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Police Officer Detaining a Child Who is Under a Preventative Detention Order Together With Adults

Police officer detaining a child who is under a preventative detention order together with adults Is an offence under section 105.45(a)(b)(iva) 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,
  2. You detained a person aged less than 18 years under a preventative detention order, and,
  3. You contravened the safeguard contained in section 105.33A of the Act.

Section 105.33A states that a police officer who is detaining a person aged under 18 years who is under a preventative detention murder must not detain that person together with a person or persons aged 18 years or over.

You are not guilty of the offence if a senior AFP member approved the child being detained with adults.

A senior AFP member must not give such approval unless there are ‘exceptional circumstances’ and any such approval must be written and set out the exceptional circumstances relied upon.

Duress, self-defence and necessity are legal defences to the charge.

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