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Legal and Statutory Interpretation for Amber Bray Shorty Advice

Discuss about the Legal and Statutory Interpretation for Amber Bray Shorty Advice.

The purpose of this memorandum of advice is to provide clarification regarding the issues within the case of Amber Bray and her friend Zoe. Firstly, the memo clarifies that the Charter of Human Rights and responsibilities Act 2006 (Vic) had afforded Amber claimed freedom to political expression and the freedom to protest. However, Amber did not follow the steps required by law for the exercise of these rights. She was supposed to inform the police of the planned protest, and she was not supposed to engage in crime while protesting. Another issue that this memo aims to advice on regards the obligation of the Parole Board to the Charter of Human Rights and responsibilities Act 2006 (Vic). This memo advices that the Board that even though it seems carry activities of a public authority, the laws have exempted it as a public authority hence making it non-obligatory to Charter. Another issue that this memo advices on regards representation of Amber Bray in the trial. Her lack of representation may have a negative impact to her fair trial. The conflicting meaning of trial in criminal procedure and the charter need to be resolved for to provide fair trials to accused persons. On the issue of tabling Amendments to the Bills, the member of parliaments need to acknowledge the provisions of the Charter that they can only do so by presenting a Bill together with its statement of compatibility. Lastly, this Memo advices that Bob Green breached the rights of Amber Bray when he denied her access to both the letter and medical help.

Issue 1: Is Amber Bray’s conduct and their protection by the Charter of Human Rights and responsibilities Act 2006 (Vic)

The key areas in this claim are the unlawful entry, political expression, the protest, the limitation of the rights and balance between limitations and the rights. For an organized interpretation of the law, this paper will discuss each area of the claim independently.

The section 16 at sub (1) (2) of the Charter provides the public with the freedom to assemble or form association as far as such assembly or association would be peaceful. What is noted in this provision is that associations or assembly are legal on condition that they are peaceful. An important point to note is that the freedom of association is less recognized as a right in the Australian constitution. This confirmation was made by the judge in Mulholland v Australian Electoral Commission stated at para 148 that ‘there is nothing like ‘free-standing’ right implied in the constitution.

Long Advice

However, in the same case, the judge provided a further explanation that even though the constitution does not recognize this provision, there is an implied provision in the constitution as the to political communication cannot be alienated from the right of political association. Another justification of the rationality of the freedom of association can be derived from the comments of the judge in Australian Capital Television Pty Ltd v Commonwealth where the judge noted that the concept of a free society is regulated in line with the provisions of the representative democracy which entails both the freedom of movement and that of association. Further, the freedom of peaceful protests, demonstration, and freedom of speech serve the same value as they are self-fulfillment of participants of the communication of ideas and opinions which are essential to a functional active democracy. As far as these provisions are concerned, if Amber case is concerned, it is not wrong to assemble or form association.

Issues of unlawful entry and protection of protestors arise out of cases dealing with trespass while protesting. There has been a battle between the Charter and the new legislations and court opinions. While holding the prominence of the charter, there is a need to recognize that the Sec 39 of the Charter provides that no one can solely rely on the charter. Therefore, the Charter aspect should only serve as additional ground for seeking remedy. Trespass to land is a concept rooted in common law and it may happen as either intentional, negligent or innocent. In addition, justification of a trespass can be justified by innocent intention of the accused. The decision of Willis and Williams took this similar rationale together with the decision of Anderson & Ors as explained later. In Willis, the court allowed the defense against a criminal charge of trespass. The court reasoned that trespass without a wrong intention can be an excuse for acquittal. However, the decision in DPP v Wille took a different observation stating that it was immaterial to find an excuse of non-criminal intention as a purpose to trespass. In connection with this, the court held that it was irrelevant to hold that trespass can be justified by a political expression.  

The section 38 and 32 requires the courts and the public authorities act in compliance with the human rights provisions in the charter. Section 32 in particular, requires the courts and tribunals to ensure that their interpretation of Victorian laws to so far as possible be consistent with the provisions of the charter. The recent decisions found this rationale when dismissing the charges that were made against the 16 protestors accused of trespass and besetting. The court referred to the provisions of the rights afforded to people regarding freedom of association and expression under sec 15 and 16 of the Charter. One point to note is that the protesters were protesting against the action of a property owner where he revoked the license of tenant because they differed in political opinion.  In addition, the protestors did not engage in any criminal actions that could have contravened the act. So these facts are different from the case of Amber Bray who has already engaged in criminal activities.

