Contents
Part 1 · Preliminary
4Schedule 1#
Schedule 1 to this instrument sets out forms for the purposes of certain provisions of the Act or this instrument.
7Definitions#
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) authorised officer;
(b) detainee;
(c) detention centre;
(d) officer;
(e) service chief.
In this instrument:
approved staff member of a detention centre means a person appointed under subsection 22(1) as an approved staff member of the detention centre.
approved tester means a person appointed under section 31 as an approved tester.
area detention centre means a detention centre that is of a standard that the Chief of Defence Force, service chief or an authorised officer considers suitable for detaining a detainee for a period not exceeding 14 days.
contraband includes any substance or item, other than money, the possession of which by a detainee is not permitted by or under the Act.
corrective detention centre means a detention centre that is of a standard that the Chief of Defence Force, service chief or an authorised officer considers suitable for detaining a detainee for any period.
day of religious observance for a detainee means:
(a)a day of religious observance for the detainee’s religion; or
(b)Sunday.
designated officer means an officer, a service police warrant officer or a service police non-commissioned officer.
letter means a card, document or other form of written communication and includes an envelope containing any of those things.
member of the staff of a detention centre has the same meaning as in Part XA of the Act.
parcel means a package or other similar article.
speed measuring device means a laser-based device for measuring the speed of conveyances.
unit detention centre means a detention centre that is of a standard that the Chief of Defence Force, service chief or an authorised officer considers suitable for detaining a detainee for a period not exceeding 7 days.
visiting officer means an officer appointed under section 17 as a visiting officer for an area detention centre or corrective detention centre.
Part 1A · Service offences
7APrescribed quantity for prohibited drugs#
For the purposes of the definition of prescribed quantity in subsection 59(9) of the Act, the prescribed quantity for a prohibited drug is the quantity that is listed as a marketable quantity of the drug in regulations made for the purposes of section 301.11 of the Criminal Code.
Part 1B · Sentencing principles
Part 1C · Investigation information
7DHandling of sensitive material for the purposes of proceedings before a service tribunal#
(1) This section is made for the purposes of subsection 101ZBB(1) of the Act.
Sensitive material notice
(2)The Director of Military Prosecutions, after receiving an application from an accused person for inspection of exhibits, may object to the accused person copying information, a document or thing which the Director reasonably believes to be sensitive material.
(3)If, but for subsection (2), the prosecution would be required under the Act to provide a copy of the information, document or thing to the accused person, and the prosecution does not give a copy of the information, document or thing to the accused person as a result of subsection (2), the prosecution must give the accused person a written notice (sensitive material notice) that complies with subsection (4).
(4)The sensitive material notice must:
(a)describe the information, document or thing that the Director reasonably believes to be sensitive material; and
(b)indicate that as the Director reasonably believes that the information, document or thing is sensitive material, the prosecution is not required to give the accused person a copy of the information, document or thing; and
(c)indicate the reasons why the Director reasonably believes the information, document or thing to be sensitive material; and
(d)indicate that the accused person will not be given a copy of the information, document or thing; and
(e)contain information to the effect that the accused person is entitled to view or listen to the information, document or thing at a place nominated by the prosecution and subject to conditions the prosecution deems reasonably appropriate; and
(f)set out the name and contact details of the person who is responsible for arranging the viewing of, or listening to, the information, document or thing on behalf of the prosecution.
Access request notice
(5)After receiving a sensitive material notice, the accused person may give the prosecution a written notice (access request notice) that indicates that the accused person requires access to the information, document or thing.
(6)The prosecution must, as soon as practicable after receiving an access request notice, give reasonable access (which may be given on more than one occasion) to the information, document or thing to:
(a)the accused person; and
(b)any other person who has been engaged to assist with the accused person’s case;
so as to enable the accused person or the person who has been engaged to assist with the accused person’s case to view or listen to (but not copy or otherwise reproduce) the information, document or thing.
Conditions on access
(7)The prosecution may require any such access to take place subject to such conditions as the prosecution considers appropriate that would not otherwise prevent the accused person from providing instructions to their legal representative privately whilst viewing, listening or having access to the information, document or thing, to ensure that:
(a)legal professional privilege is maintained; and
(b)there is no unauthorised reproduction or circulation of the information, document or thing; and
(c)the integrity of the information, document or thing is protected.
(8)Without limiting subsection (7), the prosecution may require any such access to take place under the supervision of the prosecution or a person assisting the prosecution.
(9)A person who is given access to the information, document or thing by the prosecution under subsection (6) must not, without the authority of the prosecution:
(a)copy or otherwise reproduce, or permit a person to copy or reproduce, the information, document or thing; or
(b)give the information, document or thing to another person; or
(c)remove the information, document or thing from the custody of the prosecution.
