Tangentyere Council Inc. v. The Commissioner of Taxes (N.T.)

Judges:
Angel J

Court:
Supreme Court of the Northern Territory

Judgment date: Judgment handed down 4 May 1990.

Angel J.

Appeal pursuant to sec. 35 of the Pay-roll Tax Act (N.T.). The question arising for determination on this appeal is whether the appellant, an incorporated body, as at October 1986 was a public benevolent institution and thus exempt from pay-roll tax by virtue of sec. 9(a) of the Pay-roll Tax Act 1984 (N.T.). A subsidiary question arises namely whether the appellant was paying wages to employees exclusively engaged in public benevolent work for the purposes of sec. 9(c) of that Act.

Taxation exemptions have for many years been extended to public benevolent institutions. A substantial body of case law has evolved around that collocation of words but that case law has not, as I apprehend, absolutely defined the expression. It is true that Street C.J. in
A.C.O.S.S. v. Commr of Pay-roll Tax (1985) 1 N.S.W.L.R. 567 at p. 568, said ``those words do have an established scope'', but it is not a term of art and is to be understood in its ordinary English usage (which has no fixed meaning):
Perpetual Trustee Co. Ltd. v. F.C. of T. (1931) 45 C.L.R. 224 at p. 231,
Maughan v. F.C. of T. (1942) 66 C.L.R. 388 at p. 395, and being a compound expression it is to be treated as such and not analysed word by word. As Dixon J. said in Perpetual Trustee Co. Ltd. v. F.C. of T. (supra) at p. 233:

``In the present case little help is provided by dictionaries, statutory usage, or judicial decision.''

The expression is to be contrasted with ``public charity'' (
Ashfield Municipal Council v. Joyce (1978) A.C. 122 at p. 137) and ``charitable institution'' (Perpetual Trustee Co. Ltd. v. F.C. of T. (supra) at p. 231) which, in the absence of a contrary intention, are to be treated in a technical legal sense; cf. Pemsel's case (1891) A.C. 531, ``charitable purposes''.

In Perpetual Trustee Co. Ltd. (supra), Dixon J., having said ``benevolent'' was not to be given its general descriptive meaning, and did not merely mean ``benignant'', went on to say that he was unable to place upon the expression ``public benevolent institution'' a meaning wide enough to include organisations which did not promote the relief of poverty, suffering, distress or misfortune. Starke J. in the same case at p. 232 said that the expression means an institution ``organised for the relief of poverty, sickness, destitution or helplessness'' (my emphasis). And Evatt J. said in the same case at p. 235:

``[Public benevolent] bodies vary greatly in scope and character... they give relief freely to those who are in need of it and who are unable to care for themselves''

(my emphasis).


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By ``freely'' it appears his Honour meant willingly but not necessarily without fees. And in
Lemm & Ors v. F.C. of T. (1942) 66 C.L.R. 399 at p. 411, Williams J. (with whom Rich and McTiernan JJ. concurred) said:

``... relief of pain and suffering, physical disability, infirmity, or financial distress. These are benevolent objects within the meaning of the sub-section...''

and went on to speak of -

``... homes, hospitals and institutions organized to render services of a permanent eleemosynary character to appreciable deserving but needy sections of the community.''

In that case, an institution controlled by a church property trust providing residential accommodation for 26 aged women in straitened financial circumstances was held to be a public benevolent institution.

In other cases various factors have been determinative one way or the other as to whether a taxpayer was a public benevolent institution. Being a compound expression which is not a term of art, it is for the Court to look at the whole of the circumstances in order to reach a decision as to whether the taxpayer is or is not, in accordance with the ordinary English usage of the day, a public benevolent institution.

As to the public aspect of the institution, the question whether it is subject to some form of public control is a factor to be taken into account, but public control is not essential - what has been described as ``the main criterion'' is the extensiveness of the class benefited by the institution, see per Williams J. in Maughan v. F.C. of T. (supra) p. 397. In the present case the respondent relied on the statement of Campbell J. in
O'Farrell v. Bathurst Municipal Council (1923) 40 W.N. (N.S.W.) 78 at p. 80:

``... I am of opinion that the question as to whether a benevolent institution is public in the sense in which that word is to be read in the exempting provision referred to, is less dependent upon the particular circumstances of its constitution and domestic government, than upon the character and objects of its benevolence.

