Defence Force Discipline Regulations 2018

The Regulations introduce and rely upon several interconnected concepts that define the architecture of military detention and discipline procedure. A detention centre is classified into three tiers based on the standard the Chief of Defence Force, a service chief, or an authorised officer considers suitable: a unit detention centre (suitable for periods not exceeding 7 days), an area detention centre (suitable for periods not exceeding 14 days), and a corrective detention centre (suitable for any period). Section 9(1) prohibits detaining a person sentenced to more than 7 days in a unit detention centre and more than 14 days in an area detention centre, with concurrent and consecutive sentences aggregated to determine the applicable maximum (section 9(2)). A detainee is any person detained under the Act, and the Regulations impose corresponding obligations on the officer in charge of each detention centre. The officer in charge bears responsibility for management, control, security, and the welfare of all detainees (section 10(1)). Visiting officers are appointed in writing by an authorised officer for each area or corrective detention centre (section 17) and must inspect the centre, hear complaints, and report to the proper authority (section 18). Approved staff members are appointed in writing by the officer in charge to open, inspect, and read letters and parcels (section 22). The Regulations distinguish between letters and parcels: a letter includes any card, document, or other form of written communication and its envelope, while a parcel means a package or similar article (section 7). Contraband is defined as any substance or item, other than money, the possession of which by a detainee is not permitted by or under the Act (section 7). A speed measuring device is defined narrowly as a laser-based device for measuring the speed of conveyances (section 7), not encompassing radar or other technologies. An approved tester is an electrical engineer or electronic technician appointed by an authorised officer holding at least the rank of captain (Navy), colonel (Army), or group captain (Air Force) (section 31). A designated officer is an officer, a service police warrant officer, or a service police non-commissioned officer, which has significance for the power of arrest under section 42. The concept of remission is central to Part 3: a detainee serving a period of at least 28 days is entitled to a remission of one-quarter of that period (section 27(1)), but with a floor of 24 days if the remission would otherwise bring the sentence below that threshold (section 27(2)). Remission is reduced by specified multipliers for custodial punishments imposed during detention: 3 days for each day of segregated confinement, 2 days for each day of confinement to cell, 1 day for each day of extra drill, and 1 day for each cumulative 7-day period of restriction of custodial privileges exceeding 7 days (section 27(3)). A further concept is the notional rank of chaplains: the table in section 38 assigns corresponding Navy, Army, and Air Force ranks to five divisions of chaplains, which governs their disciplinary status under section 6(2) of the Act. Officer cadets (midshipmen in the Navy, staff cadets or officer cadets in the Army, officer cadets in the Air Force) are treated as a distinct class for punishment purposes, with modified punishment tables inserted into Schedule 3 of the Act by section 39.

The Regulations directly affect several distinct classes of persons within the Defence Force and related civilian spheres. The primary affected group is detainees , persons sentenced to detention under the Act who are held in unit, area, or corrective detention centres. Their rights, obligations, and conditions of confinement are comprehensively regulated by Part 2, including the right to separate accommodation (so far as practicable), a daily outdoor exercise opportunity if under segregated confinement, confinement to cell, or required to work indoors (section 15), access to newspapers and daily television or radio broadcasts as the officer in charge thinks reasonable (section 16), and the right to practice their religion (section 20). The second group is the officer in charge of each detention centre, who carries personal statutory responsibilities for management, control, security, welfare, daily interviews with detainees, and the conduct of unannounced night inspections at least once per week (section 10). Visiting officers, appointed by an authorised officer for area and corrective detention centres, must inspect the centre, hear detainee complaints, make reasonable inquiries, and report to the proper authority (section 18). Approved staff members appointed to open letters and parcels under section 22 bear the responsibility of exercising that power subject to the detailed protections in Division 3, particularly the absolute prohibitions on opening letters addressed to the Defence Force Ombudsman, Inspector-General ADF, a member of Parliament, a legal practitioner, or an authorised officer (section 23(3)), and the protection for sealed letters from a member of Parliament or legal practitioner where privilege is claimed (section 23(5)). The Regulations also affect police members , those exercising service police powers , by limiting their power of arrest over officers and defence civilians. Section 42 prescribes that a police member who is not an officer, or a person exercising authority on behalf of a service police officer who is not an officer, has no power of arrest over an