Is Amber Bray’s conduct and their protection by the Charter of Human Rights and responsibilities Act 2006 (Vic)

Another reference can be made to the case of Brooker v Police where a claim of behaving in a disorderly manner and intimidation was weighed against the right to the freedom of expression. The judges viewed that as far as a reasonable person would construe that there was no disorderly behaviors or intimidation, the right of freedom of expression could not be suspended. These decisions are some of the ones emerging that are considering the application of the Charter rights where there is contradicting provisions of legislative contexts. However, the main point is that the accused has to show that their rights were not in any way becoming more of a criminal issue than a claim for a right. Again, the Amber Bray’s case would fail this test.

The question of proportionality tests the necessity for the limitation of any right. Some guidance for limiting the freedom of association or assembly can be consulted from the common law or the international human rights provisions. Some provisions from both sources explain that a restriction can be applied for the sake of public order or safety. Some restrictions are also a corollary to the pursue of the public importance. For instance, the High Court explained that ‘public interest’ cannot be sacrificed to allow the freedom of association or assembly to criminals who are planning a criminal activity. 

Limitation on freedom of assembly is considered necessary to allow others to enjoy their rights.  The laws regulation actions during the protests are mostly the one that limit the freedom of assembly. The provision of these laws first requires the protestors to inform the police on any planed protest for the sake of their own protection and protection of others. Again, by looking at Amber Bray’s case, she at first on the wrong side by failing to inform the police on their planned protest.

Whether a law can potentially interfere with a provision of a right in the requires the legitimacy the reason behind such limitation.  Even though, there is also a requirement that the objectives of the limitation are striking a balance with the limited provisions. For instance, the In the High Court used the proportionality test was in the case of McCloy where the court was balancing between a right to political communication and a ban on political funding.

Is the Youth Parole Board m breach of their obligatrons under the Charter of Human Rights and Respons1biliries Act 1006 (Vic)?

The protest and political expression

There is no direct positive obligation put on the Parole Board to be providing reasons for their determinations, unless when parole is cancelled. However, this is not an obligation for the compliance with the Charter. There is no direct relationship between the Charter for Human Rights and the Parole Board and only a presumed connection between the two. However, the indirect relationship between the Board and the Charter allows the presumption that the Parole Board should act in accordance with the provisions of the Charter of Human Rights and Responsibilities. These indirect relationships are derived from three main interpretations of the provisions of the charter. One of the approaches is requirements laid out in Section 4, 7 10, 12, 15, 21, 23 and 32, and 38 of the charter.

The section 4 provides the definition for public authorities. Under subsection (1), only public officials as provided by Public Administration Act 2004 or entities and an entity established through statutory provision carrying out for the purpose of public nature. The provisions of this section 4 are then neutralized by an Interim Regulation under section 5 of the Charter of Human Rights and Responsibilities (Public Authorities) Regulations where it provides exemptions of the Youth Parole Board from being a public authority. In relation to definition given to “public nature,” again the section 69 of the Correlation Act states that the board is not bound by the provisions of natural justice. Therefore, the board does not owe any obligation to any of the provisions under section 4 of the Charter.

Section 7 provides for when and how human rights may be subjected to limitation.  The section only allows reasonable limits and such limits should be justified in a free and democratic society where freedom, equality, and human dignity should first be considered. Again, if the provisions in the Interim Regulation exempting Youth Parole as public authority could be revoked, the Board would have an obligation to comply with this provision. But for now, the exemptions shield it from these provisions.

The Boards and the Charter interacts mainly in the provisions of section 21 to 25 of the charter. The rationale that lays the interaction is that while the board is exercising its functions, it is potentially affecting matters that deal with human rights of those offenders it cancels or provides the Parole. In particular, the determination on cancellation, imposition and variation of the paroles affects the prisoners in three ways. The first one is the right to liberty where section 21 at subsection 3 dictates that no person should be deprived off his or her liberty. Cancellation of the parole seems to go against this rule even though it is based on an earlier sentence (The Board Can argue that Parole does not suspend the earlier sentence so the cancellation does in no way create new detention). Besides, there is rationale when seeing revocation as a cause for fresh detention. Again, the Parole Board is not a public body as per the interim regulation.

