Defence and Veterans’ Service Commissioner (Consequential and Transitional Provisions) Act 2026

The Act operates through a small set of legal concepts, carried chiefly in Schedule 2. A precise reading of those concepts shows how the transition is effected.

• New Act and old law, transition time: item 1(1) defines “new Act” as the Defence and Veterans’ Service Commissioner Act 2026, “old law” as Part VIIIE of the Defence Act 1903 immediately before repeal, and “transition time” as the time the new Act commences. Those definitions frame the temporal operation of the saving provisions in the Schedule.

• Entrusted person: the Schedule treats persons who were “entrusted persons” under the old law as continuing in that status under the new Act (item 7). The IGIS amendment (s 34AC) uses the term and expressly links it back to the new Act (s 34AC(3) and Schedule 2, item 1(1)). That concept is central to the authorised disclosure pathways for intelligence information.

• Carry forward, deemed service and deemed issue: items 2 and 3 provide a general saving: things done by or in relation to the Commission or Commissioner under the old law are to have effect under the new Act where the new Act provides for the same thing. Several later items apply this general principle to specific procedural instruments, for example, notices to attend, notices to give information or produce documents, applications for search warrants, warrants not executed, and authorisations of members (items 11-15). Where a warrant or notice remains in force at transition, it is taken to have been made or served under the corresponding new‑Act provision (see items 11-14).

• Information handling and intelligence arrangements: items 8-10 address intelligence information mechanics. Item 8 preserves arrangements under old section 110ZGQ for obtaining, storing, accessing, using and disclosing intelligence information relating to an Australian intelligence entity, continuing them as if made under the new Act (item 8(2)). Item 9 treats information disclosed or obtained under the old law as if disclosed or obtained under the new Act. Item 10 preserves non‑publication directions under the old law as if made under the new Act. Complementing these Schedule 2 provisions, Schedule 1 inserts s 34AC into the IGIS Act, enabling IGIS officials to give information or documents to an entrusted person if relevant and if the Inspector‑General is satisfied on reasonable grounds that the Commissioner has satisfactory protective arrangements (s 34AC(1)). Section 34AC(2) states it applies despite anything in that Act or any other Act, creating a statutory override for disclosure where conditions are met.

• Archives access versus non‑publication directions: the insertion of s 22AA into the Archives Act specifies that a non‑publication direction issued by the Commissioner does not operate to prevent provision of public access under the Archives Act to Commission records in the open access period, nor the publication by any person of records available for public access under the Archives Act (s 22AA(a)-(b)). That creates a direct interaction between the Commission’s non‑publication powers and archival public access regimes.

• Ministerial rule‑making for transition: item 23 authorises the Minister, by legislative instrument, to make rules required or permitted by the Schedule or necessary or convenient for giving effect to it, including transitional saving or application provisions. Item 23(3) contains express prohibitions on subjects the rules may not address, including creating offences or civil penalties, conferring arrest/detention/entry/search/seizure powers, imposing tax, setting appropriation amounts, or directly amending the text of this Act or the new Act.

• Staffing continuity and terms: items 16-19 transfer acting Commissioners, staff, persons made available to assist, and consultants to the new Act on the same terms and conditions, and explicitly state that repeal of the old law does not affect continuity of employment or engagement.

These concepts, and the way the Schedule maps old law instruments into new Act equivalents, show that the Act is designed to create legal continuity while enabling new statutory architecture to operate without procedural disruption.

The Act affects a defined set of actors, with effects concentrated on the Commissioner’s office and on parties who interact with it under the old law.

• Defence and Veterans’ Service Commissioner and Commission staff: the Commissioner and the Commission’s workforce are directly affected by the repeal and the transitional provisions. Acting appointments in force immediately before transition are taken to continue under the new Act for the balance of the appointment term on the same terms and conditions (item 16). Staff members are taken to be engaged under the new Act on the same terms and continuity of employment is preserved (item 17). Persons made available to assist, and consultants engaged under the old law, are similarly continued under the new Act on the same terms (items 18-19). These provisions maintain existing employment and engagement terms through the transition.