officer unless the service offence involves disorderly or violent behaviour, is an offence under Division 1 or 2 of Part III of the Act (excluding sections 23 and 24), or the arrest is justified by the exigencies of service (section 42(2)). Similarly, a police member who is not a designated officer, or a person exercising authority on behalf of a service police officer who is not a designated officer, has no power of arrest over a defence civilian at all (section 42(3)). Investigating officers conducting interviews under Part VI of the Act must use the prescribed form of caution in Form 5 (section 43) and the prescribed form of explanation in Form 7 (section 47) when complying with section 101K of the Act. Electrical engineers and electronic technicians appointed as approved testers affect the regime for speed-related offences under section 40A of the Act, as they alone can test and seal speed measuring devices in accordance with Australian Standards (sections 30 and 31). The Regulations also affect chaplains by assigning them notional ranks for disciplinary matters (section 38), and officer cadets by prescribing modified punishment tables (section 39). Service chiefs of each arm of the Defence Force are required to maintain records of previous convictions for service offences, civil court offences, and overseas offences for each member (section 53). The list in Schedule 2, comprising 67 prescribed places across every state and territory, affects persons subject to investigative search powers under section 101F(1) of the Act, which can only be exercised at those locations.

The Regulations impose several specific duties and confer corresponding rights that operate with legal force. The officer in charge of a detention centre has a duty under section 10(2)(a) to cause each detainee to be interviewed as soon as practicable after admission. The same officer must cause the provisions of the instrument and general orders applicable to the detainee to be brought to the detainee's attention (section 10(2)(b)). Section 10(3) creates three ongoing duties: to visit each part of the centre and each detainee every day so far as practicable, to conduct an unannounced night inspection at least once per week, and to ensure that the treatment of detainees is consistent with their rehabilitation for further naval, military or air force service. The duty to conduct unannounced night inspections is a specific accountability mechanism designed to prevent systemic abuses during low-supervision periods. Visiting officers must under section 18(b) visit all detainees in the centre so far as practicable and hear any complaints or requests those detainees wish to make, then give a report to the proper authority after each visit (section 18(c)), and for each complaint must make a record, conduct reasonable inquiries, and report the complaint and inquiry results to the proper authority (section 18(d)). Detainees have a right under section 19(1) to receive visits from a visiting officer, medical officer, chaplain, legal practitioner, police member, or constable at reasonable times, and from other persons at reasonable times subject to conditions the officer in charge thinks fit (section 19(2)-(3)). The right to receive visits from a legal practitioner is unqualified by the officer in charge's discretion , only the security override in section 19(5) permits refusal or removal of a visitor who is likely to endanger security or discipline. Visits must take place out of hearing but within sight of a staff member (section 19(4)). Under section 23(3), a detainee has an absolute right to send letters to the Defence Force Ombudsman, Inspector-General ADF, a member of Parliament, a legal practitioner, or an authorised officer without those letters being opened, inspected, or read by any person other than the addressee or an authorised recipient. Similarly, letters from the Defence Force Ombudsman or Inspector-General ADF to a detainee must not be opened, inspected, or read by any person other than the detainee or a person authorised by the detainee (section 23(4)). Sealed letters from a member of Parliament or legal practitioner claiming privilege are protected unless the officer in charge reasonably believes the letter contains money, contraband, or an item likely to adversely affect security, discipline, or good order (section 23(5)-(6)). Detainees have a right under section 14 to make such purchases as the officer in charge thinks fit, and under section 13 to receive daily food of the type and quantity ordinarily provided to defence members, with an option to purchase additional food subject to general orders. Section 20 guarantees the right to engage in normal religious activities and possess or access religious books and objects. In terms of work, section 21 confers on the officer in charge a power to direct work but creates correlative protections: the detainee must not be required to perform work detrimental to health in a medical practitioner's opinion, on Christmas Day, Good Friday, or a day of religious observance (other than work necessary for continued daily operation), or otherwise than for the benefit of the Commonwealth. The daily work requirement is at least 6 hours and at most 9 hours, with the officer in charge obliged to take into account the detainee's religion and mental and physical capacity. Section 53 confers on each member of the Defence Force a right, upon request, to obtain from their service chief a copy of the record of their previous convictions for service offences, civil court offences, and overseas offences.

