The Regulations operate around several key statutory concepts imported from the Act. A Division 5 recording is defined in regulation 5 as an audio or audiovisual recording of a kind referred to in Division 5 of Part 8.2 of the Act. That Division deals with the taking of recorded evidence from a witness (typically a vulnerable or child witness) before a proceeding commences, where questions are put by a person authorised under section 367 of the Act. Regulation 6 prescribes who may ask those questions: a member of Victoria Police personnel who has completed a Victoria Police training course; a person authorised in writing by the Chief Commissioner of Police with similar training; a member of a police force of another State or Territory (for questions put outside Victoria); a member of the Australian Federal Police for other Territories; and a person on the panel established under section 389H of the Act who may be appointed as an intermediary. A Division 6 recording is an audiovisual recording referred to in Division 6 of Part 8.2 of the Act, which concerns evidence taken at a special hearing, typically during the course of a proceeding. A Part 8.2A recording is an audio or audiovisual recording made in a proceeding in which an intermediary is appointed under Part 8.2A of the Act. The Regulations create distinct custody and access regimes for each type of recording. For Division 5 recordings, the Chief Commissioner of Police is the custodian and is responsible for safe custody, retention and destruction. For Division 6 recordings, the registrar of the County Court or the prothonotary of the Supreme Court (as defined) holds those responsibilities. The Regulations also introduce a new concept of applicable offence for early committal under section 127A of the Act, defined by reference to Schedule 4, which lists 55 specific offences (including common law manslaughter, several Victorian homicide offences, and dozens of Commonwealth Criminal Code offences covering genocide, war crimes, terrorism and national security). The Regulations define Department as the Department of Justice and Community Safety, and the Act as the Criminal Procedure Act 2009. The disclosure certificates in Schedules 2 and 3 are prescribed forms that the informant or law enforcement officer who prepared the brief must complete and serve with the full brief (for the Magistrates’ Court under section 41A) or the hand-up brief (for the committal proceeding under section 110A). The certificates require the officer to acknowledge the duty of disclosure, the continuing obligation, the obligation under section 415A to provide relevant material to the DPP, and to list any material withheld due to privilege, public interest immunity, or statutory prohibition.

The Regulations directly affect a range of actors within the Victorian criminal justice system. Informants (usually police officers who charge an accused) bear significant obligations under Parts 2 and 3: they must give notice of the right to view a Division 5 recording, make the recording available, and keep records of who accesses it. They must also give a copy of any transcript to the witness or their parent or guardian. Accused persons and their legal practitioners have the right to listen to or view Division 5 and Division 6 recordings at agreed times and places. Victoria Police as an organisation is responsible for safe custody of Division 5 recordings and must ensure copies are destroyed within six months after proceedings conclude. The Chief Commissioner of Police can authorise copies and, under new regulation 12A (inserted in 2025), may authorise certain officers and trainers to use copies or transcripts of Division 5 recordings for individual training or evaluation, but only after all legal proceedings and appeal periods have ended. Court officers , the registrar of the County Court and the prothonotary of the Supreme Court , have parallel duties for Division 6 recordings: safe custody of originals for ten years, destruction of extra copies within twelve months, and providing access. The Office of Public Prosecutions may also be involved in making recordings available and keeping access records. Prosecution witnesses are affected by Part 4, which sets the allowances they may claim: expert witnesses get a flat rate of $79.50 for absence up to four hours and up to $158.80 per day; other witnesses who lose income from an income-producing vocation can claim actual loss up to $69.10 per day; witnesses not in a vocation can claim actual expenditure up to $33.70 per day. Meal allowances are specified by location (capital city or other) and time windows. Travel is reimbursed at the cheapest transport cost or 18 cents per kilometre if using own vehicle. Prisoners of the Crown are excluded from all payments. Intermediaries are affected by Part 5 (oath or affirmation) and new Part 3A (regulation 17A), which allows the Secretary to the Department to authorise use of recordings for assisting an intermediary in assessing a witness or for training or evaluation, subject to the same post-proceeding condition. Australian legal practitioners acting for the Secretary may also be authorised to use recordings for proceedings (regulation 17B). The Secretary to the Department of Justice and Community Safety is a new gatekeeper under Part 3A. Superior officers within law enforcement agencies must review disclosure certificates before service. The DPP receives material under section 415A obligations referenced in the certificates.

