Building and Construction Legislation Amendment Act 2023 (ACT)
Building and Construction Legislation Amendment Act 2023
A2023-55
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Legislation amended 3
Part 2Architects Act 2004
4 Grounds for occupational disciplineSection 42 (1) (b) 4
5 Ministerial directions to boardSection 68 (1), example 3 4
6 Section 88 4
Part 3Building Act 2004
7 Building approval applicationsNew section 26 (2) (aa) 6
8 Notice to produce survey plan etcSection 60 6
9 Definitions—pt 6Section 84, definition of approved scheme 6
10 Section 84, new definition of consumer representative 6
11 Complying residential building work insuranceNew section 90 (3A) 6
12 Sections 96 to 98 7
13 Approval criteria for schemesSection 99 (2) 8
14 Sections 100 to 102 9
15 Suspension or cancellation of approval of approved schemeNew section 107 (1) (i) 10
16 Section 127 10
17 New division 6.6 11
18 Energy efficiency certificatesSection 139C (2) and (3) 12
19 Dictionary, new definition of consumer representative 13
20 Further amendments, mentions of territory planning authority 13
21 Further amendments, mentions of the authority 14
22 Further amendments, mentions of the authority’s 14
Part 4Building and Construction Industry (Security of Payment) Act 2009
23 Meaning of construction workSection 7 (1), definition of construction work, paragraph (c) 15
24 Right to progress paymentsSection 10 (1) 15
25 Section 10 (2) (c) 15
26 Section 10 (3) 15
27 Due date for paymentSection 13 (1) 16
28 Payment claimNew section 15 (3A) 16
29 Section 15 (4) 16
30 Section 15 (5) 17
31 Section 15 (6) 17
32 Dictionary, note 2 17
Part 5Building (General) Regulation 2008
33 General requirements for plans—Act, s 27 (1) (a) Section 16 (3), definitions of stormwater system, utility service and water main 18
34 General requirements for plans—Act, s 63A Section 36A (3), definitions of stormwater system, utility service and water main 18
35 Dictionary, new definitions 18
Part 6Construction Occupations (Licensing) Act 2004
36 What is a gasfitter?Section 12 (3), definition of gasfitting work 19
37 Licence conditionsSection 21 (2) and (3) 19
38 Establishment of advisory boardsSection 114 (1) 19
39 New part 23 20
Part 7Construction Occupations (Licensing) Regulation 2004
40 Skill assessment of individualsSection 14 (1) and (2) 21
41 Section 14 (5) 21
42 New section 31D 21
43 Requirement to consult under s 13Section 49 22
44 Classes of construction occupation licence and functionsSchedule 1, part 1.6, items 1 and 2 22
45 Schedule 1, part 1.7, new items 10 and 11 22
46 Reviewable decisionsSchedule 4, new item 32A 23
47 Dictionary, new definition of distributed energy resource work 23
48 Dictionary, definition of incidental electrical work, paragraph (c) 23
49 Dictionary, new definitions 23
Part 8Electricity Safety Act 1971
50 Meaning of electrical wiring rulesNew section 3B (3A) 24
51 Connecting electrical installations to network—inspectionsSection 4 (1) (a) 24
52 Testing and reporting of electrical workNew section 6 (5) 24
53 Section 51 25
54 Reviewable decisionsSchedule 1, new items 7 and 8 27
Part 9Electricity Safety Regulation 2004
55 New section 1A 28
Part 10Gas Safety Act 2000
56 Objects of ActNew section 6 (b) (v) 29
57 Meaning of gasfitting workSection 6F, definition of gasfitting work, paragraph (a) (ii) 29
58 Dictionary, new definitions 29
Part 11Gas Safety Regulation 2001
59 New section 21 31
Part 12Liquor Act 2010
60 Fire engineering study and inspectionSection 86 (4) (c) 32
Part 13Water and Sewerage Act 2000
61 Appointment of certifiersNew section 5 (2) (c) and (d) 33
62 Section 16 heading 33
Building and Construction Legislation Amendment Act 2023
A2023-55
An Act to amend legislation about building and construction
The Legislative Assembly for the Australian Capital Territory enacts as follows:
Part 1Preliminary
Name of Act
This Act is the Building and Construction Legislation Amendment Act 2023.