Unlawful Entry

Secondly, there is the issue of privacy as provided by the section 12. Since the orders in the parole various areas of limitations regarding the way offender is supposed to conduct hi/herself, there are restrictions and limitations to ‘where’ and ‘who’ the offender is interacting with. In this regard, the orders are amounting to a prima facie restraint on someone’s privacy rights. Also, the parole affects the freedom of someone’s movements. Generally, orders of parole interfere with where someone has to be at which specific time. The orders of Parole also have compulsory medical treatments which contravenes the provision of section 10. Further the section 15 that deals with the rights of children charged in criminal offenses requires the protection of families from the society and provides every child with the right to not be discriminated in addition to protection of the best interest of such children. However, the parole may not regard such provisions. In all these provision, the exemption of the parole board relieves it the compliance with the charter.

By considering Section 32 (discussed later), section 38 provides one way of protection of the Charter where the act under subsection one requires all the actions of public authority to be compatible with the provisions of the provisions of the Charter. However, there is nowhere the Charter provides a relief in case of violation of this section. As of Section 32(1) there is a notion its application involves everyone including the courts and non-public bodies hence giving power to Section 38 (as discussed above, section 38 only applies to public authorities, but sec 32 re-converts non-public authorities to public) By virtue of interpretation, the section 32 ‘kills’ the purpose of having section 38 which only applies to discretions of public authorities. In addition, there is a question as to why should the parliament enact provisions that exclude courts and some authorities from obligations of the charter when section 32 (re-converts) applies to all bodies that purports to transform non-public authorities to authority? In overall, the parole board had no obligation to comply with the Charter for human rights.

The right to a fair trial is provided under section 24 and 25 of the Charter. The core principles set out in this section are that an accused person has to be presumed innocent, has the right to be informed on the nature of the accusations made against him or her, and the chance of challenging such accusation in an independent and impartial court or tribunal. By virtual of this provision, there is a necessity for a legal representation for the purpose of fulfilling the rights to a fair trial.

Limitation of Rights

The rights to a fair trial are also inseparably with the right to legal aid which then bring the rational of legal representation by a counsel. Therefore, it would require someone to have access to legal assistance, which is legal representation aid, in order to have access to a lawyer to represent someone in the charges claimed. The right to a fair trial is a recognized concept in human rights instruments and it carries with it the right to be represented by a legal counsel during the trial. The access to a counsel is established within the Australian domestic contemplation of fair trials, and in the International conventions like the Universal Declaration of Human Rights. It is also recognized in the International Covenant on Civil and Political Rights (ICCPR). There is a need to recognize that the Victorian Charter originates mainly from the two instruments. The Victorian Charter acknowledges this right under section 24(1) which proceed to section 25. In section 24, the act provides the rights for person(s) charged with criminal offence(s) or any parties to civil proceedings should be allowed the right to have their matters heard and decided by a competent, impartial, and independent court or tribunal on fair  and public hearing(s), and the section 25 subsection 2(d) conveys the right for defense. 

Despite that, there seems to be a different interpretation when a claim arising from section 24 or 25 comes to Victorian courts. The courts move more towards the provisions of the application of common law right instead of the provisions of the human right charter. The latest ruling of the Court of Appeal has provided some clarification regarding how the contents of the section 24 and 25. Similarly, the court also provided further details for the interpreting the provision of section 32 but this was after following the High Court determination of the cases of Momcilovic. The facts in the case of Slaveski were similar to the ones in the cas of Amber Bray.  Mr. Slaveski had appealed a conviction where he had previously been given legal aid but withdrew two lawyers in a law until the Victorian Legal Aid (VLA) decided to revoke his legal aid assistance.