The Regulations create only one standalone offence with a prescribed penalty. Section 33 provides that a person commits an offence if the person engages in conduct that damages, tampers with, or interferes with a sealed speed measuring device, with a penalty of 2 penalty units. At the time of the Regulations' commencement, one penalty unit under section 4AA of the Crimes Act 1914 was $210, making the maximum fine $420. The offence is strict or absolute in that the provision does not refer to fault elements, though the operation of the Criminal Code (which applies to all Commonwealth offences) would require consideration of whether strict liability applies. This is a summary offence enforceable before a court martial or Defence Force magistrate under the Act. The more significant enforcement mechanism in the Regulations is not a direct penalty but the reduction of remission for detainees who incur custodial punishments while serving detention. Section 27(3) operates as a form of disciplinary enforcement within the detention environment: for each day of segregated confinement served by the detainee, the remission entitlement is reduced by 3 days; for each day of confinement to cell, by 2 days; for each day of extra drill, by 1 day; and for continuous or discontinuous periods of restriction of custodial privileges exceeding 7 days in aggregate, by 1 day for each period of not less than 7 days. This creates a graduated tariff that penalises more serious custodial punishments more heavily. If a punishment of a period of detention is imposed for an offence committed during a pre-existing period of detention, the detainee is not entitled to remission at all in respect of the later period (section 27(4)). The Regulations also contain enforcement mechanisms through administrative powers. The officer in charge may use such reasonable force as is necessary to refuse entry to or remove a visitor who is likely to endanger or interfere with the security or discipline of the detention centre (section 19(5)-(6)). Impounded items under sections 23(6) and 24(2) , money, contraband, or items likely to adversely affect security, discipline, or good order , may be dealt with in accordance with directions from the Chief of the Defence Force or a service chief (section 25). Failure by an officer in charge to comply with the duties under section 10, or by a visiting officer to comply with section 18, may constitute a service offence under the Act if it involves a breach of duty, though the Regulations themselves do not create such an offence. The power of arrest under section 42, while restrictive in scope, operates as an enforcement precondition: police members who are not officers may arrest officers only in limited circumstances (service offences involving disorderly or violent behaviour, offences under Divisions 1 or 2 of Part III other than sections 23 and 24, or exigencies of service), and police members who are not designated officers have no power of arrest over defence civilians at all. This restriction limits enforcement capability against higher-ranking members and civilians, creating a deliberate check on arrest powers.