• People subject to notices, witnesses, and recipients of warrants: where a notice to attend a hearing to give evidence or produce documents or things was served under the old law and not complied with before transition, the notice is taken, after transition, to have been served under the corresponding new‑Act provision (item 11). Notices to give information or produce documents under subsection 110ZGE(1) of the old law convert to service under subsection 33(1) of the new Act (item 12). Applications for search warrants made before transition are taken to have been made under the new Act (item 13) and in‑force but unexecuted warrants are taken to have been issued under the new Act (item 14). Persons authorised as authorised members under the old law are taken to be authorised members under the new Act (item 15). These provisions affect procedural rights and obligations of persons who were subject to investigatory steps at the transition point.

• Ministers and Attorney‑General: the Minister retains the ability to request inquiries or research, with requests made under the old law treated as requests under the new Act (item 4). The Attorney‑General’s prior consents and declarations of eligible Judges are carried over (item 22). The Minister is also empowered to make transitional rules by legislative instrument (item 23), so the Minister’s office gains a defined regulatory role in the cutover.

• IGIS and Australian intelligence entities: IGIS officials are authorised to divulge or communicate information or documents to an entrusted person, subject to the Inspector‑General being satisfied that the Commissioner has satisfactory protective arrangements (s 34AC(1)). The effect is to create a formal disclosure pathway from IGIS to the Commissioner’s entrusted persons, and to permit continued use of intelligence information disclosed under the old law (Schedule 2, items 8-9). Australian intelligence entities whose information was provided for special inquiries under the old law remain within the scope of those arrangements.

• Archivists, researchers and members of the public with access to archival records: the insertion of s 22AA into the Archives Act affects the public’s ability to access Commission records. A non‑publication direction issued by the Commissioner does not prevent public access to Commission records that are in the open access period or are available for public access under the Archives Act (s 22AA). This affects records management decisions and the legal status of archival records relating to the Commission.

• Courts and judges: eligible Judges who had given consent to be nominated for nomination or had been declared eligible under the old law are treated as having completed those procedural steps in the terms of the new Act (item 22). Judges who may be asked to consider search warrant applications under the new Act are therefore affected by the deeming provisions.

• Persons who provided information or were entrusted: information disclosed, obtained or provided to the Commissioner under the old law, or obtained by entrusted persons, is brought forward and treated as if disclosed or obtained under the new Act (item 9). That affects the legal regime governing that information, including protections and disclosure authorisations under the new Act.

The distribution of effects is concentrated on actors within the public administration and those subject to investigatory processes. The Act does not create new private civil liabilities or offences, and it expressly forbids transitional rules from creating offences, conferring arrest powers or imposing taxes (item 23(3)).

This Act chiefly preserves and converts duties and rights that already existed under the defunct Part VIIIE into the new Act, and it establishes specific cross‑statutory disclosure and archival access rules.

• Continuity of duties and rights: the central duty‑and‑right mechanism is a deeming device. Items 2 and 3 make clear that acts and things performed by, or in relation to, the Commission or Commissioner under the old law are to be treated as having effect under the new Act where the new Act provides for the same thing. That preserves procedural rights and obligations that had been incurred under the old law, such as compliance duties under notices and warrants, and the receipt of rights to participate in inquiries or receive reports.

• Ministerial requests and Commission inquiries: where the Minister had requested research, inquiries or advice under s 110ZFB of the old law and the Commissioner had not yet delivered the report or advice, that request is taken to be a request under s 17 of the new Act to inquire, report or advise on the same matter (item 4). The Minister retains the ability to ask for such inquiries, and the Commissioner on the receiving end has the duty to comply under the new Act as if the request had been made under it.

• Special inquiries: determinations that an inquiry is a special inquiry under s 110ZGA of the old law continue in effect as if made under s 30 of the new Act (item 5). That preserves the special‑inquiry status, with any attendant procedural frameworks that the new Act attaches to that designation.

• Notices, attendance and production duties: notices served before transition under subsections 110ZGC(1) and 110ZGE(1) of the old law become notices served under the new Act’s corresponding provisions (items 11-12). Persons who had obligations to attend hearings, give evidence, or produce documents under the old law remain subject to those obligations, but now under the new Act.

