Bills Digest No 72 1995-96 Telstra (Dilution of Public Ownership) Bill 1996

Numerical Index | Alphabetical Index

This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 7 May 1996


Passage History

Date introduced:2 May 1996
House: House of Representatives
Portfolio: Communications and the Arts
Commencement: On the day on which the Act receives the Royal Assent. The Repeal of Part 3 (directions by the Minister) of the Telstra Corporation Act 1991 commences when a person other than the Commonwealth becomes the legal owner of voting shares in Telstra.


The Purpose of the Bill is to facilitate the sale of up to one third of the Commonwealth equity in Telstra Corporation Limited (Telstra).


The Government's Election Policy

The Liberal and National Parties 1996 Election Policy contained a commitment to partially privatise Telstra. The major features of the policy were as follows:

  • One-third of the Commonwealth's equity to be made available through a share float, sixty-five per cent of which would be reserved for Australian investors as A class shares.
  • Foreign investors only to be allowed to subscribe to thirty five per cent of the float and to be issued with B class shares. No foreign investor to be allowed to acquire more than five per cent of the one-third float.
  • Incentives to be provided to Australian citizens and Telstra employees to encourage participation in the float.
  • Telstra not to be broken up.
  • Telstra to remain incorporated in Australia with an Australian citizen as Chairman of the Board, of which a majority will also be Australians.
  • Government to reserve right to veto any excessive management remuneration.
  • The Community Service Obligations (CSOs) of telecommunication carriers to be maintained, along with the requirement for such carriers to contribute to a Universal Service Levy to meet the cost of the CSOs.
  • The existing right to untimed local telephone calls to be maintained and guaranteed by legislation.
  • All existing price caps to be maintained and the price controls outlined in the Labor Government's August 1995 statement to be adhered to.
  • A new legislated Customer Service Guarantee to be met by all telephone companies.
  • Competition regulation to be administered by a specialist branch of the Australian Competition and Consumer Commission. (1)

The Policy estimated that the partial privatisation would generate around $8 billion. Mr Howard has stated that $7 billion will be used to retire debt, with the remaining $1 billion providing initial funding for a Commonwealth Trust Fund to be known as the Natural Heritage Trust of Australia. The Trust will be devoted to capital projects to "maintain and replenish the environmental infrastructure".(2) The Policy lists five capital projects to be funded over the first five years. It is planned that at the end of the five-year program around $300 million will remain in perpetuity in the Fund, with all interest earned to be devoted to environmental projects.

The Universal Service Obligation

Section 288 of the Telecommunications Act 1991 defines the universal service obligation (USO) as the obligation:

(a) to ensure that the standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(b) to supply the standard telephone service to people in Australia; and

(c) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(d) to supply, install and maintain payphones in Australia.

It is the responsibility of the universal service carrier to meet the USO. While the Act allows for more than one universal service carrier, at the moment Telstra is the sole such carrier for Australia. Telstra's performance in meeting the USO is monitored by the Australian Telecommunications Authority (AUSTEL). AUSTEL also publishes a much more detailed description of its requirements for Telstra's fulfilment of the USO, including such matters as:

- the definition of a standard telephone service

- installation times

- definition of 'equitable basis' for the provision of payphone services.

This document (titled AUSTEL'S Views of Telstra's Universal Service Obligation) provides the basis upon which AUSTEL reports to the Minister on Telstra's performance in meeting the USO. AUSTEL has the power to investigate complaints regarding the USO and to direct a carrier to comply with the obligation.

The 1991 Act requires AUSTEL to assess the cost of the USO and to share that cost across carriers in proportion to each carrier's timed traffic (referred to as the USO levy). The calculation of the cost of the USO (called the Net Universal Service Cost or NUSC) has been a matter of some controversy. In June 1994 AUSTEL published its assessment for 1992-93 at $149.17m. Assessments for subsequent years have not yet been published because of concerns over methodology and the treatment of certain revenue and expenditure items. The distribution of the NUSC between States is shown in the table below.

