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Contravening a Safeguard Regarding Identification Material of Person Detained Under Preventative Detention Order

Contravening a safeguard regarding identification material of person detained under preventative detention order is an offence under section 105.45(a)(b)(vi) of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were a police officer, and,
  2. You contravened a safeguard contained in section 105.43(1), (4) or (6) of the Act.

Section 105.43(1) states that a police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with the remaining provisions of the section.

Section 105.43(4) states that a police officer must not take identification material except for hand prints, fingerprints, foot prints or toe prints from a child or person incapable of managing his or her own affairs who is being detained under a preventative detention order unless a federal judge orders that the material be taken or the person and their parent or guardian, or another appropriate person, agrees to the taking of the material.

Section 105.43(6) requires that the taking of identification material from a child or a person who is incapable of managing his or her own affairs must be done in the presence of a parent or guardian, or another appropriate person.

Duress and necessity are legal defences to the charge.

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