The Regulations impose a layered set of duties and grant corresponding rights. For Division 5 recordings, the informant must give notice to the accused and their legal practitioner of the right to listen or view (regulation 10(1)). On request, the informant must make the recording or a copy available at an agreed time and place (regulation 10(2)). The informant must also record the name, capacity, date and time, and the person who gave access (regulation 11). If a transcript is made, the informant must give a copy to the witness or their parent/guardian as soon as practicable (regulation 9). The Chief Commissioner must keep the original (and any edited copy used in proceedings) in safe custody, and destroy any other copies no later than six months after the conclusion of proceedings or expiry of the appeal period (regulation 13). Importantly, a Division 5 recording, its copy or transcript may only be used in or in connection with a proceeding under Division 5 of Part 8.2 or for the purposes of Part 8.2A of the Act, or in accordance with regulation 12A (training/evaluation) or Part 3A (intermediaries) , regulation 12(1). Except in accordance with Part 8.2 or the Regulations, no person may have possession of or access to such material (regulation 12(2)). For Division 6 recordings, the registrar, prothonotary or OPP (as required) must make the recording available for listening/viewing on request (regulation 14). They must also record access details similar to those for Division 5 (regulation 15). Use is similarly restricted: only in or in connection with a Division 6 proceeding or for Part 8.2A purposes, or under Part 3A (regulation 16(1)). Possession and access prohibitions mirror those for Division 5 (regulation 16(2)). The custodian (registrar or prothonotary) must retain the original and any edited copy in safe custody for ten years after the latest of the conclusion of proceedings, expiry of appeal period, or conclusion of any ancillary proceeding under section 374(2) of the Act (regulation 17(2)). Other copies must be destroyed within twelve months (regulation 17(1)(b)). Part 3A creates a new authorisation pathway: Victoria Police or the relevant court may provide a copy or transcript of a Division 5, Division 6 or Part 8.2A recording to the Secretary to the Department. The Secretary may then authorise a person to use it for assisting an intermediary (including witness assessment) or for training/evaluation of an intermediary (regulation 17A). Training/evaluation use is only permitted after all legal proceedings and appeal periods have concluded, and the intermediary being trained must be the same intermediary who performed in the recording (regulation 17A(3)). The Secretary may also authorise an Australian legal practitioner acting for the Secretary to use a recording for proceedings in which the recording is used (regulation 17B). Witness allowances create an entitlement but also impose proof requirements: a person approving payment must not pay unless satisfactory evidence is produced of income loss, expenditure, absence at relevant times or transport costs (regulation 24). Prisoners are excluded from all payments (regulation 23). Disclosure certificates under Part 6 must be in the prescribed forms in Schedules 2 and 3, and must be completed by the informant (or the law enforcement officer who prepared the brief) and served with the full brief or hand-up brief. The certificates require the officer to acknowledge the duty of disclosure and section 415A obligations, and to list any material withheld due to privilege or statutory prohibition. The certificates must be reviewed by a superior officer. Intermediaries must take an oath or affirmation in the form set out in Schedule 1 (or similar) under regulation 25.

