Defence Force Discipline (Disciplinary Infringement Records) Rules 2022

Part IA record. This is the central defined term. Under subsection 9JB(2) of the Act, a Part IA record is a record kept under rules made for the purposes of section 9JB - that is, the records kept under sections 7 and 8 of this instrument. So the instrument itself defines what records fall into this category. A Part IA record is not every piece of disciplinary information in the ADF; it is specifically the infringement notice form and evidence (s 7(1)) and the monthly report (s 8(1)).

Prescribed defence member. The instrument defers to the Act for this definition. Under section 3 of the DFDA, a “prescribed defence member” is a member of the Australian Defence Force who is subject to the Act. The instrument applies only to such members; cadets or former members are not captured for record‑keeping purposes, though records may persist after service ends.

Disciplinary infringement. This is defined in the Act, not in the instrument. It refers to a relatively minor service offence that can be dealt with by an infringement notice under Part IA of the DFDA (introduced by the 2021 reforms). The instrument does not list specific infringements.

Infringement notice. The form given to a member alleging a disciplinary infringement, as specified in section 9E of the Act. The record must include the completed form; that is, the form after the member has responded (e.g., elected to pay the penalty or elected to be dealt with under the infringement scheme). The member’s election is a key event that triggers archiving (s 7(3)(a): if the member does not elect to be dealt with under the scheme, the record must be archived).

Commanding officer. Not defined in the instrument but has the ordinary meaning under the DFDA (generally the officer commanding the unit to which the member is posted). The commanding officer bears the primary duty to retain and archive records, and to give access when the member is posted to a new unit (s 7(4)).

Archive. The instrument defines “archive a record” as storing the record with the relevant service headquarters in a manner that restricts access to the record by a person prevented from doing so under subsection 9(5) (s 6). So archiving is not mere filing; it is a deliberate restriction of access to the chain of command and career management agencies. The record is still accessible to service‑headquarters personnel and the IGADF, but the immediate unit cannot see it once archived.

Authorised person. Two authorisation mechanisms exist: an officer performing the functions of a Chief of Staff of a service headquarters may authorise a person posted to that headquarters for the purpose of item 5 (s 9(6)); and the Inspector‑General may authorise a person for item 6 (s 9(7)). These authorisations are not further defined; presumably they can be given in writing or by some delegation.

Monthly report. Under section 9JA of the Act, a discipline officer or senior discipline officer must give a monthly report to the commanding officer. The instrument requires that a record of that report be kept and archived after the commanding officer has considered it. This is a separate record from the infringement records; it aggregates or summarises infringements for the month.

Archiving events. The five triggers under s 7(3) are: (a) member does not elect to be dealt with under the infringement scheme (i.e., they elect to go to a summary authority or service tribunal, or they accept the infringement but then the scheme fails? The wording is “does not elect to be dealt with under the infringement scheme” - this means they opt out, e.g., by electing trial); (b) the infringement is dismissed; (c) member graduates from initial recruit or officer training; (d) substantive promotion to a higher rank; (e) member’s service ends. Note that these events are disjunctive - any one of them occurring triggers the archiving duty. Also, for monthly report records, the sole archiving event is the commanding officer having considered the report (s 8(2)).

Unit includes sub‑unit. The definition in s 6 is broad, ensuring that detachments and training establishments are covered when the instrument refers to “unit”.

These concepts work together to create a lifecycle: a record is created, held by the commanding officer, then archived upon an event, after which its use is restricted.

The primary duty‑bearer is the commanding officer of a prescribed defence member. Every commanding officer at unit level must ensure that records of disciplinary infringements are retained until the archiving event and then archived. They must also ensure that the monthly report record is kept and archived after consideration. Additionally, if the member is posted to another unit before archiving, the former commanding officer must give the new commanding officer access to the record (s 7(4)). This imposes an administrative burden on unit‑level officers, particularly those in training establishments where members graduate frequently, or in units with high turnover.

Discipline officers and senior discipline officers are indirectly affected: they must give the monthly reports under section 9JA of the Act (not in this instrument), and those reports become Part IA records that must be archived. They have no duties under the instrument itself, but their conduct generates the record.

The member themselves is affected in two ways. First, they have a right to access their own Part IA record (s 9(2)). This is a right of access, not a right to control or delete the record. Second, their behaviour (e.g., electing trial, graduating, being promoted) triggers the archiving obligation, which then restricts who can see the record. Members may benefit from the archiving regime because it prevents their immediate chain of command from accessing outdated disciplinary infringement records after certain career events; but they lose that protection if the record is not archived promptly.