Commencement
(1)The following provisions commence on a day fixed by the Minister by written notice:
· sections 9 to 15
· section 17
· section 19
· section 36
· section 45
· section 49
· part 10
· part 11.
Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).
(2)The following provisions commence 3 months after this Act’s notification day:
· part 4 (other than section 23)
· section 39
· section 42
· section 44
· sections 46 to 48
· sections 51 to 54.
(3)Section 18 commences on 15 January 2024.
(4)The remaining provisions commence on the day after this Act’s notification day.
(5)If the provisions in subsection (1) have not commenced within 12 months beginning on this Act’s notification day, they automatically commence on the first day after that period.
(6)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to the provisions in subsection (1).
Legislation amended
This Act amends the legislation mentioned in parts 2 to 13.
Part 2Architects Act 2004
Grounds for occupational discipline
Section 42 (1) (b)omit
professional conduct code has been adopted under this Act
substitute
code of professional conduct has been approved under section 88 (1)
Ministerial directions to board
Section 68 (1), example 3omit
professional conduct code
substitute
code of professional conduct
Section 88
substitute
Code of professional conduct
(1)The Minister may approve a code of professional conduct for—
(a)registered architects; or
(b)an architectural service.
(2)An approved code of professional conduct is a disallowable instrument.
(3)An approved code of professional conduct may incorporate, apply or adopt (with or without change or modification)—
(a)a law or an Australian Standard as in force from time to time; or
(b)another instrument as in force from time to time.
(4)The Legislation Act, section 47 (5) and (6) do not apply to an instrument incorporated, applied or adopted under subsection (3).
NoteAn instrument under subsection (3) does not need to be notified under the Legislation Act because s 47 (5) and (6) do not apply (see Legislation Act, s 47 (7)).
(5)The director-general must ensure that an instrument that is incorporated, applied or adopted under subsection (3) (b) is—
(a)on the ACT legislation register; or
(b)available for inspection by anyone without charge during ordinary business hours at an ACT government office; or
(c)accessible on an ACT government website, or by a link on an ACT government website.
(6)An instrument that is incorporated, applied or adopted under subsection (3) (b) is not enforceable by or against the Territory or anyone else unless it is made accessible in accordance with subsection (5).
(7)In this section:
ACT legislation register—see the Legislation Act, section 18 (1).
Part 3Building Act 2004
Building approval applications
New section 26 (2) (aa)insert
(aa)nominate the kind of certificate of occupancy for which the applicant proposes to apply; and
Notice to produce survey plan etc
Section 60omit
Definitions—pt 6
Section 84, definition of approved schemeomit
section 96
substitute
section 98
Section 84, new definition of consumer representative
insert
consumer representative—see section 127AA (1).
Complying residential building work insurance
New section 90 (3A)insert
(3A)For subsections (1) (f) and (3), a builder is taken to have disappeared if the builder, after proper search and inquiry, cannot be found in Australia.
Sections 96 to 98
substitute
Approval of fidelity fund scheme—application
(1)The trustees of a fidelity fund scheme may apply to the Minister for approval of the scheme.
(2)The application must—
(a)be in writing and signed by all the trustees of the scheme; and
(b)include—
(i)a copy of the trust deed; and
(ii)evidence to show the scheme complies with the approval criteria; and
(iii)the address for service for the trustees.
Approval of fidelity fund scheme—request for more information
(1)The Minister may, in writing, ask an applicant under section 96 to give the Minister the additional information that the Minister reasonably needs to decide the application.
(2)The Minister may refuse to consider the application further if the information is not provided within the period stated in the request.
Approval of fidelity fund scheme—decision on application
(1)If the Minister receives an application under section 96, the Minister must approve, or refuse to approve, the fidelity fund scheme.
NoteAn approval may be given subject to conditions (see s 100).
(2)The Minister may approve a fidelity fund scheme only if satisfied the scheme complies with the approval criteria.
(3)Before approving a fidelity fund scheme, the Minister may require changes to be made to the scheme to ensure that it complies with the approval criteria.
(4)An approval is a notifiable instrument.
