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Security Legislation Amendment (Terrorism) Bill 2002 and related bills

CHAIR —Witnesses are reminded that the evidence given to the committee is protected by parliamentary privilege and that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. Witnesses are also reminded of the notes that they have received relating to parliamentary privilege and the protection of official witnesses. The committee has before it a submission from Amnesty, which it has numbered 169. Are there any additions or alternations that you wish to make to this document?

Ms Bieske —No.

CHAIR —I invite you to make a brief opening statement and, at the conclusion of that, I will ask my colleagues to direct questions to you.

Ms Bieske —Firstly, we would like to thank the committee for the opportunity to appear to address this very significant and concerning legislation. Generally, Amnesty wishes to emphasis the permanence of human rights standards. Human rights should not be something that governments endorse when they feel like it, but they actually constitute the bare minimum of safeguards necessary to protect the safety of individuals from the abuse of power.

To possibly pre-empt some of the questions that may be asked, the role of Amnesty, as seen by our organisation, is to comment on legislation as proposed and to comment on whether that does violate any human rights issues. It is not our role to tell the government whether they should or should not be legislating. We do not see that as being our position in relation to this legislation. Amnesty is concerned, however, that this legislation does breach obligations on international standards and that it does create uncertainty in the law. Particularly we are concerned in relation to four issues.

The first significant issue is the reversal of the onus of proof. I note that you have had significant submissions to this point so far. As you will be aware, the presumption of innocence is very important, and is an important tenet in Australian criminal law. It is also enshrined in paragraph 2 of article 14 of the International Covenant on Civil and Political Rights, the ICCPR, and in article 11 of the Universal Declaration of Human Rights. Reversing the onus of proof means that the person is essentially presumed guilty and it is then up to them to disprove their guilt on the balance of probabilities. That is something which we feel is a violation of human rights and something which we also feel might affect the right to a fair trial in particular situations. It is of even more concern in this instance given the serious of the penalties, given that people will be subject to life imprisonment. As you will be aware, the act does make provision for the reversal of this onus of proof in four sections in relation to training, possessing things, documents, and directing organisations.

The second concern we have with this legislation is the uncertainty of the terms that do appear. I note that the Law Council has made significant submissions in addition in relation to this issue. There is a need for certainty in the law so that people know if what they are doing is breaching the law. When you use terms like `thing' and `collect' and `making' and `assists', those words do not provide any certainty or any clarity in the law and they do not allow people to adapt their conduct to ensure that what they are doing is lawful. So we do have concerns with those sorts of terms that are used. In relation to the definition of terrorism itself, we have concerns with the meaning of `lawful protest, advocacy or dissent'. There is very little jurisprudence, as far as we are aware, in Australia on what that means, what those terms are, what is unlawful or lawful in relation to protest. I note that that issue has been the subject of some question by the senators so far. We do also have concerns in relation to provisions that make it a criminal offence to `indirectly' assist, and exactly what the meaning of that is.

Our third issue is in relation to proscription. As you will be aware and we have raised in our submission, we do have concerns in relation to breaches of natural justice in relation to proscription processes, and that it does provide for a form of collective criminalisation, and that there is no ability for full and complete review of this proscription.

Our final concern is the fact that the legislation lacks any provision for compensation if organisations are proscribed and are subsequently found to have been incorrectly proscribed.

CHAIR —We will begin with questions from Senator Ludwig.

Senator LUDWIG —Thank you for your submission. It is quite detailed for the time that you have had available to provide it. It is of great assistance to the committee. If I could just take you to the submission you made in relation to the Rome Statute and the establishment of the International Criminal Court. As I understand it, Australia has signed it but not ratified it at this point.

Ms Bieske —That is correct.

Senator LUDWIG —Could you expand on your view of how that impacts upon Australia. Is it an analogy that you draw, or what do you say?

Ms Bieske —The reason that we have raised that is because, as you have pointed out in relation to the questions that you were asking the Law Council, of the severity of the crimes that are involved. They are, as you said, heinous crimes—genocide, crimes against humanity—the worst kind of crimes that people can think of, yet they have still continued the presumption of innocence in relation to those crimes. You are right in saying that we have signed but not yet ratified. The International Criminal Court was ratified by 66 countries as of last Thursday, which means it is going to come into existence on 1 July. Australia, through the Attorney-General, has indicated that it is also going to ratify—hopefully, if the implementing legislation can be introduced and passed, before 30 June. They will also be involved in the processes later on. So it is relevant to Australian law in that respect, but it is also relevant in terms of the world community and the view that the presumption of innocence is something that can be applied and retained in relation to those sorts of significant crimes.