Persons in the member’s chain of command (including the commanding officer) are affected by the use restrictions. They can access the record only for the purposes listed in item 2 (personnel management of the member, discipline management of the member, discipline management of the member’s unit) and only as required or permitted by law (s 9(4)). But that permission ceases after the record is archived or after the archiving events occur (s 9(5)). This creates a cliff: a commanding officer who wants to consider an old disciplinary infringement when making a posting decision or a character assessment may be prohibited from doing so if the record has been archived.

Service career management agencies (item 3) have the same sunset. So a career manager at the service level cannot look at archived infringement records to assess suitability for promotion or special duties. However, a person posted to the service headquarters (item 5) - who is authorised by a Chief of Staff - can use the record for personnel management of the member, management of the member’s service record, suitability assessment for appointment or duty, discipline management of the member and the service, and reporting on service discipline to senior leadership or Parliament. That means the service headquarters retains a broader power to use the record even after archiving. The Joint Military Police Unit (item 4) can use the record for investigations of the member. The Inspector‑General (item 6) can use it for performance of IGADF functions.

Other persons affected include any officer who performs a function or duty or exercises a power under the Act (s 9(3)) - for example, a summary authority hearing a charge - who may use the record to the extent necessary for that purpose, but no further.

Outside the Defence Force, the instrument potentially affects external bodies such as courts (through court orders for disclosure, noted in s 9 Note 1) and the Privacy Commissioner (if a member requests access under the Privacy Act). The instrument explicitly notes that the Privacy Act may require that a person be given access to personal information in a Part IA record that is about them (s 9 Note 1). So the rules interact with privacy law rights.

The instrument does not affect the public or civilian contractors unless they are performing functions under the Act. It is an internal Defence instrument.

Duty to keep records. The commanding officer must ensure that a record of the infringement notice form and any evidence presented is retained until archived (s 7(2)). The record must be kept from the time the infringement notice is given until the archiving event. There is no specified form; the record is the completed form and the evidence, presumably as physical or electronic documents.

Duty to archive. The commanding officer must ensure the record is archived as soon as practicable after any of the five events in s 7(3). Similarly, the commanding officer must archive the monthly report record as soon as practicable after considering it (s 8(2)). “As soon as practicable” is a flexible standard; it imposes a duty of timeliness but not a strict deadline. Failure to archive promptly may prolong the period during which the chain of command can use the record, but it also means the member loses the protection of the use restriction. This is a minor duty with no explicit penalty for delay.

Duty to provide access on posting. If the member is posted to another unit before archiving, the former commanding officer must give the new commanding officer access to the record as soon as practicable (s 7(4)). This ensures continuity of information for the new unit’s discipline and personnel management.

Right of the member. The member has a statutory right (s 9(2)) to access, make a record of, disclose, or otherwise use a Part IA record that is about themselves. This is an unfettered right - it is not subject to the purpose restrictions that apply to others. However, the right is limited to records under this instrument; it does not give the member a right to access other disciplinary records (e.g., summary authority findings). Also, the right is only as to “a Part IA record” - if the record contains information about another member, the member may only access information about themselves, but the instrument does not explicitly restrict this; privacy considerations would arise under the Privacy Act.

Right to use records for Act purposes. Any person performing a function or duty or exercising a power under the Act may use a Part IA record to the extent necessary (s 9(3)). This is a broad but limited right: it is not a general permission; it must be necessary for the specific Act function, duty or power. For example, a summary authority hearing a charge might need to see an infringement record to determine whether a member has previously admitted a similar infringement (see Note to s 9(3) which references s 9EB of the Act dealing with purposes for which a member is taken to have admitted committing an infringement).

Use by specified persons. Persons listed in the table in s 9(4) may use the record for the stated purposes, or as required or permitted by law. These purposes are enumerated and can be enforced. For example, a commanding officer (item 2) can use the record for personnel and discipline management of the member and unit discipline management. They cannot use it for other purposes like personal curiosity or external reporting (unless permitted by law).

Restriction on chain of command after archiving. The most important right for the member is the restriction in s 9(5): after the record is archived or an archiving event occurs, persons in items 2 and 3 must not access, record, disclose or use the Part IA record. This is a prohibition, not a permission. It prevents the immediate chain of command from holding past infringements against the member except as allowed through the service‑headquarters channel (item 5). However, the restriction attaches to the record itself, not to the member’s memory; commanding officers may still recall that a member had an infringement, but the formal record cannot be used.

Authorisation power. An officer performing the functions of a Chief of Staff of a service headquarters may authorise persons for item 5 purposes. The Inspector‑General may authorise persons for item 6 purposes. These are discretionary powers that determine who at the service level can access archived records.