The Regulations sit within a layered legislative framework centred on the Defence Force Discipline Act 1982, which is the enabling Act under section 3. The parent Act provides the substantive criminal law and procedural framework for the Defence Force discipline system, while the Regulations supply the detailed operational rules that the Act authorises by references throughout its provisions. For example, section 178D of the Act authorises regulations making provision for the conduct and administration of detention centres and the remission of punishments, which Parts 2 and 3 of the Regulations directly implement. Section 146(2) of the Act authorises regulations prescribing rules of evidence for courts martial and Defence Force magistrates, which Part 4 of the Regulations fulfills. The Regulations expressly modify the Evidence Act 1995 for the purpose of proceedings before a court martial or Defence Force magistrate. Section 36 provides that clause 1 of Part 2 of the Dictionary in the Evidence Act 1995 has effect as if the following paragraph were added at the end of subclause (1) of that clause: the control, operation and administration of the Defence Force. This modification ensures that the definition of "business" in the Evidence Act extends to cover Defence Force operations, thereby allowing business records exceptions and other evidentiary provisions to apply in court martial proceedings in the same way they would in civilian courts. The Regulations also interact with the Defence Act 1903 in two specific ways. Section 37, which calculates the daily rate of pay of a convicted person for the purposes of paragraph 3(9)(a) of the Act, cross-references determinations under section 58H (military remuneration) and section 58B (Defence Force pay and conditions) of the Defence Act 1903. This ensures that fines and other pecuniary punishments imposed under the discipline system are linked to the actual pay determination in effect on the day of conviction. The definition of Inspector-General ADF is imported from the Defence Act 1903 (section 7), ensuring consistency in oversight personnel across the two statutes. The Regulations also interact with the Australian Standards regime through the speed measuring device provisions. Section 30(2) requires testing in accordance with Australian Standard AS 4691.2-2003 (Laser-based speed detection devices, Part 2: Operational procedures) and sealing in accordance with Australian Standard AS 4691.1-2003 (Part 1: Definitions and device requirements), both as in force when the Regulations commenced on 1 April 2018. This means the evidentiary value of a speed reading depends on compliance with those external technical standards, creating a legislative incorporation of private standards by reference. The transitional provision in section 54 preserves things done under the repealed Defence Force Discipline Regulations 1985, such as notices, approvals, and instruments, provided they could be done under the 2018 Regulations. This prevents procedural gaps and ensures continuity of administrative actions taken before commencement. The Regulations also operate alongside the general criminal law of the Commonwealth insofar as the Criminal Code applies to the offence in section 33 (tampering with a speed measuring device). The service offence prescribed list in section 51 interacts with the Act's provisions on the summary authority's jurisdiction: only certain serious offences (those punishable by imprisonment for more than 2 years, with exceptions including sections 43(1), 47C, 47P, 47Q, 48, and 52, and ancillary offences related to them) are prescribed for the purpose of paragraph 104(b) of the Act.

The Defence Force Discipline Regulations 2018 is an original legislative instrument that came into force on 1 April 2018 (section 2, table item 1). It repealed and replaced the Defence Force Discipline Regulations 1985 in their entirety (Schedule 3, item 1). The Regulations were made by the Governor-General on 15 March 2018 on the advice of the Federal Executive Council, with the Minister for Defence Personnel as the recommending minister. As an instrument originally made in 2018, its substantive provisions have not been subject to amendment as of the text provided. The instrument contains no internal amendment provisions beyond the transitional provision in section 54, which preserves the legal effect of things done under the 1985 Regulations if those things could be done under the 2018 instrument. The 1985 Regulations had operated for 33 years before replacement. The Schedules are integral to the instrument: Schedule 1 contains nine prescribed forms (Forms 1 through 9), Schedule 2 lists 67 prescribed places across eight states and territories for the purposes of section 101F(1) of the Act, and Schedule 3 effectuates the repeal of the 1985 Regulations. The Australian Standards referenced in section 30 , AS 4691.1-2003 and AS 4691.2-2003 , are incorporated as at the time of the instrument's commencement, creating a static reference rather than a ambulatory one, so future amendments to those Standards would not automatically alter the Regulations unless the instrument itself is amended.