Senator LUDWIG —Thank you. I take it that when that legislation comes before parliament and should there be a committee you will also make a submission to it.

Ms Bieske —We have already made three, actually, to the joint standing committee.

Senator LUDWIG —I think I have had a couple from the Treaties Committee as well. We do appreciate your work in that area. In relation to the issue of compensation, which you have raised on page 5, you say that if an organisation is proscribed and it is successful on appeal under AD(JR) or it is revoked, on what grounds do you say there should be compensation? On any grounds, and to what extent? The revocation may relate to reasons which are not relevant to the issue at hand or might not relate to why you would pay compensation. I was just curious how you would say that would work.

Ms Bieske —What we would say is that generally if somebody has been found to have been incorrectly proscribed—and as you were discussing with the Law Council, proscription will have serious implications in an organisation—that it would be fair in relation to natural justice issues as well to provide for a form of compensation now. It is not for our organisation to tell the parliament what that level of compensation should be or how that system should be established. It is just an issue that we wish to raise as something that we see as necessary to be included into this legislation.

Senator LUDWIG —What I was perhaps trying to turn your mind to was whether or not it mattered about whether or not the revocation was because, for arguments sake, the organisation no longer existed or could not be identified in any way, shape or form and therefore it was no longer necessary for it to remain on the statute books. So it was revoked in that sense but there may be members who then claim compensation as a consequence. Or, whether you then say that if there is a successful AD(JR) in that the organisation should not have been proscribed and therefore the Attorney-General proscribed the organisation against the law therefore compensation could accrue. Is that what you say? Is that the point that you make, or should compensation be available for all reasons?

Ms Bieske —I think it is a difficult issue. The thing that came to mind when you said perhaps the organisation no longer exists is perhaps the reason it does not exist is because it was incorrectly proscribed in the first place. So it is difficult to establish what the limits would be on that. I take your point that it is a difficult issue. But I do think that certainly if they have clearly been found to have been incorrectly proscribed they should be able to access compensation. Past that, I think it would be at the discretion of parliament as to when they considered it to be appropriate that compensation were available.

Senator LUDWIG —What about people who were perhaps part of the organisation if it was proscribed during that period? You may have been present during the submission of the Law Council. What about those people who may have then been charged or found guilty of an offence during that period where the organisation was proscribed, and subsequently the organisation was either successful on appeal or the proscription was revoked for whatever reason but they were then serving sentences? Notwithstanding that issue, should they also receive compensation?

Ms Bieske —I must admit that is not something that we have specifically turned our mind to.

Senator LUDWIG —Do you have a view about it?

Ms Mahon —Clearly Amnesty would submit that it is important to provide for access to compensation when people have been injured or had detriment caused to them as a result of an incorrect proscription in a situation where it has later been found that that proscription was not correct. However, Amnesty would put that the specifics of exactly how a provision for compensation should be determined is up to the parliament.

Ms Bieske —As I understand it, there are currently remedies under the common law if you are found to have been held possibly inappropriately.

Senator LUDWIG —Yes, I know. I understand that. We will leave it at this point. But these people would still be in jail in that sense, and they were not wrongly found. During the relevant time they contravened the legislation and are serving sentences. The original reason for the sentence was because they were hypothetically a member of the proscribed organisation. That organisation is no longer proscribed and therefore the reason for the offence—that is of being a member of the proscribed organisation—is no longer there, so—

Ms Bieske —It may depend, though, as you indicated, upon the reason for the incorrectness of proscription. If it has been revoked because the organisation no longer exists it is a different question to subsequently finding that the proscription was wrong in law.

Senator LUDWIG —Yes. In relation to your general concerns, you mentioned the ICCPR. Are there any other conventions or treaties that you say this legislation may offend?

Ms Bieske —We have mentioned the ICCPR and we have also mentioned the Universal Declaration of Human Rights, particularly in relation to the presumption of innocence.

Senator LUDWIG —Yes.