Net Universal Service Cost 1992-93(3)

State $m Per cent
NSW/ACT 46.3 31
QLD 40.2 27
VIC 24.4 16
WA 19.7 13
SA/NT 8.7 6
TAS 8.2 6
Other costs 1.6 1
Total 149.2 100

It is likely that the NUSC for more recent years is considerably higher than the figures given above. A recent article in Australian Communications (February 1996, p.53) gave a figure of $235m for 1994-95. This figure appears to have been derived from AUSTEL's published figures on the cost of Telstra's loss-making exchanges. These are calculated by deducting the revenue returned by an exchange from the cost of providing services to that exchange. In 1994-95 the total losses from loss-making exchanges was $235.8m. While this figure is not equivalent to the NUSC, it does provide an indication of the scale of costs. It is possible that these costs will further increase if the USO is broadened. Under the previous Government's Telecommunications Policy Principles: Post 1997 consideration was to be given to upgrading the standard telephone service to a 'standard telecommunications service' capable of supporting fax and data as well as telephony. The new Government is also committed to examining whether the definition of a standard telephone service should be upgraded. Section 5 of the Telecommunications Act allows for the definition of a standard telephone service to be changed by regulations to include telecommunications services.

The likelihood of an extensive broadening of the USO could have a significant effect on the privatisation of Telstra. It would reduce the profitability of the organisation (particularly if price capping continues) and this presumably would lower the price of its stock.

Price Capping, Untimed Local Calls and Targeted Assistance

As well as the USO, Telstra is also subject to other Ministerial directives with social implications. To ensure that the carrier does not exploit its monopolistic position, Telstra is subject to a price controls on its basic services. In 1994-95 these controls effectively required Telstra to reduce its retail prices for basic services, according to revenue weight, by at least 4.5 per cent in real terms.

In its Telecommunications Policy Principles: Post 1997 the previous Government acknowledged that social policy considerations (as well as questions of market power) lay behind the application of price controls over Telstra. It stated that these controls were necessary to ensure that prices remain affordable in loss-making universal service areas. The Policy Principles announced in August 1995 also included price control arrangements for 1996 to 1998. They set a price cap of the CPI minus 7.5% on Telstra's charges for a revenue weighted basket of main services (connections, line rentals, local, trunk and international calls, cellular mobile telephone services and leased lines). It also set individual caps of CPI minus 1% for the stand alone charges for certain residential services (connection, line rentals, trunk and international calls). The standard local call charge of 25 cents and public payphone prices were also capped for the three years. The Policy Principles also stipulated that all carriers offering local call services to residential customers continue to be required to offer these customers the option of access to untimed local calls.

The new Government's election policy included the maintenance of both the price cap regime and untimed local calls. It stated that Telstra would continue to be subject to the 'existing and announced price cap arrangements' and that the price cap regime would be expanded to include ISDN from 1 July 1996. The major difference between the parties concerns the post-1997 regime. The previous Government's Policy Principles stated that price caps on Telstra should be determined periodically with regard to 'existing market power, forecast market developments and social policy considerations'. Under the Coalition policy, wholesale pricing would be subject to Ministerial guidelines while the retail market would be monitored by the Australian Competition and Consumer Commission (ACCC) to ensure that there was no anti-competitive behaviour. The ACCC would have the power to impose and/or disallow tariffs. The policy does not refer to social policy considerations in connection with price regulation, but deals with the issue in terms of market power/competition policy.

The policies of both the Coalition and the previous Government support the continuation of targeted assistance for low-income earners and those with special telecommunications needs. Such assistance is determined as part of the normal Budget processes and is provided by the relevant portfolios. Such an approach is considered more equitable and efficient because the costs of the programs remains transparent and is not concealed within the operating expenses of the carriers. This also means that the future of such programs is completely independent of the ownership of Telstra.

Benefits of Privatisation

The Government has argued that the community (and consumers) will benefit in general from the privatisation. These benefits will include:

  • better quality services and lower prices
  • the maximisation of economic efficiency consistent with the CSOs
  • the avoidance of the conflict of interest that occurs when the Government sets the competitive framework for an industry while owning one of the major players
  • economic benefits associated with the reduction of government debt and associated interest payments.

