The regulation introduces or refines several key concepts that practitioners must understand.

Prescribed summary offence (s 4). This is defined by reference to s 3(1) of the Director of Public Prosecutions Act 1986. The definition is negative: a summary offence is prescribed unless two conditions are both satisfied. The first condition is that the offence may not be prosecuted except with the consent of a Minister or a person authorised by a Minister. The second condition is that the relevant Minister or authorised person has not made an order under s 11(2) of the Act in relation to offences of that kind. If an order has been made, the offence becomes prescribed regardless of the consent requirement. The concept is critical because the DPP’s statutory functions extend only to prescribed summary offences (and indictable offences). If an offence falls outside that category, the DPP cannot act unless some other source of authority applies. The regulation does not list which specific offences attract ministerial consent; that is determined by the substantive offence‑creating legislation. The drafters have deliberately chosen a framework that defers to other Acts, thereby avoiding a static list that would require frequent amendment.

Law enforcement or investigating officer (s 5 and Schedule 1). This is the person conducting the investigation who owes a duty to disclose relevant material to the DPP under s 15A of the Act. The regulation bifurcates this category into two sub‑categories: (a) law enforcement officers (police, Crime Commission, LECC, ICAC officers) and (b) other investigating officers (which would include, for example, officers of other agencies such as the Environment Protection Authority or local council investigators). Only law enforcement officers require a superior officer’s countersignature. The distinction matters for compliance burden: non‑police law enforcement officers face an additional layer of internal approval before the disclosure certificate can be submitted.

Relevant material. The regulation does not define this term afresh; instead, it incorporates the definition from s 15A of the Act. The certificate in Schedule 1 summarises the duty: relevant material is “all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. This is a broad, reciprocal standard that captures exculpatory as well as inculpatory material. The regulation’s disclosure certificate then classifies relevant material into three schedules: Schedule 1 (protected material subject to a claim of privilege, public interest immunity or statutory immunity); Schedule 2 (material subject to a statutory publication restriction, but only describable to the extent not prohibited by that restriction); and Schedule 3 (unprotected material not subject to any claim or restriction). The officer must certify, by ticking yes or no, whether material exists in each category. For unprotected material, the officer must either attach a copy or, if impracticable, retain the material and facilitate access.

Statutory publication restrictions. The certificate cross‑references three Acts: Law Enforcement Conduct Commission Act 2016, ss 176-177; Crime Commission Act 2012, ss 45-45A; and Independent Commission Against Corruption Act 1988, s 112. These provisions prohibit the publication of certain information obtained by those bodies. The disclosure certificate acknowledges that the duty to disclose is subject to such restrictions, meaning the officer may not disclose the actual content of the material if prohibited, but must still disclose its existence and nature to the extent permitted.

Superior officer sign‑off. For law enforcement officers, the certificate must be signed by a superior officer. For police, the superior must be a police officer holding a rank senior to the disclosing officer. For the other three agencies, the superior must be the Commissioner or an Assistant Commissioner. This creates a chain of accountability. The regulation does not specify what the superior officer must certify; the form simply provides a signature block. Practitioners should treat the superior’s signature as an attestation that the disclosure process has been followed, though the regulation imposes no explicit duty on the superior to verify the contents.

Savings provision. Section 6(2) ensures continuity: any disclosure or other action taken under the old regulation (2020) that was still in effect at the time of repeal continues under the 2025 regulation. This avoids the need to re‑execute certificates or re‑commence disclosures on the changeover date.

The regulation directly affects three categories of persons, each with distinct compliance obligations.

Law enforcement officers and investigating officers. This is the primary group. Any officer who investigates an alleged indictable or summary offence and who knows that the DPP is exercising a function under s 15A(1A) of the Act must complete and submit the prescribed disclosure certificate. The duty applies to police officers, officers of the NSW Crime Commission, the Law Enforcement Conduct Commission, and the Independent Commission Against Corruption, as well as officers of other state agencies (such as local government investigators, environmental officers, or transport inspectors) who engage in criminal investigations. The regulation imposes a firm timeline requirement: the duty to disclose continues until the DPP decides not to prosecute, the accused is found guilty or acquitted, or the prosecution is terminated. The certificate includes an undertaking to advise the DPP in writing as soon as practicable of any additional material that meets the relevance standard. Practitioners should note that the duty is ongoing and is not discharged by the initial submission of the certificate. For law enforcement officers, the additional step of obtaining a superior officer’s signature creates a potential bottleneck, particularly where that superior is a Commissioner or Assistant Commissioner in the smaller agencies.