Ms Bieske —In relation to this legislation, they are the concerns that we do have.

Senator LUDWIG —All right. Thank you.

CHAIR —Just to continue briefly on the question of proscription, on page 11 of your submission you talk about `collective criminal punishment of an organisation'. I wonder if you could expand on that briefly for the committee and in particular the contrast you have made with the UK Terrorism Act 2000.

Ms Bieske —The concern that we have is that the legislation provides, as we say in our submission, for the definition of `member' to be extremely broad, to include a person who has taken steps to become a member and to include an informal member. It also allows for proscription of an organisation because of the acts of one person. We feel that, because of the penalties that flow from the organisation being proscribed, what you are effectively doing is collectively criminalising all of the members of the organisation because of the conduct of possibly one renegade member. We have concerns in relation to that particular principle. The UK Terrorism Act specifically targets the organisation and the conduct of the organisation. It does not focus on the conduct of individual members. It requires the organisation to have been involved in terrorism, whereas the Australian legislation, as drafted, provides for an individual member and the acts of an individual member to be sufficient grounds for a proscription if the Attorney-General is satisfied.

CHAIR —But isn't the question really whether the member is committing the offence on behalf of the organisation?

Ms Bieske —But who says it is on behalf of the organisation—does the member say that or does the organisation say that?

CHAIR —I imagine that is a question of fact.

Ms Bieske —But the member may well say, `What I am doing is on behalf of X,' but the organisation may not agree that that is an act that they would support.

CHAIR —But that is still a question of fact, whether the organisation says yes or no. I think the point you make is that the Attorney-General is not required to hear from the organisation, let alone the member, so how can that point be made?

Ms Bieske —That is correct as well. But it is also the fact that it just says `on behalf of the organisation' and does not indicate whose perspective that is coming from.

CHAIR —I appreciate that. At the top of page 12, you indicate that your organisation believes that the legislation should require proscribed organisations to be listed in legislation. Do you mean that a bill should be put before the parliament every time an organisation is proscribed or do you think that the names of the organisations should be reported to the parliament?

Ms Bieske —What is currently happening—I am not sure if the senators are aware of this—is that the Attorney-General is proscribing organisations in relation to financial issues.

CHAIR —Yes, we are aware of that.

Ms Bieske —He is doing that by regulation and then actually publishing that so that—

CHAIR —So you mean in the same manner?

Ms Bieske —it is publicly on the record.

CHAIR —So by delegated legislation rather than—

Ms Bieske —Something along the line, so that then it is more out in the public forum and people can then know more actively if an organisation has been proscribed, and take steps to—

CHAIR —I understand that. So you are satisfied with the current process, in that regard, that the foreign affairs minister has pursued in recent times in relation to the UN declarations?

Ms Bieske —We would prefer that it actually went before the parliament. We would prefer that it was debated by the parliament and was brought to the parliament's attention rather than necessarily just being done by one person under delegated legislation.

CHAIR —But that is not clear from what you have said here. I did not understand that at all. So you are actually saying that a decision on proscription should be made by the parliament, not by the Attorney-General, and it should be made in this manner—or is it merely a matter of report?

Ms Bieske —What we have said in the submission that we have put forward is that the proscription process should be subject to review. I note that you have had numerous suggestions put to you as to exactly how the review process should work. Whether that be section 30AA, or whether that be before the parliament, or how that be done exactly, is something again that we do not feel it is our position to decide, but we have concerns that it is not open to review at the moment, that natural justice is not adhered to and also that, in relation to notification of people, the notification provisions currently provided—that an organisation has been proscribed under the publication in the Gazette and publication in, presumably, the Australian—are not sufficient to allow people to actually know that an organisation has been proscribed.

CHAIR —You make the point in your submission that the application for review should be made to the Attorney-General. But don't you have the view that the Attorney-General should not be making the proscription in the first place?

Ms Bieske —No. The point that we made in the submission—I apologise if that was unclear—is that currently there is provision for revocation of declarations in the act, but there are no clear provisions set out for an organisation to make an application to the Attorney-General that they be reviewed.

CHAIR —That is because I do not think that is the plan.