Application to the Registrar
(10)Any of the following people may make an application for a ruling by the Registrar on inspection or copying the information, document or thing that the Director reasonably believes to be sensitive material:
(a)the Director;
(b)the accused person;
(c)any other person who has been engaged to assist with the accused person’s case;
(d)a person to whom the material relates.
7ECertification of information#
For the purposes of subsection 101ZBC(4) of the Act, certification of information provided to the Director of Military Prosecutions by an investigating officer must be:
(a)in a form approved by the Judge Advocate General; and
(b)completed, signed and dated by the investigating officer.
Part 2 · Detainees and detention centres
Division 1 · Application
8Application of Part#
(1)For the purposes of paragraph 178D(b) of the Act, this Part makes provision for, and in relation to, the conduct and administration of detention centres.
(2)However, the requirements of this Part apply only in relation to a detention centre that is under the control of a part of the Defence Force whose members are on active service if, and to the extent that, the exigencies of service permit.
Division 2 · General administration and classification of detention centres
9Periods of detention#
(1)A person who is sentenced to detention in a detention centre for a period must not be detained:
(a)if the period exceeds 7 days—in a unit detention centre; or
(b)if the period exceeds 14 days—in an area detention centre.
(2)For the purposes of subsection (1):
(a)if a detainee is sentenced to 2 or more concurrent periods of detention—the period of detention is taken to be the longer or longest of those periods; or
(b)if a detainee is sentenced to 2 or more periods of detention to be served consecutively—the period of detention is taken to be equal to the sum of those periods.
10Duties of officer in charge of detention centre#
(1)The officer in charge of a detention centre is responsible to the officer’s immediate superior officer for the management, control and security of the detention centre and the welfare of all detainees in the detention centre.
(2)The officer in charge of a detention centre must:
(a)cause each detainee to be interviewed as soon as practicable after the detainee is admitted to the detention centre; and
(b)cause to be brought to the attention of each detainee such of the provisions of this instrument and the general orders as are applicable to the detainee in relation to the detainee’s detention in the detention centre.
(3)The officer in charge of a detention centre must:
(a)as far as practicable, visit each part of the detention centre and each detainee in the detention centre every day; and
(b)visit and inspect the detention centre at least once each week at night at a time not known in advance by any other person in the detention centre; and
(c)ensure that the treatment of detainees in the detention centre is consistent with their rehabilitation for further naval, military or air force service.
11Accommodation of detainees#
(1)Each detainee must, as far as practicable, be accommodated in a separate cell.
(2)If it is not practicable to provide each detainee with a separate cell, there must be at least 3 detainees accommodated in each cell containing more than one detainee.
(3)Each detainee must be provided with a separate bed.
(4)Each cell in a detention centre must:
(a)be of such a size, and have such heating, lighting, ventilation and equipment, as is necessary for the preservation of the physical and mental health of a detainee; and
(b)have a means of enabling a detainee to express at any time a wish to communicate with a member of the staff of the detention centre.
12Cleanliness#
A detainee must be provided with facilities to enable the detainee to maintain proper standards of cleanliness and clothing.
13Meals#
(1)A detainee must be provided each day with food of such type and in such quantities as is ordinarily provided to other defence members.
(2)A detainee may, subject to any relevant general order, purchase food in addition to that provided in accordance with subsection (1).
14Purchases#
A detainee in a detention centre may make such purchases, in addition to any purchases made by the detainee in accordance with section 13, as the officer in charge of the detention centre thinks fit.
15Exercise#
A detainee who:
(a)is under punishment of segregated confinement; or
(b)is under punishment of confinement to cell; or
(c)who is directed to work indoors within a detention centre in which the detainee is detained;
must, if practicable, be permitted to exercise daily in open air.
16News media#
A detainee in a detention centre must be permitted to have access to any news media the officer in charge of the detention centre thinks reasonable.
17Visiting officers#
An authorised officer must in writing appoint, in respect of each area detention centre or corrective detention centre, at least one officer to be a visiting officer for the area detention centre or corrective detention centre.
18Duties of visiting officers#
A visiting officer for an area detention centre or corrective detention centre must:
(a)visit and inspect the area detention centre or corrective detention centre at such times, or at such intervals, as an authorised officer directs; and
(b)as far as practicable, visit all detainees in the area detention centre or corrective detention centre and hear any complaints or requests those detainees wish to make; and
(c)give a report to the proper authority after each visit and inspection made in accordance with paragraph (a); and
(d)do the following in relation to any complaint made to the visiting officer by a detainee in the area detention centre or corrective detention centre:
(i)make a record of the complaint;
(ii)make such inquiries into the complaint as are reasonable;
(iii)report the complaint and the result of those inquiries to the proper authority.
19Visits#
(1)Subject to this section, a detainee in a detention centre must be permitted, at reasonable times, to receive visits from any of the following:
(a)if the detention centre is an area detention centre or corrective detention centre—a visiting officer for that centre;
(b)a medical officer;
(c)a chaplain;
(d)a legal practitioner;
(e)a police member;
(f)a constable.