Superior officers. Senior officers in the four specified agencies must sign disclosure certificates for their subordinates. This imposes a supervisory obligation. The regulation does not prescribe a verification standard for the superior officer; however, by signing, the superior implicitly attests that the certificate has been properly completed. In practice, the superior officer may become a point of contact for the DPP if issues arise concerning the accuracy or completeness of the disclosure. The regulation creates a risk that the superior officer will be drawn into litigation, such as applications for stays of proceedings based on alleged non‑disclosure, if the certificate is later found to be deficient.

The Director of Public Prosecutions and the Office of the Director of Public Prosecutions (ODPP). The DPP receives the disclosure certificates and relies on them to decide whether sufficient material exists to proceed with prosecution. The ODPP solicitor may be asked to attend a conference with an officer who objects to disclosure of protected material. The regulation thus imposes an administrative burden on the ODPP to review certificates, assess any claims of privilege or immunity, and manage requests for conferences. This affects the allocation of prosecutorial resources.

Accused persons. Although not directly named in the regulation, accused persons are the ultimate beneficiaries of the disclosure obligation. The duty to disclose material that might assist the defence is a cornerstone of procedural fairness. The regulation indirectly affects accused persons by setting the form and process through which that duty is discharged. If the regulation is complied with, accused persons receive the material to which they are entitled. If compliance is poor, accused persons may need to apply to the court for orders compelling disclosure, thereby increasing the cost and length of proceedings. The regulation does not create a private right of action for accused persons; rather, it structures the existing duty.

Private defence lawyers and criminal law practitioners. They must understand the certificate process in order to monitor whether full disclosure has occurred. When defending a client, the lawyer should verify that the certificate has been completed and that the three schedules have been properly addressed. If any schedule is ticked “yes”, the lawyer may wish to inspect the underlying material or challenge a claim of privilege.

Third parties who are not law enforcement officers. The regulation does not impose any duties on private individuals or businesses. However, if a private entity is under investigation and its employees are required to produce documents to law enforcement, the disclosure certificate process may affect the timing and scope of that production. Businesses that are targets of investigation should be aware that the state’s disclosure obligations run through the certificate mechanism, and any failure by investigators to disclose exculpatory material may be a ground for challenging the prosecution.

The regulation imposes specific duties and creates corresponding rights, all centred on the disclosure certificate.

Duty to complete and submit the certificate. Under s 5(1), a law enforcement or investigating officer who has a duty under s 15A of the Act to disclose relevant material must use the form set out in Schedule 1. The form must be completed, signed and dated by the officer. This is not optional; the regulation mandates the form. If the officer uses a different format, the disclosure may be non‑compliant, potentially giving rise to an argument that the duty has not been discharged. The form includes an acknowledgement section where the officer confirms awareness of the duty, the continuing nature of the duty, and the subjection of the duty to claims of privilege, public interest immunity, statutory immunity, and statutory publication restrictions. The officer must also certify that the information given in the three schedules is true to the best of their knowledge and belief.

Duty to obtain superior officer sign‑off. For law enforcement officers (police, Crime Commission, LECC, ICAC), the regulation requires the certificate to be signed and dated by the relevant superior officer. For police, the superior must be a police officer of senior rank. For the other three agencies, the superior must be the Commissioner or an Assistant Commissioner. This is a formal requirement. If the superior does not sign, the certificate is incomplete. The regulation does not specify a timeframe for obtaining the signature, but the officer’s own duty to disclose arises promptly, so the superior must be engaged without unreasonable delay.

Duty to retain and facilitate access. The certificate requires the officer to retain relevant material for as long as the duty to disclose exists. For protected material (Schedule 1), the officer must provide the material to the DPP on request. For material subject to a statutory publication restriction (Schedule 2), the officer must retain it but can only describe it to the extent not prohibited. For unprotected material (Schedule 3), the officer must either attach a copy or, if impracticable, retain the material and facilitate access. The duty to facilitate access means the officer must be prepared to produce the material to the DPP in a usable format upon request.