• Search warrants and authorised member powers: outstanding warrant applications and unexecuted warrants are carried forward and treated as if applied for or issued under the new Act (items 13-14). Persons authorised as authorised members under the old law are continued as authorised members under the new Act (item 15). The practical effect is continuity of investigatory and search powers, along with related duties to comply with warrants and requests.

• Information handling duties: item 8 preserves arrangements for obtaining, storing, accessing, using and disclosing intelligence information relating to Australian intelligence entities, continuing those arrangements as if made under s 46 of the new Act. Item 9 deems information disclosed under the old law to have been disclosed under the new Act. Those provisions maintain the duties and rights relating to protection and permitted uses of intelligence information, but move the legal basis to the new Act.

• Protection and disclosure gatekeeping: s 34AC inserted into the IGIS Act creates a duty on the Inspector‑General to be satisfied on reasonable grounds that the Commissioner has satisfactory arrangements in place before an IGIS official may divulge information or give documents to an entrusted person (s 34AC(1)(b)). The IGIS retains a gatekeeping role, in the sense that disclosure requires the IGIS’s satisfaction. The section also states it applies despite anything in the IGIS Act or any other Act (s 34AC(2)), effectively providing statutory authority to make those disclosures notwithstanding other secrecy provisions.

• Archival access limitation on non‑publication directions: s 22AA inserted into the Archives Act places a limit on the Commissioner’s non‑publication directions by excluding records that are in the open access period or otherwise available to the public under the Archives Act from the non‑publication direction’s operation. That reduces the Commissioner’s residual ability to suppress archival public access for records covered by the Archives Act’s public access rules.

• Reporting duties: items 20 and 21 impose duties on the new Commissioner to prepare annual reports in respect of reporting periods that straddle the transition. If the prior reporting period had not been reported before transition, the new Commissioner must prepare the annual report as soon as reasonably practicable (item 20). Where the transition occurs during a reporting period, the first annual report by the new Commissioner must include, for the part of the period before transition, the matters that would have been included under the old law (item 21). These provisions place reporting duties on the new Commissioner to ensure continuity of public accountability documentation.

The Act itself does not create new offences, fines or specific private rights. Item 23(3)(a) expressly prevents transitional rules from creating offences or civil penalties, meaning the Schedule does not provide any new punitive mechanisms.

This Act contains no new criminal offences, civil penalties or direct enforcement mechanisms. Instead it is focused on preserving legal continuity and specifying how prior enforcement actions and investigatory process steps will be treated under the new Act.

• No new punitive provisions: item 23(3)(a) expressly states that transitional rules made by the Minister may not create an offence or civil penalty, preventing the Schedule and its rule‑making power from introducing new punitive regimes. There are also no penalty clauses elsewhere in this Act.

• Continuity of investigatory powers and their enforcement: items 11-15 ensure that investigatory instruments such as notices to attend, notices to produce, applications for search warrants, in‑force but unexecuted warrants, and authorised member appointments are carried forward and are taken to have effect under the corresponding new‑Act provisions. Enforcement of those instruments , including any penalties or enforcement mechanisms that the new Act provides for non‑compliance , will therefore be available after transition where the new Act provides for the same thing (items 2-3 as general saving). The immediate practical consequence is that persons who were the subject of an outstanding notice or warrant before transition remain exposed to enforcement under the new Act, not relieved of obligations by the repeal of the old law.

• Inspector‑General disclosure gatekeeping: s 34AC allows IGIS officials to disclose information to an entrusted person, but only where the Inspector‑General is satisfied on reasonable grounds that the Commissioner has satisfactory arrangements to protect the information (s 34AC(1)(b)). The provision imposes an evidential threshold on disclosure, which functions as a protective enforcement mechanism for classified information. Section 34AC(2) clarifies the provision applies despite anything in the IGIS Act or any other Act, giving it primacy where conflict exists.

• Archives Act carve‑out and non‑publication directions: s 22AA limits the scope of the Commissioner’s non‑publication directions with respect to records that are in the Archives Act open access period or otherwise available for public access. The effect for enforcement is that prosecutions or injunctive relief that would rely on a non‑publication direction to restrict archival access may be constrained in relation to records that are covered by s 22AA. Any enforcement of non‑publication directions would therefore need to account for the exclusions in s 22AA.