The Regulations themselves do not create any specific criminal offences or penalty provisions. They are procedural and prescriptive in nature, operating under the authority of the Criminal Procedure Act 2009. However, the prohibitions contained in regulation 12(2) (Division 5 recordings) and regulation 16(2) (Division 6 recordings) state that a person must not have possession of or access to a recording, copy or transcript except in accordance with Part 8.2 of the Act or the Regulations. These are regulatory prohibitions. A breach of such a prohibition could potentially be dealt with under the general law (for example, as a contempt of court if the misuse occurs in connection with proceedings), or it may be an offence under the Act itself if the Act creates a related offence provision (though the text of the Regulations does not cite any specific penalty). The Regulations do not reference any enforcement mechanism or designated enforcement body. The duties imposed on the Chief Commissioner of Police, registrars, prothonotaries, informants and the Secretary to the Department are framed in mandatory language (must retain, must ensure destruction, must record, must not authorise without conditions). Failure to comply with these duties would not be a direct criminal offence under the Regulations, but it could expose the relevant officer or agency to criticism in proceedings, and could affect the admissibility of the recorded evidence or the fairness of the trial. The destruction timelines (six months for Division 5 copies, twelve months for Division 6 copies, ten-year retention for Division 6 originals) are mandatory; failure to destroy copies on time or retaining originals for less than ten years would be a breach of the Regulations. The training and evaluation authorisation under regulation 12A contains a precondition that all legal proceedings and appeal periods have concluded; using a recording for training before that point would be a breach. Similarly, regulation 17A(3) imposes the same precondition for intermediary training or evaluation. The disclosure certificate requirements do not carry a penalty within the Regulations, but section 41A and section 110A of the Act may have their own consequences for non‑compliance (the Regulations themselves do not specify). Overall, the enforcement of these Regulations relies on the supervisory role of the courts, internal police and departmental compliance, and the possibility of judicial review or contempt proceedings if the integrity of recorded evidence is compromised.

The Regulations are expressly made under section 420 of the Criminal Procedure Act 2009 (the Act) and operate as subordinate legislation to that Act. They give detailed effect to provisions in Parts 8.2 and 8.2A of the Act concerning recorded evidence and intermediaries. The definitions in regulation 5 tie directly to the Act: Division 5 recording, Division 6 recording and Part 8.2A recording are defined by reference to the relevant Divisions of Part 8.2 and Part 8.2A of the Act. Part 6 (disclosure certificates) is made under sections 41A and 110A of the Act, which require the forms to be prescribed. The certificates themselves cross‑reference several sections of the Act: sections 41(1)(f), 45, 416(2), 415A, 119(fa) and 110A(3). Section 416(2) of the Act is cited repeatedly in the certificates and notes to confirm that nothing in the Act requires disclosure of material that the prosecution is required or permitted to withhold under any Act or rule of law. The Regulations also interact with other Victorian legislation. The definition of registrar invokes the County Court Act 1958; prothonotary invokes the Supreme Court Act 1986. Regulation 6(a) refers to the Victoria Police Act 2013 for the definition of Victoria Police personnel. The prescribed allowances in Part 4 are specific to the Regulations and do not reference other allowances schemes (such as those under the Uniform Law or the Juries Act), but they operate as the exclusive regime for prosecution witnesses in criminal proceedings covered by the Act. Part 7 and Schedule 4 interact with the Crimes Act 1958 (Vic), prescribing offences against sections 3A, 5A, 5B, 6 and 197A. They also interact extensively with the Criminal Code Act 1995 (Cth), listing 54 specific Commonwealth offences covering genocide, crimes against humanity, war crimes, terrorism, espionage and treachery. This enables early committal for trial in the Supreme Court under section 127A of the Act for these serious offences. The Regulations also cite the Subordinate Legislation Act 1994 in the endnotes, confirming that they sunset ten years after making (8 December 2030). The endnotes further reference the Interpretation of Legislation Act 1984 concerning style changes and the effect of headings, examples, notes, punctuation and provision numbers. The Regulations revoke the earlier Criminal Procedure Regulations 2009 and two amending instruments, ensuring the current Regulations are the sole source of procedural rules in these areas.

