Bills Digest No. 142   1997-98 Charter of Budget Honesty Bill 1996 [No.2]

Numerical Index | Alphabetical Index

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.


Passage History Re-introduction Purpose Background Contentious Provisions Concluding Comments Endnotes Contact Officer and Copyright Details

Passage History

Charter of Budget Honesty Bill 1996 [No.2]

Date Introduced: 5 December 1997

House: House of Representatives

Portfolio: Treasury

Commencement: Royal Assent

Note: For detailed commentary on the Bill as first presented, readers are referred to Bills Digest No. 85 of 1996-97.


This is the same Bill as that introduced into the House of Representatives on 11 December 1996 and passed by it on 10 February 1997.

On 28 October 1997 the Senate passed the Bill with ten amendments. On 30 October 1997, the House informed the Senate that it would not agree to the proposed changes. On 10 November 1997, the Senate insisted on its amendments and a message was reported to the House of Representatives on 17 November 1997. The House was unmoved and on 19 November 1997 laid the Bill aside.

Section 57 of the Australian Constitution provides, in part, that:

If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

The clear refusal of the House to accept the Senate's 10 amendments constitutes a disagreement between the two Chambers for the purposes of section 57.

Priming a possible trigger for a double dissolution, the Bill was re-introduced on 5 December 1997 in its original form.

The House did not consider the Bill prior to the summer recess but it has been scheduled for debate on 3 March 1998. By then 3 months will have elapsed from the date that the disagreement arose between the two Houses over the amendments.

If, on or after 3 March 1998, the House passes the Bill with or without any of the Senate's 10 amendments, the Senate will have to decide whether to pass the Bill or face the possibility of a section 57 election to break the deadlock.

In short, the Bill represents a potential trigger for a double dissolution election.


Charter of Budget Honesty

Economic and Fiscal outlook reports as well as intergenerational reports

The main purpose of the Charter of Budget Honesty Bill 1996 (the Bill) is to provide for a Charter of Budget Honesty (the Charter) to improve fiscal policy outcomes by providing a framework for the conduct of Government fiscal policy. It seeks to achieve this objective by requiring the Government's fiscal strategy to be based on sound fiscal management and provides for the publication of regular reports setting out such fiscal strategy. The Bill also provides for the publication of an intergenerational report, at least once every 5 years, which will assess the long term sustainability of current Government policies over the 40 years following the release of the report.

Pre-election reports and policy costings

The Bill requires the publication of a pre-election report setting out the fiscal and economic outlook once a general election is called. The Bill also provides that the Government, or the Opposition, may request the Secretaries of the Departments of the Treasury and Finance to prepare a costing of any of their publicly announced policies once a general election has been called and for the publication of such costings. The request from the Opposition must be made through the Prime Minister and is subject to the agreement of the Prime Minister.

Enforceable rights and duties not created by the Charter of Budget Honesty

The Bill provides that nothing in the Charter of Budget Honesty creates rights and duties that are enforceable in judicial or other proceedings. To this extent the Charter of Budget Honesty is treated in the same manner as parliamentary machinery provisions which are generally not justiciable. The Charter of Budget Honesty will for the first time set out in a formal manner what Parliament and the public could expect of the Government in managing and reporting on the economy. This will facilitate informed decisions being made by the public based on the state and projected progress of the economy. Further, informed judgments could be made by the electorate on the performance of the Government and whether the economy could sustain the promises made by the Government and the Opposition before each Federal election. However, there is scope for arguing that the Bill has not gone far enough in creating enforceable rights and duties as in the case of New Zealand where the Fiscal Responsibility Act 1994 is binding on the Crown. (1)