• Procedural limits on rule‑making: item 23(3) places express limits on transitional rules the Minister can make, including that those rules may not provide powers of arrest, detention, entry, search or seizure (item 23(3)(b)). That means the Minister cannot use transitional instruments to create new enforcement powers beyond those already vested in the Commissioner or authorised persons under the substantive Acts.

In short, enforcement and penalties remain functions of the substantive statutory framework in the new Act and other relevant laws; this Act’s role is to preserve and map existing enforcement instruments into that framework, and to set out cross‑statutory disclosure permissions and archival access exclusions. There are no novel penalty regimes created by this Act.

The Act expressly alters the interaction between the Commissioner’s regime and two other statutes, while more generally providing a cross‑cutting saving clause that shifts the legal source of past acts and instruments from the Defence Act to the new Act.

• Defence Act 1903, Part VIIIE: the Act repeals Part VIIIE of the Defence Act (Schedule 1, Part 1, item 1). The Schedule’s many saving and transitional items are designed to ensure that the repeal does not extinguish ongoing matters or rights that were created under Part VIIIE. Items 2-3 operate as a legal bridge, providing that things done under the old law are to have effect under the new Act where the new Act provides for that thing.

• Archives Act 1983: Schedule 1, Part 2 inserts s 22AA into the Archives Act. That section states that a non‑publication direction given by the Commissioner prohibiting publication of any material does not apply to: (a) provision of public access under the Archives Act to Commission records that are in the open access period, and (b) the publication by any person of Commission records available for public access under the Archives Act. This is a direct statutory interaction; it creates a limited statutory inconsistency by carving out archival public access from the Commissioner’s non‑publication direction.

• Inspector‑General of Intelligence and Security Act 1986: Schedule 1 inserts s 34AC into the IGIS Act, authorising IGIS officials to divulge or communicate information, or give documents, to an entrusted person when the information/documents are relevant to the Commissioner’s functions and the Inspector‑General is satisfied on reasonable grounds that the Commissioner has satisfactory protective arrangements (s 34AC(1)(a)-(b)). Section 34AC(2) states it applies despite anything in that Act or any other Act, meaning it trumps potentially conflicting prohibitions on disclosure contained elsewhere. The definition of “entrusted person” is taken from the new Act (s 34AC(3)), linking the IGIS Act’s disclosure gateway to the new statutory architecture.

• Public Governance, Performance and Accountability Act 2013: Schedule 2, items 20-21 reference the PGPA Act’s s 46 annual report requirements, directing the new Commissioner to prepare or include matters in the first annual report to cover the period or part of a period that precedes transition. This preserves accountability and reporting obligations across Acts.

• Attorney‑General/eligible Judges: Schedule 2, item 22 carries over consents and declarations relating to Judges under the old law into analogous provisions of the new Act, ensuring compatibility where judicial authorisation is required for warrants or similar judicial oversight.

• Internal primacy and overrides: s 34AC(2) in the IGIS Act insertion expressly provides that the disclosure power applies despite anything in that Act or any other Act. That is a legislative override, creating an express statutory precedence for certain IGIS disclosures where the specified conditions are satisfied. The Schedule as a whole functions to shift legal bases without creating inconsistency between the old and new Acts, by deeming old actions to be continued under the new Act.

• Limits on transitional rule‑making: item 23(3) places limits on the Minister’s power to make transitional rules by legislative instrument, preventing those rules from creating offences, conferring powers of arrest/detention/search/seizure, imposing tax, setting appropriation amounts, or directly amending the text of this Act or the new Act. That constrains the interaction between the Minister’s instrument‑making power and other areas of federal law.

Overall, the Act deliberately reassigns the statutory source of matters previously governed by Part VIIIE into the new Act, and it creates express disclosure permissions and archival carve‑outs that change the way the Commissioner’s non‑publication directions and the IGIS’s disclosure functions operate vis‑à‑vis other legislation.

This Act is itself the instrument of amendment for a small set of statutes, enacted in 2026. The statutory changes are confined and specific.