The text of the Regulations does not refer to any decided cases. As subordinate legislation focused on administrative and procedural detail rather than novel legal principles, the Regulations are unlikely to generate extensive independent litigation. The most likely source of judicial consideration would be challenges to the admissibility of evidence tendered under Part 4, particularly section 30 regarding speed measuring devices. A court martial or Defence Force magistrate would need to determine whether a certificate under Form 1, 2, or 3 provides prima facie evidence of the facts stated, and whether the testing and sealing requirements under Australian Standards have been met. Another potential area for litigation concerns the limits on arrest powers under section 42, particularly the phrase exigencies of service in section 42(2)(c), which is not defined in the Regulations. A person challenging a arrest by a police member who is not an officer could argue that the exigencies of service condition was not satisfied. The interpretation of the remission reduction provisions in section 27(3) could also arise in proceedings before a Defence Force magistrate or court martial if a detainee disputes the calculation of remission. The interaction between section 23(4) (protection of letters from the Defence Force Ombudsman or Inspector-General ADF) and section 24 (power to open letters if security, discipline, or good order is likely to be adversely affected) may produce litigation over which provision prevails in cases where a letter from those sources is suspected of containing contraband. The provision requiring that a detainee's treatment be consistent with rehabilitation for further service (section 10(3)(c)) could be raised in habeas corpus or judicial review proceedings if a detainee alleges that conditions of detention fundamentally undermine that purpose.

Several provisions in the Regulations contain nuances that may be overlooked but have significant practical consequences. The exigencies of service limitation in section 8(2) is a sweeping exception: the entire Part 2 detention centre regime need not be complied with if the detention centre is under the control of a part of the Defence Force whose members are on active service, and even then only to the extent the exigencies of service permit. This means that a detainee held in a combat zone could lawfully be denied many of the rights otherwise guaranteed, including separate accommodation, daily visits by the officer in charge, religious observance, and the letter protections. The floor on remission in section 27(2) is a drafting trap: if the one-quarter remission would reduce a sentence to less than 24 days, the sentence is remitted to exactly 24 days, not to the higher of the remitted amount or 24 days. A detainee serving 28 days gets a nominal 7 days remission but actually serves 24 days (an effective remission of 4 days). A detainee serving 30 days would get a nominal 7.5 days remission but again serves 24 days (an effective remission of 6 days). The remission reduction provisions in section 27(3) operate cumulatively: for each day of segregated confinement, the detainee loses 3 days of remission, meaning a single day of segregated confinement could cost more than three days of remission entitlement if the sentence is short. The prohibition on opening letters to the Defence Force Ombudsman, Inspector-General ADF, a member of Parliament, a legal practitioner, or an authorised officer (section 23(3)) is absolute and does not contain a security override comparable to section 23(6) for privilege-claimed letters from a member of Parliament or legal practitioner. This means even if the officer in charge reasonably believes such a letter contains contraband, they may not open it. The only recourse would be to impound the physical item but not read it. The power to direct a detainee to perform work under section 21 is limited to work for the benefit of the Commonwealth (section 21(4)(c)), which precludes requiring detainees to perform work for private benefit. However, the phrase for the benefit of the Commonwealth is not defined and could include work outsourced to private contractors if it serves a Commonwealth purpose. The speed measuring device provisions in Division 1 of Part 4 apply only to laser-based devices, not radar, because speed measuring device is defined in section 7 as a laser-based device. Any attempt to tender radar speed readings would need to rely on other evidentiary provisions or common law. The power of arrest limitations in section 42 contain an important internal distinction: a police member who is not an officer may have a power of arrest over an officer only in the three specified conditions, but a police member who is not a designated officer has no power of arrest over a defence civilian at all. A designated officer is defined in section 7 as an officer, a service police warrant officer, or a service police non-commissioned officer, so the class of persons without power of arrest over defence civilians is broader than the class without power of arrest over officers. The prescribed places list in Schedule 2 is exhaustive: section 44 prescribes each of those places for the purposes of subsection 101F(1) of the Act, meaning investigative powers under that provision can only be exercised at those locations. A search or other action at a location not listed would be ultra vires. The modification of punishment tables for officer cadets in section 39 inserts new rows that apply specifically to officer cadets (excluding midshipmen, staff cadets, and officer cadets), and item 2 of Table D is modified to read Officer cadet or member below non-commissioned rank, extending the lower punishment tier to include officer cadets alongside junior ranks. The transitional provision in section 54 is broad enough to preserve notices, approvals, and instruments made under the 1985 Regulations, including approved tester appointments and detention centre classifications. This means an appointment made under the old instrument remains valid under the new unless the officer who made it would lack authority under the new instrument.

