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Crime, Punishment and the Right of Citizenship

A good salesperson will tell you that every sale, be it a house or car; even something as seemingly simple as a particular brand of breakfast cereal, is made on emotion. When we choose that new car, we are actually buying comfort, reliability and peace of mind. Or sex appeal, status and prestige. Negative emotions drive sales too. After the first Iraqi conflict broke out in 1991, American surplus store owners were confounded by the sudden surge in gas mask sales, driven by the perceived terror threat.

Fear and anger are powerful motivators. But when it comes to rational thinking and clear decision making, you are asking for trouble when you make complex decisions whilst in that kind of emotional state. How did that last discussion with your spouse work out for you when you were angry?

An unscrupulous salesperson could capitalise on the irrational reactive thinking that comes with strong emotion, and convince you to buy something you don’t really need. That’s why consumer law allows for a ‘cooling off’ period after making a significant purchase. There is no such cooling off period with politics per se; instead there are judicial checks and balances put into place to protect us. That is how rule of law works.

Politicians, like snake-oil sellers will also play on emotions like fear to gain public support. Often they will ignite that fear and then offer a solution to resolve it. We have seen this most recently with the magnification of the so-called ‘African gangs’ problem in Victoria. Moral outrage can be a giddy cloud of confusion behind which political agenda can be played out, and draconian laws are often passed off under the guise of public protection. In many cases, our civil rights and liberties are quietly eroded away as a result.

The recent matter of a convicted paedophile Roman Catholic priest is a prime case in point. A dual national who became a naturalized Australian citizen, he committed offences over more than two decades. On completion of his prison term, the Minister moved to revoke his citizenship and deport him. Let me be clear from the outset – there are two separate issues at play here. Firstly the recognition of what amounts to heinous criminal acts and the subsequent need to protect the community at large. There is no defence for the man’s abominable crimes. What I point to here is the potential for moral outrage to cloud proceedings in cases like this; permitting the broadening of draconian laws which then ultimately degrade the rights of others. I also speak to the rise of the notion that some people have less right of ‘ownership’ of residence in Australia than others.

The calls in this case have been clear: ‘This man must be stripped of his citizenship and removed from this country.’ Many outraged people took up the call, but I would wager precious few of them actually knew or cared whether in fact a dual national could be stripped of their citizenship. How exactly can citizenship be revoked after it’s conferral on a dual national, and under what circumstances? To act without recourse to law becomes the mentality of the lynch mob.

When citizenship has been conferred on a non-Australian born person, that citizenship may be revoked only in certain specific circumstances under the auspices of the Australian Citizenship Act (2007) – section 34 Revocation by Minister.

Put in a nutshell, if it was found you acted fraudulently when applying for citizenship or you were convicted of a serious crime resulting in a prison sentence of 12 months or more at any time before you were granted that citizenship, the Minister can pull the pin and revoke your citizenship, if he decides it is in the public interest.

A further consideration was enacted in 2015 to address citizens going overseas to fight with terrorist groups. The Allegiance to Australia Act allowed for Australian citizenship to be stripped from dual nationals as young as 14 who engaged in terrorist acts, or were convicted of terrorism related offenses that carry prison terms of 6 years or more.

The stripping of one’s citizenship is a serious matter, and one would expect that there are legal safeguards in place to ensure a just and reasoned decision is made. The Administrative Appeals Tribunal (AAT) and the Federal court play a critical role in overseeing and reviewing decisions made by Federal government ministers. What is concerning to note is just how much by way of this protection has been quietly eroded without fanfare or public knowledge.

For example, in the case of immigration matters; if the decision to cancel an existing visa or decline a request for the granting of a visa on character grounds is made by the Minister himself, the present legislation has been written in a way which denies a person recourse to a review of that decision by the AAT. Where the AAT over-rule decisions made by his delegates, Peter Dutton has stepped in on dozens of occasions and vetoed their findings. This of itself should be cause for concern, yet few people are aware of it.

Dutton has been very vocal in condemning the AAT, claiming that they have unfairly overturned scores of decisions to cancel the visas of non-citizens. Firstly, a politician criticizing the judiciary is tantamount to undermining the separation of the powers. Dutton’s behaviour is akin to a habitual drunk driver demanding that random breath testing be banned. It leads one to question the true intent of this ex-cop turned politician who is so contemptuous of rule of law.