(2)Subject to this section, the detainee must be permitted, at reasonable times, to receive visits from persons other than persons referred to in subsection (1).
(3)A permission given under subsection (2) may be given subject to such reasonable conditions as the officer in charge of the detention centre thinks fit.
(4)A visit to a detainee in a detention centre permitted under this section must take place out of the hearing, but within the sight, of a member of the staff of the detention centre.
(5)If the officer in charge of a detention centre reasonably believes that a visitor to a detention centre is likely to endanger or interfere with the security or discipline of the detention centre, the officer in charge may:
(a)refuse the visitor entry to the detention centre; or
(b)cause the visitor to be removed from the detention centre.
(6)The officer in charge of a detention centre may use such reasonable force as is necessary to give effect to a refusal or removal under subsection (5).
20Religion#
A detainee in a detention centre must, as far as is reasonable, be permitted to:
(a)engage in the normal activities of his or her religion; and
(b)have in his or her possession, or have access to, books and objects used in the practice of his or her religion.
21Performing work#
(1)Subject to this section, the officer in charge of a detention centre may direct a detainee in the detention centre to perform work of a kind that it is reasonable to expect the detainee to perform.
(2)A direction under subsection (1) must, if practicable, require the detainee to perform at least 6 hours of work each day but must not require the detainee to perform more than 9 hours of work each day.
(3)In directing the detainee to perform particular work, the officer in charge of the detention centre must take into account:
(a)the religion of the detainee; and
(b)the mental and physical capacity of the detainee.
(4)The detainee must not be directed to perform work:
(a)that, in the opinion of a medical practitioner, would be likely to be detrimental to the physical or mental health of the detainee; or
(b)on Christmas Day, Good Friday or a day of religious observance for the detainee, other than such work as is necessary for the continued daily operation of the detention centre; or
(c)otherwise than for the benefit of the Commonwealth.
Division 3 · Letters, emails and parcels
22Staff members approved to deal with letters, emails and parcels#
(1)The officer in charge of a detention centre may, in writing, appoint a member of the staff of the detention centre to be an approved staff member of the detention centre for the purposes of this Division.
(2)The officer in charge of a detention centre or an approved staff member of a detention centre may, subject to this Division:
(a)open, inspect and read any letter sent to, or proposed to be sent by, a detainee in the detention centre; and
(b)if a detainee in the detention centre wishes to access or read any email sent to the detainee—access, inspect and read the email; and
(c)access, inspect and read any email proposed to be sent by a detainee in the detention centre; and
(d)open and inspect any parcel sent to, or proposed to be sent by, a detainee in the detention centre.
23Sending and receiving letters, emails and parcels#
(1)Subject to subsections (3) to (9) and section 24, a detainee may send letters, emails or parcels to, and receive letters, emails or parcels from, persons who are not detained, if the detainee agrees to those letters, emails or parcels being accessed, opened, inspected or read in accordance with this Division.
(2)If the detainee agrees and is in a detention centre, the detainee must be permitted to send:
(a)immediately on being admitted to the detention centre—2 letters or emails; and
(b)in every week of detention in the detention centre—2 letters or emails; and
(c)any additional letters or emails the officer in charge of the detention centre permits.
Letters and emails addressed to certain persons—to be sent by detainee
(3)Subsections (4) and (5) apply if a detainee presents to the officer in charge of a detention centre, or an approved staff member of the detention centre, a letter or email addressed by the detainee to:
(a)the Defence Force Ombudsman; or
(b)the Inspector-General ADF; or
(c)a member of Parliament; or
(d)a legal practitioner; or
(e)an authorised officer.
(4)The officer in charge must cause the letter, or permit the email, to be sent to the addressee.
(5)The letter or email must not be:
(a)in the case of a letter—opened, inspected or read; or
(b)in the case of an email—accessed, inspected or read;
other than by the person to whom the letter or email is addressed or some other person authorised by that person.
Letters and emails addressed by certain persons—sent to detainee
(6)A letter or email from the Defence Force Ombudsman or Inspector-General ADF that has been, or purports to have been, addressed to a detainee must not be:
(a)in the case of a letter—opened, inspected or read; or
(b)in the case of an email—accessed, inspected or read;
other than by the detainee or another person authorised by the detainee.
Privileged letters and emails—sent to detainee
(7)Subject to subsection (8), if a member of Parliament or a legal practitioner sends a detainee a letter or email (the first communication) that is accompanied by another letter or email addressed to the officer in charge of the detention centre indicating that privilege is claimed in respect of the first communication, the first communication must not be:
(a)if the first communication is a letter—opened, inspected or read; or
(b)if the first communication is an email—accessed, inspected or read;
by any person other than the detainee or another person authorised by the detainee.