Some commentators have questioned the extent of these benefits.(4) A recent article by Allan Brown on the economics of the Telstra privatisation argued that:

The empirical evidence strongly suggests that historically private firms have outperformed public firms. This is not surprising considering that traditionally GBEs have had multiple objectives among which have been profit making, but usually not profit maximising. Corporatisation has addressed many of the apparent causes of public sector inefficiency, and there is evidence from both Australia and the UK that the productive efficiency of GBEs has greatly improved since the early 1980s. It is still not clear, however, whether it has achieved the level of the private sector, or, indeed whether it ever will. Thus the fundamental question as to whether or not private firms are inherently superior to public enterprises in terms of productive efficiency is yet to be conclusively answered. If, in time, it is found that they are, it is likely that the difference between their levels of productive efficiency will be less than traditionally assumed.(5)

Brown concluded that the balance of economic costs and benefits of the privatisation of Telstra depends largely upon the company's potential for further efficiency gains, the achievable net sale proceeds, the level of foreign ownership and the implications for the regulation of the telecommunications industry.

Whatever its merits, the case for the privatisation of public telecommunications carriers has been accepted by many governments. Countries which have privatised their carriers (either whole or in part) or plan to do so include the UK, NZ, Germany, France, Holland, Italy, Denmark, Ireland, Sweden, Indonesia, Singapore, Japan, Canada, Chile, Argentina, Malaysia, Mexico, Venezuela, Hungary and Latvia.

Social Impact of the Privatisation

The Government's Election Policy was constructed to counter claims that the privatisation would have an adverse social impact. Only one third of the carrier would be sold and there would be no further privatisation before the next election. It also committed itself to legislate a framework of consumer safeguards that would include:

  • the requirement that all carriers contribute to the Universal Service Levy
  • the requirement that a Standard Telephone Service be offered to all Australians (with an immediate review to determine if the Standard Telephone Service should be upgraded to accommodate new technologies)
  • the maintenance of the right to untimed local calls for residential and business customers
  • maintenance of the price cap regime
  • continuation of targeted assistance
  • acceleration of network modernisation and provision of digital services.

It has also been argued that so long as community service obligations are entrenched as the responsibility of carriers (both private and public) in the legislation establishing the regulatory environment for telecommunications, then the standard argument that such obligations necessitate public ownership of the national carrier no longer applies.(6)

Opponents of the privatisation argue that (regardless of any immediate safeguards) it would not be possible to maintain the current community service obligations with private carriers competing in a deregulated environment. In the long term, it is argued, private carriers will not be able to sustain the cross-subsidisation that enables the current provision of standard services throughout the country. Without the USO, provincial and rural users would be forced to pay substantially more for a standard telephone service and the availability of pay telephones in low-income areas would decline. According to newspaper reports, Telstra has already indicated to the previous Government that it should not be required to provide unprofitable services while both the Bureau of Industry Economics and the Industry Commission have called for the replacement of cross-subsidies in telecommunications with some other means of delivering community service obligations.(7)

It has also been argued that the existing USO is inadequate and should be expanded to cover other services, but that such an expansion of definition would become increasingly unlikely if the privatisation were to proceed. AUSTEL reported in December 1993 that there was increasing pressure, particularly from consumers in rural and remote areas, for the definition of a standard telephone service to be broadened to include data transmission facilities. The Consumers' Telecommunications Network has argued that the geographical definition of universal service is inadequate. It has proposed that it should be extended to include universal accessibility and affordability, as well as a universal technological standard, universal telecommunications and participation in society. In November 1995 the Senate Economics References Committee recommended that if the definition is expanded to cover telecommunications, it should also allow for radiocommunications (because services are not confined to cable transmissions). Both Government and Opposition have indicated their support for a review of the definition of the standard telephone service.

Opponents of the privatisation could also argue that it will occur at a critical time in the development of communications in Australia. Telstra is currently engaged in a rollout of fibre-optic cable network that will become the vehicle for the delivery of broadband services in the next century. Telstra believes 80 per cent of urban homes will be passed by the network by the end of the decade. The development of this new communications infrastructure itself raises difficult issues concerning equity and democracy. Helen Mills, former director of the Sydney-based Communications Law Centre, has described the problem as follows:

As information, and access to it, the ability to manipulate it and tailor it to individual purposes, becomes more and more the currency of effective participation in society, we will have to confront inequalities of opportunity based on capacity to pay and personal abilities to deal with technology, which will be extremely difficult to solve using traditional means ... As broadband networks are developed, an increasing proportion of the population could be in the position of subsidising the installation of capacity to deliver services which they will not be able to use: the information have-nots could thus be doubly disadvantaged.(8)

Because of the huge cost of the network, it is unlikely that rural communities and remote households will be serviced with cable and, accordingly, geographical inequities in communications will be increased. In these circumstances it is important that universal service obligations protecting rural and remote households be strengthened rather than threatened. A privatised Telstra would not only be disinclined to cross-subsidise the cable rollout to rural areas, but the cost of the project will also put pressure on the less profitable aspects of the standard telephone network. A recent report (Australian Financial Review, 9 April 1996) stated that some brokers have estimated that the 'cable war' with Optus will reduce Telstra's profits by more than $2 billion over the next five to six years.

The costs of the cable rollout have also been used as a justification for privatisation. It is argued that the huge financial risks involved should be borne by shareholders, rather than taxpayers (the vast majority of whom will not be connected to the broadband network in the short to medium term). The alternative view is that the network will be an essential infrastructure for development in the 'information age' that will provide long-term benefits for the entire community and the economy.

Telstra's Performance

In March 1995 the Bureau of Industry Economics published a detailed comparison of Telstra's performance with overseas carriers. It concluded that:

Since the introduction of competition in telecommunications Australia has moved ahead with the leading pack, but it is at the back of the leading group rather than the front. Relaxing the pace of reform would see Australia fall back into the trailing group of also-rans. Renewed effort is required to lift Australia towards international best practice.(9)

Some of the individual indicators are given in the table below:

Indicator Year Australia's Rank
Business Fixed Charges 1993 18th of 28
Long Distance Call Charges 1993 16th of 26
National Basket of Prices 1994 14th of 23
International Call Basket of Prices 1994 1st of 24
Fault Clearance 1992 15th of 19
Revenue per Employee 1993 19th of 27
Lines per Employee 1993 26th of 30
Revenue per Line 1993 7th of 28
Multifactor Productivity 1992 8th of 11

It has been argued that privatisation is necessary to further improve Telstra's operating efficiency as it is difficult for a Government-owned organisation to undertake the restructuring required. However, the current proposal will not meet these conditions, as the Government will retain control and many of the "constraints" on the organisation (USOs, price caps etc.) will remain.(10)

Main Provisions

Readers Note: All of the proposed amendments contained in the Telstra (Dilution of Public Ownership) Bill 1996 are included in a schedule to the Bill. The terminology to be used therefore is 'item ' in the schedule in lieu of the more usual form of 'clauses' in a Bill.

Legislation dealing with the related issue of the natural heritage trust is to be covered in the Natural Heritage Trust of Australia Bill 1996, which, at the time of writing this Bills Digest, is yet be tabled.

Schedule 1 - Amendments

Items 1 to 19 deal with amendments to the Telecommunications Act 1991. The Explanatory Memorandum to the Bill groups the items under topics rather than in numerical order. Items 1 to 5 will introduce amendments to section 38 of the Telecommunications Act 1991 to enable AUSTEL to develop broader indicative performance standards about billing matters. AUSTEL's responsibilities include reviewing and reporting to the Minister on telecommunications carrier performance.

Item 6 simply inserts recognition of the Minister's power to direct AUSTEL about customer service guarantee under the new section 87P (see Item 11).

Comment: There is a minor error in the Explanatory Memorandum on page 15
- Item 6. The related reference should read Item 11 not Item 12.

Item 11 inserts a new Division 6 - Customer service guarantee which contains proposed new sections 87D to 87Q. Customers may be awarded damages (not exceeding $3000) for a breach of performance standards by a carrier. The Minister may issue directions to AUSTEL about how AUSTEL is to exercise its powers under this Division. The direction may be disallowed by Parliament.

Item 19 operates with Items 9 and 10 to extend to all customers the right to have the option of continued access to untimed local calls. Previously, the definition in section 73 of the Telecommunications Act 1991, was capable of excluding businesses.