What are the benefits which the institution dispenses and to whom are the benefits extended are inquiries the answer to which must be decisive on the question of whether or not the institution in question is public in the statutory sense.''

That statement was approved by Jordan C.J. in
O'Connell v. Newcastle Municipal Council (1941) 41 S.R. (N.S.W.) 190 at p. 193 and by Street C.J. in A.C.O.S.S. v. Commr of Pay-roll Tax (supra) at p. 568. But it will be seen that Hardwick K.C.'s unsuccessful argument for the respondent in Lemm & Ors v. F.C. of T. (supra) included a submission that the class of women catered for was a relatively small section of the community and he cited both O'Farrell's case and O'Connell's case, to no avail. Williams J. said (at p. 411) that the conference of benevolence upon an appreciable needy class in the community is ``the most important test'', not that it was the only test of what is a public institution.

Whether the appellant is a public benevolent institution paying wages to employees exclusively engaged in public benevolent work is, in my opinion, for the purposes of sec. 9(a) and (c) of the Pay-roll Tax Act 1984 (N.T.), to be determined having regard to a number of factors which include - the constitution of the appellant, the membership of the managing and governing body thereof, the sources of its moneys, the public accountability of the appellant, the class or classes of recipients of its benevolence, the characteristics of the class or classes of the recipients of its benevolence, the scope and nature of the work done by the appellant, whether fees are payable by the recipients of the appellant's work or charges made by the appellant and if so the nature of those fees or charges, and whether the overall work of the appellant is beneficial to the public at large.

Paragraph 6 of the appellant's constitution provides that the various Aboriginal camp associations, whether incorporated or not, are member communities of the appellant. The constitution further provides that every person who is 18 years old or more and normally a resident of an incorporated member community and who is a member of such incorporated community is to be a member of the appellant. Disputes as to membership are determined by the executive which comprises persons elected by the membership. Members of housing associations are Aboriginal persons normally


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and permanently resident in the town camp area of the particular housing association and such further Aboriginal persons as are resolved to be members. The evidence discloses that permanent residents and visitors to the town camps fluctuate between 1,000 and 1,500 persons at any one time and that a large proportion of those persons are probably members of the associations, and in so far as it is relevant, the membership of the appellant is sufficiently large to render the appellant ``public'' for the purposes of being a public benevolent institution. But in the circumstances of this case I don't think it is necessary to so decide. I think it is public by reason of its membership, the people it services, the source of its finances and its public accountability. I do not decide that any one of these is alone determinative of the question. I take all the circumstances into account in reaching this conclusion.

The appellant's main sources of finance are from the Federal Government, the Government of the Northern Territory and government agencies and other statutory bodies. The appellant's annual report for the year 1985/86 discloses a total income of approximately $1.6m. Moneys were received from the Aboriginal Development Commission, the Department of Community Development, the Department of Aboriginal Affairs, the Northern Territory Health Department, the Department of Employment and Industrial Relations, the Department of Youth, Sport and Recreation, the Commonwealth Education Department, the Aboriginal Benefit Trust Account, Greening Australia together with other assorted small grants. A capital grant of $428,000 was received from the Town Campers Assistance Program. The appellant had the same or similar sources of finance for the year 1986/87.

The appellant is publicly accountable for the funds it receives. The bodies which have provided funds or grants require accountability through auditing and reports of expenditure. The Aboriginal Development Commission requires the appellant to account pursuant to sec. 23-26 of the Aboriginal Development Corporation Act 1980 (Cth). The Aboriginal Benefit Trust Account is subject to the Audit Act 1901 (Cth) sec. 62 and the appellant, having received grants or funds under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) has had to account for funds and grants from that source. Under sec. 35 and 35A of the Aboriginal Land Rights (Northern Territory) Act (Cth), the appellant, having been paid moneys pursuant to sec. 64 of that Act through the Aboriginal Benefit Trust Account is legally obliged to provide relevant financial statements in respect of the particular financial year to the Land Council in the area. The assistant general manager of the appellant gave evidence that in accordance with the requirements of each of the bodies providing funds to the appellant as to the accountability for public funds, the appellant complies with accounting, auditing and all other requirements. Moreover, the appellant is required to properly account for its expenditure through its own auditing pursuant to the requirements by the Act under which it is incorporated.