Secondly, it is a fact that the rate of cases set aside is actually lower now than many previous years in the past decade, including those under Labor governments. This could perhaps be attributed to the troubling fact that in 2017 the government actually moved to replace members of the tribunal and many appointees are ex-Liberal staffers or candidates. Does it concern anybody that a government can ‘stack the deck’ by appointing its own people to an independent tribunal?

Law Council of Australia president Fiona McLeod SC hit out at Dutton’s attacks on the AAT last year, reminding him that “members of the government may disagree with decisions made by the AAT, but the courts and tribunals provide an important check upon the unlawful exercise of power. The independence of the judiciary, and respect for the role of courts and tribunals, is a fundamental to the rule of law in Australia.”

The checks and balances of the AAT and the courts cannot be undermined, in exactly the same way that you as a consumer would not want safeguards like the ‘cooling off’ period removed; leaving you at the mercy of that potentially unscrupulous salesperson.

In the context of citizenship revocation, let me put that to you another way – would you be happy for your future and that of your family to rest wholly and solely in the hands of just one man? That man in this particular case being Peter Dutton? No legislation should permit one man that degree of power.

The line between criminal punishment and immigration detention is blurring, and deportation or expulsion from a society is increasingly being seen as a punitive measure. This is fraught with complication as it essentially becomes a double punishment. To mete out such harsher penalty to a foreign national is essentially punishing someone because they are not naturalized; and that is actually not a crime. We see this notion in the reign of Trump who asserted that the focus on gang members should not be so much on imprisoning them but rather on “getting them the hell out of here.” In 2016, Theresa May while still British Home Secretary stated “We aim to deport all foreign national offenders at the earliest opportunity.”

In Australia, Dutton is hell-bent on taking this to the next level. Shortly after the inception of his new Home Affairs ministry, he announced the launch of a new super security agency to target child sex offenders with dual nationalities. The object of the exercise is to strip such offenders of their Australian citizenship. Nobody challenged the Minister as to exactly how he planned to achieve that, given the legislation that is currently in place. We need to look behind the cloud of moral outrage and question exactly what is happening in the background.

There are laws in place to prevent a person effectively becoming stateless. The Australian Citizenship Act currently prevents a Minister from revoking a person’s Australian citizenship if he or she is unable to become a national or citizen of another country. Despite this, Dutton and Abbott still investigated whether the revocation of Australian citizenship could be extended to natural born Australians, including second generation Australians. The proposal was so radical that six ministers reportedly revolted against the policy in a cabinet meeting. The fact that it was even considered in the first place simply goes to show just how far men like Dutton and Abbott are prepared to push the envelope in their desire to strip citizenship from as many people as humanly possible.

So where is the line in the sand? At what point do we decide that stripping of citizenship and exile is not an appropriate punishment? How ‘Australian’ does one actually need to be in order to be beyond the powers of the Minister? Cold logic suggests to me that with men like Dutton demonstrating their intentions to extend that line in the sand to include second generation Australian-born citizens, then precious few people are safe. They just haven’t been affected yet.

The average punter might counter these concerns by reminding us that the targets of removal of citizenship are those who were fraudulent in their application for citizenship, or who did not declare a past criminal history; or who engage in terrorist activities. “My family certainly aren’t terrorists, so this doesn’t concern us.”

Here’s something to consider. Perhaps someday your teenage kids will go on an overseas trip. Maybe an end-of-year footy trip. High-jinks and drunken horseplay get taken a step too far. Public property is damaged, stolen or defaced. Dual nationals can now lose Australian citizenship if engaging in ‘foreign incursions’ and this includes such things as damage to a public building overseas. The Law Council of Australia has raised concerns that an Australian could now lose his or her Australian citizenship for simply “engaging in graffiti on a public building in a foreign country.”

It’s very easy to be carried by the tide of moral outrage and view rigorous new laws as justifiable; until the day you realise that in the process ordinary people have actually lost many of their rights too.

Once a net is set, it can catch many fish. The degrees of separation between you and potential disaster quietly diminish in the background.