While looking at Amber Bray’s case, it is worth recognizing that even the Legal Aid Act has laid out principles for deciding whether someone is eligible or not for the being provided with a counsel.  Also, it is upon the discretions of the VLA to follow their rules in granting the aid or not. In addition, the Criminal Procedure Act under section 197 allows the Court to give an order to the VLA to provide legal assistance in criminal trials where the court feels that a fair trial might be impossible without legal representation.  The main question in Amber Bray’s situation lies mainly in the provisions of section 25 entitlement without discrimination and its subsections 2(d) and (f). 

Balancing rights and interests

The interpretation of section 32 of the Charter was dealt with by the High Court Judge in Momcilovic where the court found that this section does not authorize any court or the parliament to provide a contradicting interpretation of the statutory provision of this act. However, in para 20, the court stated that the court is rather required to first weigh the purpose to which the situation seeks the application of the provision of section 32. The first question that comes from the issue of Amber Bray’s following the authority of VLA to give or deny someone legal representation raises the issue whether VLA has an obligation from the Charter to provide to legal representation.

The question was answered by the Court of Appeal that VLA did not owe any obligation of the charter beyond its discretionary powers as provided by the Legal Aid Act. The court held considered that the provisions of section 25 sub(2)(f) relies on the condition of there an entitlement to legal representation, and this representation is discretional “...to have legal aid provided if the interests of justice require it.”  In addition, if the interpretation of this section would make it mandatory that VLA should provide legal assistance, it would be of no point for the Parliament’s declared apparent role in empowering the VLA to determine the criteria for the provisions of legal aid even when working with limited funds.  It also contradicts the Parliament’s apparent authority when enacting the Charter, as indicated by the Explanatory Memorandum.

While interpreting the meaning of the word ‘trial’ as provided in section 197 in the Criminal Procedure Act 2009, the court of appeal concluded that the interpretation of the word “trial” Section 25(2)(f) of the Charter excludes trials that involves indictable matters presented as appeals from the Magistrates’ Courts. Accordingly, by applying the same interpretation, Section (2) (f) would not apply to Amber Bray’s case. Lastly, there is obligation created in Section 24 creates that offenders should be provided with legal representation in situation where lack of the same would amount to an unfair hearing. However, a grant of legal representation cannot serve as any remedy to a breached trial right but instead a stay or adjournment would be better. In overall, legal aid representation is essential for a fair trial, and it should start from a pre-charge all through the trial. However, the definition of trial in the criminal procedure seems to contradict the definition given by the charter. A proper definition would help accused persons like Amber to move through the trial stages while still holding her rights.

Parliamentary Obligations Under Charter of Human Rights and Responsibilities act 2006 (Vic) when amending the Summary Offences Act 1966

The SOA deals with matters that operate in broad areas of the operation of the law and largely covers all human rights and other provisions of common law.  Due to this broad operation, the act holds sections which some of the deal with serious matters of criminal punishment like in cases of trespass, assaults, limitation of rights, property damages, harassment of witnesses, resisting arrests and false witnesses and reports among others. Other matters covered in this act are the less serious ones like kite-flying, games, movement in public places, annoyance etc.

By amending the SOA, the parliament would be affecting the current position on the provision of Charter of Human Rights and Responsibilities Act 2006. Some of these are like the freedom of movement, freedom of peaceful assembly and association, freedom and the freedom of expression and other rights. Thus, in conformity with the provisions of the Charter’s section 28, all Bills tabled into Parliament must come with their statements of compatibility. When presenting the statement of compatibility, the member of parliament (MP) should provide information regarding its compatibility or incompatibility with the human rights as provided in the Charter Act. In section 28, the Charter necessitates that all explanations be stated out in the statements as they are the tools for demonstrating the effects of the Bill on the human rights. Where the statement states that the Bill is incompatible, it should then proceed to explain how incompatible it is and the extent of its incompatibility. Therefore, this is a provision where members of the Northcote would be required to comply with as a requirement for any member tabling a bill.

Again, it is the MP who brings the Bill to the Legislative Assembly and the MP who introduces it to the Legislative Council both of them owes the responsibility of tabling the statements. In other words, the MP’s main task would be forming and stating the opinion regarding whether the Bill’s clauses are compatible or incompatible with the Charter’s provision for the rights and explaining how compatible or incompatible the clauses are. The purpose of this requirement is to put a responsibility on the MP tabling the Bill to conduct an analysis on the consistency of the Bill to assure its compliance with section 32 and 38 of the Charter.