Commitment to a Charter of Budget Honesty

In his first Headland Speech,(2) the then Leader of the Opposition, spelt out the commitment of a future Coalition Government to a Charter of Budget Honesty with a view to 'Rebuilding Trust In Government'. The Headland Speech prefaced this commitment by a reference to what is now called the L-A-W (law) tax cuts which were not delivered in the form legislated before the 1993 Federal Elections but were subsequently amended to defer an instalment of these tax cuts with the promise that it would be delivered in the form of a co-payment for superannuation contributions. Apart from the commitment to a Charter of Budget Honesty there were measures promised in the Headland Speech to enhance the position of the Auditor-General and the role of Parliament. The independence of the Auditor-General was to be enhanced by elevating the position to that of an officer of the Parliament who could act without intimidation by the Executive and achieve a fearless and authoritative surveillance of government departments. The independence of the Auditor-General would be further strengthened by funding from the Appropriation for the Parliament.(3) The Auditor-General Act 1997, enhances the independence of the Auditor-General by drawing heavily on the recommendations in the report of the Joint Committee of Public Accounts (JCPA) titled Guarding the Independence of the Auditor-General(4) and its previous reports.(5) The Headland Speech also promised the appointment of a Commission of Audit to report on measures to rebuild confidence in the annual accounting process with the goal of Rebuilding Trust in Government.

The Report of the National Commission of Audit (NCOA Report)

The National Commission of Audit was established in March 1996 and reported 3 months later. The key recommendations of the National Commission of Audit in relation to a Charter of Budget Honesty(6) were based on the finding that requiring governments to state objectives and assessing fiscal policy outcomes against established benchmarks will contribute towards enhancing fiscal policy transparency and accountability. There was a clear intention that legislation should make it mandatory for the Executive Government to comply with fiscal reporting standards.

There seem to be few disadvantages associated with adopting comprehensive fiscal reporting standards, even if the need to comply with such standards is enshrined in legislation. Indeed, because compliance with such standards is likely to enhance a government's ability to govern, compliance should be legislated for so that it cannot be ignored by governments.(7)

The NCOA Report appropriately drew a distinction between fiscal reporting in the sense of financial reporting and reporting which is concerned with the internal management of Commonwealth agencies, and fiscal reporting which is concerned with the macroeconomic effects of government fiscal actions. Fiscal responsibility legislation in the form of a Charter of Budget Honesty would deal with the latter. It further pointed out that fiscal responsibility legislation could set specific fiscal targets or establish certain reporting standards or involve some combination of both approaches. In Recommendation 11.2 the NCOA opted for the setting of clear fiscal strategy, which would require the Government of the day to set its own specific targets but not identify such targets in legislation, in the interest of fiscal policy flexibility required by a National Government.

Loss of fiscal policy flexibility, which is the main disadvantage of setting a medium term fiscal target, can be overcome to a large extent by not identifying the target in legislation and by giving governments room to manoeuvre should economic circumstances change.
For these reasons, the Commission favours legislation to require governments to state clearly their fiscal strategy. This would include the setting of specific targets, but not legislating such targets. The Commission also supports legislation to require governments to report on progress in achieving their stated fiscal strategy.

Recommendation 11.2: Setting of and reporting on fiscal strategy

Governments should be required to set and report against a clear fiscal strategy, which would include the setting of specific targets.(8)

The NCOA expressed concerns that unless fiscal reporting requirements were legislated governments may ignore them.

The Budget Speech of 20 August 1996

The background to the introduction of the Bill was summarised by the Treasurer in his 1996 Budget Speech in the following terms:

Before its election defeat on 2 March, the previous Government maintained that the budget would now be in underlying balance. The truth was nearly $10 Billion to the contrary.
Financial dishonesty of that magnitude undermines public confidence in our political system. We will ensure it never occurs again.
Our Government will enact a Charter of Budget Honesty that will require the government of the day - ours or any other - to publish a budget update signed off by the Secretaries to the Treasury and the Department of Finance at the commencement of each Federal Election campaign. The public will be given updated financial information before the election, not after it. The public will know the state of the books before they vote.
The Charter will require any future government to set out its fiscal strategy and report against it - just as this Government is doing.
The Charter will entrench this Government's commitment to responsible and accountable fiscal policy.(9)

The 1996-97 Budget Papers stated that the Government would introduce legislation in the Budget Sittings to establish a new fiscal framework to implement the Government's Charter of Budget Honesty election commitment. The Government also indicated that the proposed legislation would incorporate many of the recommendations of the National Commission of Audit.(10)

Report by the Joint Committee of Public Accounts on Fiscal Responsibility Legislation

Discussion of the immediate background to the Bill is not complete without a reference to the report of the Joint Committee of Public Accounts (JCPA) on Financial Reporting for the Commonwealth: Towards Greater Transparency and Accountability which was issued in November 1995.(11) The JCPA examined whether it was necessary or appropriate to legislate for fiscal responsibility at the Commonwealth level, with particular reference to the success of attempts to legislate for fiscal responsibility in other jurisdictions. It also examined the relevance to the Commonwealth of the type of public reporting provisions contained in fiscal responsibility legislation in other jurisdictions.