39 comments

  1. townsvilleblog

    As a nation we do not want people who can’t speak English, it’s not fair on them, and it’s not fair on us. I recall early on in my career having to speak to people who spoke in their own lingo to each other then it was either yes or no, that’s just plain ignorance and should not be tolerated in a civilized society. I am one Lefty who is thankful that the English test has been smartened up so we only import people who are able to converse with us.

  2. Jack Russell

    … and in considering the drafting of these new laws, have the politicians who want them also discussed the means of immunity/exemption for themselves?

  3. diannaart

    unlawful exercise of power has, doubtless kept Dutton awake on many a night, thinking of ways to remove the “un” prefix and giving him unfettered power.

    Dutton tends to invade my most fearful thoughts… that Australia is following in the footsteps of many a totalitarian nation, what can be done to halt it, with a PM who should know better…

    We may say Labor will put a stop to such violations when (not if) they win the next federal election, but will reparations be made on the damage to the separation of law and state?

    What will Bill Shorten do?

  4. Kronomex

    There will be no line in the sand as long as Turnbull is completely and utterly controlled and at the mercy of the right wing nutters in the LNP and fascist (and budding dictator) Dutton. It also makes me wonder if any of us who comment here are in his sights?

    “What will Bill Shorten do?” We can theorise and make conjectures all we like about what Shorten will do, ultimately we will have to wait until we remove the LNP at the next election.

    I sometimes get the feeling that Dutton is looking for some way to declare martial law because it’s about the only way he will keep control of HIS power because I don’t see him being able to go back to being a plain old corrupt LNP politician. Absolute power…and all that.

  5. diannaart

    Kronomex

    My Bill Shorten question was meant to be rhetorical.

    As for Duddon, I am sure he would love to bring down martial law, I am also sure he will not go easily before causing even more damage than Abbott.

  6. DrakeN

    “I am also sure he will not go easily before causing even more damage than Abbott.”
    What a cheerful thought, Diannart.
    A total collapse of the Randian Right, who wish to return us to a Dickensian society, would be akin to the obliteration of the Crown-of-Thorns starfish to the GBR.
    Not a cure for the whole of the country’s ills, but at least a small step in long journey to egalitarianism.

  7. pierre wilkinson

    With luck, Herr Dutton will be voted out in his own seat, but if not, watch him cling to his position and attempt to introduce martial law in Australia, ban the Labor movement and Unions and introduce even stricter laws governing citizenship.

  8. Terry2

    I agree, Dutton will not go quietly as for him the loss of his seat or sitting in opposition would be ignominy and he would use every trick in the book and beyond in self preservation.

    When the election is called, expect it to be very dirty, already we are hearing calls from Trumble and Co. demanding that Labor support the TTP11 and asking whose side are Labor on ? This before anybody has actually seen the agreement and a long way before it will be debated in our parliament.

    It’s not going to be easy for Shorten as the conservatives are using the one card they have left to woo the electorate having given up on economic management and good governance, they have turned to tax cuts and we know that a fickle electorate will forgive most things is you bribe them enough no matter the consequences : as Trump is proving.

  9. Barry Thompson.

    townesvilleblog.
    So you would exclude people who had little or poor education in the country of their birth, even if they were refugees seeking asylum.
    I understand English is not an easy language to learn, but many migrants strive to do so. At my age I would not like to have to relocate to a foreign country and learn their language. How do you reckon you would go mate?

  10. Kaye Lee

    The Australian government and its offshore detention contractors will pay more than $70m in compensation to nearly 2,000 refugees and asylum seekers for illegally detaining them in dangerous and damaging conditions on Manus Island.

    https://www.theguardian.com/australia-news/2017/jun/14/government-to-pay-damages-to-manus-island-detainees-in-class-action

    The Turnbull government has paid an estimated $1 million in compensation and formally apologised to nine charity workers who were ejected from Nauru in 2014 after unsubstantiated claims of political activism and impropriety.

    http://www.smh.com.au/federal-politics/political-news/immigration-department-pays-1-million-compensation-to-save-the-children-workers-fired-from-nauru-20170131-gu27nm.html

    A backlog of 26 compensation claims from asylum seekers and the Immigration department’s own staff cost the government $230,000 in legal fees and “case management costs” last financial year, newly released documents reveal.

    https://www.sbs.com.au/news/claims-against-immigration-dept-cost-government-230k-in-legal-fees-but-no-compensation-paid

  11. Adrianne Haddow

    Hi townesvilleblog.
    I was an English as a second language teacher during my paid working life. I had the privilege of teaching many children and young people to develop their English language skills, and they learnt quickly.
    The younger students had the more rapid development because of their ability to use the new language with little embarrassment for the mistakes they made and for the fact that much of their language learning occurred through games, shared book experiences, songs and rhymes, in much the same way native speaking children learn their mother tongue. The older students took a slower path as they needed to marry grammar skills and pronunciation with those of their mother tongue. Their parents developed English language skills at a slower rate because of the teaching styles that were considered applicable to adults.