• Repeal: the principal structural change is the repeal of Part VIIIE of the Defence Act 1903 (Schedule 1, Part 1, item 1). The Act does not amend other parts of the Defence Act beyond that repeal; instead it relies on Schedule 2 to manage the transition.

• Consequential amendments: Schedule 1, Part 2 makes two express amendments.

  • Archives Act 1983: after s 22, a new s 22AA is inserted providing that non‑publication directions by the Commissioner do not apply to provision of public access to Commission records in the open access period or publication of such records when available for public access (Schedule 1, Part 2, item 2).

  • Inspector‑General of Intelligence and Security Act 1986: after s 34AB, a new s 34AC is inserted authorising IGIS officials to disclose information or documents to an entrusted person where relevant and where the Inspector‑General is satisfied the Commissioner has satisfactory protective arrangements, and providing that the section applies despite anything in that Act or any other Act (Schedule 1, Part 2, item 3).

• New transitional instrument power: Schedule 2, item 23 creates an instrument‑making power for the Minister to prescribe transitional matters by legislative instrument. Item 23(3) lists substantive limits on what those rules cannot do. The Act does not otherwise alter existing instrument‑making regimes, but it creates a defined avenue for the Minister to make transitional rules.

• Saving/deeming entries: Schedule 2 is structured as a catalogue of deemings and savings addressing specific operational areas , inquiries and reports (items 4-6), information handling including entrusted persons and intelligence arrangements (items 7-10), notices and warrants (items 11-15), staffing (items 16-19), reporting (items 20-21), eligible judges (item 22), and transitional rules (item 23). Each item is an amendment to the legal effect of pre‑existing acts and instruments, by changing their legal character to equivalent new‑Act footing.

There is no recorded amendment history to this Act beyond its initial enactment in 2026. The Act itself notes in s 2 that it commences at the same time as the new Act. The footnote in the schedule states the Minister’s second reading speeches were made on specified dates, but no explanatory memorandum text is supplied in the statutory text provided. Any further amendment history would only appear once the Act itself is amended in future parliamentary sessions.

The text of the Act contains no references to judicial decisions, and there is no litigation history recorded in the statutory materials supplied. The Act’s provisions largely operate to preserve pre‑existing rights, duties and evidentiary materials by deeming them to continue under the new Act; they do not create new statutory offences or novel enforcement mechanisms likely to generate immediate cause‑of‑action litigation from private parties, at least not from matters contained inside this Act alone.

Potential litigation points that could arise post‑transition, on the basis of the statutory mechanics, include:

• Questions of statutory construction about the scope of the deeming provisions in items 2 and 3, for example whether a thing done under the old law that does not have a direct analogue in the new Act nevertheless has effect after transition. The Schedule resolves many specific categories, but litigation could address borderline cases.

• Challenges relating to the application of s 22AA in the Archives Act might arise where a person seeks injunctive relief or damages relying on a Commissioner non‑publication direction, and another party asserts the archival open access exception applies. The Act directly limits the operation of non‑publication directions in specified circumstances; disputes could therefore emerge about whether a record falls within the “open access period” or is “available for public access in accordance with [the Archives Act]”.

• Disputes over IGIS disclosures under s 34AC could produce litigation over the meaning of “satisfactory arrangements” for protecting information, and over what constitutes “reasonable grounds” for the Inspector‑General to be satisfied. Section 34AC(2) states the provision applies despite anything in the IGIS Act or any other Act, which could raise constitutional or statutory conflict issues in context.

• Procedural litigation related to warrants and notices carried forward by the Schedule is possible, for instance where a person argues a warrant is invalid because, although it was issued under the old law, certain procedural preconditions differ under the new Act. Items 11-15 aim to avoid such challenges by deeming service, applications and warrants to be under the new Act, but litigants may contest the legal effect in specific circumstances.

None of these litigation scenarios are recorded in the statutory text. Any actual litigation history will depend on post‑enactment events, including how the new Act is implemented, how the Commissioner exercises powers, and how IGIS and archival agencies apply the new provisions.

The Schedule contains several technical mechanisms and express limits that can produce unexpected legal effects unless practitioners pay attention to detail.