(8)If the officer in charge of a detention centre or an approved staff member of the detention centre reasonably believes that the first communication may contain material referred to in subsection (9):
(a)the detainee may be required to open, or otherwise provide access to, the first communication in the presence of the officer in charge or the approved staff member; and
(b)if the first communication contains material referred to in that subsection—the officer in charge or the approved staff member may impound, or otherwise restrict the detainee from accessing, the material.
(9)For the purposes of subsection (8), the material is any of the following:
(a)money;
(b)contraband;
(c)any attachment, item or matter that is likely to adversely affect the security, discipline or good order of the detention centre.
24Letters, emails and parcels likely to adversely affect security, discipline or good order of a detention centre#
(1)This section applies if the officer in charge of a detention centre or an approved staff member of the detention centre reasonably believes that the security, discipline or good order of the detention centre is likely to be adversely affected by the delivery to, or despatch from, a detainee of any letter, email or parcel.
(2)Subject to subsections 23(3) to (9), the officer in charge or the approved staff member of the detention centre may:
(b)impound, or otherwise restrict the detainee from accessing or sending, any money, contraband or any attachment, item or matter found in the letter, email or parcel that, in the opinion of the officer in charge, may adversely affect the security, discipline or good order of the detention centre.
(3)The officer in charge must inform the detainee if any money, contraband or other attachment, item or matter is impounded or otherwise restricted from being accessed or sent under paragraph (2)(b).
25Material impounded or restricted from being accessed or sent under this Division#
Any material impounded or restricted from being accessed or sent under paragraph 23(8)(b) or 24(2)(b) may be dealt with in accordance with any directions that may be given by the Chief of the Defence Force, a service chief or an authorised officer.
Part 3 · Remission and release
26Application of Part#
For the purposes of section 178D of the Act, this Part makes provision for and in relation to:
(a)the remission of punishments of detention of detainees; and
(b)the conduct and administration of detention centres.
27Remission#
(1)Subject to this section, a detainee who is serving a period of detention of not less than 28 days is entitled to a remission of one-quarter of the period of detention.
(2)If the remission of a period of detention would, apart from this subsection, reduce the period of detention to less than 24 days, the period of detention is to be remitted to a period of 24 days.
(3)If a custodial punishment is imposed on a detainee, the period of remission to which the detainee would, apart from this subsection, be entitled, must be reduced:
(a)for each day of the punishment of segregated confinement served by the detainee—by 3 days; or
(b)for each day of the punishment of confinement to a cell served by the detainee—by 2 days; or
(c)for each day of the punishment of extra drill served by the detainee—by 1 day; or
(d)for continuous or discontinuous periods of the punishment of restriction of custodial privileges which in the aggregate amount to more than 7 days—by 1 day for each such period of not less than 7 days.
(4)If a punishment of a period of detention is imposed on a detainee in respect of an offence committed during a period of detention, the detainee is not entitled to remission in respect of the latter period of detention.
28Release#
(1)If, apart from this section, a period of punishment of a detainee in a detention centre by remission or otherwise would expire on a Sunday or public holiday (the expiry day), the officer in charge of the detention centre may remit so much of the unexpired period of detention as would enable the detainee to be released on the last day preceding the expiry day that is not a Sunday or public holiday.
(2)A detainee may be released at any time during the period of 24 hours immediately preceding the expiration of the detainee’s period of detention.
Part 4 · Rules of evidence
Division 1 · Evidence of speed of conveyances
29Application of Division#
For the purposes of subsection 146(2) of the Act, this Division makes rules of evidence to be applied in relation to trials by a court martial or Defence Force magistrate.
30Evidence of speed of conveyances—use of speed measuring devices#
(1)This section applies in relation to proceedings before a court martial or Defence Force magistrate for an offence against section 40A of the Act.
(2)Evidence of the speed of the conveyance as measured at a particular time by means of a speed measuring device is evidence of the speed of the conveyance at that time if the court martial or Defence Force magistrate, as the case may be, is satisfied that:
(a)the speed measuring device was tested, not more than 12 months before that time, by an approved tester in accordance with:
(i)Australian Standard AS 4691.2, as in force or existing at the time of testing; and
(ii)any specifications of the manufacturer of the device, as in force or existing at the time of testing; and
(b)the device was, upon completion of that test, sealed by an approved tester in accordance with:
(i)Australian Standard AS 4691.1, as in force or existing at the time of testing; and
(ii)any specifications of the manufacturer of the device, as in force or existing at the time of testing; and
(c)at that time the device was operated by a police member in accordance with Australian Standard AS 4691.2, as in force or existing at the time of testing.
(3)For the purposes of subsection (2), the production to a court martial or Defence Force magistrate of a certificate in accordance with Form 1, 2 or 3 in Schedule 1 to this instrument is prima facie evidence of the facts stated in the certificate.