The Regulations were originally made on 8 December 2020 as S.R. No. 134/2020 and commenced on 13 December 2020. Since then, two amending statutory rules have been incorporated. The first was the Criminal Procedure Amendment (Disclosure Certificates) Regulations 2022, S.R. No. 57/2022, made on 26 July 2022 and commencing on 1 October 2022. This amendment inserted Part 6 (regulation 27) and Schedules 2 and 3, prescribing the forms of disclosure certificates for sections 41A and 110A of the Act. The second was the Criminal Procedure Amendment Regulations 2025, S.R. No. 104/2025, made on 14 October 2025 and commencing on 28 December 2025. This was a more substantial amendment. It inserted regulation 1(ca), adding as an objective the prescription of certain offences as applicable offences for Part 4.6A of the Act. It amended regulation 12(1)(b) to cross‑reference new Part 3A. It inserted regulation 12A, permitting the Chief Commissioner of Police to authorise use of Division 5 recordings for training or evaluation of officers making those recordings. It substituted regulation 13, tightening the retention and destruction regime for Division 5 recordings (the former version required retention only while proceedings were pending; the new version requires retention of the original and edited copy in safe custody, with destruction of other copies within six months). It amended regulation 16(1)(b) to cross‑reference Part 3A. It substituted regulation 17, imposing a ten‑year retention period for Division 6 originals (previously no specific retention period was prescribed) and a twelve‑month destruction period for other copies. It inserted a new Part 3A (regulations 17A and 17B) providing for use of Division 5, Division 6 and Part 8.2A recordings by intermediaries and legal practitioners acting for the Secretary to the Department. It revoked former regulation 26 (which had dealt with something unspecified in the text - it was revoked by S.R. No. 104/2025 reg. 12). Finally, it inserted Part 7 (regulation 28) and Schedule 4, prescribing the list of applicable offences for early committal. The current version is Version No. 003, incorporating amendments as at 28 December 2025.

The text of the Regulations does not cite any specific cases or judicial decisions. As subordinate legislation that sets procedural rules, the Regulations themselves are not typically the subject of direct litigation in their own right. However, the provisions they implement , particularly those concerning recorded evidence, access by the accused, and destruction of copies , could give rise to issues in criminal proceedings. For example, an accused might challenge the admissibility of a Division 5 recording if the informant failed to give notice of the right to view under regulation 10, or if the recording was used for a purpose not permitted by regulation 12. Similarly, a failure to retain an original Division 6 recording for the ten‑year period required by regulation 17(2) could potentially lead to an argument that the evidence has been lost or destroyed in breach of procedural requirements. The disclosure certificate forms in Schedules 2 and 3, and their acknowledgement of the duty of disclosure and section 415A obligations, may be relevant in cases where the adequacy of disclosure is contested. The prescribed list of offences in Schedule 4 may be litigated in the context of early committal applications under section 127A of the Act, though the Regulations merely prescribe the offences; the interpretation of what constitutes an applicable offence would be a matter of the Act. None of these potential litigation scenarios are recorded in the Regulations themselves, and no case law is referenced. Practitioners should therefore look to case law under the Criminal Procedure Act 2009 for judicial interpretation of the provisions that these Regulations support.

Several provisions in the Regulations contain traps for the unwary practitioner or officer. The most significant are the strict timelines and conditions for destruction and retention. For Division 5 recordings, all copies other than the original and any edited copy used in proceedings must be destroyed no later than six months after the latest of the conclusion of proceedings, the expiry of the appeal period, or the conclusion of any ancillary proceeding under section 374(2) of the Act (regulation 13(b)). The six‑month window is tight and could be missed if proceedings are complex or appeals are pending. For Division 6 recordings, the destruction period for copies is twelve months, but the original must be retained in safe custody for ten years (regulation 17). A court registrar who inadvertently destroys the original before ten years would breach the Regulations. The prohibition on possession and access in regulation 12(2) and 16(2) is absolute except as permitted by Part 8.2 of the Act or the Regulations. This means that a person who holds a copy of a Division 5 recording for any purpose other than those listed (proceedings, training under regulation 12A, intermediary functions under Part 3A) is in breach, even if they have no bad intent. For training and evaluation under regulation 12A, a critical gotcha is the precondition in regulation 12A(2)(b): the person being trained or evaluated must be the same person whose questions a witness is answering in the recording. This means that a Victoria Police officer cannot use a recording of another officer’s interview for training unless they are the officer who conducted that interview. Similarly, for intermediary training under regulation 17A(3)(b), the intermediary being trained must be the same intermediary who performed in the recording. This severely limits the pool of training materials. The disclosure certificate in Schedules 2 and 3 requires review by a superior officer , for Victoria Police, that means a person who holds a rank senior to the informant or law enforcement officer. If the reviewing officer does not hold a superior rank, the certificate may be defective. The certificate also includes optional clauses that must be deleted if not applicable (marked with asterisks). Failure to delete the wrong option could lead to an inaccurate certificate. Witness allowance claimants must provide satisfactory evidence of loss or expenditure; the person approving payment must not pay without it (regulation 24). For meal allowances, specific time windows apply: breakfast only if absent from home between 7.00 a.m. and 9.30 a.m., lunch between 12.00 p.m. and 3.00 p.m., dinner between 5.00 p.m. and 7.00 p.m. (regulation 20(2)). A witness who misses these windows cannot claim that meal even if absent overnight. Prisoners of the Crown are entirely excluded (regulation 23) , this includes persons in custody regardless of the type of proceeding. For Part 8.2A recordings (intermediary proceedings), the Regulations do not create a separate custody regime; they are governed by the Part 3A provisions and otherwise by the Act. The authorisations under Part 3A must be in writing and specify the person and purpose (regulation 17A(5), 17B(2)). An authorisation may cover all recordings of a particular kind, but only if the authorisation says so (regulation 17A(4)). A person using a recording under a blanket authorisation for a purpose not specified would be in breach.

