite growing public awareness – and anger – over Australia’s role in the Bali 9’s capture, a ‘treaty database’ maintained by the Indonesian Government reveals the 2005 agreement was renewed without change: “This MoU same renew MoU dated June 13, 2002,” the database reads.
Minister Ellison’s direction to the AFP also ordered the Police Commissioner to ensure his officers “meet Commonwealth interests in a safe and secure Australia by actively fostering relationships with other law enforcement agencies … within Australia and overseas, where the provision and exchange of information is consistent with AFP functions …"
It’s that last phrase – ‘the provision and exchange of information’ – that turned out to be key in the Bali 9 case. It’s also the smoking gun which proves that not only did the Australian government not oppose the executions of Chan and Sukumaran in the early days, but that it worked hard to actively assist.
CONTRARY to popular belief – Lee Rush, the father of Scott Rush, one of the Bali 9 – was not the cause of his son’s downfall.
Australian media have reported widely that Rush Snr – believing his son was travelling to Bali to commit a crime – dobbed Scott into the AFP, and asked police to prevent him leaving the country.
The story is only partly correct.
Lee Rush did make contact with police, as evidence to a Federal Court case in late 2005 revealed (Scott Rush and three other Bali 9 couriers unsuccessfully tried to sue the AFP, arguing that the AFP owed a duty of care to Australian citizens and that by assisting the Indonesian’s in their arrest, the AFP had exposed them to the death penalty).
Before his son left Australia, Rush Snr rang a friend – a lawyer named Robert Myers, who had acted for Scott Rush in some comparatively minor offences a few months earlier – and asked for his help.
Myers agreed to contact a cop he knew within the Queensland Police Service, who had been seconded to the AFP. That officer’s name is Damon Patching.
According to the evidence of Myers, Patching promised to make a few calls, and gave Myers an assurance that Scott Rush would either be detained at the airport, or, if that wasn’t possible, he would be warned by police that they knew he was “up to no good”.
Patching arranged to issue a ‘PACE’ alert on Scott Rush, an automated system which triggers a warning to Customs officers if Rush sought to leave the country.
As it turned out, Rush couldn’t be detained at the airport. While he was on bail for minor offences committed in Queensland, his bail conditions didn’t prevent him from travelling overseas.
But not only did the AFP have no legal power to stop Rush from travelling, it also had no inclination, because the syndicate behind the Bali 9 had already been under active investigation for two months.
On the morning of April 8, as Rush was preparing to fly to Bali, that investigation stepped up a notch.
IT’S WELL known that the AFP assisted the Indonesians in their capture of the Bali 9. But the level of assistance our national police service provided is perhaps not as well understood. In order to get a sense of the scale of the betrayal of Chan and Sukumaran by a nation which claims to oppose the death penalty in all circumstances, it’s worth revisiting.
On April 8, 2005, as Scott Rush and several of the Bali 9 were heading to Sydney airport, the Australian Federal Police were already arranging to have them intercepted at the other end.
AFP Officer Paul Hunniford – the AFP Senior Liaison Officer based in Bali – wrote to a member of the Indonesian National Police ("the INP") in Denpasar. The document was headed ‘Heroin couriers from Bali to Australia – Currently in Bali’.
The AFP in Australia have received information that a group of persons are allegedly importing a narcotic substance (believed to be Heroin) from Bali to Australia using 8 individual people carrying body packs strapped to their legs and back. More specifically the information received that:
The group planned to conduct an importation in December 2004. The group travelled to Bali in December 2004 but the importation was cancelled because there was not enough money to buy ‘the stuff’ and that they would be travelling again in 3-6 months. The group returned to Australia.
The couriers were given instructions not to smoke cigarettes for two weeks prior to travel as they would not be allowed to smoke on the return flight as they may appear nervous. They were to carry body packs (containing white powder) back to Australia by using packs on both legs and the back supports. They were also supplied back supports. The packs were to be tightly taped to the person’s body. Members of the group were given expense money and told to change the money into local currency to allow them to buy oversized clothes and thongs. The clothes and thongs were not to have any metal on them to avoid the metal detectors at the airports. The couriers received pre-paid mobile telephones. On return through Customs they were told to be carried [sic]a wooden carving for declaration to Quarantine to by-pass Customs.
YANG, Alice dob 9 Dec 1985
NGUYEN, Thanh Nhan dob 30 Nov 1986
LEE, Francis dob 14 March 1983
CAO, Shaode dob 26 Sep 1986
HUANG, Danny dob 7 Dec 1986
LAU, Ina Yuk Teng 3 Feb 1986
LAWRENCE, Renae 11 Oct 1977
NORMAN, Matthew 17 Sept 1986
Enquiries reveal that Andrew CHAN organised travel for some of the December 2004 couriers. Travel movements show that CHAN has travelled previously to Bali in August 2004 (11 days) and October 2004 (7 days).