The JCPA did not support fiscal responsibility legislation for the Commonwealth which attempts to define 'prudent' fiscal behaviour or which requires governments to adopt fiscal strategies in conformity with pre-determined fiscal targets or principles.(12) Nevertheless, the JCPA considered that there was a strong case for specifying in any fiscal reporting legislation the key indicators against which governments must report and against which the performance of government is best assessed.(13)

The JCPA did, however, conclude that there is a compelling case for fiscal reporting legislation, as it provides a framework for governments to be accountable to the public for their management of the nation's finances. It envisaged that fiscal reporting legislation would be the vehicle in which parliament sets down the form, content and frequency of reporting that it considers necessary.

Recommendations 12 to 20 of the JCPA dealt with the framework, form, content, periodicity of reports and provision for parliamentary scrutiny of fiscal reports.(14) A notable observation of the JCPA was that during the period of its examination of these issues in 1995, very few people or organisations in Australia had turned their minds to fiscal reporting. It therefore recommended that the Bill introducing measures for fiscal reporting should be referred to the JCPA prior to debate in the House of Representatives, for inquiry and report.(15)

A recommendation of the Committee which might ensure that governments comply with the fiscal reporting measures which the Bill proposes is that it should provide for establishing a joint committee of Parliament to examine and report on fiscal reports produced pursuant to the legislation. It further recommended that all fiscal reports should stand referred to the proposed committee for inquiry and report, with specific provision for the proposed committee to call relevant Ministers of State to give evidence(16). This measure may give the public a forum to express its views on a government's fiscal performance, as the Bill does not create rights and duties enforceable in judicial or other proceedings. Such a measure may also enhance the credibility of the fiscal reporting measures in the Charter of Budget Honesty. However, this forum may be of no avail to the public in relation to non compliance with the pre-election economic and fiscal outlook reports and costing of election commitments, as there are doubts as to whether a Joint Committee of Parliament comprised of Senators and Members can meet during the caretaker period after a dissolution of the House of Representatives. Even were such a meeting to be convened, there would be further concerns as to whether the committee can while so meeting enjoy the powers, privileges and protections normally available.(17) In relation to the pre-election reports and costings, there may be a role for an independent Auditor-General to certify the reports prepared by the Secretary to the Treasury and the Secretary to the Department of Finance, in the absence of effective parliamentary scrutiny in the caretaker period.

Joint Committee of Public Accounts Advisory Report on the Charter of Budget Honesty Bill 1996

After the Bill was passed by the House of Representatives on 3 March 1997, the Senate referred it to the JCPA for further consideration.

The JCPA reported in March 1997 and generally supported the Bill.(18)

The JCPA declined to make specific recommendations but suggested a number of refinements which it argued would '1/4 enhance the Bill and augment the Government's objective of greater fiscal honesty, transparency and accountability.(19)

Amongst the suggestions and observations made by the JCPA were :

  • as clauses 12(3)(b), 16(30)(b), 19(2)(b) and 24(3)(b) of the Bill allow for variations from standard reporting requirements, that there be an obligation to give reasons for such departures(20)
  • as some Charter reports are prospective in nature (economic and fiscal outlook reports and intergenerational reports), that the Public Sector Accounting Standards Board develop new benchmarks for these reports(21)
  • that information on underlying parameters and assumptions of fiscal forecasts and strategies be included in public reports required by the Charter(22)
  • that the reports produced would probably have only a limited impact on limiting deficit spending(23)
  • that pre-election economic and fiscal outlook reports be available for release sooner, ie within 10 days of the calling of a general election, not 10 days within the issuing of the election writs(24)
  • (Opposition members canvassed the possibility) that the requirement that pre-election economic and fiscal outlook reports be signed by Ministers and responsible Departmental Secretaries be extended to all other economic and fiscal reports(25)
  • questioned the capacity of the Prime Minister to act as 'gatekeeper' in relation to Opposition requests for costing of Opposition election commitments during the caretaker period (clauses 29-31)(26)
  • that where information is suppressed for commercial in-confidence or similar reasons, a statement providing a general description of the information being suppressed be provided(27)
  • as clauses 13, 17 28 and 32 enable Commonwealth agencies to withhold information, the Bill might provide that a statement be issued where information is withheld showing the effect of this omission(28)
  • that the Bill include provision for review of the Charter and ongoing reports on its operation.