    During retirement I was asked to tutor a woman (a university graduate in her own country) who was having difficulty passing the language test which would allow her to apply for employment in her field of expertise. Her spoken English was very good and she was able to function quite well in day to day life.
    This was an academic English test (IELTS), the very same test that Herr Dutton and his minions have settled on as the one to apply to all new citizens.
    It involved reading and interpreting a variety of subject- specific questions, graphs and diagrams related to science, engineering and socioeconomics. The answers had to be written in English with correct grammar, spelling and punctuation and was scored quite rigidly according to demonstration of those skills.
    All well and good for those seeking employment in medicine, engineering and a variety of jobs requiring tertiary qualifications, but overkill for those joining the work force in semi skilled or unskilled jobs.

    The best way for new citizens to gain a greater depth of understanding and usage of the English language is for their neighbours, work mates and people on the street to engage with them and not treat them as idiots because of their developing English skills.

    I might add that many of these new citizens may be fluent in several languages other than English.

  12. helvityni

    townsvilleblog, do you think that the English spoken by some native Australians is so wonderfully correct ,sorry to disappoint you, it’s not. You also write about Australia as if it happened to be the most civilized country in the world; sorry to disappoint you again…

    Have you travelled anywhere overseas, away from Townsville? You would be surprised…

  13. corvus boreus

    Townsvilleblog,
    Just wondering, have you, out of respect for regionally existent societal and cultural sensibilities, made any effort to learn either of the main languages of your local Wulgurukaba and Bindal people?

  14. helvityni

    I realise that my English is not up your high standards townsvilleblog, but may I mention here that besides my own language, Finnish, I also learnt Swedish, German, Latin and English at my high school in Finland. What about you?

  15. Joseph Carli

    Townsville’…I remember on one multi-storey building site, our gang had a one-eyed cockney labourer that had such a dialect that hardly anyone could understand him!..One Italian carpenter there would listen to the labourer rattle on in his indecipherable east-end lingo and just reply…: “Yes”…He said to me after ..: “That pommy..he just talk and talk..I don’t understand a word he says..I just answer yes..I gotta be right some of the time!”

  16. Kaye Lee

    “A culture of post-truth has allowed politicians and Parliament to reject evidence based reports by credible agencies in favour of populist decision-making that denies the truth and responds to fear,” Gillian Triggs told UNSW’s Power to Persuade symposium in Canberra last August.

    Professor Triggs said Australia was setting itself to re-enact a version of George Orwell’s dystopian novel 1984.

    “You’ll remember when the party oligarch says to the hero: ‘reality is not external, reality exists in the human mind and nowhere else, whatever the party holds to be truth is the truth’,” she said.

    “I think we are coming closer and closer to that every day as the truth is manipulated in the interests of party politics.”

    “This is particularly the case in relation to refugees, asylum seekers, terrorism, and conflict matters in general,” she said.

    Now a University of Melbourne academic, Professor Triggs also referred to the Turnbull government’s “extraordinary and unprecedented growth in executive decision-making contrary to the principles of the separation of powers”.

    She alluded to the enhanced remit of the Immigration Minister and the newly created Home Office before taking aim at three ministers who faced contempt of court charges for describing terrorism sentencing in Victoria as “weak”.

    “We have ministers now with non-compellable and non-reviewable purposes that are not subject to review by the courts,” she said. “We have seen a corresponding diminution in the role of the courts, as a lawyer that is something that I am especially concerned about.”

    http://www.smh.com.au/federal-politics/political-news/gillian-triggs-labels-turnbull-government-disgraceful-accuses-it-of-peddling-alternative-facts-20170823-gy29zp.html

  17. Andrew Smith

    Adrian Haddow: Agree, regarding English as foreign or second language learners, they can often be more insightful and adopt more creativity for good communication and apply the skills to other areas; language is estimated to be less than 50% of good or optimal communication.