Items 20 to 27 deal with proposed amendments to the Telstra Corporation Act 1991. Telstra Corporation Limited is a company registered under the Corporations Law. The Telstra Corporation Act 1991 in its existing form obliges the Commonwealth to retain ownership of all voting shares in Telstra (section 8). Items 20 to 23 are minor legislative amendments.

Item 24 is a key provision and it repeals the existing Part 2 (fully Commonwealth owned) and replaces it with a Part 2 which varies that legislative obligation to majority Commonwealth ownership of Telstra. A proposed new section 8AB requires the Commonwealth and Telstra to retain at least two-thirds of the total voting rights of shares in Telstra. There is a further provision to expressly require compliance by Telstra (proposed section 8AC).

The proposed legislative obligations, which are imposed on the Board of Telstra include informing the Minister of significant company events such as forming a subsidiary, acquiring another company or involvement in a joint venture. The Board of Telstra is also required to provide the Minister with a Corporate Plan containing specified details. The Minister may direct Telstra to provide specified financial statements.

Comment: The legislation contains a protective exemption for directors of Telstra to ensure that any disclosure by them of confidential company information pursuant to a Ministerial direction does not contravene the Corporations Law or any rule of common law (see proposed new section 8AI). Likewise, the use by the Commonwealth of that information to facilitate the Telstra sale scheme does not contravene the provisions of the Corporations Law or common law (see proposed new section 8AW).

Apart from these special provisions, the partial sale of Telstra will impose the requirements already specified in the Corporations Law for continuous disclosure by the company to the public of any event likely to materially affect the price of the company's shares. The Minister's requirements for information are, of course, likely to cover additional matters and to be more detailed than that which is usually released under the continuous disclosure regime.

One residual issue is that the Commonwealth, as majority shareholder, will obtain information which may not necessarily be made available to other share holders. Without over stating the issue this might give rise to assertions that the Commonwealth is in a position to have an advantage over other shareholders.

Proposed Division 4 of new Part 2 contains the sections which will govern the sale by the Commonwealth of its shares in Telstra. These proposed sections commence at section 8AJ (page 17 of the Bill). These sections include an 'open-ended' appropriation at proposed section 8AL to cover costs incurred in connection with the sale of Telstra shares. The Consolidated Revenue Fund is also appropriated to allow the Treasurer to authorise the payment of any agreement entered into to satisfy any relevant financial obligations of Telstra or its subsidiaries (see proposed sections 8AM and 8AO).

Another appropriation is specified in proposed section 8AS to cover any reimbursement of expenses incurred by Telstra or its Board in connection with assisting the Commonwealth for the purposes of the Telstra sale scheme.

Comment: These 'open-ended' appropriations, in the context of Commonwealth guarantees for potential liabilities, have been used in other asset sales legislation such as the Commonwealth Bank and the ANL sale legislation.

The Explanatory Memorandum to this Bill advises that no limit has been set as this may signal the Government's view of the extent of reasonable expenses. For this reason, no estimate of costs is provided (see pages 4 and 5 of the Explanatory Memorandum).

A proposed new section 8AT binds the Commonwealth to comply with Chapter 7 of the Corporations Law (where relevant) in relation to the sale of Telstra shares. Chapter 7 of the Corporations Law deals with securities (e.g. shares) and the issue of an investment prospectus to the public.

A further appropriation is specified in proposed section 8BA (see also, proposed new section 8BZ) to cover any issue which may arise from constitutional protections which apply to prevent the Commonwealth from compulsorily acquiring property from a person otherwise than on just terms.

Comment: This is a protective measure which may not be invoked. It is there to remove any doubt should a claim be made that this commercial activity by the Commonwealth has resulted in an adverse impact on the property rights of any person. The relevant protective provision is found at paragraph 51(xxxi) of the Constitution. It is suggested that it is unlikely that the proposed new section 8BA will need to be invoked.

One issue which may need to be addressed is the transfer of property rights held by the Commonwealth (such as fixtures on subscribers' land eg. poles or towers) to a part commercial operator. Land owners may wish to rent that infrastructure to other carriers.

Proposed new Part 2A deals with restrictions on the ownership of Telstra. A proposed section 8BF expressly extends the operation of relevant provisions to acts or matters outside Australia. This will enable action to be taken against a person who, say, breached the foreign investment limits and the actual transaction took place in another country.