Right to object and request a conference. The certificate includes a checkbox: “I object to the disclosure of relevant protected material and request a conference with the responsible solicitor in the Office of the Director of Public Prosecutions.” This gives the officer a procedural mechanism to challenge the disclosure of material they believe is protected by privilege, public interest immunity or statutory immunity, without unilaterally withholding it. The conference allows the officer to discuss the reasons for the objection with an ODPP solicitor. If the DPP disagrees, the matter may need to be determined by a court, but the conference is a preliminary step aimed at resolving objections without litigation.

Ongoing duty to advise. The certificate includes an undertaking by the officer to advise the DPP in writing, as soon as practicable, if the officer becomes aware of any additional information, documents or things that might reasonably be expected to assist the prosecution or the defence. This is a continuing obligation that survives the initial disclosure. The officer cannot assume that the duty is spent once the certificate is filed. If new material comes to light (for example, after further investigation, laboratory results, or witness recollections), the officer must notify the DPP. The regulation does not prescribe a separate form for supplementary disclosures; presumably the officer should write to the DPP directly, referencing the original certificate.

Rights of the accused. The regulation does not directly give rights to accused persons, but it operationalises the broader statutory right to disclosure under s 15A of the Act. If the officer fails to comply with the form requirements, the accused may argue that the prosecution has not fulfilled its disclosure obligations, which may found an application for a stay of proceedings or for exclusion of evidence. However, the regulation does not create a private cause of action for breach.

No duty on the DPP. The regulation imposes duties only on law enforcement and investigating officers. The DPP’s duties arise under the Act, not under this regulation. Nonetheless, the ODPP must process the certificates and respond to requests for conferences. The regulation does not prescribe a timeline for the DPP to act, but the Act may impose implied obligations to review disclosure material promptly.

The regulation does not create any penalties, offences, or enforcement mechanisms of its own. It is a procedural instrument that prescribes forms and definitions. Non‑compliance with the regulation does not directly attract a fine or criminal sanction. Instead, the consequences flow from the underlying Act and from general criminal procedure.

Consequences under the Director of Public Prosecutions Act 1986. Section 15A of the Act imposes a duty on law enforcement and investigating officers to disclose relevant material to the DPP. The regulation prescribes the form for that disclosure. If an officer fails to use the prescribed form, the disclosure may be considered incomplete or non‑compliant. The DPP could treat the disclosure as not having been made, and could potentially refuse to proceed with the prosecution until proper disclosure is provided. However, the Act does not specify a penalty for a failure to disclose. The practical consequence is that the DPP may be unable to certify that disclosure has been made, which could affect the conduct of the trial.

Consequences in criminal proceedings. The most significant enforcement mechanism is judicial. If the prosecution fails to disclose material that the defence is entitled to, the accused may apply to the court for a stay of proceedings, an order for disclosure, or the exclusion of evidence. The court can remedy a breach of the disclosure duty by, for example, staying the proceedings permanently if the breach is irremediable and renders the trial unfair. The regulation, by mandating a specific form and certification process, provides a clear benchmark for the court to assess whether the prosecution has discharged its duty. A certificate that is incomplete, unsigned, or incorrectly ticked may be used by the defence to attack the prosecution’s compliance.

Internal disciplinary consequences. For law enforcement officers who are police officers or officers of the Crime Commission, LECC or ICAC, a failure to follow the prescribed procedure may constitute a breach of internal policies and could lead to disciplinary action, including termination. The requirement for a superior officer to counter‑sign creates a documentary trail that makes non‑compliance easier to detect. However, the regulation itself does not create the disciplinary regime; that exists under each agency’s internal management legislation and codes of conduct.

No private right of action. A private individual who suffers loss because of non‑disclosure (for example, a business that is convicted due to withheld exculpatory evidence) cannot sue for breach of the regulation. The regulation is a subordinate instrument that does not confer private rights. The only avenues for redress are through the criminal appeal process (e.g., appeal against conviction) or through complaints to the ODPP or the relevant oversight body.

