Lawyer disclosing a preventative detention order Is an offence under section 105.41(2) 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:
- You were a lawyer,
- You were contacted by a person being detained under a preventative detention order (‘your client’),
- You disclosed to a person other than your client: that a preventative detention order had been made against your client, or that your client was being detained, or the period for which your client was being detained, or any information your client gave you during your contact with him or her,
- Your disclosure occurred while your client was being detained under the order, and
- Your disclosure was not for the purpose of:
- Initiating or conducting Federal court proceedings for a remedy relating to the order or in connection with your client’s treatment under the order,
- Making a complaint to the Commonwealth Ombudsman about the application for or making of the order or your client’s treatment by a member of the AFP in connection with the order
- Giving information under section 40SB of the Australian Federal Police Act 1979 relating to the application for or making of the order or your client’s treatment by a member of the AFP in connection with the order,
- Making a complaint to an authorised officer or authority of the state or territory in which your client was dealt with under the order about your client’s treatment by a member of the police force of that jurisdiction in connection with the order, or
- Making representations to an authorised senior member of the AFP or to another officer involved in your client’s detention about the exercise of powers, performance of obligations or treatment of your client in connection with the order.
Necessity, duress and self-defence are legal defences to the charge.