Approval criteria for schemes
Section 99 (2)substitute
(2)Without limiting the matters that may be included in approval criteria, the approval criteria may include requirements in relation to the following:
(a)the management of the scheme;
(b)the content of the trust deed for the scheme;
(c)suitability for appointment as a trustee of the scheme;
(d)the content of fidelity certificates;
(e)building work for which a fidelity certificate may, or must not, be issued under the scheme;
(f)making, assessing and dealing with claims under a fidelity certificate issued under the scheme;
(g)complaint handling in relation to fidelity certificates and claims under fidelity certificates.
Sections 100 to 102
substitute
Approved scheme—conditions
(1)A fidelity fund scheme’s approval is subject to the following conditions:
(a)the approved scheme must continue to comply with the approval criteria;
(b)the trustees of the approved scheme must tell the Minister, in writing, if there is a material change to the way in which the approved scheme complies with the approval criteria;
(c)a condition prescribed by regulation;
(d)any other condition the Minister considers appropriate.
(2)A condition may be expressed to have effect despite anything in the prudential standards.
(3)The trustees of an approved scheme each commit an offence if the scheme does not comply with a condition mentioned in subsection (1).
Maximum penalty: 60 penalty units.
(4)An offence against this section is a strict liability offence.
Approved scheme—application to change
(1)The trustees of an approved scheme may apply to the Minister to change the scheme.
(2)The application must—
(a)be in writing and signed by all the trustees of the scheme; and
(b)set out the proposed change to the scheme and the reasons for the change; and
(c)include evidence to show the proposed change to the scheme complies with the approval criteria.
(3)However, the Minister may declare a change to an approved scheme to be a change for which approval is not required.
(4)A declaration is a notifiable instrument.
Approved scheme—decision on application to change
(1)If the Minister receives an application under section 101, the Minister must approve, or refuse to approve, the change.
(2)The Minister may approve a change to a fidelity fund scheme only if satisfied the scheme would continue to comply with the approval criteria and the prudential standards.
(3)An approval or refusal is a notifiable instrument.
Suspension or cancellation of approval of approved scheme
New section 107 (1) (i)insert
(i)a ground prescribed by regulation for the suspension or cancellation of the approval of the scheme.
Section 127
substitute
Protection of auditor and actuary from liability
(1)The auditor or actuary for an approved scheme, and any special actuary for the scheme, does not incur civil or criminal liability for an act or omission done honestly as the auditor or actuary.
(2)A civil liability that would, apart from this section, attach to the auditor or actuary attaches instead to the Territory.
New division 6.6
after section 127, insert
Division 6.6 Consumer representative
127AAConsumer representative—appointment
(1)The Minister may appoint a person to advise the Minister about the interests of owners in relation to approved schemes (a consumer representative).
NoteFor laws about appointments, see the Legislation Act, pt 19.3.
(2)The Minister must not appoint a public servant or a person who represents the building and construction industry as the consumer representative.
(3)A regulation may prescribe criteria for the appointment of a person as the consumer representative.
(4)An appointment as the consumer representative must be for not longer than 3 years.
(5)An appointment is a notifiable instrument.
(6)The conditions of the consumer representative’s appointment are the conditions agreed between the Minister and the person.
127ABConsumer representative—terms of reference
(1)If the Minister appoints a consumer representative, the Minister must determine terms of reference for the exercise of functions by the consumer representative.
(2)The terms of reference may include terms in relation to when the consumer representative may—
(a)attend a meeting of the trustees of an approved scheme; or
(b)request information from the trustees of an approved scheme.
(3)The terms of reference are a notifiable instrument.
(4)The consumer representative must comply with the terms of reference approved by the Minister.
127ACConsumer representative—ending appointment
The Minister may end a person’s appointment as the consumer representative—
(a)if the person does not provide advice within a reasonable time when asked by the Minister; or
(b)for misbehaviour; or
(c)for physical or mental incapacity, if the incapacity substantially affects the exercise of the person’s ability to give advice to the Minister; or
(d)if the Minister becomes aware that the person has at any time been convicted in Australia of an offence punishable by imprisonment for 1 year or longer; or
(e)if the Minister becomes aware that the person has at any time been convicted outside Australia of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for 1 year or longer.
