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PARLIAMENT OF VICTORIA
Racial and Religious Tolerance Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purposes 2
2. Commencement 2
3. Definitions 3
4. Objects of Act 4
5. Contravention does not create civil or criminal liability 5
6. Act binds the Crown 5
PART 2--UNLAWFUL CONDUCT 6
Division 1--Unlawful Vilification 6
7. Racial vilification unlawful 6
8. Religious vilification unlawful 6
9. Motive and dominant ground irrelevant 6
10. Incorrect assumption as to race or religious belief or activity 7
11. Exceptions--public conduct 7
12. Exceptions--private conduct 7
Division 2--Other Unlawful Conduct 8
13. Prohibition of victimisation 8
14. What is victimisation? 8
15. Prohibition of authorising or assisting vilification or
victimisation 9
16. Liability of person who authorises or assists 9
17. Vicarious liability of employers and principals 10
18. Exception to vicarious liability 10
PART 3--COMPLAINTS AND CONCILIATION 11
19. Who may complain? 11
20. How to complain 13
21. Commission must assist complainants 13
22. Complaints against unincorporated associations 13
23. Application of Equal Opportunity Act 1995 13
PART 4--SERIOUS VILIFICATION OFFENCES 15
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541150B.A1-6/6/2001 BILL LA AS SENT 6/6/2001
Clause Page
24. Offence of serious racial vilification 15
25. Offence of serious religious vilification 16
26. Incorrect assumption as to race or religious belief or activity 17
27. Liability of body corporate 17
28. Issue of search warrant by magistrate 18
PART 5--CONSEQUENTIAL AMENDMENTS TO THE EQUAL
OPPORTUNITY ACT 1995 19
29. Victimisation 19
30. Investigations by the Commission 19
31. Commission's education and research functions 19
ENDNOTES 20
INDEX 21
ii
541150B.A1-6/6/2001 BILL LA AS SENT 6/6/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 16 May 2001
As amended by Assembly 6 June 2001
A BILL
to promote racial and religious tolerance by prohibiting the vilification
of persons on the ground of race or religious belief or activity, to
amend the Equal Opportunity Act 1995 and for other purposes.
Racial and Religious Tolerance Act 2001
Preamble
1. The Parliament recognises that freedom of expression is
an essential component of a democratic society and that
this freedom should be limited only to the extent that can
be justified by an open and democratic society. The right
of all citizens to participate equally in society is also an
important value of a democratic society.
2. The people of Victoria come from diverse ethnic and
Indigenous backgrounds and observe many different
religious beliefs and practices. The majority of
Victorians embrace the benefits provided by this cultural
diversity and are proud that people of these diverse
ethnic, Indigenous and religious backgrounds live
together harmoniously in Victoria.
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Racial and Religious Tolerance Act 2001
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Act No.
3. However, some Victorians are vilified on the ground of
their race or their religious belief or activity. Vilifying
conduct is contrary to democratic values because of its
effect on people of diverse ethnic, Indigenous and
religious backgrounds. It diminishes their dignity, sense
of self-worth and belonging to the community. It also
reduces their ability to contribute to, or fully participate
in, all social, political, economic and cultural aspects of
society as equals, thus reducing the benefit that diversity
brings to the community.
4. It is therefore desirable that the Parliament enact law for
the people of Victoria that supports racial and religious
tolerance.
The Parliament of Victoria therefore enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to promote racial and religious tolerance by
5 prohibiting certain conduct involving the
vilification of persons on the ground of race
or religious belief or activity;
(b) to provide a means of redress for the victims
of racial or religious vilification;
10 (c) to make consequential amendments to the
Equal Opportunity Act 1995.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
15 (2) If a provision referred to in sub-section (1) does
not come into operation before 1 January 2002, it
comes into operation on that day.
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Act No.
3. Definitions
In this Act--
"child" means a person under the age of 18 years;
"Commission" means the Equal Opportunity
5 Commission;
"complaint" means a complaint lodged under
section 20;
"detriment" includes humiliation and
denigration;
10 "employee" has the same meaning as in the
Equal Opportunity Act 1995;
"employer" has the same meaning as in the
Equal Opportunity Act 1995;
"impairment" has the same meaning as in the
15 Equal Opportunity Act 1995;
"parent" includes--
(a) step-parent;
(b) adoptive parent;
(c) foster parent;
20 (d) guardian;
"person"--
(a) in relation to a natural person, means a
person of any age; and
(b) except in Part 4, includes an
25 unincorporated association;
"race" includes--
(a) colour;
(b) descent or ancestry;
(c) nationality or national origin;
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Act No.