Senate Amendments

A total of 26 committee stage amendments to the Bill were moved in the Senate. Of these, 7 Opposition amendments and 3 Australian Democrat amendments were incorporated in the Bill as passed by the Senate on 28 October 1997.

All 10 amendments were rejected by the House of Representatives on 30 October 1997.(29)

Contentious Provisions

A general survey of the main provisions of the Bill as introduced appears in Bills Digest No. 85 of 1996-97.

The following summarises the 10 Senate amendments and the Government's reasons for rejecting them.

Amendment 1

The Senate proposed that paragraph 5(1)(b) be amended to expand the list of objectives of fiscal policy to include:

  • the achievement of full employment
  • the overall prosperity and welfare of the Australian people
  • the maintenance or improvement of real wages and conditions and welfare of workers.

The Government's response is that this amendment is unnecessary as the matters raised by the Senate are already dealt with in clause 4.(30)

Amendment 2

The Senate proposed that clause 12 be amended to include in the proposed budget economic and fiscal outlook report, a report prepared by the Commissioner of Taxation and the Secretary to the Treasury detailing 'any material threats to the integrity of the tax system 1/4 '. This report would assess the fiscal impact of these threats and identify the means to address them.

The Government argues that this requirement would unnecessarily add to the length and complexity of the outlook statement. The Government also argues that the amendment would identify weaknesses and loopholes in the tax system before they could be remedied, ie the statement would itself constitute a threat to the integrity of the tax system.(31)

Amendment 3

The Senate proposes that clause 20 be amended to provide that intergenerational reports be provided within 3 years of the Act commencing and every 3 years thereafter. The Bill presently provides that such reports be prepared every 5 years.

The Government argues that this amendment is unnecessary and that such reports are about longer term trends which do not require more frequent reporting than every 5 years. It also argues reports can be provided more frequently than every 5 years under the Bill as introduced.(32)

Amendment 4

The Senate amendment proposes two changes to clause 22. The first requires the responsible Departmental Secretaries to release a joint pre-election economic and fiscal outlook report two years and nine months after the first sitting day of the House of Representatives following the previous election. The second states that if an election is called before two years and nine months of the parliamentary term having elapsed, the pre-election report must be issued 5 days before the issuing of the writs for the general election.

The Government argues that the former proposal would result, in some instances, in out of date information appearing in the pre-election report. The second proposed change is seen as impractical, with the government arguing that it will take a minimum of 10 days to produce pre-election outlook reports.(33)

Amendment 5

The Senate proposes that clause 27 be amended to limit the involvement of Ministers in the preparation of pre-election economic and fiscal outlook reports.

The Government argues that this provision is unnecessary as the integrity of such reports is protected by the requirement that the Secretaries of Finance and Treasury must sign off on the report stating that it reflects the best professional judgment of the officers of their department.(34)

Amendments 6, 7, 8 and 9

These amendments relate to clause 29 dealing with requests for the costing of election commitments.

The Senate proposes:

  • widening the proposed Prime Ministerial discretion to request the responsible Departmental Secretaries to prepare costings of Government policies to include unannounced as well as announced policies (amendment 6)
  • allowing the Leader of the Opposition to request the responsible Departmental Secretaries to prepare costings of all Opposition policies, including those not publicly announced (amendment 7)

The Government's response is that this proposal has the potential to increase enormously the workload of the Departments in preparing costing reports as requests could be made to assess a myriad of policy alternatives and options. Such a process would also place the Departments in the position of advising Oppositions on the development of policy. This, it is argued, would be inconsistent with the usual conventions of government.(35)

The Senate further proposes that:

  • the Prime Minister must agree to a request from the Opposition Leader for Opposition policies to be costed; and
  • the Bill make it plain that nothing in clause 29 requires the Leader of the Opposition to disclose to the Prime Minister the details of an Opposition policy. (amendment 8)

Government statements to date have not squarely addressed these two issues, other than to suggest that the proposals would lead to a lack of transparency in the costing process.