• Deeming does not change initial time: items 2(3) and 3(3) expressly state the deeming of acts done under the old law as having effect under the new Act is not intended to change the initial time the thing was done. This is important for limitation periods, statutory timeframes, and timestamped rights. For example, a notice served before the transition that triggers a duty with a time limit measured from the initial time will keep that original time stamp. Practitioners should trace original timestamps rather than assume fresh timeframes under the new Act.

• Archival carve‑out narrows non‑publication scope: s 22AA of the Archives Act means a Commissioner’s non‑publication direction cannot be used to block public access to Commission records that are in the open access period or otherwise available under the Archives Act. If a record about a defence or veteran matter has entered the Archives Act’s open access period, the Commissioner's direction is not operative to prevent access or publication. Parties relying on non‑publication directions must therefore check archival status and the Archives Act’s access rules.

• IGIS disclosure override: s 34AC(2) applies despite anything in the IGIS Act or any other Act, creating a statutory basis for IGIS disclosure to an entrusted person that overrides other statutory secrecy prohibitions. The caveat is the Inspector‑General must be satisfied on reasonable grounds about protection arrangements (s 34AC(1)(b)). The standard of “satisfactory arrangements” is not defined in the Act, raising potential disputes about what arrangements suffice. Practitioners should document protection arrangements thoroughly to facilitate IGIS satisfaction and to defend disclosure decisions.

• Wide but constrained Ministerial rule‑making: item 23 permits the Minister to make transitional rules by legislative instrument for matters required or permitted by the Schedule or necessary to give effect to it. Although item 23(3) lists substantive prohibitions, the remaining scope is broad, and legislative instruments can be detailed. Do not assume there will be no significant regulatory changes effected by those rules; they must nonetheless fall within the positive and negative constraints set out in item 23. Practitioners should monitor any legislative instruments made under item 23 for procedural and substantive changes.

• Carry forward of unexecuted warrants and applications: items 13-14 deem warrant applications and in‑force but unexecuted warrants to be made or issued under the new Act. That preserves executive capacity to execute warrants after transition, but it may complicate challenges to warrants if the procedural regime differs subtly between the old law and the new Act. Defence counsel and affected parties should check whether any warrant relied on pre‑transition procedures that are incompatible with the new Act’s requirements.

• Continuity of employment and terms but potential variation: items 16-19 preserve terms and continuity for acting Commissioners, staff, persons assisting and consultants. Item 16(3) expressly notes this does not prevent those terms and conditions being varied after transition. Practitioners advising staff should be alert to the fact that the continuity is preserved only as at transition; subsequent variations are possible under the new Act or through normal employment processes.

• Reporting obligations and audit trail: items 20-21 require the new Commissioner to prepare annual reports covering matters that would have been included under the old law. If an organisation needs to rely on prior reporting or accountability representation, confirm that the new Commissioner has included the requisite matters and that records have been maintained to support those entries.

• No creation of enforcement powers via transitional rules: item 23(3) prevents transitional rules from creating arrest, detention, search, seizure or other specified powers, and from creating offences. That prevents the Minister from using transitional instruments to expand enforcement powers, but it also means any perceived gaps in enforcement must be filled by substantive legislative amendment, not by transitional instrument.

• Cross‑statutory definitions and linkage: several provisions tie concepts back to the new Act, for example the definition of “entrusted person” in s 34AC(3) points to the new Act. Implementation therefore requires harmonisation between the new Act’s definitions and the transitional machinery. Misalignment or misunderstanding of definitions could produce compliance errors.

In practice, the main pitfalls are procedural and evidential rather than doctrinal: ensure timestamps, protection arrangements, archival status, and any legislative instruments made under item 23 are carefully reviewed when advising clients or preparing for compliance.

For entities and practitioners dealing with the transition, the Act requires a set of targeted compliance actions. The emphasis is on documenting continuity, implementing protection arrangements for intelligence materials, checking archival status, and tracking any Ministerial rules made under item 23.

1. Map outstanding instruments to new‑Act equivalents

• Create a register of notices to attend, notices to produce, outstanding warrant applications, in‑force but unexecuted warrants, and authorisations that were in place immediately before transition. The Schedule deems these to have been served or made under the new Act (items 11-15), but you must preserve original documents and timestamps because items 2(3) and 3(3) preserve the initial time the thing was done.