Secondly, the issue of limitations of rights would also be dealt with by the statement of compatibility. The test for compatibility with the charter regarding the limitation of rights can be found in section 7(2). Therefore, as a part of this analysis, the MP will have to consider whether the Bill includes any restriction or limitation to the rights, and then whether such limitation are reasonable and justifiable in a free and democratic society as provided by the section 7 (2). Additionally, sometime a Bill may be amended after its presentation to the 1st House. Accordingly, the MP may be required to update the statement of compatibility to ensure that the updates in the Bill are entirely covered by the statement before it moves to the next house. However, this requirement would only be necessary where the updates affect any issue of human rights. In overall, the main obligations of the MP who would be tabling the SOA amendment Bill would require to observe three main issues. The main one is whether the bill is limiting any right by referring to section 7(2) of the Charter. While referring to this section, it would also be necessary to look at the provisions of the interpretation as provided in section 32 of the charter. After ensuring that the interpretation aligns with the Charter, then the MP may move forward to prepare the statement of compatibility as required by section 28. 

A member of Parliament may also wish to amend a statement of compatibility following consideration of the Bill by SARC. This may occur, for example, if the statement of compatibility failed to identify a human right identified by SARC as being raised by the Bill.

(Question 5) Bob Green In breach of the Charter of Human Rights Responsibilities Act 2006 (Vic)

The Charter grants statutory protection of rights and imposes obligations connected to those rights where there is a further obligation for authorities and bodies dealing with public to interpret the rights in a way the interpretation does not is compatible with section 32 and 38. So whether Woodend Correctional Centre is a public or non-public, its policies must be compatible with the provisions. Prisons are closed environments and their nature increases chances for violation of rights. In confirmation, it has been established that people in prison are usually subjected to various forms of abuse which include deprivation mental and physical demands. The section 10 of the Charter rights provides that no person should be subjected to inhuman treatments torture, cruelty or actions meant to degrade a person. The section 22 provides that the rights to humanity, and the right to be treated in dignity even when liberty has been withdrawn. In cases of imprisonment, a person is deprived the right of liberty but the Charter in section 7(2) provides that any limitation should be justified. In addition, the section 7 of the Correction acts puts an obligation to the Secretary ensure the safety of the custodies and welfare of the prisoners.  On this ground, the action by Woodend Correctional Centre (Bob Green acts as the agent) and the policies should be based on proportionality if they purport to limit the prisoner’s rights. Otherwise, they should always maintain the safety of the prisons.

Human rights are for everyone include those people who are serving their sentence. The various human rights entitled to prisoners are the  right to humanity and respect for dignity, to not be tortured, not be subjected to cruelty, inhuman and degrading behavior such as punishments, protected from arbitrary arrest and detention, separation from the accused and those serving sentence, provided with the freedom to associate, freedom to enjoy their culture, be provided with highest standards both mental and physical health, right to education, right to vote, and freedom from any form of discrimination. 

There are some recent judgements that demonstrated the effort of the Victorian Supreme in guaranteeing the rights of the prisoner starting with the latest decision of Minogue v Dougherty. The Court has found that there was violation of freedom of expression as well as the right to privacy when the prison sent back a book that was addressed to him.  Notably, there were no damages as there was no substantive breach. In this case, Amber, it is clear that the action of Bob Green in denying Amber Bray a chance to see her letter based on the reasons of "unsolicited pen pal letter" was a violation of Amber Bray’s rights. Another decision that can show unreasonableness in Bob Green’s action in limiting the rights of Amber Bray’s to see health provider is the decision of Castles v Secretary to the Department of Justice. The court found that denying a prisoner the right to continue with IVF treatment even though the prison was on objection.

The application of section 38 could have aided Bob Green in weighing whether the it was necessary to limit the two rights of Amber Bray. Justice Dixon provided a formula that should be guiding public authorities in deciding whether it is necessary to limit any one’s right. referred to the “road map” which he set out in the Certain Children v Minister for Families and Children (No 2). By referring to the formula as the ‘road map,’ Justice Dixon set out five steps to be followed which are;

(a) First is assessing the relevance of facts for limitation.