Comment: Laws that have extra-territorial effect may sometimes present enforcement problems.

The proposed new Part 2A sets foreign investment limits under terms such as unacceptable foreign-ownership situation. Under proposed section 8BG, aggregate foreign ownership is limited to 11.6667% with individual foreign ownership limited to 1.6667%. These percentages, of course, apply to the public float of one-third of the shares in Telstra. Another way of expressing it is to say that foreign investment may constitute 35% of the one-third of the shares issued to the public. These percentage limits can be varied by Regulation where the float is split over two or more releases ("tranches") - see proposed new section 8BK.

Proposed new section 8BH makes it an offence for a relevant person to acquire more than the permissible percentage available to foreign investors. The legislation also authorises Telstra or the Minister to apply to the Federal Court to obtain a range of orders (e.g. to order divesture of shares in an unacceptable foreign ownership situation - see proposed new section 8BJ).

Comment: As a generalisation, the Bill goes a little further than some previous asset sales legislation in relation to express provisions in the context of foreign ownership limits, in that it provides anti-avoidance procedures to assist in monitoring and obtaining specific information. There can be practical difficulties at times in monitoring just who has acquired shares (see proposed new sections 8BM to 8BP). This legislative development is a useful initiative.

Division 8 within the proposed new Part 2A contains the provisions which specify that Telstra's head office, base of operations and incorporation must be in Australia (proposed sections 8BQ to 8BS). Division 9 stipulates that the Chair of Telstra must be an Australian citizen and that the majority of directors must be Australian citizens.

Comment: As a side issue, Australia recognises dual citizenship in certain specified circumstances.

Proposed new Part 2B deals with powers available to the Minister to restrain contraventions of the legislation (see proposed new sections 8CD to 8CL).

Proposed new Part 2C is the Commonwealth's re-affirmation of universal service obligation by telecommunications carriers (see proposed new sections 8CM). It is a re-affirmation consequent upon the partial privatisation of Telstra.

Comment: The wording in proposed section 8CM raises two possible issues. The first is that the universal service obligation is tied to what '...should be fulfilled as efficiently and economically as possible'. Essentially, this appears to qualify the obligation so that excessive cost (say, in a remote area) may be a ground for suspending the obligation.

The other issue is the wording '...that the losses that result from supplying loss- making services ...should be shared among carriers on an equitable basis...' is supplemented by a provision to enable information to be obtained on how those 'losses' were determined. It is suggested, that there may also be a category of information that should also be made available to the public to ascertain the basis for estimated losses which may have led to a decision not to adhere to the universal service obligation.

Item 27 inserts a comprehensive set of definitions (in the form of a further schedule) to be used when dealing with terms used in Part 2A - Restrictions on ownership of Telstra.


(1) Better Communications Liberal & National Parties Policy 1996.

(2) Liberal and National Party Policy, Saving our Natural Heritage, p.9.

(3) D. Dawson, C. Jones & W. Duncan, Telecommunications Universal Service Obligation, AUSTEL Occasional Paper (1994), p.33.

(4) See the Consumers Telecommunications Network, Selling off the (Telstra) farm: Do consumers benefit? CTN Discussion Paper, April 1996.

(5) Allan Brown, Should Telstra be Privatised? School of Economics, Griffith University, Working Paper No.8 (February 1996), pp.11-12.

(6) ibid., p.36

(7) ibid..

(8) Helen Mills, 'Access Issues in the New Communications Environment', Telecommunications Journal of Australia, Vol.44, No.3 (1994), p.9.

(9) Bureau of Industry Economics, International Performance Indicators Telecommunications 1995 (March 1995), p.150.

(10) See Ian Martin,'Telstra needs to be fully private to compete', Communications Update (March 1996), pp.6-8.

Contact Officer and Copyright Details

Dr Kim Jackson (Background)
Ph. 06 277 2416

Brendan Bailey (Main Provisions)
Ph. 06 277 2434

Elizabeth Williams (Additional Information)
Ph. 06 277 2477

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ISSN 1323-9032
Commonwealth of Australia 1995

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Published by the Department of the Parliamentary Library, 1995.

This page was prepared by the Parliamentary Research Service, Commonwealth of Australia
Last updated: 8 May 1996

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