(d) a child, step‑child or grandchild of the first person; or
(e) any other person who would be a step‑child or grandchild of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(f) a brother, sister, step‑brother or step‑sister of the first person; or
(g) any other person who would be a brother, sister, step‑brother or step‑sister of the first person if the other person were a child (within the meaning of Part VII of the Family Law Act 1975) of a third person; or
(h) a guardian or carer of the first person.
105.36 Contacting Ombudsman etc.
(1) The person being detained is entitled to contact:
(a) the Commonwealth Ombudsman in accordance with subsections 7(3) to (5) of the Ombudsman Act 1976; or
(b) a person referred to in subsection 40SA(1) of the Australian Federal Police Act 1979 in accordance with section 40SB of that Act.
Note 1: Subsections 7(3) to (5) of the Ombudsman Act 1976 provide for the manner in which a person who is in custody may make a complaint to the Commonwealth Ombudsman under that Act.
Note 2: Section 40SB of the Australian Federal Police Act 1979 provides for the manner in which a person who is in custody may give information under section 40SA of that Act.
(2) If the person being detained has the right, under a law of a State or Territory, to complain to an officer or authority of the 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 order, the person is entitled to contact that officer or authority to make a complaint in accordance with that law.
105.37 Contacting lawyer
(1) The person being detained is entitled to contact a lawyer but solely for the purpose of:
(a) obtaining advice from the lawyer about the person’s legal rights in relation to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person’s detention under the order; or
(b) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, proceedings in a federal court for a remedy relating to:
(i) the preventative detention order; or
(ii) the treatment of the person in connection with the person’s detention under the order; or
(c) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, 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; or
(ca) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, the giving of 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; or
(d) arranging for the lawyer to act for the person in relation to, and instructing the lawyer in relation to, a complaint 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 order; or
(e) arranging for the lawyer to act for the person in relation to an appearance, or hearing, before a court that is to take place while the person is being detained under the order.
(2) The form of contact that the person being detained is entitled to have with a lawyer under subsection (1) includes:
(a) being visited by the lawyer; and
(b) communicating with the lawyer by telephone, fax or email.
(3) If:
(a) the person being detained asks to be allowed to contact a particular lawyer under subsection (1); and
(b) either:
(i) the person is not entitled to contact that lawyer because of section 105.40 (prohibited contact order); or
(ii) the person is not able to contact that lawyer;
the police officer who is detaining the person must give the person reasonable assistance to choose another lawyer for the person to contact under subsection (1).
(3A) If the police officer who is detaining a person under a preventative detention order has reasonable grounds to believe that:
(a) the person is unable, because of inadequate knowledge of the English language, or a disability, to communicate with reasonable fluency in that language; and
(b) the person may have difficulties in choosing or contacting a lawyer because of that inability;
the police officer must give the person reasonable assistance (including, if appropriate, by arranging for the assistance of an interpreter) to choose and contact a lawyer under subsection (1).
(4) In recommending lawyers to the person being detained as part of giving the person assistance under subsection (3) or (3A), the police officer who is detaining the person may give priority to lawyers who have been given a security clearance at an appropriate level by the Australian Government Security Vetting Agency or by another Commonwealth, State or Territory agency that is authorised or approved by the Commonwealth to issue security clearances.
(5) Despite subsection (4) but subject to section 105.40, the person being detained is entitled under this section to contact a lawyer who does not have a security clearance of the kind referred to in subsection (4).
105.38 Monitoring contact under section 105.35 or 105.37
(1) The contact the person being detained has with another person under section 105.35 or 105.37 may take place only if it is conducted in such a way that the contact, and the content and meaning of the communication that takes place during the contact, can be effectively monitored by a police officer exercising authority under the preventative detention order.
(2) The contact may take place in a language other than English only if the content and meaning of the communication that takes place during the contact can be effectively monitored with the assistance of an interpreter.
(3) Without limiting subsection (2), the interpreter referred to in that subsection may be a police officer.
(4) If the person being detained indicates that he or she wishes the contact to take place in a language other than English, the police officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and
(b) if it is reasonably practicable to do so—arrange for those services to be provided as soon as practicable.
(5) Any communication between:
(a) a person who is being detained under a preventative detention order; and
(b) a lawyer;
for a purpose referred to in paragraph 105.37(1)(a), (b), (c), (ca), (d) or (e) is not admissible in evidence against the person in any proceedings in a court.
105.39 Special contact rules for person under 18 or incapable of managing own affairs
(1) This section applies if the person being detained under a preventative detention order:
(a) is under 18 years of age; or
(b) is incapable of managing his or her affairs.
(2) The person is entitled, while being detained under the order, to have contact with:
(a) a parent or guardian of the person; or
(b) another person who:
(i) is able to represent the person’s interests; and
(ii) is, as far as practicable in the circumstances, acceptable to the person and to the police officer who is detaining the person; and
(iii) is not an AFP member; and
(iv) is not an AFP employee (within the meaning of the Australian Federal Police Act 1979); and
(v) is not a member (however described) of a police force of a State or Territory; and
(vi) is not an ASIO employee or an ASIO affiliate.
(3) To avoid doubt:
(a) if the person being detained (the detainee) has 2 parents or 2 or more guardians, the detainee is entitled, subject to section 105.40, to have contact under subsection (2) with each of those parents or guardians; and
(b) the detainee is entitled to disclose the following to a person with whom the detainee has contact under subsection (2):
(i) the fact that a preventative detention order has been made in relation to the detainee;
(ii) the fact that the detainee is being detained;
(iii) the period for which the detainee is being detained.
(4) The form of contact that the person being detained is entitled to have with another person under subsection (2) includes:
(a) being visited by that other person; and
(b) communicating with that other person by telephone, fax or email.
(5) The period for which the person being detained is entitled to have contact with another person each day under subsection (2) is:
(a) 2 hours; or
(b) such longer period as is specified in the preventative detention order.
Note: Paragraph (b)—see subsections 105.8(7) and 105.12(7).
(6) Despite subsection (5), the police officer who is detaining the person may permit the person to have contact with a person under subsection (2) for a period that is longer than the period provided for in subsection (5).
(7) The contact that the person being detained has with another person under subsection (2) must be conducted in such a way that the content and meaning of any communication that takes place during the contact can be effectively monitored by a police officer exercising authority under the preventative detention order.
(8) If the communication that takes place during the contact takes place in a language other than English, the contact may continue only if the content and meaning of the communication in that language can be effectively monitored with the assistance of an interpreter.
(9) Without limiting subsection (8), the interpreter referred to in that subsection may be a police officer.
(10) If the person being detained indicates that he or she wishes the communication that takes place during the contact to take place in a language other than English, the police officer who is detaining the person must:
(a) arrange for the services of an appropriate interpreter to be provided if it is reasonably practicable to do so during the period during which the person is being detained; and
(b) if it is reasonably practicable to do so—arrange for those services to be provided as soon as practicable.
105.40 Entitlement to contact subject to prohibited contact order
Sections 105.35, 105.37 and 105.39 have effect subject to any prohibited contact order made in relation to the person’s detention.
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: