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Section 105.41 Criminal Code Act 1995
Disclosing Preventative Detention Order

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Detained person disclosing a preventative detention order is an offence under section 105.41(1) 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:

  1. You were being detained under a preventative detention order.
  2. You disclosed to another person:
  1. That a preventative detention order had been made in relation to you, or,
  2. That you were being detained, or,
  3. The period for which you were being detained,
  1. Your disclosure occurred while you were being detained under the order, and,
  2. You were not entitled to make the disclosure.

It is not an offence to make the following disclosures while being detained under the order:

  1. Contacting the Commonwealth Ombudsman in accordance with sections 7(3) and 7(5) of the Ombudsman Act 1976, which outline the manner in which a detained person can make a complaint,
  1. Providing information to the Commissioner of the Australian Federal Police under section 40SB of the Australian Federal Police Act 1979, which outlines the manner in which a person may provide such information,
  1. Contacting an officer or authority of your state or territory to make a complaint about your treatment in custody, provided that person is legally authorised to deal with such complaints, or,
  1. Contacting a lawyer solely for the purpose of:
  1. Obtaining advice about your rights in relation to the order or your treatment under it, or,
  2. Instructing a lawyer to act for you in relation to:
  1. Federal court proceedings for a remedy relating to the order or your treatment under it,
  2. A complaint to the Commonwealth Ombudsman about the making of the order or your treatment by a member of the AFP,
  3. Giving information under section 40SB of the Australian Federal Police Act 1979, provided this relates to the making of the order or your treatment by a member of the AFP,
  4. A complaint to an officer or authority of your state or territory about your treatment by a police officer of that state or territory in connection with the order, provided the officer or authority is legally authorised to deal with such complaints.

You may contact a lawyer by phone, fax, email or arrange to have him or her visit you in person.

If you are unable to make contact with a particular lawyer, or if you are not entitled to contact that lawyer due to a prohibited contact order, Police must reasonably assist you to find another lawyer and may give priority to lawyers with a Commonwealth security clearance.

If you were under the age of 18 years or incapable of managing your affairs due to mental your health, you are permitted to contact a parent, guardian or another person who is able to represent your interests.

Self-defence, duress and necessity are legal defences to the charge.

———————————————————————-

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:

  1. You were a lawyer,
  2. You were contacted by a person being detained under a preventative detention order (‘your client’),
  3. 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,
  4. Your disclosure occurred while your client was being detained under the order, and
  5. Your disclosure was not for the purpose of:
  1. Initiating or conducting Federal court proceedings for a remedy relating to the order or in connection with your client’s treatment under the order,
  2. 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
  3. 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,
  4. 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
  5. 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.

—————————————————————————–

Parent or Guardian Disclosing a Preventative Detention Order is an offence under section 105.41(3) 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:

  1. You were the parent or guardian of a person detained under a preventative detention order,
  2. You had contact with the detained person while he or she was under the order,
  3. You disclosed to another person:
  1. That a preventative detention order had been made against the detained person,
  2. That the person had been detained,
  3. The period for which the person had been detained, or,
  4. Any information the person gave you during the contact, and,
  1. Your disclosure was not made for the purposes of:
  1. A complaint to the Commonwealth Ombudsman about the making of the order or the detainee’s treatment by a member of the AFP,
  2. Giving information under section 40SB of the Australian Federal Police Act 1979 provided this relates to the making of the order or the detainee’s treatment by the AFP,
  3. A complaint to an officer or authority of a state or territory about the detainee’s treatment by a police officer of that state or territory relating to the order provided the officer or authority is legally authorised to deal with such complaints, or,
  4. Making representations to an authorised senior member of the AFP or to another officer involved in the detainee’s detention about the exercise of powers, performance of obligations or treatment of the detainee in connection with the order.

It is not an offence to merely let another person know the detainee is safe but is not able to be contacted for the time being.

Duress and necessity are defences to the charge.

——————————————————————————

Parent or Guardian Informing Another Parent or Guardian About a Preventative Detention Order is an offence under section 105.41(4A) 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:

  1. You were the parent or guardian of a person detained under a preventative detention order,
  2. You had contact with the person while he or she was under the order,
  3. The person disclosed information to you:
  1. That he or she was under a preventative detention order,
  2. That he or she was being detained,
  3. The period for which he or she was being detained, or,
  4. Any other information,
  1. You disclosed this information to another parent or guardian, and,
  2. You did not obtain the permission of the Australian Federal Police before making the disclosure.