31Approved tester#
An authorised officer who holds at least the Navy rank of captain, the Army rank of colonel or the Air Force rank of group captain may appoint, by instrument in accordance with Form 1 in Schedule 1 to this instrument, an electrical engineer or an electronic technician as an approved tester for the purposes of this Division.
32Certificates#
(1)If an approved tester tests a speed measuring device, the approved tester must complete a certificate in relation to the test in accordance with Form 2 in Schedule 1 to this instrument.
(2)If a police member operates a speed measuring device, the police member must complete a certificate in relation to the operation in accordance with Form 3 in Schedule 1 to this instrument.
33Offence in relation to speed measuring devices#
A person commits an offence if:
(a)the person engages in conduct; and
(b)the person’s conduct damages, or tampers or interferes with, a sealed speed measuring device.
Penalty: 2 penalty units.
Division 2 · Other rules of evidence
34Admissibility of evidence adduced before summary authority#
(1)For the purposes of subsection 111A(2) of the Act, evidence in relation to a charge adduced in proceedings before a summary authority for the purposes referred to in subsection 111A(1) of the Act is admissible in evidence if:
(a)the summary authority is satisfied that it would not be unfair to the person charged to admit that evidence; and
(b)that person consents to the evidence being admitted.
(2)For the purposes of subsection 111A(2) of the Act, in proceedings before a summary authority in relation to a charge, a record of the evidence adduced in proceedings in relation to that charge before a summary authority for the purposes referred to in subsection 111A(1) of the Act is admissible in evidence if:
(a)the summary authority is satisfied that it would not be unfair to the person charged to admit that record; and
(b)that person consents to the record being admitted.
35Evidence of general orders#
For the purposes of subsection 146(2) of the Act, in proceedings before a court martial or Defence Force magistrate, a document certified by an authorised officer to be a copy of a general order is prima facie evidence of the order.
36Modification of the Evidence Act 2011 (ACT) in its application to proceedings before a court martial or Defence Force magistrate#
For the purposes of subsection 146(2) of the Act, section 1 of Part 2 of the Dictionary in the Evidence Act 2011 (ACT), as in force from time to time, has effect, in relation to proceedings before a court martial or Defence Force magistrate, as if the following paragraph were added at the end of subsection (1) of that section:
(g)the control, operation and administration of the Defence Force.
36AUse of audiovisual recordings in proceedings before a court martial or Defence Force magistrate#
(1)For the purposes of subsection 146(2) of the Act, Division 4.3.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), as in force from time to time, has effect, in relation to proceedings before a court martial or Defence Force magistrate as if:
(a)a reference to a prescribed person were a reference to an investigating officer; and
(b)a reference to a relevant proceeding included a reference to a proceeding relating to:
(i)a serious violent or sexual offence; or
(ii)family and domestic violence (within the meaning of the Fair Work Act 2009).
(2)For the purposes of subsection 146(2) of the Act, this section applies in relation to proceedings commenced on or after the commencement of this section, whether the conduct engaged in occurred before, on or after that commencement.
36BModification of ACT evidence laws in relation to charges tried with a court martial panel#
(1)For the purposes of subsection 146(2) of the Act, the Evidence Act 2011 (ACT) and the Evidence (Miscellaneous Provisions) Act 1991 (ACT), as in force from time to time, have effect, in relation to proceedings before a court martial as if a reference to a jury were a reference to a court martial panel.
(2)For the purposes of subsection 146(2) of the Act, this section applies in relation to proceedings commenced on or after the commencement of this section, whether the conduct engaged in occurred before, on or after that commencement.
Part 5 · Miscellaneous
37Calculation of daily rate of pay of convicted person#
For the purposes of paragraph 3(9)(a) of the Act, the amount that is to be taken, for the purposes of the Act, to be the amount of daily rate of pay applicable in relation to a class of persons in which a convicted person is included is:
(a)if, on the day on which the person is convicted, a determination is in force under section 58H of the Defence Act 1903 in relation to that class of persons—the amount of daily rate of pay payable, in accordance with that determination, to a person included in that class of persons on that day; or
(b)otherwise—the amount of daily rate of pay payable, in accordance with a determination in force under section 58B of the Defence Act 1903, to a person included in that class of persons on that day.
