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Section 105.45 Criminal Code Act 1995
Contravening Safeguards

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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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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.

Which is:

  1. That you were a police officer, and,
  2. That you failed to inform a person detained under a preventative detention order, as soon as practicable:
  1. That a preventative detention order had been made in relation to him or her,
  2. Of the period for which he or she could be detained under the order,
  3. Of the restrictions relating to contact under the order,
  4. That an application can be made to extend the order,
  5. That the detained person can make representations to a senior AFP member with a view to having the order revoked,
  6. That the detained person has rights to complain to the Commonwealth Ombudsman regarding the detention and treatment during the detention,
  7. That the detained person may give information to the AFP regarding the order,
  8. That the detained person may make a complaint to an authorised officer regarding his or her treatment,
  9. That the detained person may seek an order from the federal court regarding the order or his or her treatment,
  10. That the detained person may contact a lawyer, and,
  11. 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.

—————————————————————————-

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.

—————————————————————————–

Police officer failing to explain the extension of a preventative detention order is an offence under section 105.45(a)(b)(iii) 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 the safeguard contained in section 105.30 of the Act.

Section 105.30 requires a police officer who detains a person under an extended or further extended preventative detention order to inform the person as soon as practicable that he or she is being detained under such an order.

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

—————————————————————————

Inhumane treatment of person detained under a preventative detention order is an offence under section 105.45(a)(b)(iv) 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 exercising authority under, or implementing or enforcing, a preventative detention order, and,
  2. You contravened the safeguard contained in section 105.33 of the Act.

Section 105.33 states that a person who is exercising authority under, or implementing or enforcing, a preventative detention order:

  1. Must treat a person who is being taken into custody or detained under the order with humanity and respect for human dignity, and,
  2. Must not subject the person to cruel, inhuman or degrading treatment.

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

—————————————————————————–

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.

—————————————————————————–

Contravening a safeguard regarding identification material of person detained under preventative detention order is an offence under section 105.45(a)(b)(vi) 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, and,
  2. You contravened a safeguard contained in section 105.43(1), (4) or (6) of the Act.

Section 105.43(1) states that a police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with the remaining provisions of the section.

Section 105.43(4) states that a police officer must not take identification material except for hand prints, fingerprints, foot prints or toe prints from a child or person incapable of managing his or her own affairs who is being detained under a preventative detention order unless a federal judge orders that the material be taken or the person and their parent or guardian, or another appropriate person, agrees to the taking of the material.

Section 105.43(6) requires that the taking of identification material from a child or a person who is incapable of managing his or her own affairs must be done in the presence of a parent or guardian, or another appropriate person.

Duress and necessity are legal defences to the charge.

—————————————————————————–

Unauthorised use of identification material of a person under a preventative detention order Is an offence under section 105.45(a)(b)(vii) 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 105.44(2) of the Act which states that identification material taken from a person detained under a preventative detention order can only be used to determine whether the person is the person specified in the order.

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

——————————————————————————–

Section 105.45 of the Criminal Code Act 1995 (Cth) is Contravening Safeguards and is extracted below.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Contravening Safeguards matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

105.45  Offences of contravening safeguards

A person commits an offence if:

(a)  the person engages in conduct; and

(b)  the conduct contravenes:

(i)  subsection 105.28(1); or

(ii)  subsection 105.29(1); or

(iii)  section 105.30; or

(iv)  section 105.33; or

(iva)  subsection 105.33A(1); or

(v)  subsection 105.42(1), (2), (3) or (4); or

(vi)  subsection 105.43(1), (4) or (6); or

(vii)  subsection 105.44(2).

Penalty: 105.28  Effect of initial preventative detention order to be explained to person detained

(1)  As soon as practicable after a person is first taken into custody under an initial preventative detention order, the police officer who is detaining the person under the order must inform the person of the matters covered by subsection (2).

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.29  Effect of continued preventative detention order to be explained to person detained

(1)  As soon as practicable after a continued preventative detention order (the continued order) is made in relation to a person, the police officer who is detaining the person must inform the person of the matters covered by subsection (2).

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.30  Person being detained to be informed of extension of preventative detention order

If a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer detaining the person under the order must inform the person of the extension, or further extension, as soon as practicable after the extension, or further extension, is made.