The Senate's ninth amendment provides:

  • a mechanism for Departmental Secretaries to decline to prepare costings of Opposition policies where they consider that the request relates to the provision of policy advice; and
  • for information provided by the Opposition to the responsible Departmental Secretaries not to be released to third parties without the approval of the Leader of the Opposition.

The Government appears to believe that these (and the related) amendments will result in a loss of transparency in the costing process. Removing the Prime Minister's discretion to refuse an Opposition Leader's request for the costing of Opposition policies is seen as contrary to existing conventions of government.(36)

Amendment 10

The Senate would amend clause 30 to make it clear that policy costings must show what assumptions have been used in the costings process and must also explain the limitations of the process adopted and assumptions employed.

The Government sees such an amendment as unnecessary as costing guidelines issued by the Secretaries to the Departments of Treasury and Finance [subclause 31(1)] would deal adequately with such processes.(37)

Concluding Comments

Note: Extensive general comment was made on the Bill as introduced in Bills Digest No.85 of 1996-97 and is not reproduced here.

This Digest has made reference to the possibility of the Bill triggering a double dissolution election. It is, however, only one of a number of possible triggers and its importance should not be overstated.

Were this Bill to be the sole basis for the Prime Minister approaching the Governor-General to dissolve both the House of Representatives and the Senate for a simultaneous election, a number of interesting constitutional issues would arise. These would revolve around the Governor-General's discretion (reserve power) to refuse a Prime Ministerial request for a double dissolution. This is an area of continuing disagreement and uncertainty.

Four important and related issues are:

  • What is the scope of the Governor-General's discretion to refuse the Prime Minister a section 57 election;
  • In what circumstances might such a discretion be exercised;
  • May the Governor-General seek non-Prime Ministerial advice on the granting of a double dissolution;
  • Who may the Governor-General approach for advice and under what circumstances?

Against this somewhat uncertain background, it may be noted that there is no suggestion that the Governor-General has an open-ended discretion to act entirely without reference to ministerial advice. It may also be recalled that no Governor-General has rejected a request from an elected Prime Minister for a section 57 election.

The simple (and probably the better) view is that the Governor-General has a discretion to reject a request for a section 57 election but should only exercise that discretion in limited or extraordinary circumstances. 'Extraordinary circumstances' on this view may arise in those instances where request is manifestly at odds with the requirements of section 57.

A slightly different, but not entirely inconsistent, view is that the Governor-General's discretion is wide enough to allow him to refuse a Prime Ministerial request in circumstances where Parliament has not become 'unworkable'. The existence of such a discretion, to refuse a dissolution where the Governor-General believes that government is not 'unworkable', is supported by the custom of providing the Governor-General with advice on the workability of Parliament when requesting a dissolution. Whether this custom is any more than just that, a custom, is another matter. However, the exchanges between Prime Minister Fraser and Governor-General Stephen prior to the granting of the 1983 dissolution suggest that the workability of Parliament is a factor that can and must be considered by the Governor-General in responding to a request for a dissolution.

Prior to granting the 1914 double dissolution, the then Governor-General, with approval of his Prime Minister, approached the Chief Justice of the High Court of Australia on his powers under section 57. Griffith CJ advised that the Governor-General was an 'independent arbiter' who should dissolve both Houses only where he is:

1/4 personally satisfied, after independent consideration of the case, either that the proposed law as to which the houses have differed in opinion is one of such public importance that it should be referred to the electors of the Commonwealth for immediate decision by means of a complete renewal of both houses, or that there exists such a state of practical deadlock in legislation as can only be ended in that way.(38)

In 1914, however, the Senate having twice rejected a relatively minor Bill making amendments to public service employment conditions,(39) the Governor-General acceded to a request by Prime Minister Joseph Cook for both Houses to be dissolved. This appears to have established the principle that disagreement over any Bill, not just an appropriation Bill or other significant piece of legislation, can constitute the basis for a deadlock under section 57. The 1914 'precedent' does not, however, put beyond doubt the issue of how Governors-General will exercise their judgment in deciding whether a proposed law 'is one of such importance that it should be referred to the electors for immediate decision by means of a complete renewal of both houses 1/4 '.