    Was told by a university manager that when they requested native speaking lecturers or faculty to attempt IELTS, the results were kept confidential, too embarrasing 🙂

    In relation to shaping of public opinion, Adam Curtis’s BBC documentary ‘Century of the Self’ is compulsory viewing, if you put aside his ideological perspective. It includes 4 episodes: Happiness Machines, The Engineering of Consent, There is a Policeman Inside All of Our Heads, He Must Be Destroyed and Eight People Sipping Wine In Kettering.

    In short, he looks at how psycho analysis was the basis for focus groups to inform commercial products and advertising, but then it was also transferred to politics e.g. shaping opinion and push polling……

    https://topdocumentaryfilms.com/the-century-of-the-self/

  18. Jack Russell

    Are the L/NP becoming concerned about people taking to the streets over their disastrous governance? The recent ramping up of the number and type of deflective look-over-there dog whistling topics is beginning to feel like a deluge.

    Maybe it’s just me, or they’re in full election mode already. Anyway, it’s noticeably over the top.

  19. Adrianne Haddow

    Andrew Smith: Thank you for recommending the Adam Curtis documentary and the website. My viewing for the weekend is set… so many interesting documentaries.

  20. townsvilleblog

    helvityni, Australian English, as spoken by native Australians is the our language “Australian” English, that’s the point!

  21. Joseph Carli

    Townsville’…as Tony Simmioni would (often) say… ; ” Donna you bullashit to me maytte!”

    He was a real bloke, you know..I didn’t just make him up..

  22. Roswell

    T’blog, is there any chance that you might tell us what your comment at 8:35 means?

    I’m having trouble with it.

    (Keep in mind that American English is my native tongue).

  23. Glenn Barry

    Militant I know, however I look forward optimistically to a ballistic projectile colliding with Duttons cerebellum, between him and Morrison I am getting a sneaking suspicion that I know how it felt in Italy and Germany before WWII

  24. helvityni

    Corvus Boreus,

    “In Norse mythology, Gjallarhorn (Old Norse “yelling horn”[1] or “the loud sounding horn”[2]) is a mystical horn blown at the onset of Ragnarök associated with the god Heimdallr and the wise being Mímir. Gjallarhorn is attested in the Poetic Edda, compiled in the 13th century from earlier traditional material, and the Prose Edda, written in the 13th century by Snorri Sturluson.”

    Learnt that from one of the commenters, I didn’t even know that Gjallahorn was a musical instrument.

  25. corvus boreus

    helvityni,
    Indeed, according to myth the ‘Gjallarhorn is supposed to be a magical horn whose sounding will herald the end of days.
    I gather that ‘Suvetar’ is a goddess of the spring, and that the basic gist of the lyrics are an invocation seeking earthly fertility..
    http://lyricstranslate.com/en/suvetar-suvetar.html
    Mainly though, i think it is a pretty piece of music, and I thought you might appreciate hearing a song sung in the Finnish tongue.

  26. Cool Pete

    @townsvilleblog, I disagree wholeheartedly. I believe that English should not be mandatory to immigrate, but some basic comprehension of the English language should be required to work in Australia and take up citizenship. The language level that Himmler wanted to introduce was so ridiculous it wasn’t funny. And let us not forget that many of these righties who demand English language proficiency don’t know when to use T-H-E-I-R and T-H-E-R-E or I-T-S and I-T-‘-S or L-O-S-E and L-O-O-S-E.

  27. Cool Pete

    The AAT is there to review decisions made. The only reason a dual national should be stripped of their citizenship should be if it was obtained dishonestly. While I have no criminal record, I say, we have to remember that not everybody who lands in trouble with the law is necessarily a bad person, people can make mistakes. Running a red light, for example, can have tragic consequences, but that doesn’t necessarily mean that someone is a bad driver and should lose their licence. Yes, if caught on camera or by police, they should be fined, BUT, it might have been a momentary lapse that caused someone with an otherwise good driving record to make a mistake, and that should not be sufficient grounds for deportation or denial of citizenship, yet according to the Himmler Reincarnate, it could be! A person should only be deported on character grounds if they commit a serious crime and they continue to be a risk to society post-release.