Duress and necessity are defences to the charge.

——————————————————————————

Interpreter Disclosing Preventative Detention Order Is an offence under section 105.41(5) 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:

  1. You were an interpreter,
  2. You assisted in monitoring contact between a person detained under a preventative detention order and any other person,
  3. You disclosed to another person:
  1. That a preventative detention order had been made against the detainee,
  2. That the detainee was being detained,
  3. The period for which the detainee was being detained, or,
  4. Any other information obtained in the course of your monitoring of contact with the detainee, and,
  1. Your disclosure occurred while the detainee was being detained.

Duress and necessity are defences to the charge.

—————————————————————————-

Passing on Improperly Obtained Information Relating to a Preventative Detention Order is an offence under section 105.41(6) 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:

  1. You received information from a person (the first person),
  2. The information related to a preventative detention order against another person (the detainee) or information received during the first person’s contact with the detainee
  3. The first person was not authorised to disclose the information to you, and
  4. You disclosed the information to a third person

Duress and necessity are defences to the charge.

—————————————————————————–

Monitor Disclosing Preventative Detention Order Is an offence under section 105.41(7) 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:

  1. You were a police officer monitoring, or an interpreter assisting in the monitoring of, contact with a person detained under a preventative detention order (the detainee),
  2. Information was communicated in the course of the contact,
  3. That information was communicated for the purposes of:
  1. Initiating or conducting Federal court proceedings for a remedy relating to the order or in connection with the detainee’s treatment under the order,
  2. Making a complaint to the Commonwealth Ombudsman about the application for or making of the order or the detainee’s treatment by a member of the AFP in connection with the order,
  3. Giving information under section 40SB of the Australian Federal Police Act 1979 relating to the application for or making of the order or the detainee’s treatment by a member of the AFP in connection with the order,
  4. Making a complaint to an authorised officer or authority of the state or territory in which the detainee was dealt with under the order about the detainee’s treatment by a member of the police force of that jurisdiction in connection with the order, or,
  5. Making representations to an authorised senior member of the AFP or to another officer involved in the detainee’s detention about the exercise of powers, performance of obligations or treatment of the detainee in connection with the order, and,
  1. You disclosed that information to another person

Duress and necessity are defences to the charge.

Section 105.41 of the Criminal Code Act 1995 (Cth) is Disclosing Preventative Detention Order and is extracted below.

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

The Legislation

105.41  Disclosure offences

Person being detained

(1)  A person (the subject) commits an offence if:

(a)  the subject is being detained under a preventative detention order; and

(b)  the subject discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the subject; or

(ii)  the fact that the subject is being detained; or

(iii)  the period for which the subject is being detained; and

(c)  the disclosure occurs while the subject is being detained under the order; and

(d)  the disclosure is not one that the subject is entitled to make under section 105.36, 105.37 or 105.39.

Penalty:  Imprisonment for 5 years.

Lawyer

(2)  A person (the lawyer) commits an offence if:

(a)  a person being detained under a preventative detention order (the detainee) contacts the lawyer under section 105.37; and

(b)  the lawyer discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that the detainee gives the lawyer in the course of the contact; and

(c)  the disclosure occurs while the detainee is being detained under the order; and

(d)  the disclosure is not made for the purposes of:

(i)  proceedings in a federal court for a remedy relating to the preventative detention order or the treatment of the detainee in connection with the detainee’s detention under the order; or

(ii)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(iii)  a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iv)  making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty:  Imprisonment for 5 years.

Person having special contact with detainee who is under 18 years of age or incapable of managing own affairs

(3)  A person (the parent/guardian) commits an offence if:

(a)  a person being detained under a preventative detention order (the detainee) has contact with the parent/guardian under section 105.39; and

(b)  the parent/guardian discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that the detainee gives the parent/guardian in the course of the contact; and

(c)  the other person is not a person the detainee is entitled to have contact with under section 105.39; and

(d)  the disclosure occurs while the detainee is being detained under the order; and

(e)  the disclosure is not made for the purposes of:

(i)  a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ia)  the giving of information under section 40SA of the Australian Federal Police Act 1979 in relation to the application for, or the making of, the preventative detention order or the treatment of the detainee by an AFP member in connection with the detainee’s detention under the order; or

(ii)  a complaint to an officer or authority of a State or Territory about the treatment of the detainee by a member of the police force of that State or Territory in connection with the detainee’s detention under the order; or

(iii)  making representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order, or another police officer involved in the detainee’s detention, about the exercise of powers under the order, the performance of obligations in relation to the order or the treatment of the detainee in connection with the detainee’s detention under the order.

