Section 105.45 Criminal Code Act | Contravening Safeguards


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The Legislation

Section 105.45 of the Criminal Code Act 1995 (Cth) is Contravening Safeguards and is extracted below.

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105.45  Offences of contravening safeguards

A person commits an offence if:

(a)  the person engages in conduct; and

(b)  the conduct contravenes:

(i)  subsection 105.28(1); or

(ii)  subsection 105.29(1); or

(iii)  section 105.30; or

(iv)  section 105.33; or

(iva)  subsection 105.33A(1); or

(v)  subsection 105.42(1), (2), (3) or (4); or

(vi)  subsection 105.43(1), (4) or (6); or

(vii)  subsection 105.44(2).

Penalty: 105.28  Effect of initial preventative detention order to be explained to person detained

(1)  As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2).

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.29  Effect of continued preventative detention order to be explained to person detained

(1)  As soon as practicable after a continued preventative detention order (the continued order) is made in relation to a person, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.30  Person being detained to be informed of extension of preventative detention order

If a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer detaining the person under the order must inform the person of the extension, or further extension, as soon as practicable after the extension, or further extension, is made.

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.33  Humane treatment of person being detained

A person being taken into custody, or being detained, under a preventative detention order:

(a)  must be treated with humanity and with respect for human dignity; and

(b)  must not be subjected to cruel, inhuman or degrading treatment;

by anyone exercising authority under the order or implementing or enforcing the order.

Note:          A contravention of this section may be an offence under section 105.45.

105.33A  Detention of persons under 18

(1)  Subject to subsection (2), the police officer detaining a person who is under 18 years of age under a preventative detention order must ensure that the person is not detained together with persons who are 18 years of age or older.

Note:          A contravention of this subsection may be an offence under section 105.45.

(2)  Subsection (1) does not apply if a senior AFP member approves the person being detained together with persons who are 18 years of age or older.

(3)  The senior AFP member may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.

(4)  An approval under subsection (2) must:

(a)  be given in writing; and

(b)  set out the exceptional circumstances that justify the giving of the approval.

105.42  Questioning of person prohibited while person is detained

(1)  A police officer must not question a person while the person is being detained under a preventative detention order except for the purposes of:

(a)  determining whether the person is the person specified in the order; or

(b)  ensuring the safety and well-being of the person being detained; or

(c)  allowing the police officer to comply with a requirement of this Division in relation to the person’s detention under the order.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(2)  An officer or employee of the Australian Security Intelligence Organisation must not question a person while the person is being detained under a preventative detention order.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(3)  An AFP member, or an officer or employee of the Australian Security Intelligence Organisation, must not question a person while the person is being detained under an order made under a corresponding State preventative detention law.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(4)  If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that:

(a)  a video recording is made of the questioning if it is practicable to do so; or

(b)  an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.

Note:          A contravention of this subsection may be an offence under section 105.45.

105.43  Taking fingerprints, recordings, samples of handwriting or photographs

(1)  A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.

Note:          A contravention of this subsection may be an offence under section 105.45.

(4)  Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

unless a Federal Magistrate orders that the material be taken.

Note:          A contravention of this subsection may be an offence under section 105.45.

(6)  The taking of identification material from a person who:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

must be done in the presence of:

(c)  a parent or guardian of the person; or

(d)  if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Note 1:       For appropriate person, see subsection (11).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(7)  Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:

(a)  subsections (8) and (9) are satisfied; or

(b)  subsection (8) or (9) is satisfied (but not both) and a Federal Magistrate orders that the material be taken.

In deciding whether to make such an order, the Federal Magistrate must have regard to the matters set out in subsection (5).

(8)  This subsection applies if the person agrees in writing to the taking of the material.

(9)  This subsection applies if either:

(a)  a parent or guardian of the person; or

(b)  if a parent or guardian is not acceptable to the person—another appropriate person;

agrees in writing to the taking of the material.

Note:          For appropriate person, see subsection (11).

(10)  Despite this section, identification material may be taken from a person who:

(a)  is at least 18 years of age; and

(b)  is capable of managing his or her affairs;

if the person consents in writing.

(11)  A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:

(a)  is capable of representing the subject’s interests; and

(b)  as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and

(c)  is none of the following:

(i)  an AFP member;

(ii)  an AFP employee (within the meaning of the Australian Federal Police Act 1979);

(iii)  a member (however described) of a police force of a State or Territory;

(iv)  an officer or employee of the Australian Security Intelligence Organisation.

105.44  Use of identification material

(2)  The material may be used only for the purpose of determining whether the person is the person specified in the order.

Note:          A contravention of this subsection may be an offence under section 105.45.