(5) To avoid doubt, a person may be taken to have been released from detention under a preventative detention order even if:
(a) the person is informed that he or she is being released from detention under the order; and
(b) the person is taken into custody, and detained in custody, on some other basis immediately after the person is informed that he or she is being released from detention under the order.
(6) To avoid doubt, a person is taken not to be detained under a preventative detention order during a period during which the person is released from detention under the order.
Note: During this period, the provisions of this Division that apply to a person who is being detained under a preventative detention order (for example, section 105.34 which deals with the people the person may contact) do not apply to the person.
(7) To avoid doubt:
(a) the release of the person under subsection (1) from detention under the preventative detention order does not extend the period for which the preventative detention order remains in force; and
(b) a person released under subsection (1) from detention under a preventative detention order may again be taken into custody and detained under the order at any time while the order remains in force in relation to the person.
Note: Paragraph (a)—this means that the time for which the person may be detained under the order continues to run while the person is released.
105.27 Arrangement for detainee to be held in State or Territory prison or remand centre
(1) A senior AFP member may arrange for a person (the subject) who is being detained under a preventative detention order to be detained under the order at a prison or remand centre of a State or Territory.
(2) If an arrangement is made under subsection (1):
(a) the preventative detention order is taken to authorise the person in charge of the prison or remand centre to detain the subject at the prison or remand centre while the order is in force in relation to the subject; and
(b) section 105.33 applies in relation to the subject’s detention under the order at the prison or remand centre as if:
(i) the person in charge of that prison or remand centre; or
(ii) any other person involved in the subject’s detention at that prison or remand centre;
were a person exercising authority under the order or implementing or enforcing the order; and
(c) the senior AFP member who makes the arrangement is taken, while the subject is detained at the prison or remand centre, to be the AFP member detaining the subject for the purposes of Subdivisions D and E of this Division.
(3) The arrangement under subsection (1) may include provision for the Commonwealth meeting the expenses of the subject’s detention at the prison or remand centre.
Subdivision D—Informing person detained about preventative detention order
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)).
(2) The matters covered by this subsection are:
(a) the fact that the preventative detention order has been made in relation to the person; and
(b) the period during which the person may be detained under the order; and
(c) the restrictions that apply to the people the person may contact while the person is being detained under the order; and
(d) the fact that an application may be made under section 105.11 for an order that the person continue to be detained for a further period; and
(da) the person’s entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and
(e) any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:
(i) the application for, or the making of, the preventative detention order; or
(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; and
(ea) any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:
(i) the application for, or the making of, the preventative detention order; or
(ii) the treatment of the person by an AFP member in connection with the person’s detention under the order; and
(f) any right the person has to complain to an officer or authority of a State or Territory in relation to the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the order; and
(g) the fact that the person may seek from a federal court a remedy relating to:
(i) the order; or
(ii) the treatment of the person in connection with the person’s detention under the order; and
(h) the person’s entitlement under section 105.37 to contact a lawyer; and
(i) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the order.
Note: Paragraph (g)—see section 105.51.
(2A) Without limiting paragraph (2)(c), the police officer detaining the person under the order must inform the person under that paragraph about the persons that he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:
(a) the fact that a prohibited contact order has been made in relation to the person’s detention; or
(b) the name of a person specified in a prohibited contact order that has been made in relation to the person’s detention.
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)).
(2) The matters covered by this subsection are:
(a) the fact that the continued order has been made in relation to the person; and
(b) the further period during which the person may continue to be detained under the continued order; and
(c) the restrictions that apply to the people the person may contact while the person is being detained under the continued order; and
(ca) the person’s entitlement under subsection 105.17(7) to make representations to the senior AFP member nominated under subsection 105.19(5) in relation to the order with a view to having the order revoked; and
(d) any right the person has to make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976 in relation to:
(i) the application for the continued order; or
(ii) the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and
(da) any right the person has to give information under section 40SA of the Australian Federal Police Act 1979 in relation to:
(i) the application for the continued order; or
(ii) the treatment of the person by an AFP member in connection with the person’s detention under the continued order; and
(e) any right the person has to complain to an officer or authority of a State or Territory about the treatment of the person by a member of the police force of that State or Territory in connection with the person’s detention under the continued order; and
(f) the fact that the person may seek from a federal court a remedy relating to:
(i) the continued order; or
(ii) the treatment of the person in connection with the person’s detention under the continued order; and
(g) the person’s entitlement under section 105.37 to contact a lawyer; and
(h) the name and work telephone number of the senior AFP member who has been nominated under subsection 105.19(5) to oversee the exercise of powers under, and the performance of obligations in relation to, the continued order.
Note: Paragraph (f)—see section 105.51.
(2A) Without limiting paragraph (2)(c), the police officer detaining the person under the order must inform the person under that paragraph about the persons that he or she may contact under section 105.35 or 105.39.