38Chaplains—notional ranks#
For the purposes of subsection 6(2) of the Act, in matters relating to the discipline of a member of the Defence Force who is a chaplain of a kind referred to in column 1 of an item of the table, the chaplain is notionally taken to hold:
(a)the rank in the Navy specified in column 2 of the table for that item; and
(b)the rank in the Army specified in column 3 of the table for that item; and
(c)the rank in the Air Force specified in column 4 of the table for that item.
| Chaplains and corresponding ranks | ||||
|---|---|---|---|---|
| Item | Column 1Chaplain | Column 2Navy rank | Column 3Army rank | Column 4Air Force rank |
| 1 | Chaplain Division 5 | Commodore | Brigadier | Air Commodore |
| 2 | Chaplain Division 4 | Captain | Colonel | Group Captain |
| 3 | Chaplain Division 3 | Commander | Lieutenant Colonel | Wing Commander |
| 4 | Chaplain Division 2 | Lieutenant Commander | Major | Squadron Leader |
| 5 | Chaplain Division 1 | Lieutenant | Captain | Flight Lieutenant |
40Form of oath or affirmation#
For the purposes of subsections 86A(2) and 101AA(2) of the Act, the prescribed form of oath or affirmation is Form 4 in Schedule 1 to this instrument.
41Service of summonses and notices#
For the purposes of subsections 87(4), 88(2), 98(6) and 99(3) of the Act, a summons or notice must be served on a person (the first person):
(a)by delivering the summons or notice to the first person personally; or
(b)in the case of a notice—by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the first person last known to the person serving the notice; or
(c)by leaving the summons or notice at the last known place of residence of the first person with some person apparently resident at that place and apparently not less than 16 years of age; or
(d)by leaving the summons or notice at:
(i)if the first person is carrying on business at 2 or more places—at one of those places with some person apparently in the service of the first person and apparently not less than 16 years of age; or
(ii)otherwise—the last known place of business of the first person; or
(e)by personally delivering the summons or notice to a legal officer or legal practitioner who represents the first person; or
(f)if the first person has an email address provided to the first person as a member of the Defence Force—by sending the summons or notice to that address.
42Power of arrest#
(1)For the purposes of paragraph 89(2)(d) of the Act:
(a)a police member who is not an officer; or
(b)a person, who is not an officer, lawfully exercising authority under or on behalf of a service police officer;
does not have a power of arrest over an officer in relation to a service offence unless one or more of the conditions specified in subsection (2) are satisfied.
(2)The following conditions are specified:
(a)the service offence involves disorderly or violent behaviour;
(c)the reason for the arrest is the exigencies of service.
(3)For the purposes of paragraph 89(2)(d) of the Act:
(a)a police member who is not a designated officer; or
(b)a person, who is not a designated officer, lawfully exercising authority under or on behalf of a service police officer;
does not have a power of arrest over a defence civilian.
43Form of caution#
A caution under paragraph 101D(1)(a) of the Act must be in the form set out in Form 5 in Schedule 1 to this instrument.
45Form of acknowledgement of record of interview#
For the purposes of paragraph 101K(3)(a) of the Act, a record of interview of an accused is acknowledged in the prescribed manner if:
(a)if the record of interview is not more than one page—the accused signs an acknowledgement endorsed at the bottom of that page that the record is a full and correct record; or
(b)otherwise—the accused signs an acknowledgement endorsed at the bottom of the last page of the record that the record is a full and correct record and signs at the bottom of each other page.
46Form of certificate for purposes of sub-subparagraph 101K(4)(d)(ii)(B) of the Act#
For the purposes of sub-subparagraph 101K(4)(d)(ii)(B) of the Act, the prescribed form of certificate is Form 6 in Schedule 1 to this instrument.
47Form of explanation for purposes of paragraph 101K(4)(e) of the Act#
For the purposes of paragraph 101K(4)(e) of the Act, the prescribed form of explanation is Form 7 in Schedule 1 to this instrument.
48Prescribed class of persons for purposes of paragraph 101K(14)(a) of the Act#
For the purposes of paragraph 101K(14)(a) of the Act, a prescribed class of persons is members of the Defence Force who:
(a)are not police members; and
(b)hold at least the Navy rank of petty officer or the Army or Air Force rank of sergeant; and
(c)hold a rank that is at least equal to the rank of the relevant investigating officer referred to in subsection 101K(1) of the Act.
49Form of acknowledgement for purposes of subsection 101N(2) of the Act#
For the purposes of subsection 101N(2) of the Act, the prescribed form of acknowledgement is Form 8 in Schedule 1 to this instrument.
50Form of acknowledgement for purposes of subsection 101ZA(2) of the Act#
For the purposes of subsection 101ZA(2) of the Act, the prescribed form of acknowledgement is Form 9 in Schedule 1 to this instrument.
51Prescribed service offences for purposes of paragraph 104(b) of the Act#
For the purposes of paragraph 104(b) of the Act, each of the following service offences is prescribed:
(a)a service offence that is punishable by imprisonment for more than 2 years, other than:
(i)an offence against subsection 43(1), or section 47C, 47P, 47Q, 48 or 52, of the Act; or
(ii)an offence that is an ancillary offence in relation to an offence referred to in subparagraph (i) of this paragraph;
(b)an offence against section 18, 36, 39 or 58 of the Act.
53Record of previous convictions#
(1)For the purposes of facilitating compliance with subsection 70(2) of the Act, the Chief of the Defence Force, a service chief or an authorised officer must, in respect of each member of the Defence Force, cause to be kept a record of the convictions of the member for service offences, civil court offences and overseas offences.