The appellant is an Aboriginal body as defined by the Aboriginal Development Corporation Act 1980 (Cth).

In September 1985, a committee co-ordinated by one Mr R. Dixon reviewed the operations and finances of the appellant. The interim report of that committee, subsequently adopted as a final report, is in evidence before me. By way of background it is convenient to set out para. 2.1 to 2.7 of that report.

``2.1 Tangentyere Council services 19 Aboriginal town camps with a total permanent population of 1,071. This core population comprises stable family groups, traditionally oriented and retaining customary values which emphasise social above material and financial obligation. They are characteristically heavily unemployed, poorly accessed by Government Departments in the delivery of services, including social security; are, in economic terms, the poorest sector of the Alice Springs community; spend at least half their income on food and much of the remainder on other necessities such as clothing, bedding, transport etc., and are financially overstretched in paying for necessities but are required also to fulfil obligations to visiting kinsmen. While seeking to achieve social stability within the urban context, this core group remains closely integrated into the cultural and ceremonial life of the region.


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2.2 In addition to this core group, the town camper population includes a large floating population of men and women visiting Alice Springs as a regional centre, staying with kinsmen in the town camps and placing a heavy strain on camp facilities, domestic appliances and household budgets with resultant high repairs and maintenance costs on house and camp facilities and reduced family income to meet the attendant costs of housing.

2.3 The inability of many Commonwealth and Northern Territory Government Departments to effectively deliver services and entitlements to town campers exacerbates their situation. For example, failure to maximise town campers access to training opportunities maintains low levels of skills, high levels of unemployment and low incomes in the camps. Language problems, movement between town and bush and lack of information and experience in the process of application for benefits, all inhibit access to social security entitlements. A consequence is that many town camp tenants find it difficult to obtain and maintain an income high enough or stable enough to ensure that rentals, electricity, water and other house bills are paid.

TANGENTYERE COUNCIL'S HOUSING PROCESS

2.4 Tangentyere Council was primarily established as a mechanism, not for the construction of physical architectural structures (a task that could be achieved by NTHC or DOHC or any private contractor), but to provide housing services to a client group with quite specific housing needs that existing housing organisations had been unable to meet.

2.5 For these specific needs Tangentyere Council has developed a housing process which seeks to maximise town camper involvement in all stages of their rehousing to the point where Housing Associations and individual tenants may become self-managing. Essential to this process is a range of services, provided by the Council, designed to assist in the resolution of day to day housing problems which, if left untreated, could jeopardise stable house tenancies.

2.6 The incremental housing process, developed by Tangentyere Council, involves:

  • (a) assisting town campers in the negotiation of special purpose leases for their future housing programme;
  • (b) initiating improvements to existing camp areas (including improved camp security, services and ablution facilities) while housing funding is being negotiated;
  • (c) involving town campers in the design and physical layout of their proposed housing development in consultation with the Council's Design Group;
  • (d) constructing houses and using the construction process as an avenue for employment and training of young, unemployed town campers;
  • (e) developing, with the active co-operation of tenants, a landscaped environment around new housing, providing a setting which adds psychological and social support, rather than added stress, to the inhabitants; improving general health and living conditions through, for example, dust suppression; fulfilling lease covenants and providing a major channel of employment and training for chronically unemployed young town campers;
  • (f) providing management assistance to the 16 legally incorporated Housing Associations in fulfilling the legal requirements of their incorporations, the repairs and maintenance of their housing stock, together with rental collection and tenancy support services to maintain stable tenancies.

2.7 In fulfilling these functions Tangentyere Council is, perhaps, the closest an Aboriginal housing organisation has come to providing housing on a similar basis, with a similar structure and support system to State Housing Authority provision - though here on a smaller scale and tailored to the specific needs of a client group which SHA's have traditionally characterised as `bad risk' and failed to house successfully.''

The evidence in the present case does not disclose any material alteration in the work of


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the council and the circumstances in which it was functioning between the date of the Dixon report and October 1986. Counsel for the respondent did not challenge any of this.