Ms Bieske —That is exactly right, but we think it should be there. The power is with the Attorney-General and that is the way that it has been seen appropriate to draft this legislation so far. We are concerned that that should be open to complete review. We are also concerned that organisations should be able to bring an initiative of their own that their particular proscription be reviewed in that process. So we are suggesting ways in which this legislation can be, if you like, amended to actually comply or address some of the concerns that we have.

CHAIR —It was not entirely clear to me from the submission so we might have another look at that.

Senator McKIERNAN —Could I just follow that up?

CHAIR —Yes. It is your opportunity to ask questions now, Senator McKiernan, as Acting Chair.

ACTING CHAIR (Senator McKiernan) —In response to the Security Council resolution there was a series of individuals and organisations named by the United Nations Security Council and the government, through the Minister for Foreign Affairs, actually proscribed these individuals and organisations. It is quite extensive—16 pages on list 1 and four pages on list 2. How would this proscription by the Minister for Foreign Affairs, Mr Downer, fit into what Amnesty is suggesting?

Ms Bieske —The ones that you are referring to at the moment are the three lists that the Minister for Foreign Affairs has proscribed?


Ms Bieske —We were interested to note—this was noted by Senator Ludwig this morning—that there had not been lists issued by the Security Council, as far as we are aware, of organisations that they think should be proscribed. They refer specifically to resolution 1373 1(c), which states: `Freeze without delay funds and other financial assets ...' It does not specify organisations, so I do not think that as far as we are aware the Security Council has specifically specified organisations so far.

Senator LUDWIG —Resolution 1373 does not proscribe organisations. Potentially it could, but it has not at this point. Organisations exist which other countries have proscribed and Australia, as I understand it, would develop its own list of those organisations which it would proscribe. The list we have—and I am not sure if it is a public list yet, but I think some senators have referred to it—is a collection of organisations that we would consider being our list of those organisations which we would proscribe based on, I suspect, by looking at it, what the US and UK have done. But that would be a hypothetical conjecture on my behalf.

Ms Bieske —I think that is correct. The organisations the Minister for Foreign Affairs has proscribed have been specifically in relation to financing thus far and restrictions on financing. I am not aware of there being any list thus far issued by the Security Council specifying organisations

ACTING CHAIR —Thank you for that clarification. I want to return briefly again to the matter of compensation. Thank you for raising it. It was not something that I had addressed my mind to prior to reading it in your submission. If the bills went through the parliament in their current form, with no avenue in them for compensation in the event of an organisation being incorrectly proscribed, would compensation be available under the normal criminal law procedures in your opinion?

Ms Bieske —For the proscription process?

ACTING CHAIR —For an incorrect proscription?

Ms Bieske —Given that they can seek limited review under the AD(R)Act, I would imagine the remedies that would apply would be the remedies of administrative law, not the remedies of criminal law. If what you are talking about is, as Senator Ludwig mentioned, specific people who are imprisoned as a result of proscription and that proscription is found to later be incorrect, should those particular people have remedies under the criminal law? I am not sure if there are currently remedies that exist under the Australian law in that particular situation, I am afraid.

Ms Mahon —Amnesty International is concerned that remedies become available under this act and are set out specifically so that it is clear that if an organisation has been incorrectly proscribed there is a very clear remedy available, especially given the fact that the provisions state that it is an offence to assist an organisation and presumably that would also mean it is an offence to assist an organisation to appeal an incorrect proscription. Therefore, we are concerned that provisions for compensation be very clearly established within this bill.

ACTING CHAIR —My final question relates to the comment you made in the summary, in the second paragraph:

Amnesty International is encouraged that the package of “anti-terrorism” legislation introduced in Australia does not expressly alter the procedures for determination of the status of refugees and asylum seekers.

That comment stuck out as not necessarily being related to the thrust of the bills that are before us.

Ms Bieske —That is exactly the point that we were making. What has happened in legislation overseas is that it has expressly changed provisions for asylum seekers and refugees within those countries and in some instances has allowed for them to be summarily deported, if you like, if they are determined to be terrorists by the Secretary of State—for instance, the United Kingdom. We are very pleased that that is not present in the legislation as it appears before us in the Australian parliament.

ACTING CHAIR —So that has occurred in the United States? Has it occurred in any other country?

Ms Bieske —In the United Kingdom.

ACTING CHAIR —In the United Kingdom as well?