Energy efficiency certificates
Section 139C (2) and (3)substitute
(2)An energy efficiency certificate must be prepared in accordance with the requirements prescribed by regulation.
(3)In this section:
energy efficiency provision means a provision of this Act or the building code, prescribed by regulation, that requires building work or proposed building work, or parts of building work or proposed building work, to comply with stated energy efficiency requirements.
Dictionary, new definition of consumer representative
insert
consumer representative, for part 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates)—see section 127AA (1).
Further amendments, mentions of territory planning authority
omit
territory planning authority
substitute
Minister
in
· sections 105 to 113
· section 115
· section 117 and 118
· section 121 to 125
Further amendments, mentions of the authority
omit
the authority
substitute
the Minister
in
· sections 106 to 109
· section 118
· sections 122 to 124
Further amendments, mentions of the authority’s
omit
the authority’s
substitute
the Minister’s
in
· section 107
· section 112
· section 118
Part 4Building and Construction Industry (Security of Payment) Act 2009
Meaning of construction work
Section 7 (1), definition of construction work, paragraph (c)omit
air-conditioning
substitute
air conditioning
Right to progress payments
Section 10 (1)omit everything before paragraph (a), substitute
(1)A person is entitled to a payment (a progress payment) if the person has undertaken, under a construction contract, to—
Section 10 (2) (c)
substitute
(c)a payment that is based on an event or date.
Section 10 (3)
omit
Due date for payment
Section 13 (1)substitute
(1)A progress payment under a construction contract is payable on the earlier of the following:
(a)15 business days after a payment claim is given under part 4 in relation to the payment;
(b)the day when the payment becomes payable under the contract.
Payment claim
New section 15 (3A)insert
(3A)A payment claim may be given on or after—
(a)the last day of the calendar month in which the construction work was first carried out, or the related goods and services were first supplied, under the contract and of each subsequent calendar month; or
(b)if the construction contract provides for a payment claim to be given before the last day of a calendar month—the day provided under the contract; or
(c)if the construction contract has been terminated—the day of termination.
Section 15 (4)
omit
A payment claim
substitute
However, a payment claim
Section 15 (5)
omit
reference date under the construction contract
substitute
calendar month, unless the construction contract provides for more than 1 payment claim to be given in a calendar month
Section 15 (6)
substitute
(6)Nothing in this section prevents the claimant from—
(a)including more than 1 progress payment in a payment claim; or
(b)including in a payment claim an amount that has been the subject of a previous claim; or
(c)giving the respondent a payment claim in a particular calendar month for work carried out, or related goods and services supplied, in an earlier calendar month.
Dictionary, note 2
insert
· calendar month
Part 5Building (General) Regulation 2008
General requirements for plans—Act, s 27 (1) (a)
Section 16 (3), definitions of stormwater system, utility service and water mainomit
General requirements for plans—Act, s 63A
Section 36A (3), definitions of stormwater system, utility service and water mainomit
Dictionary, new definitions
insert
stormwater system means a system of pipes, gutters, drains, floodways and channels designed to collect or carry stormwater in or through an urban area, other than for a single parcel of land.
utility service—see the Utilities Act 2000, dictionary.
water main means a conduit or pipeline—
(a)owned, controlled or maintained by a utility service; and
(b)designed to carry drinking water supplied by the service.
Part 6Construction Occupations (Licensing) Act 2004
What is a gasfitter?
Section 12 (3), definition of gasfitting workomit
dictionary
substitute
section 6F
Licence conditions
Section 21 (2) and (3)substitute
(2)The registrar may also impose a condition on a licence by written notice given to the licensee if satisfied it is necessary or desirable to protect the public, unless a regulation provides otherwise.
Establishment of advisory boards
Section 114 (1)omit
must
substitute
may
New part 23
insert
Part 23Transitional—Building and Construction Legislation Amendment Act 2023
Transitional—distributed energy resource work
(1)A person does not commit an offence against this Act only because the person does or supervises distributed energy resource work without an endorsement if the person was authorised under a licence to do or supervise that type of work immediately before the commencement of this section.