Note 1:       A contravention of this subsection may be an offence under section 105.45.

Note 2:       A contravention of this subsection does not affect the lawfulness of the person’s detention under the order (see subsection 105.31(5)).

105.33  Humane treatment of person being detained

A person being taken into custody, or being detained, under a preventative detention order:

(a)  must be treated with humanity and with respect for human dignity; and

(b)  must not be subjected to cruel, inhuman or degrading treatment;

by anyone exercising authority under the order or implementing or enforcing the order.

Note:          A contravention of this section may be an offence under section 105.45.

105.33A  Detention of persons under 18

(1)  Subject to subsection (2), the police officer detaining a person who is under 18 years of age under a preventative detention order must ensure that the person is not detained together with persons who are 18 years of age or older.

Note:          A contravention of this subsection may be an offence under section 105.45.

(2)  Subsection (1) does not apply if a senior AFP member approves the person being detained together with persons who are 18 years of age or older.

(3)  The senior AFP member may give an approval under subsection (2) only if there are exceptional circumstances justifying the giving of the approval.

(4)  An approval under subsection (2) must:

(a)  be given in writing; and

(b)  set out the exceptional circumstances that justify the giving of the approval.

105.42  Questioning of person prohibited while person is detained

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

(a)  determining whether the person is the person specified in the order; or

(b)  ensuring the safety and well-being of the person being detained; or

(c)  allowing the police officer to comply with a requirement of this Division in relation to the person’s detention under the order.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(2)  An officer or employee of the Australian Security Intelligence Organisation must not question a person while the person is being detained under a preventative detention order.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(3)  An AFP member, or an officer or employee of the Australian Security Intelligence Organisation, must not question a person while the person is being detained under an order made under a corresponding State preventative detention law.

Note 1:       This subsection will not apply to the person if the person is released from detention under the order (even though the order may still be in force in relation to the person).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(4)  If a police officer questions a person while the person is being detained under a preventative detention order, the police officer who is detaining the person must ensure that:

(a)  a video recording is made of the questioning if it is practicable to do so; or

(b)  an audio recording is made of the questioning if it is not practicable for a video recording to be made of the questioning.

Note:          A contravention of this subsection may be an offence under section 105.45.

105.43  Taking fingerprints, recordings, samples of handwriting or photographs

(1)  A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.

Note:          A contravention of this subsection may be an offence under section 105.45.

(4)  Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

unless a Federal Magistrate orders that the material be taken.

Note:          A contravention of this subsection may be an offence under section 105.45.

(6)  The taking of identification material from a person who:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

must be done in the presence of:

(c)  a parent or guardian of the person; or

(d)  if a parent or guardian of the person is not acceptable to the person—another appropriate person.

Note 1:       For appropriate person, see subsection (11).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(7)  Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:

(a)  subsections (8) and (9) are satisfied; or

(b)  subsection (8) or (9) is satisfied (but not both) and a Federal Magistrate orders that the material be taken.

In deciding whether to make such an order, the Federal Magistrate must have regard to the matters set out in subsection (5).

(8)  This subsection applies if the person agrees in writing to the taking of the material.

(9)  This subsection applies if either:

(a)  a parent or guardian of the person; or

(b)  if a parent or guardian is not acceptable to the person—another appropriate person;

agrees in writing to the taking of the material.

Note:          For appropriate person, see subsection (11).

(10)  Despite this section, identification material may be taken from a person who:

(a)  is at least 18 years of age; and

(b)  is capable of managing his or her affairs;

if the person consents in writing.

(11)  A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:

(a)  is capable of representing the subject’s interests; and

(b)  as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and

(c)  is none of the following:

(i)  an AFP member;

(ii)  an AFP employee (within the meaning of the Australian Federal Police Act 1979);

(iii)  a member (however described) of a police force of a State or Territory;

(iv)  an officer or employee of the Australian Security Intelligence Organisation.

105.44  Use of identification material

(2)  The material may be used only for the purpose of determining whether the person is the person specified in the order.

Note:          A contravention of this subsection may be an offence under section 105.45.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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  10. Team of Lawyers Behind You

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  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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