• For each item, check whether the new Act imposes different procedural requirements for execution, service, or judicial authorisation. If so, plan for compliance steps that respect the new Act while preserving the validity conferred by the deeming provisions.

2. Implement and document protective arrangements for intelligence information

• Section 34AC allows IGIS officials to disclose intelligence information to entrusted persons only if the Inspector‑General is satisfied on reasonable grounds that the Commissioner has satisfactory arrangements for protecting the information. The Act does not define “satisfactory arrangements”. Prepare a documented set of protocols that address storage, classified access controls, record‑keeping, auditing, destruction/retention rules, personnel security clearances, technical protections, and chain of custody.

• Provide the IGIS with evidence of those arrangements in whatever form IGIS requires to reach “reasonable grounds” satisfaction. Maintain records of IGIS assessments and any communications authorising disclosure.

3. Review archival holdings for open access status and related non‑publication considerations

• Under s 22AA of the Archives Act, a Commissioner’s non‑publication direction does not apply to Commission records in the open access period or records otherwise available for public access under the Archives Act. Undertake a records audit to identify which Commission records may be in that category and ensure any intended non‑publication directions are not expected to operate to forestall public access to those records.

• Where sensitivity concerns exist for records approaching open access, consider redaction, deferral until before open access, or other lawful measures consistent with the Archives Act. Keep legal advice on the application of the Archives Act and s 22AA to specific records.

4. Preserve employment and engagement documentation

• The Schedule carries staff, acting Commissioners, persons made available to assist, and consultants into the new Act on the same terms and conditions (items 16-19). Maintain employment contracts, terms of engagement, secondment agreements and consultant contracts, and document continuity. If the employing entity or the Commissioner proposes to vary terms after transition, ensure variation procedures comply with employment law and any public service or contract provisions.

5. Prepare annual reporting and accountability materials

• Items 20-21 require the new Commissioner to prepare annual reports that cover matters falling before transition if the prior report had not been prepared or if the transition falls within a reporting period. Gather the records, decisions, reports and audit materials that would have been included under the old law and ensure the new Commissioner’s first annual report includes them as required.

6. Track and review transitional legislative instruments

• The Minister may make transitional rules by legislative instrument (item 23(1)). Monitor the Federal Register of Legislation and Ministerial announcements for any legislative instruments made under item 23. Review each instrument for changes to procedural rules, saving provisions, or implementation details that affect current practice. Note that item 23(3) lists explicit prohibitions on the content of such rules.

7. Manage judicial and warrant processes

• For existing warrant applications that had not been considered by an eligible Judge before transition, item 13 deems the application to have been made under subsection 36(1) of the new Act. Confirm the identity and availability of eligible Judges, and check whether the Attorney‑General’s prior consents or declarations of eligible Judges have been carried over (item 22). File any necessary procedural materials to support continued consideration of warrants under the new Act.

8. Evidence and recordkeeping standards for disclosures

• When relying on s 34AC or the transitional provisions for disclosures or for bringing material forward, document the legal basis for each disclosure and preserve records of who authorised each step. This evidential discipline is particularly important where IGIS disclosure is involved, given the statutory override clause in s 34AC(2).

9. Legal review of archival and disclosure positions

• For any third party seeking to rely on or challenge non‑publication directions or archival access, obtain legal advice that cross‑references s 22AA, the Archives Act’s access rules, the timing of when a record entered the open access period, and any record‑specific sensitivity exceptions.

10. Communicate to stakeholders

• Provide clear briefings to staff, consultants and any persons who were the subject of ongoing processes about the effect of the transition , namely that outstanding notices, warrants and obligations are preserved and now sit under the new Act. Ensure those stakeholders are aware of where to direct procedural queries and how to serve documents under the new Act’s processes.

In short, compliance focuses on durable documentation of pre‑transition instruments and protection arrangements, careful records management with regard to archival open access, proactive engagement with IGIS over disclosure satisfactions, and close monitoring of any transitional legislative instruments the Minister may make.