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Police Officer Failing to Explain a Continued Preventative Detention Order

Police officer failing to explain a continued preventative detention order is an offence under section 105.45(a)(b)(ii) 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 who detained a person under a continued preventative detention order, and,
  2. You contravened a safeguard contained in section 105.29(1) of the Act.

Section 105.29(1) requires police officers who detain a person under a continued preventative detention order to explain all of the following matters to the detained person:

  1. The fact that a continued order had been made in relation to him or her,
  2. The further period for which he or she may continue to be detained,
  3. The restrictions regarding contacting other persons,
  4. The entitlement to make representations to the nominated senior AFP member with a view to having the order revoked,
  5. Any right to make a complaint to the Commonwealth Ombudsman regarding the application for the order and/or his or her treatment by an AFP member,
  6. Any right to give information regarding the application for the order and/or his or her treatment by an AFP member,
  7. Any right to complain to an officer or authority of a State or Territory about his or her treatment by a member of the police force of that State or Territory in connection with the continued order,
  8. The fact that he or she may seek a remedy from the Federal Court relating to the continued order or his or her treatment under the order,
  9. The entitlement to contact a lawyer, and,
  10. The name and work telephone number of the nominated senior AFP member.

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

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