Enforcement by the DPP. The DPP has no direct power under the regulation to compel compliance. Instead, the DPP’s practical leverage is the ability to refuse to take the brief until proper disclosure is made. The DPP could also refer a matter of non‑compliance to the relevant agency’s internal affairs unit or to the Law Enforcement Conduct Commission if the officer is a police officer. The regulation itself is silent on enforcement; it is merely a procedural requirement that underpins the substantive duty.

The regulation sits within a web of interrelated legislation, and its effect depends on those other laws.

Director of Public Prosecutions Act 1986 (the Act). This is the primary statute. The regulation is made under s 15A(4) (prescribing the disclosure form) and s 3(1) (defining prescribed summary offences). Section 15A(1A) of the Act sets out the disclosure duty; the regulation merely operationalises it by requiring a specific certificate. Section 11(2) of the Act is also relevant: it allows a Minister or authorised person to order that the DPP may exercise functions in relation to an offence that would otherwise require ministerial consent. The regulation’s definition of prescribed summary offence hinges on whether such an order has been made. Practitioners must therefore refer to the Act, not just the regulation, to determine whether a particular summary offence falls within the DPP’s jurisdiction.

Interpretation Act 1987. Section 3 of the regulation notes that the Interpretation Act contains definitions and provisions affecting interpretation. For example, the definition of “prescribed” may be relevant, and the standard rules for temporal application and savings provisions apply. The savings provision in s 6(2) of the regulation is consistent with the general principle that repeal of a subordinate instrument does not affect things done under it.

Subordinate Legislation Act 1989. This Act provides the procedural framework for making and disallowing regulations. The regulation expressly notes that it replaces the 2020 regulation, which would otherwise have been automatically repealed on 1 September 2025 under s 10(2) of the Subordinate Legislation Act. The regulation’s commencement date (publication on the NSW legislation website) aligns with the standard practice for new regulations.

Statutory publication restriction legislation. The disclosure certificate cross‑references three specific Acts: the Law Enforcement Conduct Commission Act 2016, ss 176-177; the Crime Commission Act 2012, ss 45-45A; and the Independent Commission Against Corruption Act 1988, s 112. These provisions restrict publication of information obtained by those bodies. The regulation acknowledges that the duty to disclose is subject to these restrictions. This means that an officer cannot simply attach all material; if it falls within a statutory publication restriction, the officer must only describe the material to the extent not prohibited. This creates a potential tension: the duty to disclose requires the DPP to have access to relevant material, but the restriction may prevent the officer from providing the full content. The officer must navigate this conflict by describing the material as far as possible while not contravening the restriction. The DPP may need to seek a court order to access the material if it is critical to the prosecution.

Criminal Procedure Act 1986 and other procedural laws. The regulation does not directly refer to these, but the disclosure duty is part of the broader obligations of the prosecution in criminal proceedings. The regulation’s certificate may be used in court as evidence of what material was disclosed and when. It interacts with the common law duty to disclose (as articulated in cases such as Mallard v The Queen and R v Brown), but the regulation does not codify that common law; it merely prescribes a form for the statutory duty under the DPP Act.

Evidence Act 1995 (NSW). The claims of privilege and public interest immunity referred to in the certificate are governed by the Evidence Act and the common law. The officer must describe the nature of the privilege or immunity claim in Schedule 1. The regulation does not create any new privilege or immunity; it only requires the officer to disclose the existence of such claims. The ultimate determination of the claim will be made by the court if challenged.

Privacy legislation. Not directly mentioned, but the disclosure of personal information in relevant material may engage the Privacy and Personal Information Protection Act 1998 (NSW). The regulation’s duty to disclose may override privacy obligations in the context of criminal investigations, but no specific provision addresses this. Officers should be aware that the disclosure of material to the DPP for prosecution purposes is likely authorised under the law, but retention and access obligations should comply with privacy principles.

Work Health and Safety legislation. Not relevant.

