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Questioning a Person Detained Under a Preventative Detention Order

Questioning a person detained under a preventative detention order Is an offence under section 105.45(a)(b)(v) 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 a safeguard contained in section 105.42 of the Act which are:

105.42(1):

A police officer must not question a person being detained under a preventative detention order except for the purposes of:

  1. Allowing the officer to comply with a legal requirement regarding the person’s detention under the order,
  2. Ensuring the person’s safety and well-being, or,
  3. Allowing the officer to comply with a legal requirement regarding person’s detention under the order.

105.42(2):

An ASIO employee or affiliate must not question a person being detained under a preventative detention order

105.42(3):

An AFP member, or an ASIO employee or affiliate, must not question a person while that person is being detained under a corresponding state preventative detention order.

105.42(4):

A police officer who questions a person detained under a preventative detention order must ensure that:

  1. A video recording is made of the questioning if it is practicable to do so, or,
  2. An audio recording is made if a video recording is not practicable.

However, a police officer does not contravene this safeguard if he or she is able to establish ‘on the balance of probabilities’ that the seriousness and urgency of the circumstances made a recording impracticable.

It is not a contravention of the safeguards contained in subsections 105.42(1), (3) or (3) to question a person subject to a preventative detention order after the person is released from custody even if the order is still in force.

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

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