On Sunday 3 April 2005 CHAN departed Sydney for Denpasar, Bali. His travel itinerary indicates that he is booked to stay at the Hard Rock Café Kuta and is due to return on Friday 15 April 2005.
On Wednesday 6 April 2005 four suspected couriers departed Sydney for Denpasar on AO7829:
Renae LAWRENCE bn: 11/10/1977
Matthew NORMAN bn: 17/09/1986
Martin STEPHENS bn: 13/04/1976
Si Yi CHEN bn: 19/03/1985
They are due to return to Australia on Friday 15 April 2005, the day after CHAN returns. At this stage it is unknown who is the source of the narcotics in Bali.
About 0900 hrs this date Friday 8 April the AFP have received information that a further 3 suspect couriers departing on Australian Airlines flight no AO7829 to Denpasar. Return date not confirmed at this stage.
Tan Duc Thanh NGUYEN bn: 30/10/1982
Michael William CZUGAJ bn: 21/06/1985 (Russian)
Scott Anthony RUSH bn: 03/12/1985
This information – the names, birthdays, dates and locations of the Bali 9, plus a few extras – was passed on to the Indonesian Police by the AFP in the full knowledge that if arrested with drugs, and convicted, each of them could potentially receive the death penalty.
As it would later transpire, six of the Bali 9 did. Chan and Sukumaran, plus Si Yi Chen, Tan Duc Thanh Nguyen, Matthew Norman and Scott Rush were all, at one time, sentenced to death.
In the case of the latter four, they each had their death penalties overturned on appeal, with life sentences in their place.
But the AFP didn’t just limit its co-operation to tipping Indonesia off to names and dates. It also had a number of specific requests.
The AFP would like to identify the source of the drugs and the organisers (other that CHAN) in Australia. We would also like to gain evidence of association between CHAN and the suspected couriers. To do this it I ask that:
1. That the suspected couriers due to arrive this date be oversighted to identify their intended address in Australia.
2. INP obtain as much evidence/intelligence as possible to assist AFP identify the organisers in Australia and source of narcotics in Indonesia.
3. We request surveillance to be carried out on CHAN and the couriers (if possible) until departure.
4. Should they suspect that CHAN and/or the couriers are in possession of drug at the time of their departure that they take what action they deem appropriate.
5. Could INP make enquiries to establish if CHAN is staying at the Hard Rock Hotel and to identify any associates, especially meetings with the above mentioned or the identity of other possible couriers.
6. Could copies of all passenger arrival cards be obtained.
7. Request photos to be taken of any meetings for possible use in proceedings here.
8. If possible obtain phone records of any numbers being called in Australia by either CHAN or the couriers. This may assist AFP identify the organisers in Australia and possible telephone interception."
In the later correspondence of April 12, Hunniford wrote: “If arrests are made on 14 April it is likely that NYUYEN [sic], CZUGAJ and RUSH will become suspicious of the arrest and decide not to attempt to board the Saturday flight with narcotics. I therefor [sic]request that you consider searching NYUYEN [sic], CZUGAJ and RUSH soon after the first group are intercepted.
But the AFP’s assistance didn’t end there.
After the Bali 9 were arrested, AFP officers continued to provide intelligence and assistance to the INP, despite clear public statements from Indonesian officials that at least some of the Bali 9 would face death.
The details of that assistance are not publicly known.
That’s an extraordinary action for the national police force to take, given it’s serving a country which says it opposes the death penalty. The AFP were able to do it, courtesy of some carefully crafted loopholes in our multiple treaties, and regulations.
For a start, the Mutual Assistance Treaty provides the authority for Australian officials to assist, even in death penalty cases. The MoU signed in 2002 between the police forces also allows for assistance on death penalty cases.
In addition to that, when the AFP is involved in a trans-national criminal matter that may attract the death penalty, officers must operate under what’s called the ‘Death Penalty Charge Guide’. This prevents the AFP from assisting the Indonesians – or any other nation – with the prosecution of an Australian citizen once the person has been charged with a capital crime.
Minister Ellison explained it succinctly in late 2005, amid growing public anger over the role of the AFP.
“Once charges have been laid, you then stop with the police-to-police assistance, and you then act in accordance with the Mutual Assistance Treaty,” Ellison told the ABC.
“Now that means if the Indonesians do require assistance they have to make a formal request under that treaty. It has to come to myself as the Minister for Justice and I then make a decision on the matter."