The instrument itself does not create any pecuniary penalties or criminal offences. Enforcement and consequences for breach arise from other sources. The most obvious is the Defence Force Discipline Act 1982 itself. A person who accesses or uses a Part IA record in contravention of section 9 may be committing a service offence under the DFDA, such as an offence of unauthorised disclosure of official information (s 31 of the DFDA) or conduct prejudicial to good order and discipline (s 33 of the DFDA). The instrument does not specify which offence, but the prohibition in s 9(1) (“may only access … in accordance with this section”) is a condition that, if breached, could subject a defence member to disciplinary action.

The Privacy Act 1988 also has potential application. Part IA records contain personal information about defence members. If a person uses or discloses that information outside the permitted purposes, it may constitute an interference with privacy under the Privacy Act, leading to complaints to the Office of the Australian Information Commissioner, determinations, or civil penalties (for agencies). However, the instrument’s authorisation for use “as required or permitted by law” (s 9(4)(b)) may provide a lawful authority defence under the Privacy Act.

The instrument does not specify consequences for a commanding officer who fails to archive a record “as soon as practicable”. That failure is likely to be actionable under internal Defence administrative processes rather than through courts or tribunals. It may affect the member’s rights (the record remains accessible to the chain of command longer than intended) but there is no private right of action.

For the member, misuse of their own right to access (e.g., disclosing another member’s information in the same record) would be a breach of the instrument and possibly of the DFDA or the Privacy Act. However, the instrument gives the member an unqualified right to “use” the record about themselves; it does not limit the purposes for which the member may use their own information. That means a member could theoretically share their Part IA record with a civilian lawyer or a journalist without breaching this instrument, though other laws (e.g., secrecy provisions in the DFDA) may apply.

The only potential penalty expressly referenced in the instrument is the restriction on use: if a person accesses a record in breach of s 9(5), any subsequent use may be unlawful, potentially affecting proceedings (e.g., evidence obtained in breach may be inadmissible in a disciplinary hearing). The instrument is silent on that, but common law and statutory exclusionary rules could apply.

Defence Force Discipline Act 1982. This is the parent Act. The instrument is made under subsection 9JB(1). It should be read together with Part IA of the Act (sections 9A to 9JB). That Part establishes the infringement scheme, including the giving of infringement notices (s 9E), the process for dealing with infringements (s 9FA), monthly reports (s 9JA), and the power to make rules for records (s 9JB). The instrument operationalises s 9JB. It also cross‑references ss 9E and 9FA for the form and evidence requirements. Section 9EB of the Act states that a member is taken to have admitted committing a disciplinary infringement in certain circumstances; the note in s 9(3) of the instrument reminds users of that provision, which affects how Part IA records may be used in later proceedings (e.g., they may be evidence of an admission).

Privacy Act 1988. The instrument’s notes explicitly recognise that the Privacy Act may require that a person be given access to personal information in a Part IA record about them. The instrument is likely to be an “APP code” or part of an “APP entity’s” internal rules. Defence is an agency subject to the Privacy Act. The instrument’s restrictions on use (s 9) may provide a lawful basis for limiting disclosure that would otherwise be required under Australian Privacy Principle 6 (use and disclosure). However, the instrument also provides that use is permitted “as required or permitted by law”, which would include the Privacy Act itself and any other law.

Archives Act 1983. The instrument uses the term “archived” but not in the sense of the Archives Act. The record is stored with the service headquarters, not transferred to the National Archives. It is internal Defence archival. The Archives Act may apply to disposal of these records, but the instrument does not address retention periods beyond archiving; presumably the record can be destroyed in accordance with normal Defence records authorities after the member’s service ends.

Freedom of Information Act 1982. Part IA records are likely exempt from release under the FOI Act if they are part of an internal disciplinary process, but the instrument does not address FOI. The member’s right to access under s 9(2) is separate from any FOI request.

Court orders. The instrument acknowledges that disclosure may be required by court order (s 9 Note 1). This means a court could compel production of a Part IA record in civil or criminal proceedings, overriding the use restrictions but subject to other laws.

Other Defence Force Discipline instruments. The Rules sit alongside other rules made under the DFDA, such as the Defence Force Discipline (Infringement) Rules and the Defence Force Discipline (Procedural) Rules. A practitioner must consider the full suite.

State and territory laws. The instrument does not purport to interact with state laws directly, but if a Part IA record is disclosed to a state police force (e.g., for a civilian criminal investigation), that would likely be “required or permitted by law” only if a specific law compels disclosure. The instrument does not authorise disclosure to state authorities for their own purposes.