The Charter of Budget Honesty Bill could provide a particularly interesting test of some of the arguments recited above.

Arguably the legislation is in most respects unnecessary. What is to be achieved under the Bill can be achieved administratively for the life of the present Parliament, ie within existing executive discretions. Not even regulations are required to allow the government to provide the electorate with the sort of information that the Bill seeks to guarantee. Hence, it may be argued that the Bill, of itself, is a relatively poor indicator of the Government's capacity to govern and the workability of the Parliament. As a test of the Government's capacity to maintain parliamentary support or compliance, the defeat of the Charter of Budget Honesty Bill would not self-evidently present itself as 'as a 'failure to pass a legislative proposal vital to the execution of a major policy of the Ministry'.(40)

Even if one accepts that the legislation is important because it ensures that future governments must also provide the same information that the present Government has committed itself to making available now, the Governor-General may have some concerns about granting a dissolution of both House on the strength of this Bill alone. If Griffith CJ's view still holds, in exercising his 'independent discretion', the Governor-General must turn his mind to whether the fate of this Bill presents a sufficiently compelling reason for 'seeking the complete renewal of both Houses'.


  1. New Zealand Statutes (1994), Vol 1; 177.
  2. The Role of Government : A Modern Liberal Approach, 6 June 1995, 5 and 6; The Menzies Research Centre - The 1995 National Lecture Series.
  3. Ibid., 23.
  4. Report 346 of the Joint Committee of Public Accounts (JCPA) Guarding the Independence of the Auditor-General (October 1996) (AGPS).
  5. JCPA Reports 296 and 331.
  6. National Commission of Audit - Report to the Commonwealth Government, June 1996, AGPS; 273 to 300.
  7. Ibid., 277.
  8. Op cit., 279.
  9. Budget Speech 1996-97, 3.
  10. Budget Statements 1996-97; Budget Paper No. 1; 1-15 and 1-26 to 1-28.
  11. Report 341 of the Joint Committee of Public Accounts (November 1995); Financial Reporting for the Commonwealth: Towards Greater Transparency and Accountability.
  12. Ibid., para. 3.252; 126.
  13. Ibid., para. 3.263; 129.
  14. Ibid., paras. 3.306 to 3.314; 136 to 141.
  15. Ibid., Recommendation 19; para. 3.313; 141.
  16. Ibid., Recommendation 18; para. 3.312;. 140.
  17. Odgers' Australian Senate Practice ,7th edition; 52 and 522. House of Representatives Practice, 2nd Edition; 268.
  18. JCPA, Report No.351, March 1997.
  19. Ibid., 3.
  20. Ibid., 8.
  21. Ibid., 8.
  22. Ibid., 10.
  23. Ibid., 12.
  24. Ibid., 15-16.
  25. Ibid., 16.
  26. Ibid., 17.
  27. Ibid., 18.
  28. Ibid., 19.
  29. Parliamentary Debates, 30 October 1997, 10306-10319.
  30. Ibid., 10307 and 10317.
  31. Ibid., 10307 and 10317-18.
  32. Ibid., 10307-08 and 10318.
  33. Ibid., 10308 and 10318.
  34. Ibid., 10308 and 10318.
  35. Ibid., 10308 and 10318.
  36. Ibid., 10308 and 10318.
  37. Ibid., 10308-09 and 10318-19.
  38. Cited in Odgers' Australian Senate Practice, 8th edition, 1997, 82.
  39. Government Preference Prohibition Bill.
  40. A phrase borrowed from another context but rather apposite here. Refer to Sir Garfield Barwick, A Radical Tory, 1995, 284.

Contact Officer and Copyright Details

Bob Bennett and Bernard Pulle
3 March 1998
Bills Digest Service
Information and Research Services

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