Compliance requires different actors to follow distinct steps. For informants handling Division 5 recordings: after the recording is made, ensure it includes the date, place, start and end times, identification of all persons present, and break times with reasons (regulation 7). Immediately notify the accused and their legal practitioner of their right to listen/view (regulation 10(1)). If requested, arrange a time and place to make the recording or a copy available (regulation 10(2)). Record the name, capacity, date, time and who gave access for any person who views or listens (regulation 11). If a transcript is made, provide a copy to the witness or their parent/guardian as soon as practicable (regulation 9). Do not use the recording, copy or transcript for any purpose other than proceedings under Division 5 of Part 8.2, Part 8.2A, or as authorised under regulation 12A or Part 3A. Do not give possession or access to anyone not authorised under the Act or Regulations (regulation 12). For the Chief Commissioner of Police: maintain safe custody of the original Division 5 recording and any edited copy used in proceedings (regulation 13(a)). Ensure that any other copies are destroyed within six months after the latest of the conclusion of proceedings, appeal expiry, or ancillary proceeding under section 374(2) (regulation 13(b)). If authorising copies under regulation 8, record the date and the name and address of the recipient. If authorising training or evaluation under regulation 12A, do so only in writing, specifying the person and the recording, and only after all proceedings and appeal periods have concluded, and only for the same officer who conducted the questioning. For registrars and prothonotaries handling Division 6 recordings: make the recording available on request to the accused or their legal practitioner (regulation 14). Keep a record of access (regulation 15). Retain the original and any edited copy in safe custody for ten years after the latest of conclusion of proceedings, appeal expiry, or ancillary proceeding under section 374(2) (regulation 17(2)). Destroy any other copies within twelve months (regulation 17(1)(b)). Ensure that recordings are only used as permitted by regulation 16. For the Secretary to the Department: when receiving recordings under regulation 17A or 17B, only authorise use for assisting an intermediary, training or evaluation (subject to the same‑intermediary and concluded‑proceedings conditions), or for legal practitioners acting for the Secretary in proceedings. Ensure authorisations are in writing and specify the person, the recording (or kind of recording) and the purpose. For witnesses claiming allowances: provide satisfactory evidence of income loss, expenditure, absence at relevant times, or transport costs to the person authorising payment (regulation 24). Note the time windows for meal claims and the maximum amounts. Prisoners cannot claim. For informants or law enforcement officers completing disclosure certificates: use the prescribed forms in Schedule 2 (for section 41A full brief) or Schedule 3 (for section 110A hand‑up brief). Complete all applicable sections, delete inapplicable optional clauses marked with asterisks. Acknowledge the duty of disclosure, the continuing obligation, and the section 415A obligation. List in the appropriate schedule any relevant material withheld due to privilege, public interest immunity, or statutory prohibition. Ensure the certificate is reviewed by a superior officer (for Victoria Police, a person of senior rank). Serve the certificate with the brief. For intermediaries: before performing functions, take an oath or affirmation in the form set out in Schedule 1 or a similar form as prescribed by regulation 25.