Failing to inform a person they have been detained under a preventative detention order is an offence under section 105.45(a)(b)(i) 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 you contravened the safeguard contained in section 105.28(1) of the Act.
- That you were a police officer, and,
- That you failed to inform a person detained under a preventative detention order, as soon as practicable:
- That a preventative detention order had been made in relation to him or her,
- Of the period for which he or she could be detained under the order,
- Of the restrictions relating to contact under the order,
- That an application can be made to extend the order,
- That the detained person can make representations to a senior AFP member with a view to having the order revoked,
- That the detained person has rights to complain to the Commonwealth Ombudsman regarding the detention and treatment during the detention,
- That the detained person may give information to the AFP regarding the order,
- That the detained person may make a complaint to an authorised officer regarding his or her treatment,
- That the detained person may seek an order from the federal court regarding the order or his or her treatment,
- That the detained person may contact a lawyer, and,
- That the detained person may seek the contact details of the AFP member to whom they may make a complaint.
Duress, self-defence and necessity are legal defences to the charge.