Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 5 - THE SECURITY OF THE COMMONWEALTH  

Part 5.3 - Terrorism  

Division 105 - Preventative detention orders  

Subdivision E - Treatment of person detained  

SECTION 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


(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).




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