A Bill for an Act to provide a regulatory framework for coordinating and conducting centralised criminal, security and other background checking, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act may be cited as the AusCheck Act 2006.
2 Commencement
This Act commences on the day after it receives the Royal Assent.
3 Object of Act
The object of this Act is to provide a regulatory framework for coordinating and conducting certain criminal, security and other background checking.
4 Definitions
In this Act:
AusCheck database means the database referred to in section 14.
AusCheck scheme means the scheme prescribed for the purposes of section 8.
AusCheck scheme personal information means personal information:
(a) that is obtained under the AusCheck scheme; or
(b) that relates to the administration of the AusCheck scheme.
AusCheck staff member means:
(a) an APS employee who performs functions relating to, or for the purposes of, the AusCheck scheme; or
(b) a person engaged as a consultant or contractor to perform functions relating to, or for the purposes of, the AusCheck scheme.
Note: For the definition of APS employee, see section 17AA of the Acts Interpretation Act 1901.
permanent resident means a person:
(a) who is not an Australian citizen; and
(b) whose normal place of residence is situated in Australia; and
(c) whose presence in Australia is not subject to any limitation as to time imposed by law; and
(d) who is not an unlawful non‑citizen.
personal information has the same meaning as in the Privacy Act 1988.
unlawful non‑citizen has the same meaning as in the Migration Act 1958.
5 Definition of background check
A background check, in relation to an individual, is an assessment of information relating to one or more of the following:
(a) the individual’s criminal history;
(b) matters relevant to a security assessment of the individual;
(c) the individual’s citizenship status, residency status or the individual’s entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non‑citizen;
(d) such other matters as are prescribed by the regulations.
6 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
7 Extension to external Territories
This Act extends to every external Territory.
Part 2—Establishment of AusCheck scheme
8 Establishment of AusCheck scheme
(1) The regulations may provide for the establishment of a background checking scheme (the AusCheck scheme) relating to the conduct and coordination of background checks of individuals:
(a) for the purposes of the Aviation Transport Security Act 2004 or regulations under that Act; and
(b) for the purposes of the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act; and
(c) for such other purposes as are prescribed by the regulations.
(2) The purposes prescribed by the regulations as mentioned in paragraph (1)(c) may be:
(a) purposes related to external affairs, including:
(i) giving effect to an international agreement to which Australia is a party; and
(ii) addressing matters of international concern; and
(iii) matters outside Australia; or
(b) purposes related to the prevention of conduct to which Part 5.3 of Chapter 5 of the Criminal Code applies; or
(c) purposes related to Australia’s national security or defence or to a national emergency; or
(d) purposes related to money appropriated for the purposes of the Commonwealth; or
(e) purposes in respect of the granting of financial assistance to a State on such terms and conditions as the Parliament thinks fit; or
(f) purposes related to the executive power of the Commonwealth; or
(g) purposes related to the collection of statistics; or
(h) purposes related to a Territory; or
(i) purposes related to a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or
(j) purposes related to trade and commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(k) purposes related to the provision of a background checking service to a constitutional corporation, where:
(i) the service involves conducting a background check in respect of one or more employees of the constitutional corporation; and
(ii) the background check is relevant to the relationship between the constitutional corporation and the employee or employees; or
(l) purposes in connection with a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; or
(m) purposes related to the provision of allowances, pensions, child endowment, benefits or services referred to in paragraph 51(xxiiiA) of the Constitution; or
(n) purposes related to the provision of a service to:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(o) purposes related to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth; or
(p) purposes related to the provision of a service, if the provision of the service:
(i) utilises the Department’s spare capacity; or
(ii) maintains or improves the specialised technical skills of Departmental staff in relation to the background checking;
and does not impede the Department’s capacity to perform its other functions; or
(q) purposes related to any other matter in respect of which the Parliament has the power to make laws.
9 Matters covered by AusCheck scheme
(1) The AusCheck scheme may make provision for and in relation to the following:
(a) the making of applications for a background check by the individual to whom the background check relates;
(b) the making of applications for a background check by a person other than the individual to whom the background check relates, with the consent of the individual to whom the background check relates;
(c) the information that is to be contained in an application for a background check;
(d) the criteria against which an application for a background check is to be assessed;
(e) the decision or decisions that may be made as a result of an application for a background check;
(f) the form of advice to be given to the applicant for a background check;
(g) the form of advice to be given to an individual in respect of whom a background check is conducted;
(h) the form of advice to be given to other persons about the outcome of a background check.
(2) The matters referred to in subsection (1) may relate to:
(a) all background checks to be conducted under the AusCheck scheme; or
(b) a specified class of background checks.
(3) Without limiting the way in which a class of background checks may be described for the purposes of subsection (2), a class may be described by reference to a specified legislative or non‑legislative scheme, a specified law of the Commonwealth, specified provisions of a law of the Commonwealth or specified purposes.
10 AusCheck scheme may require an individual to apply for a background check in relation to certain matters
The AusCheck scheme may require an individual to apply for a background check under the AusCheck scheme, and for a specified decision to be made in relation to that application, as a condition precedent to:
(a) the individual being granted access to specified information or a specified place or other specified thing that is controlled or limited; or
(b) a specified power or function under a law of the Commonwealth being exercised in relation to the individual (including a power or function relating to whether a licence, permit or other authorisation should be issued to the individual); or
(c) the individual being permitted to occupy a specified office or to engage in particular employment.
11 Secretary may give directions under AusCheck scheme
(1) The AusCheck scheme may empower the Secretary to give directions to an applicant for a background check, or to a person who is required or permitted to take action relating to matters connected with a background check.
(2) Without limiting subsection (1), the AusCheck scheme may empower the Secretary to direct a person to advise the Secretary whether or not a licence, permit or other authorisation has been issued to an individual in respect of whom a background check has been conducted.
12 Delegation by Secretary
(1) The Secretary may, by writing, delegate any or all of the Secretary’s functions and powers under the AusCheck scheme:
(a) to an SES employee, or acting SES employee, in the Department; or
(b) to an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department.
Note: The expressions APS employee, SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901.
(2) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.
Part 3—Information management
Division 1—Collection, use and disclosure of information
13 Authorisation of information collection, use and disclosure
The collection, use and disclosure of personal information about an individual is taken to be authorised by law for the purposes of the Privacy Act 1988 if:
(a) the collection, use or disclosure is for the purposes of, or for purposes relating to, conducting a background check or advising on the outcome of a background check in respect of the individual under the AusCheck scheme; or
(b) the collection, use or disclosure is for the purposes of updating information held by the Secretary in respect of an individual in respect of whom a background check has been conducted under the AusCheck scheme.
14 Authorisation of retention and subsequent use of information
(1) The Secretary may establish and maintain a database (the AusCheck database) of information, including AusCheck scheme personal information, that relates to the AusCheck scheme.
(2) AusCheck scheme personal information about an individual:
(a) may be included in the AusCheck database; and
(b) may be used or disclosed for the following purposes:
(i) carrying out a subsequent background check in relation to the individual under the AusCheck scheme;
(ii) responding to an incident that poses a threat to national security;
(iii) the collection, correlation, analysis or dissemination of criminal intelligence or security intelligence.
(3) AusCheck scheme personal information included in the AusCheck database may be used in such a way that de‑identified information derived from the AusCheck scheme personal information can be used and disclosed for the following purposes:
(a) research;
(b) government planning;
(c) industry planning.
Division 2—Protection of information
15 Protection of information
(1) A person commits an offence if:
(a) the person is or was an AusCheck staff member; and
(b) when the person is or was an AusCheck staff member, the person obtained information relating to the AusCheck scheme; and
(c) the person discloses the information to someone else.
Penalty: Imprisonment for 2 years.
(2) Each of the following is an exception to subsection (1):
(a) a disclosure for the purposes of the AusCheck scheme;
(b) if the information is AusCheck scheme personal information—a disclosure with the consent of the individual to whom the AusCheck scheme personal information relates;
(c) if the information is AusCheck scheme personal information—a disclosure to the individual to whom the AusCheck scheme personal information relates;
(d) a disclosure to the Australian Federal Police for the purposes of the AusCheck scheme.
Note 1: A defendant bears an evidential burden in relation to a matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: For prescribing by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(3) If a disclosure of information is covered by subsection (2), the disclosure is authorised by this section.
(4) A person who is or was an AusCheck staff member is not to be required to disclose information relating to the AusCheck scheme to a court, except:
(a) where it is necessary to do so for the purposes of giving effect to this Act or the AusCheck scheme; or
(b) for the purposes of a criminal proceeding for an offence against this Act or regulations under this Act (including a proceeding to determine whether a person should be tried for an offence).
For this purpose, court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
(5) In this section:
information includes, but is not limited to, AusCheck scheme personal information.
Part 4—Transitional provision in relation to information collected before commencement
16 Authorisation of use and disclosure of personal information collected for specified purposes
(1) This section applies to personal information about an individual that was collected before the commencement of this section by an agency or organisation (within the meaning of the Privacy Act 1988) for the purposes of conducting background checking under:
(a) the Aviation Transport Security Act 2004 or regulations under that Act; or
(b) the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act.
(2) The disclosure of the personal information to an AusCheck staff member, and the use and disclosure of the personal information by an AusCheck staff member, is taken to be authorised by law for the purposes of the Privacy Act 1988 if the disclosure or use is for the purposes of the AusCheck scheme.
Part 5—Other matters
17 Use of the name AusCheck
The Commonwealth is entitled to use the name “AusCheck” for the purposes of the AusCheck scheme.
18 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may provide for the following:
(a) the charging and recovery of fees and other charges in respect of matters specified in the regulations, being matters in relation to which expenses are incurred by the Commonwealth under this Act or under the regulations, but not that would otherwise amount to taxation;
(b) the review of decisions under the regulations;
(c) the imposition of penalties, not exceeding 50 penalty units, for a contravention of the regulations;
(d) the making of guidelines about matters relating to background checking;
(e) the establishment and conduct of a review of the AusCheck scheme.