Ms Bieske —It is only, as far as we are aware, in the United Kingdom. As you would be aware, the United States have been quite active in pursuing people who they believe have breached visa conditions and those sorts of things.

Senator COONEY —Amnesty International goes about courteously writing to people trying to get governments to release people who might be locked up for their political, religious or ideological beliefs. Is that right?

Ms Bieske —That is correct. Breaches of—

Senator COONEY —What do we object to if we are in Amnesty International?

Ms Bieske —Now we are actually taking a position in relation to all of the rights under the Universal Declaration of Human Rights—civil, political, economic, social and cultural rights. Breaches of all of those rights are now something that Amnesty International—

Senator COONEY —Can you say that again?

Ms Bieske —It has traditionally been limited to civil and political.

Senator COONEY —Yes, that is right.

Ms Bieske —And now it is also economic, social and cultural rights.

Senator COONEY —Not racial rights?

Ms Bieske —Not specifically. It is based on all of the rights in the Universal Declaration of Human Rights.

Ms Mahon —Under the Universal Declaration of Human Rights there is an obligation not to discriminate on the grounds of race, religion and the usual provisions. Therefore, that is where race would come into it.

Ms Bieske —That would come under social or political rights.

Senator COONEY —I have referred to this in respect of other witnesses as well. It fascinates me that it can only be a terrorist act if it is done with the intention of advancing political, religious or ideological causes. If you are racist, I don't think it applies to you. Amnesty International only helps people if they are non-violent, as I remember.

Ms Bieske —That is correct. The reason that we have not gone into any detail in relation to that aspect of the definition is that Amnesty International does not condone violence or criminal activity.

Senator COONEY —But can you think of why you should punish people who have political, religious or ideological causes more than you would punish other people? Have you thought about that?

Ms Bieske —Unfortunately, Amnesty also does not take a position in relation to the severity of penalty in that respect. It is not our position to tell the government what penalty should be applied in particular situations.

Senator COONEY —Around the world is it Amnesty's position that as long as people are treated according to the law that is all right, no matter how severe the law or how unhappy the law?

Ms Bieske —No. You will note that under the ICCPR there are provisions in certain situations to abrogate your responsibilities under those acts but they must be in accordance with the law, they must be proportionate, they must be reasonable. Things which are lawful are not necessarily in compliance with human rights standards. For instance, detention may be lawful but it may still be arbitrary.

Senator COONEY —What you mean by lawful there is in accordance with the law as written.

Ms Bieske —The law of the country—that is right.

Ms Mahon —Amnesty International has concerns with countries that make laws. We would like to see that whatever laws are made and whatever acts are deemed lawful or unlawful within that state are still compliant with the international human rights framework.

Senator COONEY —You have this concept that the laws ought to be reasonable?

Ms Bieske —And proportionate.

Ms Mahon —And necessary, if they are derogating from the human rights obligations that the countries have signed on to.

Ms Bieske —One of the other issues that we have made in our submission is that the laws need to be clear and certain. This legislation raises very significant concerns about the lack of certainty and clarity by the terms that are used.

Senator COONEY —Your submission here this morning is very much in the tradition of Amnesty's actions in trying to address concerns around the world?

Ms Bieske —That is correct.

Senator COONEY —Have you thought about the relationship between these laws and the laws of the states and territories and how they compare?

Ms Bieske —It is not something that we would specifically seek to make submissions in relation to.

Senator COONEY —Have you looked at whether these laws would stand up in Europe? Who deals with their human rights provisions?

Ms Mahon —The European Court of Human Rights.

Senator COONEY —Yes, but what is the statute?

Ms Bieske —The European Convention on Human Rights.

Senator COONEY —You are right. That has been brought into the domestic law of all the European states.

Ms Bieske —That is quite similar to provisions under the Universal Declaration of Human Rights as well. They focus very much on presumption of innocence. The concerns that we raise would be similar to concerns that would be raised in the European Union. There are significant concerns as well in relation to other legislation which has been introduced in this package of bills.

Senator COONEY —Have you looked at what would happen to these five bills if they were introduced in Europe?

Ms Bieske —We have not turned our mind to it in that particular way. We have looked, to a limited degree, at laws that have been enacted overseas to see any similarities or differences in those laws.

Senator COONEY —What have you found?