Penalty:  Imprisonment for 5 years.

(4)  To avoid doubt, a person does not contravene subsection (3) merely by letting another person know that the detainee is safe but is not able to be contacted for the time being.

(4A)  A person (the parent/guardian) commits an offence if:

(a)  the parent/guardian is a parent or guardian of a person who is being detained under a preventative detention order (the detainee); and

(b)  the detainee has contact with the parent/guardian under section 105.39; and

(c)  while the detainee is being detained under the order, the parent/guardian discloses information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian); and

(d)  when the disclosure is made, the detainee has not had contact with the other parent/guardian under section 105.39 while being detained under the order; and

(e)  the parent/guardian does not, before making the disclosure, inform the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian is proposing to disclose information of that kind to the other parent/guardian.

Penalty:  Imprisonment for 5 years.

(4B)  If:

(a)  a person (the parent/guardian) is a parent or guardian of a person being detained under a preventative detention order (the detainee); and

(b)  the parent/guardian informs the senior AFP member nominated under subsection 105.19(5) in relation to the order that the parent/guardian proposes to disclose information of the kind referred to in paragraph (3)(b) to another parent or guardian of the detainee (the other parent/guardian);

that senior AFP member may inform the parent/guardian that the detainee is not entitled to contact the other parent/guardian under section 105.39.

Note:          The parent/guardian may commit an offence against subsection (2) if the other parent/guardian is a person the detainee is not entitled to have contact with under section 105.39 and the parent/guardian does disclose information of that kind to the other parent/guardian. This is because of the operation of paragraph (3)(c).

Interpreter assisting in monitoring contact with detainee

(5)  A person (the interpreter) commits an offence if:

(a)  the interpreter is an interpreter who assists in monitoring the contact that a person being detained under a preventative detention order (the detainee) has with someone while the detainee is being detained under the order; and

(b)  the interpreter discloses to another person:

(i)  the fact that a preventative detention order has been made in relation to the detainee; or

(ii)  the fact that the detainee is being detained; or

(iii)  the period for which the detainee is being detained; or

(iv)  any information that interpreter obtains in the course of assisting in the monitoring of that contact; and

(c)  the disclosure occurs while the detainee is being detained under the order.

Penalty:  Imprisonment for 5 years.

Passing on improperly disclosed information

(6)  A person (the disclosure recipient) commits an offence if:

(a)  a person (the earlier discloser) discloses to the disclosure recipient:

(i)  the fact that a preventative detention order has been made in relation to a person; or

(ii)  the fact that a person is being detained under a preventative detention order; or

(iii)  the period for which a person is being detained under a preventative detention order; or

(iv)  any information that a person who is being detained under a preventative detention order communicates to a person while the person is being detained under the order; and

(b)  the disclosure by the earlier discloser to the disclosure recipient contravenes:

(i)  subsection (1), (2), (3) or (5); or

(ii)  this subsection; and

(c)  the disclosure recipient discloses that information to another person; and

(d)  the disclosure by the disclosure recipient occurs while the person referred to in subparagraph (a)(i), (ii), (iii) or (iv) is being detained under the order.

Penalty:  Imprisonment for 5 years.

Police officer or interpreter monitoring contact with lawyer

(7)  A person (the monitor) commits an offence if:

(a)  the monitor is:

(i)  a police officer who monitors; or

(ii)  an interpreter who assists in monitoring;

contact that a person being detained under a preventative detention order (the detainee) has with a lawyer under section 105.37 while the detainee is being detained under the order; and

(b)  information is communicated in the course of that contact; and

(c)  the information is communicated for one of the purposes referred to in subsection 105.37(1); and

(d)  the monitor discloses that information to another person.

Penalty:  Imprisonment for 5 years.

Note:          See also subsection 105.38(5).

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.

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    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.

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  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.

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    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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  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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