(d) ethnicity or ethnic origin;
(e) if 2 or more distinct races are
collectively referred to as a race--
(i) each of those distinct races;
5 (ii) that collective race;
"religious belief or activity" means--
(a) holding or not holding a lawful
religious belief or view;
(b) engaging in, not engaging in or refusing
10 to engage in a lawful religious activity;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
Tribunal Act 1998.
15 4. Objects of Act
(1) The objects of this Act are--
(a) to promote the full and equal participation of
every person in a society that values freedom
of expression and is an open and
20 multicultural democracy;
(b) to maintain the right of all Victorians to
engage in robust discussion of any matter of
public interest or to engage in, or comment
on, any form of artistic expression,
25 discussion of religious issues or academic
debate where such discussion, expression,
debate or comment does not vilify or
marginalise any person or class of persons;
(c) to promote conciliation and resolve tensions
30 between persons who (as a result of their
ignorance of the attributes of others and the
effect that their conduct may have on others)
vilify others on the ground of race or
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Racial and Religious Tolerance Act 2001
s. 5
Act No.
religious belief or activity and those who are
vilified.
(2) It is the intention of the Parliament that the
provisions of this Act are interpreted so as to
5 further the objects set out in sub-section (1).
5. Contravention does not create civil or criminal
liability
A contravention of this Act does not create any
civil or criminal liability except to the extent
10 expressly provided by this Act.
6. Act binds the Crown
This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
15 _______________
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s. 7
9
Act No.
PART 2--UNLAWFUL CONDUCT
Division 1--Unlawful Vilification
7. Racial vilification unlawful
(1) A person must not, on the ground of the race of
5 another person or class of persons, engage in
conduct that incites hatred against, serious
contempt for, or revulsion or severe ridicule of,
that other person or class of persons.
(2) For the purposes of sub-section (1), conduct--
10 (a) may be constituted by a single occasion or
by a number of occasions over a period of
time; and
(b) may occur in or outside Victoria.
Note: "engage in conduct" includes use of the internet or e-mail
15 to publish or transmit statements or other material.
8. Religious vilification unlawful
(1) A person must not, on the ground of the religious
belief or activity of another person or class of
persons, engage in conduct that incites hatred
20 against, serious contempt for, or revulsion or
severe ridicule of, that other person or class of
persons.
Note: "engage in conduct" includes use of the internet or e-mail
to publish or transmit statements or other material.
25 (2) For the purposes of sub-section (1), conduct--
(a) may be constituted by a single occasion or
by a number of occasions over a period of
time; and
(b) may occur in or outside Victoria.
30 9. Motive and dominant ground irrelevant
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(1) In determining whether a person has contravened
section 7 or 8, the person's motive in engaging in
any conduct is irrelevant.
(2) In determining whether a person has contravened
5 section 7 or 8, it is irrelevant whether or not the
race or religious belief or activity of another
person or class of persons is the only or dominant
ground for the conduct, so long as it is a
substantial ground.
10 10. Incorrect assumption as to race or religious belief or
activity
In determining whether a person has contravened
section 7 or 8, it is irrelevant whether or not the
person made an assumption about the race or
15 religious belief or activity of another person or
class of persons that was incorrect at the time that
the contravention is alleged to have taken place.
11. Exceptions--public conduct
A person does not contravene section 7 or 8 if the
20 person establishes that the person's conduct was
engaged in reasonably and in good faith--
(a) in the performance, exhibition or distribution
of an artistic work; or
(b) in the course of any statement, publication,
25 discussion or debate made or held, or any
other conduct engaged in, for--
(i) any genuine academic, artistic,
religious or scientific purpose; or
(ii) any purpose that is in the public
30 interest; or
(c) in making or publishing a fair and accurate
report of any event or matter of public
interest.
12. Exceptions--private conduct
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(1) A person does not contravene section 7 or 8 if the
person establishes that the person engaged in the
conduct in circumstances that may reasonably be
taken to indicate that the parties to the conduct
5 desire it to be heard or seen only by themselves.
(2) Sub-section (1) does not apply in relation to
conduct in any circumstances in which the parties
to the conduct ought reasonably to expect that it
may be heard or seen by someone else.
10 Division 2--Other Unlawful Conduct
13. Prohibition of victimisation
A person must not victimise another person.