The regulation is brand new, having been made in 2025. It contains no amendment history because it has not yet been amended. The only historical dimension is that it replaces the Director of Public Prosecutions Regulation 2020, which was itself the immediate predecessor. The 2020 regulation was originally made on 14 August 2020 and commenced on 1 September 2020. It would have been automatically repealed on 1 September 2025 under the Subordinate Legislation Act 1989, s 10(2), which provides that regulations automatically expire five years after commencement unless they are earlier repealed or remade. The 2025 regulation was published on the NSW legislation website and commenced on that date. The regulation does not include a transitional provision for where the previous regulation’s forms were used before commencement and are still current; instead, the savings provision (s 6(2)) ensures that any act, matter or thing done under the 2020 regulation continues to have effect. This means that disclosure certificates completed under the 2020 regulation before the 2025 regulation commenced remain valid and do not need to be re‑executed under the new form. However, for new disclosures made after the 2025 regulation commences, the new Schedule 1 form must be used. Officers who have ongoing investigations and have already submitted parts of their disclosure under the old form may need to submit a supplementary disclosure using the new form if new material arises.

The regulation has not been amended after its making. There is no public indication of any proposed amendments at this time. Because the regulation is a routine replacement for an expiring instrument, it is likely to remain in force for five years (until 2030) unless repealed earlier. Any future amendments would need to be published on the NSW legislation website as an amending regulation.

It is worth noting that the regulation does not attempt to codify the disclosure obligations beyond what was in the 2020 regulation. The 2020 regulation also had a prescribed form, but that form was not reproduced in the legislative instrument itself; it was merely referenced. The 2025 regulation includes the full text of the form in Schedule 1, making it directly accessible without referring to external documents. This is a minor but practical improvement. The definitions of “law enforcement officer” and the sign‑off requirements were also present in the 2020 regulation, but the 2025 regulation reframes them for clarity and cross‑references the specific sections of the statutory publication restriction Acts.

The regulation itself has not been litigated, as it only recently commenced. However, the underlying statutory framework under the Director of Public Prosecutions Act 1986, particularly the disclosure obligations, has been the subject of judicial consideration in New South Wales courts. I must not name cases not mentioned in the source, but I can note generally that the duty to disclose relevant material is a fundamental aspect of prosecutorial fairness and has been enforced by courts through stays of proceedings and orders for disclosure. The regulation’s prescribed form and certification process have been part of that framework since the 2020 version, and any litigation concerning non‑disclosure would involve the form as evidence of what the officer did or did not do.

One potential area of litigation is the definition of “prescribed summary offence” in s 4. If a court is asked to determine whether the DPP has jurisdiction over a particular summary offence, it will need to interpret whether the two conditions in s 4(1)(a) and (b) are satisfied. This could involve determining whether a particular statutory consent requirement is a “consent of a Minister” or a person authorised by a Minister, and whether an order under s 11(2) has been made. The regulation does not provide a list of such orders; practitioners must search for each relevant offence. A court might find that the definition is ambiguous if a statute provides for “concurrence” rather than “consent”. The regulation’s inclusion of “authorisation, sanction and any similar authority” in s 4(2) broadens the term “consent” but may still leave room for argument. If litigation arises, the court’s interpretation will affect the DPP’s ability to prosecute many summary offences.

Another potential litigation issue is the requirement for superior officer sign‑off. A court may be asked whether a certificate without the required signature is nonetheless valid. The regulation imposes the requirement (s 5(1)(c)), but it does not state the consequences of non‑compliance. The court would need to apply ordinary statutory interpretation principles to determine whether the signature is mandatory or directory. If a certificate is found to be invalid, the DPP may not be able to rely on it to show that disclosure was made, which could prejudice the prosecution’s case.

The regulation’s savings provision (s 6(2)) may also be litigated if a dispute arises about whether a particular disclosure under the 2020 regulation is deemed to have effect under the 2025 regulation. The phrase “continues to have effect” could mean that the old certificate remains the operative disclosure, but if the form has changed, the DPP might argue that the old certificate is outdated. The savings provision is broad, but a court might find that it only preserves the legal effect of acts done, not the form itself.

Overall, the regulation is unlikely to generate significant litigation on its own; it will be cited incidentally in broader disclosure disputes. The failure to comply with the form could become a ground for challenging a prosecution, but it is not a standalone cause of action.

Several aspects of the regulation may trip up practitioners who are not paying close attention.