Of course, what Ellison neglected to mention – and what the AFP relied on as the loophole – is that unlike Australia, in Indonesia, people accused of a crime aren’t charged until the matter finally proceeds to court.
In the case of the Bali 9, they waited seven months before their first appearances. In addition to the detailed tip-off and request, the AFP also admits to continuing to provide assistance to the Indonesians after the arrests, but before they were formally charged.
Of course, there’s a pay off. If we share intelligence with the Indonesians, the Indonesians will share intelligence with us. And if we deliver up the bodies of a few Australian drug traffickers in the process, who is going to object? Certainly not the Indonesians.
The AFP’s goal in trading the lives of some of the Bali 9 was to get information back from Indonesia about the syndicate kingpins back in Australia. That ultimately never happened, although the syndicate was smashed, and several Australians were sentenced to jail back home.
This horse trading is best summed up by federal agent Mike Phelan, the Deputy Commissioner, National Security for the AFP and the ‘senior officer’ who ultimately gave approval for the Bali 9 to be exposed.
Phelan gave a lengthy interview to the ABC in 2006: “In order for us to enforce the laws in this country we need to be able to work within… an environment where there is free and frank intelligence exchange [with foreign police]and it is a quid pro quo.
“How could people expect the Indonesians, for example, or the Philippines government to supply information to us on terrorism related matters if we were not willing to supply information to them in relation to narcotic matters that reflected and directly affected their own country?”
In the AFP’s defence, they can – and have – claimed that they were simply following orders. After all, Justice Minister Chris Ellison had directed them to foster better working relationships with foreign police forces only months before the Bali 9 were arrested. What better way to build relationships than give the INP a handful of Australians to execute?
Says Phelan: “The guidelines clearly say that the ministerial discretion or government discretion is invoked at the time of charging. The government has made a conscious decision to leave those decisions prior to the charging of offenders to the AFP and we are the ones that discharge that duty. Should the government see fit to have the policy elsewhere then we would operate within that….”
And ultimately, that’s exactly what the Australian government pretended to do. In the words of Stephen Keim SC, patron of Australians Against Capital Punishment: “They tightened the regulations so that you could no longer drive a truck through them. Now you can just drive a car through them, but they’re riding motorbikes.”
IN POLITICS, if you’re going to tell a lie, then one with weasel words is always easier to defend down the track. That certainly appeared to be the thinking of former Foreign Minister Alexander Downer, in a 2013 opinion piece for The Australian newspaper while he defended the record of his government, and the AFP, over the Bali 9 outrage.
“The AFP were not directly involved with the arrest of the Bali Nine but more broadly, AFP co-operation with the Indonesian authorities is important to Indonesia's anti-drug campaign,” Downer wrote.
The Labor Party has also played its part in muddying the waters in the minds of the public.
In 2005, Labor tried to make political mileage out of the Bali 9 issue by attacking the Howard government for the operation of the Mutual Assistance Treaty, an agreement Labor had negotiated just 10 years earlier.
Then opposition justice spokesman, Joe Ludwig claimed Ellison didn’t even understand the treaty, and called for a review of its operations.
But two years later, and back in government, there was no change. According to the Indonesian treaty database, Labor simply re-signed the 2008 treaty: “This MoU replaces the same MoU signed 18 November 2005,” it reads.
More recently, Labor has been quick to make public comment on pleas for clemency, but not so willing to answer questions about its own Bali 9 role.
Earlier this week, Opposition Leader Bill Shorten issued a statement condemning the death penalty.
“We oppose the death penalty in every circumstance, in every country,” Shorten said.
So New Matilda sought comment on why his party signed multiple treaties which still allow Australian police to assist in the conviction of capital crimes.
Shorten’s office referred us Tanya Plibersek, the shadow minister for Foreign Affairs.
Plibersek’s office also declined to answer the questions, referring us instead to shadow Attorney General Mark Dreyfus (although Plibersek seems to be well across Labor’s ‘talking points’, also telling media, “We are united in opposing the death penalty in this case as we are in every case.")
Dreyfus’ office also declined to answer the questions, and referred New Matilda to public comments already made by Plibersek.
It seems there’s political mileage in opposing the death penalty, but none in explaining your role in it.
For their part, the AFP also remains unrepentant about their role in the arrests and convictions of Chan, Sukumaran and the rest of the Bali 9.
Just like the loophole the AFP used over Indonesia’s lengthy charge process, the AFP also took to hiding behind ongoing diplomatic efforts to save the lives of Chan and Sukumaran, in order to avoid public scrutiny over their actions.
In a speech to the Lowy Institute earlier this year, the new Commissioner of the AFP, Andrew Colvin (appointed in October 2014) publicly denied his agency had “blood on its hands” over Chan and Sukumaran. But he was reticent to talk in too much detail.