The instrument was made on 18 July 2022 and commenced on 13 December 2022, the same date as Schedule 1 to the Defence Legislation Amendment (Discipline Reform) Act 2021 (which inserted Part IA into the DFDA). The instrument contains no provisions for amendment. It has not been amended as at the date of this writing (no later versions have been published by the Federal Register of Legislation). The instrument’s commencement table indicates that column 3 may be edited in published versions, but that is simply a note about editorial updates, not a substantive amendment.

There is no amendment history to report. The instrument is recent and has not been subject to parliamentary scrutiny beyond its making as a legislative instrument under the Legislation Act 2003. It is a disallowable instrument, so either house of Parliament could have disallowed it within 15 sitting days of tabling; there is no public record of any disallowance motion.

There is no reported litigation specifically interpreting this instrument. The source text contains no references to any court or tribunal decisions. Given the instrument’s commencement on 13 December 2022, it is relatively new. Challenges could arise in the future, for example: a defence member alleging that a commanding officer used an archived Part IA record in breach of s 9(5); a member seeking access to their own record and being denied; or a question of whether the instrument validly restricts use of records that might be relevant in a later summary authority or court‑martial. Because the instrument is subordinate to the DFDA, any litigation would likely involve judicial review under the Administrative Decisions (Judicial Review) Act 1977 or a challenge to a disciplinary proceeding on the basis that evidence was obtained in breach of the Rules.

No cases are named in the instrument, and no default assumption should be made that any exist. The user is cautioned that the absence of litigation does not indicate the instrument is uncontroversial; it may simply reflect the fact that few members challenge internal disciplinary administrative steps.

The “as soon as practicable” trap. Both s 7(3) (archiving after event) and s 7(4) (giving access on posting) use the phrase “as soon as practicable”. This is not an objective deadline. A commanding officer who delays archiving for weeks may be in technical breach, but more importantly, while the record remains unarchived, the restrictions in s 9(5) do not apply. The chain of command can still access and use the record. A member may be prejudiced if their commanding officer deliberately or negligently fails to archive after a promotion or graduation. There is no statutory mechanism for the member to compel archiving; their only recourse may be a complaint to the Inspector‑General or a privacy complaint.

The definition of “archive” is circular. The instrument defines “archive a record” as storing it with the service headquarters in a manner that restricts access by a person prevented under s 9(5). But s 9(5) prevents persons in items 2 and 3 from using the record after archiving. So the definition means: after archiving, those persons cannot access it. But the definition does not say who can access it after archiving; that is determined by the table (items 5 and 6). However, the instrument does not explicitly state that service‑headquarters personnel (item 5) have access after archiving; it only says in s 9(4) that they may use the record for the listed purposes. The use is not conditioned on archiving. So they can use the record even before archiving if they are posted to service headquarters. But the chain of command loses access after archiving. A gotcha for commanders: they may not realise that once they archive, they cannot retrieve the record themselves without going through service headquarters.

Multiple infringements on one record. A single Part IA record may contain information about more than one disciplinary infringement and more than one prescribed defence member. The note to s 9(5) says that access to only part of the record may be prohibited under paragraph (b). For example, if a record contains two infringements, and one is dismissed while the other is not yet finalised, the archiving event for the dismissed one (s 7(3)(b)) triggers archiving for the whole record? The instrument says the commanding officer must archive the record when any of the events occurs. That would archive the entire record, even if another infringement is still live. That seems odd, but the instrument does not provide for partial archiving. The commanding officer may need to separate records to avoid premature archiving. This is a practical problem.

Monthly report records. The archiving event for monthly report records is “as soon as practicable after the commanding officer has considered the report” (s 8(2)). There is no other event (like promotion or graduation). So monthly report records are typically archived quickly, after which they cannot be used by the chain of command (s 9(5) applies because the record is archived). But the monthly report may aggregate infringements that are still relevant to current discipline management. The unit commander may lose access to aggregate data needed for trend analysis. They should ensure they extract necessary information before archiving.

The member’s right to use their own record may be broad but not unlimited. The member can access and use their Part IA record “that is about the member”. If the record also contains information about other members (e.g., a witness statement mentioning another member), can the member use that? The instrument says “about the member” - presumably the member can only use information about themselves. But the right to “make a record of information in” could be construed as allowing them to copy the entire document. A member who does so and then discloses another member’s personal information could breach the Privacy Act or the DFDA. The instrument does not resolve this.