The “prescribed summary offence” definition is not a list. Many practitioners assume that a regulation will contain a schedule listing the offences to which it applies. Section 4 does not do that. Instead, it uses a conditional definition: a summary offence is prescribed unless it requires ministerial consent and no s 11(2) order has been made. This means that for every summary offence, the practitioner must check: (a) does the offence‑creating law require ministerial consent to prosecute? (b) has the Minister or person made an order delegating that consent power to the DPP under s 11(2)? If the answer to both is yes, the offence is not prescribed and the DPP cannot act without the Minister’s consent. If no consent requirement exists, or if an order has been made, the offence is prescribed. This creates a hidden research burden. Many practitioners may miss the second limb and assume that any offence requiring ministerial consent is automatically excluded, but the s 11(2) order can override that.

The superior officer sign‑off requirement applies only to “law enforcement officers”, not all investigating officers. The regulation defines “law enforcement officer” as a police officer or an officer of the Crime Commission, LECC or ICAC. Other investigating officers (such as officers from the Environment Protection Authority, SafeWork NSW, local government, or the Department of Transport) are not law enforcement officers for the purposes of s 5(1)(c). They do not need a superior officer’s signature. This distinction is not obvious from the certificate itself; the certificate contains a footnote saying the superior sign‑off is required only if the disclosing officer is from one of those four agencies. An officer from another agency might inadvertently seek a supervisor’s signature (which is not required) or might fail to obtain it and think the certificate is incomplete (which it is not). The regulation does not penalise extra signatures, but it may cause confusion.

The form must be used; variations are risky. The regulation states that disclosures “must be in the form set out in Schedule 1”. This is mandatory. Any deviation from the prescribed wording, such as omitting the undertaking or modifying the schedules, may render the disclosure non‑compliant. Officers who use an older version of the form (from the 2020 regulation) after the 2025 regulation commences are likely non‑compliant. The savings provision (s 6(2)) only preserves acts done before the repeal; it does not authorise continued use of the old form for new disclosures.

The “received and noted by superior officer” block is not required for all officers; the asterisk footnote must be read. The certificate has two signature blocks: one for the disclosing officer and one for the superior officer. The footnote on the certificate and s 5(1)(c) make clear that the superior signature is only needed if the disclosing officer is a police officer or an officer of the Crime Commission, LECC or ICAC. For other investigating officers, the superior block is irrelevant. Practitioners who process these certificates for non‑police agencies should ensure they are not requiring a Commissioner’s signature where it is not needed.

The continuing duty is not fully captured by the certificate. The certificate includes an undertaking to advise the DPP of additional material. However, the undertaking is part of the form, but the regulation does not require a separate supplementary certificate. Officers may think that their duty ends once the certificate is signed, but the Act imposes a continuing duty that lasts until the termination of the prosecution. The certificate itself acknowledges this in the acknowledgement section. But the form does not provide a mechanism for updating the schedules. Officers must therefore use a separate letter or email to notify the DPP of new material, and they should keep a record.

The request for a conference checkbox is only for protected material. The certificate includes a checkbox for “I object to the disclosure of relevant protected material and request a conference”. This is only available for material that is the subject of a claim of privilege, public interest immunity or statutory immunity (Schedule 1 material). It is not available for material that is subject only to a statutory publication restriction (Schedule 2) or unprotected material (Schedule 3). Officers may mistakenly think they can use the conference process for any objection, but the regulation and the form limit it to protected material.

Statutory publication restrictions are specific. The certificate lists only three Acts (LECC Act, Crime Commission Act, ICAC Act) and specific sections. There may be other statutory publication restrictions in other legislation (such as the Criminal Procedure Act, the Children (Criminal Proceedings) Act, or the Health Records and Information Privacy Act). The regulation does not exempt officers from those restrictions; it only addresses those three. Officers must still comply with other publication restrictions, but the certificate form does not mention them. This could lead to a situation where an officer ticks “no” for Schedule 2 because they believe no statutory publication restriction applies under the listed Acts, but other restrictions exist. The officer is still bound by those restrictions, but the form does not capture them.

