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Detained Person Disclosing a Preventative Detention Order

Detained person disclosing a preventative detention order is an offence under section 105.41(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 5 years in prison.

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

  1. You were being detained under a preventative detention order.
  2. You disclosed to another person:
  1. That a preventative detention order had been made in relation to you, or,
  2. That you were being detained, or,
  3. The period for which you were being detained,
  1. Your disclosure occurred while you were being detained under the order, and,
  2. You were not entitled to make the disclosure.

It is not an offence to make the following disclosures while being detained under the order:

  1. Contacting the Commonwealth Ombudsman in accordance with sections 7(3) and 7(5) of the Ombudsman Act 1976, which outline the manner in which a detained person can make a complaint,
  1. Providing information to the Commissioner of the Australian Federal Police under section 40SB of the Australian Federal Police Act 1979, which outlines the manner in which a person may provide such information,
  1. Contacting an officer or authority of your state or territory to make a complaint about your treatment in custody, provided that person is legally authorised to deal with such complaints, or,
  1. Contacting a lawyer solely for the purpose of:
  1. Obtaining advice about your rights in relation to the order or your treatment under it, or,
  2. Instructing a lawyer to act for you in relation to:
  1. Federal court proceedings for a remedy relating to the order or your treatment under it,
  2. A complaint to the Commonwealth Ombudsman about the making of the order or your treatment by a member of the AFP,
  3. Giving information under section 40SB of the Australian Federal Police Act 1979, provided this relates to the making of the order or your treatment by a member of the AFP,
  4. A complaint to an officer or authority of your state or territory about your treatment by a police officer of that state or territory in connection with the order, provided the officer or authority is legally authorised to deal with such complaints.

You may contact a lawyer by phone, fax, email or arrange to have him or her visit you in person.

If you are unable to make contact with a particular lawyer, or if you are not entitled to contact that lawyer due to a prohibited contact order, Police must reasonably assist you to find another lawyer and may give priority to lawyers with a Commonwealth security clearance.

If you were under the age of 18 years or incapable of managing your affairs due to mental your health, you are permitted to contact a parent, guardian or another person who is able to represent your interests.

Self-defence, duress and necessity are legal defences to the charge.

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