Authorisation is not automatic. A person who is posted to a service headquarters is not automatically authorised for item 5 purposes. They must be authorised by an officer performing the functions of a Chief of Staff (s 9(6)). Similarly, IGADF must authorise individuals for item 6. If an unauthorised person at service headquarters accesses an archived record, they contravene s 9(1). It is not enough to be “posted” there; the record‑keeper must check authorisation.

Interaction with s 9EB of the Act. The note to s 9(3) states that s 9EB of the Act deals with purposes for which a member is taken to have admitted committing a disciplinary infringement. This means that a Part IA record showing that the member elected to pay an infringement may be used in later proceedings as an admission. However, after archiving, the chain of command cannot use it, but the prosecuting authority (which may be a person performing a function under the Act - e.g., a Director of Military Prosecutions) could use it under s 9(3) even after archiving, because that subsection is not subject to s 9(5) (it is a separate pathway). So the member’s expectation that archiving protects them from use of the record in a future disciplinary proceeding is false; the prosecution can still access and use it.

For commanding officers.

1. Establish a register of all infringement notices given to members in your unit. For each notice, file the completed notice form (with the member’s election) and any evidence or witness statements provided to the discipline officer. This is the mandatory record under s 7(1).

2. Ensure the record is kept securely and retained until an archiving event occurs. If the member is posted to another unit before archiving, immediately provide a copy or access to the new commanding officer (s 7(4)). The instrument does not prescribe the mode of access; it could be an email with the record or an entry in a shared system. But you must give access “as soon as practicable”.

3. Monitor for archiving events: (a) the member does not elect to be dealt with under the infringement scheme - e.g., they elect to go to summary authority; (b) the infringement is dismissed; (c) the member graduates from initial recruit or officer training (applicable at training establishments); (d) the member is substantively promoted to a higher rank; (e) the member’s service ends (discharge, resignation, death). As soon as any of these occurs, archive the record with your service headquarters (Army, Navy or Air Force service headquarters as relevant). The archiving process must restrict access to prevent the chain of command from viewing it; you should send the record to a designated records officer at service headquarters who manages the restricted access.

4. For monthly reports under s 9JA of the Act, keep a copy of each report and archive it as soon as you have considered it. Do not wait for other archiving events.

For discipline officers and senior discipline officers.

Your obligation is to give the monthly report to the commanding officer under the Act. Ensure the report is accurate and complete, as it will become a Part IA record. No additional duty under this instrument.

For all personnel (including commanding officers, career managers, and others).

5. Only access a Part IA record if you are certain of your legal authority. Check who you are and what purpose you need it for. If you are in the member’s chain of command (item 2) or a career management agency (item 3), you may access it only for the listed purposes and only if the record has not been archived and no archiving event has occurred (s 9(5)). If you are posted to service headquarters, you must have written authorisation from a Chief of Staff or their delegate to access the record for item 5 purposes. If you are in the Joint Military Police Unit, you need to be conducting an investigation of the member. If you are the Inspector‑General or an authorised person, you must have authorisation from the IGADF.

6. If you are using the record under s 9(3) (function, duty or power under the Act), keep a record of the necessity - only use the minimum amount of information needed for that function.

7. Never access a Part IA record for personal reasons, curiosity, or to form a general impression of a member’s character outside the permitted purposes. This risks disciplinary action.

8. If you are a member, you have an unqualified right to access your own record. Request it from your commanding officer or the unit that holds it. If the record has been archived, you may need to request it from service headquarters. The instrument gives you that right; the commanding officer or service headquarters should provide it without imposing conditions. However, if the record contains information about others, you should redact or handle that information carefully under privacy law.

For service headquarters.

9. Develop procedures to receive archived records and restrict access as required by the definition of “archive”. Ensure that only persons authorised under s 9(6) by a Chief of Staff can access these records for item 5 purposes. Keep a register of authorisations.

10. When a member requests access to their own archived record, provide it promptly (s 9(2) applies regardless of archiving; the restriction in s 9(5) does not apply to the member themselves). The instrument does not authorise the service headquarters to deny the member’s own access.

General compliance tip.

Because the instrument is embedded in the broader DFDA infringement scheme, integrate these record‑keeping rules into standard operating procedures for discipline officers and commanding officers. During training, emphasise the “cliff” in s 9(5): once an archiving event occurs, the record is no longer available to the unit commander for personnel decisions. Commanders should ensure they take any necessary personnel action (e.g., counselling, posting decisions) before archiving, as they lose that ability after archiving. They should also be aware that they can still ask the service headquarters for information (item 5) after archiving, but only for the purposes listed in that table.