Section 105.41 Criminal Code Act | Disclosing Preventative Detention Order


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The Legislation

Section 105.41 of the Criminal Code Act 1995 (Cth) is Disclosing Preventative Detention Order and is extracted below.

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105.41  Disclosure offences

Person being detained

(1)  A person (the subject) commits an offence if:

(a)  the subject is being detained under a preventative detention order; and

(b)  the subject discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the subject; or

(ii)  the fact that the subject is being detained; or

(iii)  the period for which the subject is being detained; and

(c)  the disclosure occurs while the subject is being detained under the order; and

(d)  the disclosure is not one that the subject is entitled to make under section 105.36, 105.37 or 105.39.

Penalty:  Imprisonment for 5 years.

Lawyer

(2)  A person (the lawyer) commits an offence if:

(a)  a person being detained under a preventative detention order (the detainee) contacts the lawyer under section 105.37; and

(b)  the lawyer discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that the detainee gives the lawyer in the course of the contact; and

(c)  the disclosure occurs while the detainee is being detained under the order; and

(d)  the disclosure is not made for the purposes of:

(i)  proceedings in a federal court for a remedy relating to the preventative detention order or the treatment of the detainee in connection with the detainee’s detention under the order; or

(ii)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iii)  a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iv)  making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty:  Imprisonment for 5 years.

Person having special contact with detainee who is under 18 years of age or incapable of managing own affairs

(3)  A person (the parent/guardian) commits an offence if:

(a)  a person being detained under a preventative detention order (the detainee) has contact with the parent/guardian under section 105.39; and

(b)  the parent/guardian discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that the detainee gives the parent/guardian in the course of the contact; and

(c)  the other person is not a person the detainee is entitled to have contact with under section 105.39; and

(d)  the disclosure occurs while the detainee is being detained under the order; and

(e)  the disclosure is not made for the purposes of:

(i)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ii)  a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iii)  making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty:  Imprisonment for 5 years.

(4)  To avoid doubt, a person does not contravene subsection (3) merely by letting another person know that the detainee is safe but is not able to be contacted for the time being.

(4A)  A person (the parent/guardian) commits an offence if:

(a)  the parent/guardian is a parent or guardian of a person who is being detained under a preventative detention order (the detainee); and

(b)  the detainee has contact with the parent/guardian under section 105.39; and

(c)  while the detainee is being detained under the order, the parent/guardian discloses information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian); and

(d)  when the disclosure is made, the detainee has not had contact with the other parent/guardian under section 105.39 while being detained under the order; and

(e)  the parent/guardian does not, before making the disclosure, inform the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian is proposing to disclose information of that kind to the other parent/guardian.

Penalty:  Imprisonment for 5 years.

(4B)  If:

(a)  a person (the parent/guardian) is a parent or guardian of a person being detained under a preventative detention order (the detainee); and

(b)  the parent/guardian informs the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian proposes to disclose information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian);

that senior AFP member may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 105.39.

Note:          The parent/guardian may commit an offence against subsection (2) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 105.39 and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of paragraph (3)(c).

Interpreter assisting in monitoring contact with detainee

(5)  A person (the interpreter) commits an offence if:

(a)  the interpreter is an interpreter who assists in monitoring the contact that a person being detained under a preventative detention order (the detainee) has with someone while the detainee is being detained under the order; and

(b)  the interpreter discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that interpreter obtains in the course of assisting in the monitoring of that contact; and

(c)  the disclosure occurs while the detainee is being detained under the order.

Penalty:  Imprisonment for 5 years.

Passing on improperly disclosed information

(6)  A person (the disclosure recipient) commits an offence if:

(a)  a person (the earlier discloser) discloses to the disclosure recipient:

(i)  the fact that a preventative detention order has been made in relation to a person; or

(ii)  the fact that a person is being detained under a preventative detention order; or

(iii)  the period for which a person is being detained under a preventative detention order; or

(iv)  any information that a person who is being detained under a preventative detention order communicates to a person while the person is being detained under the order; and

(b)  the disclosure by the earlier discloser to the disclosure recipient contravenes:

(i)  subsection (1), (2), (3) or (5); or

(ii)  this subsection; and

(c)  the disclosure recipient discloses that information to another person; and

(d)  the disclosure by the disclosure recipient occurs while the person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained under the order.

Penalty:  Imprisonment for 5 years.

Police officer or interpreter monitoring contact with lawyer

(7)  A person (the monitor) commits an offence if:

(a)  the monitor is:

(i)  a police officer who monitors; or

(ii)  an interpreter who assists in monitoring;

contact that a person being detained under a preventative detention order (the detainee) has with a lawyer under section 105.37 while the detainee is being detained under the order; and

(b)  information is communicated in the course of that contact; and

(c)  the information is communicated for one of the purposes referred to in subsection 105.37(1); and

(d)  the monitor discloses that information to another person.

Penalty:  Imprisonment for 5 years.

Note:          See also subsection 105.38(5).