The appellant services not only the permanent and transient occupiers of the town camps referred to in the Dixon report, but members of town camps visiting relatives in remote areas and remote Aboriginal communities in Central Australia. The appellant provides a wide range of services including mailing and banking facilities, the installation and maintenance of a reticulated water system to camps and houses, gardening, the erection and maintenance of children's playground facilities, the establishment and maintenance of parks, the collection of rubbish and garbage, the provision of transport, education and advice. The work of the appellant is directed to the benefit of Aboriginal persons or persons of Aboriginal descent.

While the authorities do not lay down an allembracing formula as to what is a public benevolent institution, the number and characteristics of the persons benefited by the institution in question can alone be determinative of the question.

The evidence in the present case is overwhelming that the permanent and transient residents of the Alice Springs town camps and the relevant remoter communities constitute an appreciable needy class in the Northern Territory community. I, with respect, adopt the statement of Nader J. in
Aboriginal Hostels Ltd. v. Darwin C.C. (1985) 33 N.T.R. 1 at p. 16:

``I would not have regarded authority as necessary for the proposition that `Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance':
Re Mathew [1951] VLR 226 at 232 and
Re Bryning [1976] VR 100. It is true that those cases might well be regarded as lacking in persuasive force in the present circumstances in Darwin by their considerable separation in time and place. As Lush J. said in Re Bryning: `That decision (Mathew) does not lead to the result that Aboriginals are to be classified perpetually as in need of protection and assistance' (p. 101). However, any ordinary informed person living in Darwin knows that Aboriginal persons in the Northern Territory are, in general, in considerable need of special consideration and assistance.''

And I am able to say that in particular, in the light of the evidence in the present case, the ``town campers'' of Alice Springs were at the relevant time in considerable need of special consideration and assistance.

I have already referred to some findings of the Dixon committee which I adopt.

Turning to matters medical, the town camps and bush communities served by the appellant have severe health and hygiene problems. The evidence of Doctor Moodie, which was not challenged, establishes:

Not being fully urbanised, the town camp occupants had specific housing needs. The appellant provided a specialised service and employs architects to specifically design houses tailored to those specific needs.

The respondent referred me to the discussion by Nader J. of an argument presented to him in Aboriginal Hostels v. Darwin C.C. (supra) at pp. 17-18. Here it was said, the objects of the appellant's activities elected to live in or around town camps in riverbeds or houses which are substandard by western standards, and in making that choice had rejected both a fully urban existence and a traditional or tribal existence in the bush; and I was reminded that poverty is relative: Lemm & Ors v. F.C. of T. (supra) at p. 410. If they were disadvantaged, it was said, it was by choice.

I think there are a number of answers to this submission.

As is pointed out by Drakakis-Smith in his learned article: ``Alice Through The Looking Glass: Marginalisation in Aboriginal Town Camps of Alice Springs'' (1980) 12 Environment and Planning pp. 427-448, which is in evidence before me (appellant's court book 4, tab 19), while the occupants of town camps do not share many of the stereotypical characteristics of ``the culture of poverty'', they are underprivileged compared to the Alice Springs white community and they are in what he calls ``a marginalisation cycle''. This ``marginalisation process'' is not caused by the occupants themselves, he concludes, but lies in causes outside the camps and in part the restricted access of many occupants to regular employment and education. The activities of the appellant seek to reverse ``the marginalisation process'' discussed by Drakakis-Smith in his article. Although written in 1979 the article is relevant to the time under review.

The objects of the appellant's activities are fringe dwellers (I do not use that expression in any pejorative sense); they are culturally ambivalent to such a degree that on the one hand they are socially ill-prepared to live a western urban existence, and on the other, to live a traditional or tribal existence in the bush. This is but one reason they need special attention and care. This predicament has been - more or less - the lot of the ``town campers'' since just after World War II. As such, they have and have had a cultural and social existence discrete from urban and traditional or tribal Aborigines, and they live and have lived in circumstances over which they have no control other than via the appellant. I have already noted that their adult life expectancy is less than urban Aborigines and traditional or tribal Aborigines in the bush; and the argument overlooks the substantial number of children involved. Their increased susceptibility to disease is not by choice any more than the general social disruption and disorder created by the many uninvited intruders into the town camps, among them alcohol and substance abusers, who, the evidence shows, create bedlam, even in dry camps. Their specialist housing needs are unavailable other than through the appellant. By any standards many ``town campers'' live in squalor. This submission of the respondent cannot be accepted.