(2)The Chief of the Defence Force, a service chief or an authorised officer must, at the request of a member of the Defence Force, cause to be made available to the member a copy of any record kept under this section in respect of that member.
Part 6 · Transitional provisions
Division 1 · Provisions for this instrument as originally made
54Things done under the Defence Force Discipline Regulations1985#
(1)If:
(a)a thing was done for a particular purpose under the Defence Force Discipline Regulations 1985, as in force immediately before the commencement of this instrument; and
(b)the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done under this instrument.
(2)Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice, approval or other instrument being given or made.
Division 2 · Provisions for the Defence Force Discipline Amendment (RCDVS Implementation and Related Measures) Regulations 2026
55Appointment of approved staff members#
An appointment that was in force under subsection 22(1) of this instrument immediately before the commencement of this section continues in force (and may be dealt with) on and after that commencement as if it had been made under subsection 22(1) of this instrument as substituted by Schedule 1 to the Defence Force Discipline Amendment (RCDVS Implementation and Related Measures) Regulations 2026.
Schedule 1 · Forms
Form 1 · Appointment of approved tester
Note: See section 31.
Commonwealth of Australia
Defence Force Discipline Act 1982
(full name)
I,....................................................., a
(rank)
................................................... in the
(force)
................................................... ,
acting under section 31 of the Defence Force Discipline Regulations 2018, hereby appoint
(full name)
...........................................................,
an electrical engineer* /electronic technician*, as an approved tester for the purposes of that instrument.
| (Signature) | |
| ......................... | |
| (Rank) | |
| ......................... | |
| (Date) | |
| ......................... |
*Strike out whichever is inapplicable.
Form 2 · Certificate of testing of speed measuring device (valid for 12 months)
Note: See subsection 32(1).
Commonwealth of Australia
Defence Force Discipline Act 1982
(full name)
I,.............................................................
certify that:
(a) I have been appointed as an approved tester for the purposes of section 31 of the Defence Force Discipline Regulations 2018, and to the best of my knowledge and belief that appointment has not been revoked; and
(b) I have this day tested a speed measuring device of the following type:
(type of device)
................................................................................................................................. and bearing the following identification number or symbols:
(identification number or symbols)
..........................................................................................................................; and
(c) I tested the speed measuring device in accordance with paragraph 30(2)(a) of that instrument; and
(d) upon completion of the test, I sealed the speed measuring device in accordance with paragraph 30(2)(b) of that instrument.
| (Signature) | |
| ......................... | |
| Approved tester | |
| (Date) | |
| ......................... |
Form 3 · Certificate of having operated a speed measuring device
Note: See subsection 32(2).
Commonwealth of Australia
Defence Force Discipline Act 1982
(full name)
I,........................................................ ,
certify that:
(a) I am a police member for the purposes of the above Act; and
(time of day)
(b) I have this day at.....................................................................................................at
(place of operation)
..................................................................................................................................
operated a speed measuring device within the meaning of section 7 of the Defence Force Discipline Regulations 2018, bearing identification number or symbols
(identification number or symbols)
................................................................, in accordance with paragraph 30(2)(c) of that instrument; and
(c) while I so operated the speed measuring device I measured the speed of a conveyance of the make
(make of conveyance)
................................................................................................................................. (registration number)
and bearing registration number..................................................................................
and that the speed at which that conveyance was then moving, as displayed on the digital speed
(speed)
display of the device, was...........................................................................................
kilometres per hour; and
(d) as soon as was practicable I recorded that speed and that make and registration number, and the speed, make and registration number stated in this certificate conform with the speed, make and registration number that I so recorded.
| (Signature) |
| ................................................. |
| Police member |
| (Date) |
| ................................................ |
Form 4 · Form of oath and affirmation
Note: See section 40.
1 Form of oath
I swear by Almighty God that the information I am about to give shall be the truth, the whole truth and nothing but the truth.
2 Form of affirmation
I do solemnly, sincerely and truly declare and affirm that the information I am about to give shall be the truth, the whole truth and nothing but the truth.
Form 5 · Caution to person charged or summoned
Note: See section 43.
Commonwealth of Australia
Defence Force Discipline Act 1982
Pursuant to section 101D of the Defence Force Discipline Act 1982, you are cautioned that:
(a) you are not obliged to, but you may if you wish, answer any questions, or do anything, asked of you by an investigating officer, and anything said or done by you may be used in evidence; and
(b) you may communicate with a legal practitioner and have, as provided by Part VI of that Act, the assistance of a legal practitioner while you are being questioned; and
(c) you may, as provided in Part VI of that Act, communicate with a relative or friend.
Form 6 · Certificate of appropriate witness
Note: See section 46.