(b)  Were all relevant consideration taken into account.

(c) Reasonableness of the limitation and application of thethe proportionality test.

(d) In additional to proportionality, there should still be proper consideration?

(e) Interpretation of the action by referring to section 32 of the Charter.

By following this road map, Bob Green would have been able to find that it was not necessary to limit Amber Bray’s rights. In addition, Bob Green should consider the provision of the section 7 of the Collection Act where safety of the prisons is of paramount. Another facts to consider was the application of section 32 and section 38 where both acts requires the conducts of the public authorities to comply in so far as possible with the provisions of the Charter. Section 32 on its part requires the interpretation of the policies to in so far as possible compatible with the provisions of the Charter. In this way, he would have not violated the provisions of the Charter.

Baolu, M, Torture and Its Definition in International Law: An Interdisciplinary Approach (Oxford University Press, 2017)

Barendt, E, Freedom of Speech (OUP Oxford, 2005)

Brown, David and Meredith Wilkie, Prisoners as Citizens: Human Rights in Australian Prisons (Federation Press, 2002)

Chen, Bruce, ‘Section 32 (1) of the Charter: Confining Statutory Discretions Compatibly with Charter Rights’ (2016) 42 Monash UL Rev. 608

Daly, Aoife, A Commentary on the United Nations Convention on the Rights of the Child, Article 15: The Right to Freedom of Association and to Freedom of Peaceful Assembly (BRILL, 2016)

Debeljak, Julie, ‘Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Character of Human Rights and Responsibilities Act 2006’ (2008) 32 Melb. UL Rev. 422

Debeljak, Julie, ‘Proportionality, Rights-Consistent Interpretation and Declarations under the Victorian Charter of Human Rights and Responsibilities: The Momcilovic Litigation and Beyond’ (2014) 40 Monash UL Rev. 340

Debeljak, Julie, ‘The Rights of Prisoners under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention’ (2015) 38 UNSWLJ 1332

Gans, Jeremy, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melb. UL Rev. 105

Howie, Emily, ‘Protecting the Human Right to Freedom of Expression in International Law’ (2018) 20(1) International Journal of Speech-Language Pathology 12

Human Rights, ‘Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948)’ (1948) 1 Resolutions, pt

Klassen, TR, D Cepiku and TJ Lah, The Routledge Handbook of Global Public Policy and Administration (Taylor & Francis, 2016)

O’Neill, NKF et al, Retreat from Injustice: Human Rights Law in Australia (Federation Press, 2nd ed, 2004)

Parekh, PH, Human Rights Year Book 2010 (Universal Law Publishing, 2010)

Australian Capital Television Pty Ltd v The Commonwealth of Australia (No 2) (1992) 66 ALJR

Brooker v Police (2007) 2007 NZSC

Castles v Secretary to the Department of Justice (2010) 310 VSC

Certain Children v Minister for Families and Children (No 2) (2017) 251 VSC

DPP v Wille (1999) 47 NSWLR

McCloy v New South Wales (2015) 34 HCA

Minogue v Dougherty (2017) 724 VSC

Momcilovic v The Queen (2011) 245 CLR

Mulholland v Australian Electoral Commission (2004) 220 CLR

Slaveski v Smith & Anor (2012) 25 VSCA

South Australia v Totani (2010) 242 CLR

Victoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (Unreported)

Wills v Williams (1971) 1971 WAR

CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013

CORRECTIONS ACT 1986

Criminal Procedure Act 2009

Interpretation of Legislation Act 1984

Legal Aid Act 1978

Public Administration Act 2004

Summary Offences Act 1966

Australian Human Rights Commission, Prisoners Rights (14 December 2012) <https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/prisoners-rights>

Parliament of Australia, Scrutiny of Bills under Bills of Rights: Is Victoria’s Model the Way Forward? (2009) <https://www.aph.gov.au/About_Parliament/Senate/Whats_On/Conferences/sl_conference/papers/gans>

UNited Nations Human Rights, OHCHR | International Covenant on Civil and Political Rights <https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>

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