“While the government’s efforts are continuing, now is not the time for me to go into that.”
If Commissioner Colvin was silent on explaining the actions of his organisation, he managed to find voice in defending it, declaring that “several reviews and judicial hearings that have scrutinized the AFP’s actions”.
That one is straight from the Downer playbook.
While it’s true that the AFP won their case in the Federal Court, and were found to have acted legally, Justice Finn used his opening statement in his judgment to make clear that he was troubled by the actions and processes of both the AFP and the government.
“The circumstances revealed in this [court case]… suggest there is a need for the Minister… and the Commissioner of Police to address the procedures and protocols followed by members of the Australian Federal Police when providing information to the police forces of another country in circumstances which predictably could result in the charging of a person with an offence that would expose that person to the risk of the death penalty in that country.
“Especially is this so where the person concerned is an Australian citizen and the information is provided in the course of a request being made by the AFP for assistance from that other country’s police force.”
Just a few months after Justice Finn’s decision in 2006, Mike Phelan, the now Deputy AFP Commissioner who okayed the handover of information to Indonesia on the Bali 9, told the ABC Justice Finn’s views would be “taken into account”.
And then he added this: “Even with the aid of hindsight, should the same set of circumstances present themselves again with another syndicate or other people, we would do exactly the same thing … there have also been a large number of young lives on the other side of the ledger that have been saved as a result of the AFP's operations over many years."
One wonders how that squares with Phelan's appearance, along with that of his boss Mike Keeltly, as a witness for Scott Rush in his successful appeal against his death sentence.
One also wonders how Mike Phelan is feeling this morning.
We tried to find out, but AFP media advised he was “unavailable for comment” and that this morning was “not an appropriate time”.
The AFP is planning to stage a press conference later today, although it’s not clear yet if Phelan will be attending.
Despite the AFP’s continued insistence it has no blood on its hands, one government – Gillard’s – finally did move to tighten regulations around police assistance on death penalty cases.
Previously, if the AFP were considering passing on information about a crime that could attract the death penalty, it had to be approved by a ‘senior officer’.
Today, the AFP must notify an ‘even more senior officer’ – someone at the “Manager/SES Level 1” and above. Someone like Mike Phelan, for example.
The Gillard government also pretended to close the loophole used by the AFP around the lengthy time it takes Indonesia (and other nations) to formally charge someone who has been arrested.
A spokesperson for the AFP advised: “Currently… Ministerial approval is required in any case in which a person has been arrested or detained for, charged with, or convicted of an offence which carries the death penalty.”
It’s perhaps not all that hard to imagine that the families of Myuran Sukumaran and Andrew Chan will find little comfort in the changes, namely that Australia can now only choose to support the death penalty at the senior bureaucrat and Ministerial level, as opposed to more junior bureaucratic ranks.
IT IS a terrible thing to take a human life. Drugs do that every day, a fact that should not be lost on anyone contemplating the crimes of the Bali Nine.
But for those crimes, two of them have now paid with their lives.
Shortly after 3:30am AEST this morning, Chan, aged 31, and Sukumaran, aged 34, were taken from the prison on Nusakambangan Island, to a nearby clearing.
We don’t know if the men chose to sit or stand, and face the firing squad with their eyes open, or wear a hood or blindfold. But Sukumaran told friends he intended to refuse the blindfold, and stare his killers in the eye.
Whatever his choice, 12 men with assault rifles then lined up before them, between five and 10 metres away. Three of those gunmen were sporting live rounds, the others had blanks, so that none of them will ever know for sure who fired the fatal shots.
A target was pinned to the chests’ of Chan and Sukumaran, and they were shot.
What is also not yet known is whether either of the men required an extra bullet to finish the job. That’s the part of Indonesia’s brutal death protocol which requires that if a condemned prison hasn’t bled to death within a few minutes, an official must step forward and shoot him in the head.
Whatever happened, however they died, the lives of Chan and Sukumaran were snuffed out this morning, like that of wild animals in the bush.
That is what the Australian Federal Police – under instructions from successive Australian governments – aided and abetted.
Tony Abbott was right to say this morning that we are "absolutely entitled to be angry" but the question remains, angry at who?
Should we be angry with the Indonesian government, which, when you boil it all down, is following the letter of their law? Or should we be angry at successive Australian Governments, which have spent the past two decades looking for ways around ours?
In the not-too-distant future, of course, little of this will matter to anyone beyond the families and close friends of Myuran and Andrew.
We will have all moved on, and the issue will once more disappear off our front pages.
That is, until the next time. Because the Australian legislation, regulations and treaties that helped paved the way for the legal homicide of two Australian citizens this morning, remain in place today.
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