Section 105.42 Criminal Code Act | Questioning Detainee


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The Legislation

Section 105.42 of the Criminal Code Act 1995 (Cth) is Questioning Detainee and is extracted below.

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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.

(5)  Subsection (4) does not apply if:

(a)  the questioning occurs to:

(i)  ensure the safety and well being of the person being detained; or

(ii)  determine whether the person is the person specified in the order; and

(b)  complying with subsection (4) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3)).

(6)        A recording made under subsection (4) must be kept for the period of 12 months after the recording is made.