The respondent, relying upon the judgment of Street C.J. in A.C.O.S.S., submitted that the appellant, in so far as its activities constituted it an umbrella organisation co-ordinating housing associations, was not giving sufficiently direct relief to the inhabitants of the town camps. I cannot accept this submission. It is true that not all the housing associations can themselves be demonstrated to be public benevolent institutions, but I see no need to reach any such conclusion. The evidence discloses that the appellant's efforts do directly benefit the inhabitants of the town camps. The evidence discloses that the housing associations are both


ATC 4359

conduits for welfare dispersed by the appellant and recipients of capital improvements and matters of maintenance which directly and physically benefit the occupants of the town camps. That being so, it is unnecessary for me to discuss A.C.O.S.S. and
Australian Council for Overseas Aid v. F.C. of T. 80 ATC 4575 at p. 4577; (1980) 49 F.L.R. 278 at p. 280 and the significance of the concession made by counsel.

To the extent that the appellant may be said to be engaged in other activities, either political or commercial, those activities may be characterised as incidental to the principal activities. There is no ground for saying that the respondent should not have been satisfied that the wages paid by the appellant were wages paid or payable to persons who were not engaged exclusively in work of a public benevolent nature. The appellant does not lose its character as a public benevolent institution because it is in part self-supporting: Borough of
Leichhardt v. Moran (1904) 4 S.R. (N.S.W.) 361; cf.
McGarvie Smith Institute v. Campbelltown M.C. (1965) 83 W.N. (N.S.W.) 191; or that fees and rents are sometimes charged, albeit as is the case here, often not recovered: Lemm & Ors v. F.C. of T. (supra).

The appellant's principal activities have enabled and enable the town campers to have employment, shelter, facilities and amenities required by them but otherwise not available to them. The activities of the appellant generally contribute to town campers' physical and social well-being and improvement. The recipients of the appellant's benefits are underprivileged and invariably in poor circumstances physically, emotionally and financially. The benefits conferred are no less direct than those in Maughan v. F.C. of T. (supra).

It should also be mentioned that counsel for the respondent submitted that in so far as the activities of the appellant assisted the town camp occupants to retain and observe their non-western customary values, traditions and culture, such activities were not benevolent in the eleemosynary sense, and the argument discussed by Nader J. in Aboriginal Hostels v. Darwin C.C. (supra) at pp. 17-18 was admixed with the submission.

I reject this submission. Helping those who cannot help themselves to retain and observe their customary values, traditions and culture, western or not, is benevolent, at least in the sense that it is for their social and spiritual welfare and the welfare of society as a whole. There is evidence, which I accept, that health is related to culture. It was not suggested that the values, traditions and culture of the town camp occupants were inimical to society at large. Benevolence in the relevant sense is not confined to practical and material interests and needs: Maughan v. F.C. of T. (supra).

The rejection of this submission is not based on any unexpressed if inarticulate major premise (to bend Holmes J.'s famous epigram) or a choice between political economies, cf.
W. Friedmann (1942) 6 Mod.L.R. 1 at p. 17, Legal Theory 3rd ed. (1953), cited in Lloyd, Introduction to Jurisprudence (1959) pp. 9-13, Sampford, The Disorder of Law, Blackwell (1989) 275 at p. 276, or even the idiosyncratic inference of a judicial mind (to employ Lord Atkin's remark from
Fender v. St John-Mildmay (1938) A.C. 1 at p. 12); it is based on matters deeply rooted in the common law, whose origins and tenor lie in the western liberal tradition: Radcliffe, The Law and Its Compass, Faber (1960), viii-x, 93. In this case, involving as it does the relationship (some might say clash) between cultures, it is not inappropriate to venture to explain this, cf.
Pelligrini v. Trikilis (1989) 63 N.T.R. 5 at p. 10;
Lochner v. New York (1905) 198 U.S. 45 at p. 76: ``General propositions do not decide concrete cases'' per Holmes J.