(2)In this section:
distributed energy resource work—see the Construction Occupations (Licensing) Regulation 2004, section 31D (5).
endorsement means an endorsement under the Construction Occupations (Licensing) Regulation 2004, section 31D.
Expiry—pt 23
This part expires 6 months after the day it commences.
NoteA transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).
Part 7Construction Occupations (Licensing) Regulation 2004
Skill assessment of individuals
Section 14 (1) and (2)after
licence
insert
or endorsement
Section 14 (5)
after
licensed
insert
, or to have a licence endorsed,
New section 31D
insert
31DEndorsing electricians licences for work on distributed energy resources—Act, s 22
(1)The registrar may, on application, endorse an electrical contractor licence or an unrestricted electrician licence to authorise the licensee to do, or to supervise, distributed energy resource work if satisfied that the licensee is competent to do, or to supervise, the work.
NoteIn deciding whether to endorse a licence under this section, the registrar must consider the considerations in s 32.
(2)The endorsement may be subject to any condition the registrar is satisfied protects the public.
(3)The Minister may declare a thing to be a distributed energy resource.
(4)A declaration is a disallowable instrument.
(5)For this regulation, distributed energy resource work means electrical wiring work on a distributed energy resource declared under subsection (3).
Requirement to consult under s 13
Section 49omit
Classes of construction occupation licence and functions
Schedule 1, part 1.6, items 1 and 2substitute
| 1 | electrical contractor | 1 electrical wiring work, other than interval metering work or distributed energy resource work, without supervision 2 supervision of electrical wiring work, other than interval metering work or distributed energy resource work |
| 2 | unrestricted | 1 electrical wiring work, other than interval metering work or distributed energy resource work, without supervision 2 supervision of electrical wiring work, other than interval metering work or distributed energy resource work |
Schedule 1, part 1.7, new items 10 and 11
insert
| 10 | medical gasfitter | medical gasfitting work |
| 11 | medical gas technician | medical gas technician work |
Reviewable decisions
Schedule 4, new item 32Ainsert
| 32A | 31D | refuse to endorse electrical contractor licence or unrestricted electrician licence | licensee |
Dictionary, new definition of distributed energy resource work
insert
distributed energy resource work—see section 31D (5).
Dictionary, definition of incidental electrical work, paragraph (c)
after
work
insert
or distributed energy resource work
Dictionary, new definitions
insert
medical gasfitting work—see the Gas Safety Act 2000, dictionary.
medical gas technician work—see the Gas Safety Act 2000, dictionary.
Part 8Electricity Safety Act 1971
Meaning of electrical wiring rules
New section 3B (3A)insert
(3A)The Australian Capital Territory Appendix to AS/NZS 3000 may vary, add to or exclude parts of AS/NZS 3000 for the ACT.
Connecting electrical installations to network—inspections
Section 4 (1) (a)substitute
(a)the person connects a new electrical installation, or reconnects an electrical installation that has been disconnected for 6 months or more, to an electricity network; and
Testing and reporting of electrical work
New section 6 (5)insert
(5)In this section:
electrical wiring work includes the reconnection of an electrical installation that has been disconnected for 6 months or more to an electricity network.
Section 51
substitute
Powers in relation to dangerous electrical equipment and installations
(1)An inspector who enters premises under this part may do any of the following in relation to an electrical installation, or article of electrical equipment, on the premises:
(a)if the inspector believes on reasonable grounds that the installation is a source of danger—disconnect the installation;
(b)if the inspector believes on reasonable grounds that the article is a source of danger—
(i)label the article conspicuously to indicate the danger; and
(ii)prohibit use of the article until it has been replaced, repaired or made safe for use;
(c)if the inspector believes on reasonable grounds that an installation or article will become a source of danger unless it is repaired or made safe for use—
(i)label the installation or article conspicuously to indicate the potential danger; and
(ii)give the owner of the installation or article a written notice directing the owner to repair it, or make it safe for use, within 6 months or a shorter period stated in the notice;
(d)if an owner fails to comply with a notice given under paragraph (c) (ii) in relation to an installation—disconnect the installation.