Ms Bieske —One of the interesting questions that I noted the committee was asking yesterday was whether there had been prosecutions under relevant acts overseas. Because most of those acts in relation to terrorism have been introduced since September 11, the time period is so short that there has not been time for prosecutions of note to occur. I did look at the Terrorism Act in the United Kingdom and found a couple of references, mostly in relation to Northern Ireland issues.

Senator COONEY —Given the time that has been available to you, I suppose the organisation has not had time to make the comparisons you would like to make.

Ms Bieske —We would have liked to have provided a much more detailed submission, but in the time available that was not possible. We would have liked to have gone into some more detail in relation to the international position as well. I appreciate the comments that have been made by Senator Payne in relation to the effort that the committee is going to. I have been impressed by the time that you have been putting in and your ability to wade through the material that you have to wade through, but we had limited time and unfortunately we are all volunteers. It is very difficult for us to do this in addition to our jobs and to put the effort and time into these submissions that we think the committee deserves.

Senator COONEY —I suppose you would have some concern that this legislation has been expedited through—to use a neutral word—given the heavy penalties that are imposed.

Ms Bieske —Very much so. The point was made yesterday that this legislation is so important—and has been emphasised to be so important—that we should allocate an appropriate amount of time to recognise the importance of the legislation to make sure that we do get it right.

Senator COONEY —Do you know of any widespread and ongoing acts of terrorism occurring in Australia at the moment?

Ms Bieske —Not off the top of my head.

Ms Mahon —I do not think Amnesty would be aware of those things. In further answer to your question about our analysis of how the Australian proposed legislation compares with other legislation overseas—

Senator COONEY —And whether it stands up to other legislation.

Ms Mahon —That is right—Amnesty has had the opportunity, in a brief way, to analyse how broad the provisions under the Australian laws are and how they compare with provisions, say, in the legislation which has been introduced in the UK. We have looked at elements such as the definition or the mention of `things' as a concept within the legislation here and compared it to the UK bill, which provides for `articles' or `an article'. We believe that the Australian legislation is far too broad and imprecise in its drafting in comparison with legislation which has been produced in other countries.

Senator COONEY —What other countries have you looked at?

Ms Bieske —We have looked mainly at the United Kingdom legislation.

Senator COONEY —And our legislation is broader. Is it much broader?

Ms Bieske —Parts of it are, and the terminology used is, as a general rule, significantly broader in our legislation than it has been in the United Kingdom. The legislation there is much more precise. It would be easier to know whether you are offending against the provisions of that legislation because of the way in which it is drafted. I note that the UK legislation also provides for specific review provisions in relation to the proscription of organisations. It allows for organisations and individuals to bring applications for review. Those sorts of steps are clearly set out in that legislation. We are not endorsing the legislation; we are comparing it.

Senator COONEY —I can follow what you mean. How many hours work have you done on this after your own work?

Ms Bieske —Probably more than we should have, given our other obligations.

Senator COONEY —What time were you getting to bed of a night—very late?

CHAIR —Senator Cooney!

Senator COONEY —I am getting very worried about them.

CHAIR —We have got to draw the line here somewhere, Senator Cooney, and I am just about to draw it.

Senator COONEY —Are you working hours and hours into the night?

Ms Bieske —We have been, yes.

Ms Mahon —It has involved a large amount of time.

Senator COONEY —I think that ought to be acknowledged.

Ms Bieske —Given the complexity of the legislation as introduced, the different bills, you will note that we have only made submissions to this committee in relation to the terrorism bill. We just have not had the time, unfortunately, to look at the other bills, although I am sure that we would have concerns about those if we had the opportunity to do so. We have also put submissions to the other committee and will do so to you in relation to the ASIO bill.

Senator COONEY —And you spent hours and hours on it.

CHAIR —Thank you

Senator COONEY —Thank you for thanking them, Madam Chair.

CHAIR —I was thanking you, actually, Senator Cooney.

Senator COONEY —I see. I thought you were thanking them.

CHAIR —Now I will thank Amnesty International on behalf of the committee for their submission and for their oral evidence this morning in assisting the committee with our deliberations.

Ms Bieske —We also have a report called Rights at Risk, which generally overviews the world situation in relation to this type of legislation.

CHAIR —Would you like to table that?

Ms Bieske —If we could.

CHAIR —Thank you very much.

[10.36 a.m.]