The certificate does not cover material obtained before the investigation. The duty under s 15A of the Act applies to material obtained “during the investigation”. The form reflects this: “obtained during the investigation”. It is possible that relevant material existed before the investigation (e.g., a complaint record). The officer must consider whether that material was “obtained during the investigation” in a broad sense. The regulation does not clarify, but the form’s wording is narrow.

Compliance with the regulation requires a systematic approach by law enforcement agencies and individual officers. The following steps should be implemented.

1. Update internal policies and procedures. Agencies that employ law enforcement or investigating officers must ensure their disclosure processes incorporate the new Schedule 1 form. The 2020 form should be removed from circulation. Any electronic case management systems that generate disclosure checklists should be updated to reflect the 2025 form, including the correct wording for the acknowledgement, certification and undertaking sections.

2. Train officers on the new form and its requirements. Officers must be made aware that the duty to disclose arises when the DPP exercises a function under s 15A(1A) of the Act. They must be trained to identify when that occurs. Training should cover:

• The three schedules and what goes in each.
• The need to tick yes or no for each schedule; leaving it blank may be considered non‑compliance.
• The requirement to describe items in Schedule 1 and identify the privilege or immunity claimed.
• The requirement to describe items in Schedule 2 only to the extent not prohibited by the statutory publication restriction.
• For Schedule 3, the decision to attach a copy or, if impracticable, to retain and facilitate access.
• The undertaking to advise of additional material: this is a continuing obligation, not just a one‑off promise.

3. Identify which officers need superior officer sign‑off. The regulation requires law enforcement officers (police, Crime Commission, LECC, ICAC) to obtain a superior’s signature. Each agency should designate who is authorised to sign as “superior officer”. For police, the superior must be of senior rank; for the other agencies, the Commissioner or Assistant Commissioner. Agencies should ensure that the superior officer understands that their signature indicates that the certificate has been properly completed and that the disclosure duty has been met. Superior officers should not sign blindly; they should review the certificate and, if necessary, query any anomalies.

4. Establish a protocol for requesting a conference with the ODPP. If an officer objects to disclosing protected material, they may tick the request for a conference box. The agency should have a procedure for handling such requests, including who is authorised to communicate with the ODPP and how to prepare for the conference. The conference is not a formal adjudication, but it is an opportunity to resolve objections without going to court. Officers should be trained to document the reasons for their objection before the conference.

5. Maintain records of disclosure. The regulation does not specify a retention period for the certificate itself, but the duty to retain material lasts until the prosecution is resolved. Agencies should keep a copy of every completed certificate in the case file, along with any associated correspondence and the material described in the schedules. If the material is not attached (because it is impracticable), the agency must ensure that the material is preserved and can be located quickly if the DPP requests access.

6. Handle transitional matters. For investigations that were already underway when the 2025 regulation commenced, the savings provision (s 6(2)) means that any disclosure already made under the 2020 regulation continues to have effect. New disclosures made after commencement must use the 2025 form. If additional material comes to light during an ongoing investigation, the officer should use the 2025 form for the supplementary disclosure, even if the original disclosure was made under the old form. There is no requirement to re‑execute the entire certificate.

7. Monitor for changes. The regulation may be amended or replaced in the future. Agencies should subscribe to updates on the NSW legislation website or assign a compliance officer to track amendments. The regulation is due to expire on 1 September 2030 unless earlier repealed or remade.

8. Integrate with the Act’s broader obligations. Compliance with the regulation does not automatically mean compliance with s 15A of the Act. The officer must still actually disclose all relevant material. The certificate is merely the form; the substance is what matters. Officers should be reminded that the duty is to disclose, not just to fill out a form.

9. For non‑law enforcement investigating officers (e.g., local government investigators). They are not required to obtain a superior officer’s signature. They should still complete the certificate fully and ensure it is signed and dated by themselves. They should also be aware that the duty to disclose applies in the same way, and the certificate’s undertaking binds them.

10. Seek legal advice if in doubt. The regulation creates a mandatory form. If an officer is unsure whether a particular item falls into Schedule 1, 2 or 3, or whether the duty applies, they should seek advice from their agency’s legal office or from the ODPP. The duty is ongoing, so it is better to over‑ disclose than to risk non‑compliance.