TERRORISM (PREVENTATIVE DETENTION) ACT 2005 - SECT 42

TERRORISM (PREVENTATIVE DETENTION) ACT 2005 - SECT 42

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 Act in relation to the person's detention under the order.

Notes—

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).

2         A contravention of this section may be an offence under section 45.

        (2)         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 45.

        (3)         Subsection (2) does not apply if—

            (a)         the questioning occurs to—

                  (i)         ensure the safety and well being of the person being detained; or

                  (ii)         determine whether the person is the person specified in the order; and

            (b)         complying with subsection (2) is not practicable because of the seriousness and urgency of the circumstances in which the questioning occurs.

        (4)         A recording made under subsection (2) must be kept for the period of 12 months after the recording is made.

        (5)         As soon as practicable after a recording is made under subsection (2), the police officer who is detaining the person must give the person a written statement of the person's right to have the videotape or audiotape played over to the person or a lawyer acting for the person in a capacity referred to in section 37 (or both).

        (6)         Arrangements must be made, at the request of a person being detained under a preventative detention order or a person who was so detained, for the playing of the videotape or audiotape at a reasonable time and place to be nominated by a police officer.

        (7)         A person being detained under a preventative detention order or a person who has been so detained must be provided, on request and on payment of the fee fixed by the Minister, with—

            (a)         an audiotape of the soundtrack of a videotape recording made under subsection (2); or

            (b)         a copy of an audiotape recording made under subsection (2).

        (8)         A request under subsection (6) or (7) must be made within 12 months after the recording is made.

        (9)         A person must not play to another person a videotape or audiotape containing questioning recorded under subsection (2) except if the videotape or audiotape is played—

            (a)         for purposes related to the investigation of a complaint made to the Office for Public Integrity; or

            (b)         for the purposes of, or purposes related to, legal proceedings, or proposed legal proceedings, to which the questioning is relevant; or

            (c)         with the permission of a court before which the videotape or audiotape has been tendered in evidence.

Note—

A contravention of this subsection may be an offence under section 45.