14. What is victimisation?
(1) A person victimises another person if the person
15 subjects or threatens to subject the other person to
any detriment because the other person, or a
person associated (whether as a relative or
otherwise) with the other person--
(a) has made a complaint against any person;
20 (b) has brought any other proceedings under this
Act against any person;
(c) has given evidence or information, or
produced a document, in connection with
any proceedings under this Act;
25 (d) has attended a compulsory conference at the
Tribunal;
(e) has otherwise done anything in accordance
with this Act in relation to any person;
(f) has alleged that any person has contravened
30 a provision of this Act, unless the allegation
is false and was not made in good faith;
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(g) has refused to do anything that would
contravene a provision of this Act--
or because the person believes that the other
person or the associate has done or intends to do
5 any of those things.
(2) It is sufficient for sub-section (1)(f) that the
allegation states the conduct that would constitute
the contravention, without actually stating that
this Act, or a provision of this Act, has been
10 contravened.
(3) In determining whether a person victimises
another person it is irrelevant--
(a) whether or not a factor in sub-section (1) is
the only or dominant ground for the
15 treatment or threatened treatment, so long as
it is a substantial ground;
(b) whether the person acts alone or in
association with any other person.
15. Prohibition of authorising or assisting vilification or
20 victimisation
A person must not request, instruct, induce,
encourage, authorise or assist another person to
contravene a provision of this Part.
16. Liability of person who authorises or assists
25 If, as a result of a person doing any of the things
specified in section 15, the other person
contravenes a provision of this Part--
(a) a complaint about the contravention may be
lodged against either or both of those
30 persons; and
(b) for the purposes of the complaint, both of
them must be taken to have contravened the
provision.
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17. Vicarious liability of employers and principals
If a person in the course of employment or while
acting as an agent contravenes a provision of this
Part, both the person and the employer or
5 principal must be taken to have contravened the
provision, and a complaint about the
contravention may be lodged against either or
both of them.
18. Exception to vicarious liability
10 An employer or principal is not vicariously liable
for a contravention of a provision of this Part by
an employee or agent if the employer or principal
proves, on the balance of probabilities, that the
employer or principal took reasonable precautions
15 to prevent the employee or agent contravening
this Part.
_______________
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s. 19
Act No.
PART 3--COMPLAINTS AND CONCILIATION
19. Who may complain?
(1) The following may complain to the
Commission--
5 (a) a person who claims that another person has
contravened a provision of Part 2 in relation
to that person;
(b) if that person is unable to complain because
of impairment--
10 (i) a person authorised by that person to
act on his or her behalf; or
(ii) if that person is unable to authorise
another person, any other person on his
or her behalf;
15 (c) if that person is a child--
(i) the child; or
(ii) a parent of the child on the child's
behalf; or
(iii) if the Commission is satisfied that the
20 child or a parent of the child consents,
any other person on the child's behalf.
(2) A person may complain on behalf of the person
and another person or persons if the Commission
is satisfied that--
25 (a) each person named in the complaint--
(i) is entitled to complain under sub-
section (1)(a); and
(ii) has consented to the complaint being
made on the person's behalf; and
30 (b) the alleged contravention arises out of the
same conduct.
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(3) A representative body may complain to the
Commission on behalf of a named person or
persons if the Commission is satisfied that--
(a) each person named in the complaint--
5 (i) is entitled to complain under sub-
section (1)(a); and
(ii) has consented to the complaint being
made by the body on the person's
behalf; and
10 (b) the representative body has a sufficient
interest in the complaint; and
(c) the alleged contravention arises out of the
same conduct.
(4) A representative body has sufficient interest in a
15 complaint if the conduct that constitutes the
alleged contravention is a matter of genuine
concern to the body because of the way conduct of
that nature adversely affects or has the potential
adversely to affect the interests of the body or the
20 interests or welfare of the persons it represents.
(5) An authorisation under sub-section (1)(b)(i) may
be given--
(a) in writing; or
(b) in any other manner approved by the
25 Commission.
(6) Two or more people may complain jointly.
(7) It is not necessary for the alleged contravention to
relate exclusively to the complainant.
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20. How to complain
(1) A person complains to the Commission by
lodging a written complaint with the Commission
by hand, fax, e-mail or other electronic
5 communication or post.
(2) A complaint must set out details of the alleged
contravention.
21. Commission must assist complainants
The Commission must assist a complainant in
10 formulating the complaint.
22. Complaints against unincorporated associations
(1) A complaint about a contravention of a provision
of Part 2 by an unincorporated association may be
lodged against the association in the name of its
15 president, secretary or other similar officer.
(2) The death, resignation or removal of the person
named in a complaint in accordance with sub-
section (1) does not affect the continuity of the
proceeding and it may be continued against the
20 association in the name of that person's
replacement.
23. Application of Equal Opportunity Act 1995
(1) Divisions 2 to 7 of Part 7 of the Equal
Opportunity Act 1995 apply to any complaint
25 made under this Act as if it were a complaint
lodged under section 105 of that Act.
(2) For the purposes of sub-section (1), a reference in
Divisions 2 to 7 of Part 7 of the Equal
Opportunity Act 1995 to a complainant includes,
30 in relation to a complaint lodged by a
representative body, a reference to the
representative body.
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Act No.
(3) In relation to a complaint lodged by--
(a) a representative body; or
(b) a person referred to in section 19(2)--
all periods of time referred to in Divisions 2 and 4
5 of Part 7 of the Equal Opportunity Act 1995
(other than the periods of time referred to in
sections 108(1)(c) and 110(1) of that Act) are
doubled.
_______________
10
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Act No.
PART 4--SERIOUS VILIFICATION OFFENCES
24. Offence of serious racial vilification
(1) A person (the offender) must not, on the ground of
the race of another person or class of persons,
5 intentionally engage in conduct that the offender
knows is likely--
(a) to incite hatred against that other person or
class of persons; and
(b) to threaten, or incite others to threaten,
10 physical harm towards that other person or
class of persons or the property of that other
person or class of persons.
Note: "engage in conduct" includes use of the internet or e-mail
to publish or transmit statements or other material.
15 Penalty: In the case of a body corporate,
300 penalty units;
In any other case, imprisonment for
6 months or 60 penalty units or both.
(2) A person (the offender) must not, on the ground of
20 the race of another person or class of persons,
intentionally engage in conduct that the offender
knows is likely to incite serious contempt for, or
revulsion or severe ridicule of, that other person
or class of persons.
25 Note: "engage in conduct" includes use of the internet or e-mail
to publish or transmit statements or other material.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, imprisonment for
30 6 months or 60 penalty units or both.
(3) For the purposes of sub-sections (1) and (2),
conduct--
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Act No.
(a) may be constituted by a single occasion or
by a number of occasions over a period of
time; and
(b) may occur in or outside Victoria.
5 (4) A prosecution for an offence against sub-section
(1) or (2) must not be commenced without the
written consent of the Director of Public
Prosecutions.
25. Offence of serious religious vilification
10 (1) A person (the offender) must not, on the ground of
the religious belief or activity of another person or
class of persons, intentionally engage in conduct
that the offender knows is likely--
(a) to incite hatred against that other person or
15 class of persons; and
(b) to threaten, or incite others to threaten,
physical harm towards that other person or
class of persons or the property of that other
person or class of persons.
20 Note: "engage in conduct" includes use of the internet or e-mail
to publish or transmit statements or other material.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, imprisonment for
25 6 months or 60 penalty units or both.
(2) A person must not, on the ground of the religious
belief or activity of another person or class of
persons, knowingly engage in conduct with the
intention of inciting serious contempt for, or
30 revulsion or severe ridicule of, that other person
or class of persons.
Note: "engage in conduct" includes use of the internet or e-mail
to publish or transmit statements or other material.
16
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Penalty: In the case of a body corporate,
300 penalty units;
In any other case, imprisonment for
6 months or 60 penalty units or both.
5 (3) For the purposes of sub-sections (1) and (2),
conduct--
(a) may be constituted by a single occasion or
by a number of occasions over a period of
time; and
10 (b) may occur in or outside Victoria.
(4) A prosecution for an offence against sub-section
(1) or (2) must not be commenced without the
written consent of the Director of Public
Prosecutions.
15 26. Incorrect assumption as to race or religious belief or
activity
In determining whether a person has committed an
offence against section 24 or 25, it is irrelevant
whether or not the person made an assumption
20 about the race or religious belief or activity of
another person or class of persons that was
incorrect at the time that the offence is alleged to
have been committed.
27. Liability of body corporate
25 (1) If a body corporate is guilty of an offence against
this Part, each officer of the body corporate who
knowingly directed, authorised or permitted the
commission of the offence by the body corporate,
is also guilty of an offence against this Part.
30 (2) Nothing in sub-section (1) affects any liability
imposed on a body corporate for an offence
committed by it against this Part.
(3) If, in a proceeding for an offence against this Part,
it is necessary to establish the state of mind of a
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s. 28
Act No.
body corporate in relation to particular conduct, it
is sufficient to show that--
(a) the conduct was engaged in by an employee,
agent or officer of the body corporate within
5 the scope of his or her actual authority; and
(b) the employee, agent or officer had that state
of mind.
(4) If an employee, agent or officer of a body
corporate engages in conduct on behalf of the
10 body corporate within the scope of his or her
actual authority, the body corporate must be
taken, for the purposes of a prosecution for an
offence against this Part, also to have engaged in
the conduct unless the body corporate establishes
15 that it took reasonable precautions to avoid the
conduct.
(5) In this section "officer", in relation to a body
corporate, means--
(a) a director, secretary or executive officer of
20 the body corporate; or
(b) any person in accordance with whose
directions or instructions the directors of the
body corporate are accustomed to act; or
(c) a person substantially concerned in the
25 management of the body corporate.
28. Issue of search warrant by magistrate
Section 465 of the Crimes Act 1958 applies to
and in respect of an offence against section 24 or
25 of this Act as if it were an indictable offence.
30 _______________
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Racial and Religious Tolerance Act 2001
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Act No.
PART 5--CONSEQUENTIAL AMENDMENTS TO THE
EQUAL OPPORTUNITY ACT 1995
See:
29. Victimisation Act No.
42/1995.
In section 97(1)(d) of the Equal Opportunity Act Reprint No. 3
5 1995 for "preliminary conference under Part 7" as at
1 July 1998
substitute "compulsory conference at the and
Tribunal". amending
Act Nos
21/2000 and
52/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
30. Investigations by the Commission
(1) In section 156 of the Equal Opportunity Act
10 1995, in sub-sections (1), (2) and (3) after "6"
insert "of this Act or Part 2 of the Racial and
Religious Tolerance Act 2001".
(2) In section 158(2) of the Equal Opportunity Act
1995, after "6" insert "of this Act or Part 2 of the
15 Racial and Religious Tolerance Act 2001".
(3) In section 159 of the Equal Opportunity Act
1995, in sub-sections (1) and (2) after "6" insert
"of this Act or Part 2 of the Racial and Religious
Tolerance Act 2001".
20 31. Commission's education and research functions
In section 162(1)(a) of the Equal Opportunity
Act 1995 for "and sexual harassment" substitute
", sexual harassment and vilification on the
ground of race or religious belief or activity".
25
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Racial and Religious Tolerance Act 2001
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Clause
11
Academic purposes
Act
29ญ31
amendments to Equal Opportunity Act 1995
commencement 2
Crown bound by 6
objects 4
purposes 1
11
Artistic purposes
3, 19
Children
Commission See Equal Opportunity Commission
Complaints
against unincorporated associations 22
23
application of Equal Opportunity Act 1995
lodging of 16, 20ญ21
who may complain 19
Conduct
interpretation, scope of "conduct", "engage in" 7, 8, 24, 25
Crimes Act 1958
application 28
3, 27
Definitions
3, 14
Detriment
24, 25
Director of Public Prosecutions
Equal Opportunity Act 1995
amendments to 29ญ31
application to complaints 23
Equal Opportunity Commission
powers, duties regarding complaints 19ญ23
11ญ12
Exceptions to unlawful vilification
Liability
assisting, authorising unlawful vilification,
victimisation 16
bodies corporate 27
created only to extent provided by Act 5
employers, principals 17ญ18
24ญ26
Offences
19
People with an impairment
11
Public interest
Race
definition 3
offence 24, 26
vilification on ground of 7, 9ญ10, 24, 26
Religious beliefs or activities
definition 3
offence 25ญ26
vilification on ground of 8ญ10, 25ญ26
11
Religious purposes
21
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Racial and Religious Tolerance Act 2001
Act No.
Subject Clause
19, 23
Representative bodies
11
Scientific purposes
28
Search warrants
22
Unincorporated associations
Unlawful vilification
authorising or assisting other persons in 15ญ16
exceptions to 11ญ12
irrelevance of incorrect assumptions 10, 26
irrelevance of motives, dominant grounds for 9
on ground of race 7
on ground of religious beliefs or activities 8
13ญ16
Victimisation
Vilification See Offences; Unlawful vilification
ญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญ
22
541150B.A1-6/6/2001 BILL LA AS SENT 6/6/2001
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