Compliance with the Defence Force Discipline Regulations 2018 requires different action by different actors within the Defence Force. For the officer in charge of a detention centre, compliance begins with admission procedures under section 10(2): each detainee must be interviewed as soon as practicable after admission, and the applicable provisions of the Regulations and general orders must be brought to the detainee's attention. A written record of this interview and the information provided should be maintained. The officer in charge must conduct daily visits to each part of the centre and each detainee (so far as is practicable), and must conduct an unannounced night inspection at least once per week at a time not known in advance by any other person in the centre (section 10(3)). The requirement to ensure that treatment is consistent with rehabilitation for further service should be evidenced by policies and practices that include work, education, and personal development opportunities. Accommodation must comply with section 11: each detainee should be in a separate cell as far as practicable; if not, a minimum of three detainees per cell is required. Each cell must have heating, lighting, ventilation, equipment for physical and mental health, and a means of communication with staff. The officer in charge must ensure that each detainee has a separate bed (section 11(3)), access to cleanliness facilities (section 12), daily food as ordinarily provided to defence members (section 13), and the opportunity for daily outdoor exercise for those under segregated confinement, confinement to cell, or indoor work directions (section 15). For visits, the officer in charge must permit at reasonable times visits from the categories of persons listed in section 19(1) and from other persons subject to reasonable conditions. No condition may be imposed that effectively denies access to a legal practitioner. The hearing and sight requirements of section 19(4) must be observed for all visits. For letters and parcels, the officer in charge must designate approved staff members in writing (section 22(1)), ensure that letters to the Defence Force Ombudsman, Inspector-General ADF, a member of Parliament, a legal practitioner, or an authorised officer are never opened (section 23(3)), and ensure that letters from the Defence Force Ombudsman or Inspector-General ADF are never opened (section 23(4)). Privilege-claimed letters from a member of Parliament or legal practitioner must be treated as confidential unless there is a reasonable belief they contain money, contraband, or security-threatening material, in which case the detainee must open the letter in the presence of the officer in charge or approved staff member (section 23(6)). Any impounded items must be noted and reported to the detainee, and dealt with according to directions from the Chief of the Defence Force or a service chief (section 25). Work directions under section 21 must not exceed 9 hours per day, should be at least 6 hours where practicable, must consider the detainee's religion and mental and physical capacity, and must not be on Christmas Day, Good Friday, or a day of religious observance unless necessary for daily operations. For the service chief of each arm of the Defence Force, compliance requires maintaining records of previous convictions for all members and making copies available upon request (section 53). For investigating officers conducting interviews, compliance requires using the prescribed forms: the caution in Form 5 (section 43), the explanation in Form 7 (section 47), and the acknowledgement of record of interview procedure in section 45. The appropriate witness certificate in Form 6 (section 46) must be completed when required. For police members operating speed measuring devices, compliance requires using a device tested within the preceding 12 months by an approved tester in accordance with Australian Standards AS 4691.2-2003 and AS 4691.1-2003, sealed after testing, and operated by a police member in accordance with AS 4691.2-2003 (section 30). A certificate in Form 3 must be completed for each operation (section 32(2)). For approved testers, a certificate in Form 2 must be completed for each test (section 32(1)). For any person serving or receiving a summons or notice under the Act, the methods of service are set out in section 41 and include personal delivery, leaving at the last known place of residence with a person apparently over 16, leaving at a place of business, delivery to a legal representative, or email to the Defence Force-provided email address. Service by email is only permitted if the recipient has a Defence Force-provided email address. For any person conducting an identification parade or consent search, the prescribed acknowledgements in Forms 8 and 9 must be used (sections 49 and 50). For chaplains, compliance with disciplinary matters is governed by the notional rank table in section 38, which should be cross-checked against the chaplain's division.