Commonwealth of Australia
Defence Force Discipline Act 1982
I,.........................of............................
(Name of appropriate witness) (Residential address of appropriate
witness)
in the......................, being .......................,
(State or Territory) (qualification of appropriate witness under subsection 101K(14) of the Act)
certify that paragraphs 101K(4)(b) and (c) of the Act were complied with in my presence and that the record of what was said by and to
(Name of accused)
as a result of compliance with paragraph 101K(4)(c) of the Act is a full and correct record.
Dated 20
..............................
(Signature of appropriate witness)
Form 7 · Explanation to accused
Note: See section 47.
Commonwealth of Australia
Defence Force Discipline Act 1982
The following is the form of explanation to be given to an accused
person of the procedure that will be followed for the purpose of
compliance with paragraphs 101K(4)(b), (c) and (d) of the Defence
Force Discipline Act 1982 in respect of a record made of an interview
with the accused:
1. You have been given a copy of the record of the interview with you. The
record will be read to you in the language used by you during the interview.
2. You may interrupt the reading of the record of interview at any
time for the purpose of drawing attention to any error or omission
that you claim has been made in or from the record and, at the end of
the reading, you will be given an opportunity of stating whether you
claim that there are any errors in or omissions from the record, in
addition to any to which you have drawn attention during the reading.
Where a sound recording is made:
3. Two sound recordings of the reading referred to in paragraph 1 will
be made by the one multiple sound recording apparatus and of
everything said by and to you as a result of compliance with the
matters raised in paragraph 2.
4. You will be handed one of the sound recordings.
5. The other recording will be retained by the Defence Force and may
be used in evidence.
6. You should make arrangements for the safe-keeping of the recording
handed to you so that it will be available for comparison with the
sound recording retained by the Defence Force and, if you so request,
you will be afforded an opportunity to make arrangements for the
safe-keeping of your recording on your behalf.
7. If you or your legal practitioner so request, you or your legal
practitioner will, as soon as practicable, be provided with reasonable
facilities to enable the sound recording to be reproduced in sound.
OR, where a sound recording is not made but an appropriate witness is present:
3. An appropriate witness will be present during the reading of the
record of interview referred to in paragraph 1 or when anything is
said by or to you as a result of compliance with paragraph 2 and a
record in writing will be made of everything said by and to you as a
result of compliance with paragraph 2 while it is being said or as
soon as practicable thereafter (persons who can be appropriate
witnesses include a legal practitioner advising you, or a relative or
friend present at your request).
4. The appropriate witness will sign a prescribed form of certificate
certifying that the requirements of paragraphs 101K(4)(b) and (c) of
the Act have been complied with in the presence of the witness and
that the record is a full and correct record.
Form 8 · Acknowledgement of suspect in relation to the holding of an identification parade
Note: See section 49.
Commonwealth of Australia
Defence Force Discipline Act 1982
I,.............................of............................
(Name of suspect) (Residential address of suspect)
in the..........................., acknowledge that I was informed, on
(State or Territory)
...............................at.......................that: (Date) (Time)
(b) if I do not agree to the holding of the parade and to take part in the parade, evidence may be given, in any proceedings with respect to the service offence, of any identification of me by a witness as a result of:
(i) having seen a photograph or series of photographs; or
(ii) having seen me otherwise than during an identification parade; and
(c) if I do take part in the identification parade, evidence may be given, in any proceedings with respect to the service offence:
(i) of any identification made by the witness;
(ii) of any doubts expressed by the witness, during or immediately following the holding of the parade; and
(iii) of any unfairness in the conducting of the parade; and
(d) I may have present, during the holding of the parade, a legal practitioner or other person of my choice if arrangements can be made for the legal practitioner or other person to be present within a reasonable time.
Dated 20
...........................
(Signature of suspect giving this acknowledgement)
Form 9 · Acknowledgement of consent to search
Note: See section 50.
Commonwealth of Australia
Defence Force Discipline Act 1982
I, (full name) acknowledge that:
(a) I have been informed that I may refuse to give my consent, in relation to the investigation of a service offence:
*(i) to be searched;
*(ii) to the search of the clothing worn by me;
*(iii) to the search of property under my immediate control (including any digital
assets);
*(iv) as the occupier, to the entry and search of the *land/ *premises known as (address or location of land/premises);
*(v) as the person in charge, to the entry and search of the
(b) I have, on (date) at (place and time) voluntarily given my consent, in relation to the investigation of a service offence:
*(i) to be searched;
*(ii) to the search of the clothing worn by me;
*(iii) to the search of the property under my immediate control;
*(iv) to the entry and search of the *land/ *premises described in subparagraph (a)(iv);
*(v) to the entry and search of the *ship/ *aircraft/ *vehicle described in subparagraph (a)(v).
Dated 20
.......................................
(Signature of person giving this acknowledgement)
*Omit if inapplicable
Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.