(3) Paragraph (2)(c) does not require the police officer to inform the person being detained of:
(a) the fact that a prohibited contact order has been made in relation to the person’s detention; or
(b) the name of a person specified in a prohibited contact order that has been made in relation to the person’s detention.
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)).
105.31 Compliance with obligations to inform
(1) Subsection 105.28(1) or 105.29(1) or section 105.30 does not apply if the actions of the person being detained under the preventative detention order make it impracticable for the police officer to comply with that subsection.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).
(2) The police officer detaining the person under the preventative detention order complies with subsection 105.28(1) or 105.29(1) if the police officer informs the person in substance of the matters covered by subsection 105.28(2) or 105.29(2) (even if this is not done in language of a precise or technical nature).
(3) The police officer who is detaining the person under the preventative detention order must arrange for the assistance of an interpreter in complying with subsection 105.28(1) or 105.29(1) or section 105.30 if the police officer has reasonable grounds to believe that the person is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in that language.
(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.
(5) The lawfulness of a person’s detention under a preventative detention order is not affected by a failure to comply with subsection 105.28(1) or 105.29(1), section 105.30 or subsection (3) of this section.
105.32 Copy of preventative detention order
(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 give the person a copy of the order.
(3) Despite subsection 105.19(2), a police officer does not need to have a copy of the order with him or her, or to produce a copy of the order to the person being taken into custody, when the police officer takes the person into custody.
(4) As soon as practicable after a continued preventative detention order is made in relation to a person in relation to whom an initial preventative detention order is in force, the police officer who is detaining the person under the initial preventative detention order, or the continued preventative detention order, must give the person a copy of the continued preventative detention order.
(5) As soon as practicable after a preventative detention order is extended, or further extended, under section 105.10 or 105.14, the police officer who is detaining the person under the preventative detention order must give the person a copy of the extension or further extension.
(6) A person who is being detained under a preventative detention order may request a police officer who is detaining the person to arrange for a copy of:
(a) the order; or
(c) any extension or further extension of the order under section 105.10 or 105.14;
to be given to a lawyer acting for the person in relation to the order.
Note 1: Section 105.37 deals with the person’s right to contact a lawyer and the obligation of the police officer detaining the person to give the person assistance to choose a lawyer.
Note 2: Section 105.40 prevents the person from contacting a lawyer who is specified in a prohibited contact order.
(7) The police officer must make arrangements for a copy of the order, or the extension or further extension, to be given to the lawyer as soon as practicable after the request is made.
(8) Without limiting subsection (7), the copy of the order, or the extension, may be faxed or emailed to the lawyer.
(9) To avoid doubt, subsection (7) does not entitle the lawyer to be given a copy of, or see, a document other than the order, or the extension or further extension.
(10) Nothing in this section requires a copy of a prohibited contact order to be given to a person.
(11) The police officer who gives:
(a) the person being detained under an initial preventative detention order; or
(b) a lawyer acting for the person;
a copy of the initial preventative detention order under this section must endorse on the copy the date on which, and time at which, the person was first taken into custody under the order.
(12) The lawfulness of a person’s detention under a preventative detention order is not affected by a failure to comply with subsection (1), (4), (5), (7) or (11).
Subdivision E—Treatment of person detained
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.
105.34 Restriction on contact with other people
Except as provided by sections 105.35, 105.36, 105.37 and 105.39, while a person is being detained under a preventative detention order, the person:
(a) is not entitled to contact another person; and
(b) may be prevented from contacting another person.
Note 1: This section 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 person’s entitlement to contact other people under sections 105.35, 105.37 and 105.39 may be subject to a prohibited contact order made under section 105.15 or 105.16 (see section 105.40).
105.35 Contacting family members etc.
(1) The person being detained is entitled to contact:
(a) one of his or her family members; and
(b) if he or she:
(i) lives with another person and that other person is not a family member of the person being detained; or
(ii) lives with other people and those other people are not family members of the person being detained;
that other person or one of those other people; and
(c) if he or she is employed—his or her employer; and
(d) if he or she employs people in a business—one of the people he or she employs in that business; and
(e) if he or she engages in a business together with another person or other people—that other person or one of those other people; and
(f) if the police officer detaining the person being detained agrees to the person contacting another person—that person;
by telephone, fax or email but solely for the purposes of letting the person contacted know that the person being detained is safe but is not able to be contacted for the time being.
(2) To avoid doubt, the person being detained is not entitled, under subsection (1), to disclose:
(a) the fact that a preventative detention order has been made in relation to the person; or
(b) the fact that the person is being detained; or
(c) the period for which the person is being detained.
(3) In this section:
family member of a person (the first person) means:
(a) the first person’s spouse or de facto partner; or
(b) a parent, step‑parent or grandparent of the first person; or
(c) any other person who would be a parent, step‑parent or grandparent of the first person if the first person were a child (within the meaning of Part VII of the Family Law Act 1975) of the other person or a third person; or