(2)A person commits an offence if the person reconnects an installation disconnected under subsection (1) (a) before it is repaired or made safe for use.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(3)A person commits an offence if the person—
(a)removes a label applied to an article under subsection (1) (b) (i) before it is replaced, repaired or made safe for use; and
(b)uses the article that is prohibited from use under subsection (1) (b) (ii).
Maximum penalty: 50 penalty units.
(4)A person commits an offence if the person—
(a)removes a label applied to an article under subsection (1) (b) (i) before it is replaced, repaired or made safe for use; or
(b)uses an article that is prohibited from use under subsection (1) (b) (ii).
Maximum penalty: 40 penalty units.
(5)An offence against subsection (4) (a) is a strict liability offence.
(6)A person commits an offence if the person—
(a)removes a label applied to an installation or article under subsection (1) (c) (i) before it is repaired or made safe for use; or
(b)fails to comply with a direction given to the person under subsection (1) (c) (ii).
Maximum penalty: 30 penalty units.
(7)An offence against subsection (6) is a strict liability offence.
Reviewable decisions
Schedule 1, new items 7 and 8insert
| 7 | 51 (1) (c) | give written notice directing owner of installation or article to repair it or make it safe for use | owner of installation or article |
| 8 | 51 (1) (d) | disconnect installation | owner of installation |
Part 9Electricity Safety Regulation 2004
New section 1A
insert
1AElectrical wiring rules—Act s 3B (1), def electrical wiring rules, par (c)
(1)A code of practice for any of the following is prescribed:
(a) a construction occupation, or class of construction occupation, in relation to which a licence authorises electrical wiring work under the Construction Occupations (Licensing) Regulation 2004;
(b)the doing or supervision of electrical wiring work.
(2)In this section:
code of practice—see the Construction Occupations (Licensing) Act 2004, dictionary.
Part 10Gas Safety Act 2000
Objects of Act
New section 6 (b) (v)insert
(v)the installation, operation, maintenance, commissioning, testing, inspection and repair of medical gas systems.
Meaning of gasfitting work
Section 6F, definition of gasfitting work, paragraph (a) (ii)substitute
(ii)the inspection or testing of a consumer piping system; or
(iii)medical gasfitting work; or
(iv)medical gas technician work; and
Dictionary, new definitions
insert
medical gas means a substance used for medical purposes and prescribed as a medical gas.
medical gasfitting work—
(a)means the construction, installation, replacement, repair, alteration and maintenance of a medical gas system; and
(b)if incidental to the work in paragraph (a)—includes design work and testing.
medical gas system means a reticulated system of pipes, hoses or lines that carries or controls the supply or removal of medical gas—
(a)including related fixtures and fittings and any other thing prescribed by regulation; but
(b)not including anything connected to, and extending or situated beyond, a wall outlet or non‑interchangeable screw thread fitting.
medical gas technician work means the commissioning, testing, verification or certification of a medical gas system.
Part 11Gas Safety Regulation 2001
New section 21
insert
Medical gases—Act, dict, def medical gas
The following substances are prescribed:
(a)oxygen;
(b)nitrous oxide;
(c)helium;
(d)nitrogen;
(e)carbon dioxide;
(f)medical air;
(g)surgical tool gas;
(h)a common mixture of gases mentioned in paragraphs (a) to (g);
(i)air at a negative pressure;
(j)waste anaesthetic gas.
Part 12Liquor Act 2010
Fire engineering study and inspection
Section 86 (4) (c)substitute
(c)the method of determining the number of people in an area under the building code.
Part 13Water and Sewerage Act 2000
Appointment of certifiers
New section 5 (2) (c) and (d)insert
(c)the work consists of replacing taps or toilets or other basic maintenance; or
(d)the cost of the work is not more than $1 000 or a higher prescribed amount.
Section 16 heading
substitute
Notice of sanitary plumbing or drainage work by licensee
Endnotes
Presentation speech
Presentation speech made in the Legislative Assembly on 14 September 2023.
Notification
Notified under the Legislation Act on 11 December 2023.
Republications of amended laws
For the latest republication of amended laws, see certify that the above is a true copy of the Building and Construction Legislation Amendment Bill 2023, which was passed by the Legislative Assembly on 29 November 2023.
Clerk of the Legislative Assembly
© Australian Capital Territory 2023
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