  28. wam

    When the carjacker that bashed the young woman turned out to be a white man there was a terrible rage comments like ‘these ugly white bastards commit most of the crimes, most of the coward punching and kill their women at over one a week. They should be locked up.
    Only joking the morning shows followed the carjacking with a story of white Australians being threatened by the existence of black gangs with a suitable shadowy figure lurking.

    The boys and girls of the LNP know their media.

    Funny that a country rocked by the laws on citizenship by other countries which affects being born in Australia is so intent on deportation.
    It is possible for baaarnaby to reclaim his kiwi citizenship and his crimes of conspiracy to stealing water and the citizenship of NZ of his father could result in his deportation.
    I loved the simple approach of the judges to accede that an overseas foreign government could claim citizenship over born in Australia but our government is powerless to object.
    Why do people have dual citizenship? Must be a rort so I agree with the premise ‘be a dual national at your risk. Mess up and get deported.’
    There are many Australians that have no english and many more with little english. The english believe everyone should speak english and as the films showed us there was some tolerance for western european languages a smidgin of support for the dago words but the american jewish characters in film displayed the ching chang chong of the asian, the oogga boogga, with a spear shake, for blacks My rabbottians are unable to watch foreign films because they cannot understand the ‘sounds’ they were not able to accept the worth of language. What chance does Aboriginal language have. In 1980 I recorded some Gunbalanya grade 5 kids sing the round ‘fires burning’ in Kunwinjku and I played it to kids in a vic primary school thinking they would recognise the song but they just laughed at the sounds. I was so surprised and put off that I changed tack and spoke about crocodiles. I have made sure my kids and grand kids heard Aboriginal languages from native speakers, have learned the greeting and thank you words of the countries we visit and listen to the songs of the countries.
    It is ironc that great britain has 4 countries 3 of whom with a history of bi-lingual population.
    But the real irony is the education department that employed me for over 40 years took millions from the federal grant scheme for Aboriginal education kept up to 70% for ‘on-costs’ paid white advisers The concept they developed and operate is ‘bi-lingual’ education where the Aborigines maintain their bi-lingual roles and the white teachers maintain their monolingual teaching. The suggestion that bi-lingual should mean the white teachers learns an Aboriginal language is scoffed at. The education department and the teachers in employment do not know that you cannot teach Aborigines unless you are prepared to learn from Aborigines. The system does not value Aboriginal knowledge because we think we have nothing to learn. Language is the first port of call.

  29. Zathras

    When it comes to political salemanship it’s always done through emotion rather than fact.

    That’s why talk-back radio is popular with some people. Of all the emotions, devotees are mainly addicted to outrage and probably want to blame somebody else for how their unsatisfactory lives have turned out.
    Advertisers can then say “You have a hole in your life the size of this big-screen TV. Buy it and you will be happy (for a while)”.

    It’s been observed that “if you’re not paying for it, YOU are the product” and rather than match the product to you, the trend is to match the consumer to the product.

    Boats, borders, jingoism and terrorism are tools for for domestic issues, greed and the threat of unemployment for economic ones.

    Keep them scared and keep them angry and if you claim to have the cure, you have their votes.

  30. Joseph Carli

    wam…hard, solid and delivered…key hand-over time.

  31. johno

    Andrew Smith… started watching century of self. It seems we humans are just fundamentally gullible and stupid. (in a nutshell)

  32. Arthur Baker

    “helvityni, Australian English, as spoken by native Australians is the our language “Australian” English, that’s the point!”

    “is the our language”?? If that’s an example of your mastery of it, townsvilleblog, you might like to consider a few grammar lessons.

  33. Glenn Barry

    @jimhaz – I would have thought that Morrison’s actions are criminally corrupt given the political influence exerted on administrative processes not legally under his control.

    Would it be safe to assume that Brandis likely declined to give the instruction himself?

  34. jimhaz

    I suppose that is why he phrased the letter as a suggestion, knowing it was not legal to direct same.

  35. Glenn Barry

    I’d say that this looks likely to get sticky for Morrison – that article details a 2016 federal court judgement which found the government acted illegally by delaying permanent protection visa processing

    Makes me wonder if Turnbull instigated the leaks to warn leadership challengers

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