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:
- You were a police officer who detained a person under a continued preventative detention order, and,
- 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:
- The fact that a continued order had been made in relation to him or her,
- The further period for which he or she may continue to be detained,
- The restrictions regarding contacting other persons,
- The entitlement to make representations to the nominated senior AFP member with a view to having the order revoked,
- 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,
- Any right to give information regarding the application for the order and/or his or her treatment by an AFP member,
- 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,
- 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,
- The entitlement to contact a lawyer, and,
- The name and work telephone number of the nominated senior AFP member.
Duress, self-defence and necessity are legal defences to the charge.