Hitherto ``our lady the Common Law'', to adopt Pollock's phrase (Pollock-Holmes letters vol. II p. 165), has been jealous of individual liberty of action and belief. It accommodates and indeed nurtures individuality, independence, particularity, plurality and diversity. These pre-Victorian themes recur over and again in our judge-made law, if not always without controversy (they are, inter alia, the basis of such diverse areas as the restraint of trade doctrine,
Mitchel v. Reynolds (1711) I P. Wms. 181 (24 E.R. 347),
Nordenfelt v. Maxim Nordenfelt (1894) A.C. 535, the law of passing off,
Cadbury-Schweppes Pty. Ltd. v. Pub Squash Co. Pty. Ltd. (1981) 1 W.L.R. 193 at pp. 200F, 205H, and the rule against perpetuities; and they are reflected in the common law's distaste for monopolies and racial discrimination and its scrutiny of combinations: Coke - monopolies are ``ever without the law, but never without friends''


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3 Inst. 182, 4th ed. (1670); Cadbury-Schweppes v. Pub Squash Co. (supra); letter Pollock to Holmes (supra); cf.
Bennett & Fisher Ltd. v. Electricity Trust of S.A. (1961-1962) 106 C.L.R. 492 (which I very respectfully suggest may some day come to be reconsidered) and Trebilcock, Restraint of Trade, Carswell (1986) pp. 7, 13-14; and as to combinations and race relations, see Crofter
Handwoven Harris Tweed Co. Ltd. v. Veitch (1942) A.C. 435 at p. 451;
Scala Ballroom (Wolverhampton) Ltd. v. Ratcliffe (1958) 1 W.L.R. 1057;
Re Dominion Students Hall Trust (1947) 1 Ch. 183). And see too, generally, Radcliffe, The Law and Its Compass (supra) at pp. 64-66, 79 and his 1954-1955 presidential address to the Holdsworth Club entitled ``Law and the Democratic State'' in The Lawyer and Justice, Sweet and Maxwell (1978), particularly at pp. 155-156 and in Not in Feather Beds, Hamish Hamilton (1968), particularly at pp. 56-57.

Relevant to the present context is the discussion of these themes by the Mexican poet and essayist Paz:

``... traditional societies must be defended, if we wish to preserve diversity... History has thus far been plural: different visions of humanity, each with a different vision of its past and future. To preserve this diversity is to preserve a plurality of futures, that is to say life itself... We must cultivate and defend particularity, individuality, and irregularity - life.''

Convergences, Bloomsbury (1987) pp. 117, 118. And in the same context it will be remembered that it was the very regularity of the irregularity of passengers at Paddington Railway Station - life - that enabled Mrs Bunch to recover the value of her Gladstone bag: (1888) 13 App. Cas. 31 at pp. 59-60 per Lord Macnaghten.

It is further to be observed that the appellant's work in connection with the town camp occupants' customs, traditions and culture is directed in large measure to enabling self-help, a philosophy at once consistent with the common law, the appellant's own constitution and the statutory enactments relating to Aboriginal persons previously referred to.

To submit that the measures taken and assistance given by the appellant to the town campers to preserve and observe their non-western customary values, traditions and culture, for example the ``smoking'' and temporary abandonment of houses during ``sorry time'' following a death in the household, is not benevolent in the relevant sense is untenable. The respondent has not suggested that the appellant uselessly squandered money or that any part of its activities was sham or that its motives were other than altruistic.

I conclude that the appellant was at the material time a public benevolent institution. The source of its finances was public benevolence. Both its membership and the objects of its welfare constituted appreciable needy sections of the community and its activities, which accorded with and sought to fulfil the objects of its constitution were of a public benevolent nature. It was controlled by Aboriginal persons, predominantly employed Aboriginal persons and its efforts were directed towards the welfare of Aboriginal persons. The appellant's employees were all engaged in its principal activities or work incidental thereto or work directed to both achieving a measure of self-support and lightening the load on the public purse. They were thus engaged in public benevolent work for the purposes of sec. 9(c) of the Pay-roll Tax Act.

The appeal should be allowed.

I shall hear counsel as to the orders to be made.


 

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