Going to Court? Book Your Free First Appointment

Saved Pages

Save pages and articles you’re most interested in to read later on.


Section 105.41 Criminal Code Act 1995
Disclosing Preventative Detention Order

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

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Disclosing Preventative Detention Order matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

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).

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

Going to Court? Call For Your Free First Appointment

Main Menu

Follow Us

Search Our Site enter search term and press GO

Saved Articles & Pages

APPOINTMENT BOOKING FORM * mandatory fields

Preferred date for conference
Preferred time for conference
Briefly describe your situation:
Do you have a court date?

Your Review & Rating * mandatory fields

Review Text *
Rating (optional)