Federal Register of Legislation - Australian Government

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AusCheck Bill 2006

  • - C2006B00202
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
Administered by: Attorney-General's
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Registered 14 Dec 2006
Introduced HR 07 Dec 2006

 

 

 

 

 

2004-2005-2006

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

AUSCHECK BILL 2006

 

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Attorney-General,

The Honourable Philip Ruddock, MP)

 


 

AUSCHECK BILL 2006

 

OUTLINE

 

Purpose/object of the bill

 

The purpose of the AusCheck Bill 2006 is to provide a regulatory framework for the conduct of a centralised background checking service by the Attorney-General’s Department (the Department). 

 

The Bill provides authority for the Department to coordinate the background criminal and security assessment for applicants for the Aviation Security Identity Card (ASIC) and the Maritime Security Identity Card (MSIC) and any subsequent schemes.  It also provides authority for the Department to maintain a database of applicants and cardholders; to collect, use and disclose information; and to recover costs for conducting background checks.   

 

Rationale for the Bill

 

The Bill is required to enable the Department to centralise the coordination of background checking for various schemes and to recover costs for providing those services.

 

While it may be possible to rely solely on relevant non-Attorney-General’s portfolio legislation to authorise the Department to coordinate the background checking for one or two schemes, such an approach would become increasingly less practical as the number of schemes brought under the centralised service expands. 

 

The Bill is also required to put beyond doubt the Department’s authority to collect, use and disclose relevant information and to maintain a central database of applicants and cardholders.

 

Précis of principal provisions

 

The principal provisions deal with the establishment of a centralised background checking service to be known as AusCheck; the regulation of the collection of information; the protection of information; the use of the term AusCheck and other regulation making powers.

 

The part of the Bill that establishes the centralised background checking service provides that regulations may be made for the Department to coordinate the ASIC and MSIC background checks and provides for regulations to be made for the Department to coordinate and conduct any other background checking scheme that the Constitution allows the Commonwealth to manage.  It sets out the matters that regulations may cover; the requirements that may be imposed for the purposes of conducting background checks; the limits to the directions that the Secretary may give in relation to background checking; and provides for the Secretary to delegate background checking functions and powers. 

 

The information management part of the Bill authorises the collection, use and disclosure of information for the purposes of the background checks and its inclusion on the database of applicants and cardholders, and sets out the protections that are to apply to background checking records.

 

The transitional arrangements part of the Bill provides for the Department to acquire extant records for the ASIC and MSIC schemes. 

 

The last part of the Bill provides for the Commonwealth’s use of the term “AusCheck”, to denote the centralised background checking service.  It also provides for regulations to be made to recover the cost of providing the service; to allow for review of decisions; to impose penalties for contraventions of the regulations and to allow for the development of background checking guidelines. 

 

Policy background

 

In late 2005 the Australian Government agreed to establish a new division in the Attorney-General’s Department, now known as AusCheck, to coordinate background checks on people who work in secure areas of air and sea ports, namely those who are required to have an ASIC or MSIC.

 

The Government’s decision to establish AusCheck followed a recommendation of Sir John Wheeler’s Airport Security and Policing Review report and is part of the Government’s ongoing commitment to improve aviation and maritime security.

 

The establishment of AusCheck will assist the Australian Government to develop a nationally consistent approach to conducting background checks and allow the development of a single database of applicants and card holders.  The database will minimise duplication of effort where individuals have a need to undertake background checks for different purposes and should improve the Australian Government’s response to a security alert by providing a centralised repository of information on persons required to enter secure areas.

 

Financial Impact Statement

 

The expected cost to operate AusCheck service delivery on an annual basis is in the vicinity of $8-9m which is expected to be cost recovered from the aviation and maritime industry.


NOTES ON CLAUSES

 

Part 1 – Preliminary

 

Clause 1:        Short Title

 

1.         Clause 1 is a formal provision specifying the short title of the Bill.

 

Clause 2:        Commencement

 

2.         The Bill will commence on the day after it receives Royal Assent.

 

Clause 3:        Object of Act

 

3.         The Bill establishes a regulatory framework within which a government agency can provide centralised background checking coordination to a wide range of government agencies.  That service will be provided by a Division of the Attorney-General’s Department, to be known as “AusCheck”.

 

Clause 4:        Interpretation

 

4.         Several terms are defined in this clause:

 

  • “AusCheck database” is defined as the database kept by AusCheck as required by clause 45.  “AusCheck” is the name given to the Division within the Attorney-General’s Department that will be given the function of coordinating background checks for government agencies.  Initially, it will coordinate only the background checks that are currently provided in relation to the aviation and maritime industries under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003.  The database is made up of information collected from applications for background checks.  It can only be used for limited purposes connected with carrying out background checks, national security or criminal intelligence.  Statistical information derived from the database that cannot be used to identify anyone may be used for research and industry and government planning.

 

  • “AusCheck staff member” is defined so as to include any APS employee who performs functions relating to, or for the purposes of AusCheck background checking. This includes APS employees who are not members of the AusCheck division within the Attorney-Generals department. It also includes individuals that are not members of the APS but which have been contracted to perform functions relating to AusCheck background checking.

 

  • “AusCheck scheme” is a scheme of background checking established by regulation.  Clause 25 provides that regulations can be made for conducting and coordinating background checks on people for the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003.  Under the regulations other classes of background checks can be established for other areas where there is a policy to require background checks.

 

  • “AusCheck scheme personal information” is defined as personal information that is either obtained about a person through a background check coordinated by AusCheck or personal information that relates to the administrative processes supporting the AusCheck scheme.

 

  • “permanent resident” is a person who is not an Australian citizen but who is not an unlawful non-citizen and who normally lives in Australia with no legal limitation as to the time they can live here.

 

  • “personal information” is given the same meaning as that term has in the Privacy Act 1988.  In that Act “personal information” means ‘information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’

 

  • “unlawful non-citizen” confirms that this term is to be given its normal legal meaning under the Migration Act 1958.

 

Clause 5 – Definition of background check

 

5.         The term “background check” is central to the description of the function established by the Bill.  This clause defines “background check” as an assessment of particular types of information relating to an individual person.  It includes assessment of information about the person’s criminal history; information about the security assessment that ASIO makes in relation to the person; information about the person’s migration status if the person is not an Australian citizen; other types of information about the person that may be described in regulations.

 

Clause 6 – Crown to be bound

 

6.         This clause provides that the Crown is bound by the provisions in the Bill but is not liable to be prosecuted for any offence created by those provisions.

 

Clause 7 – Extension to external Territories

 

7.         This is a formal provision extending the operation of the provisions in the Bill to all external Territories of Australia.

 

Part 2 – Establishment of AusCheck scheme

 

Clause 8 – Establishment of AusCheck scheme

 

8.         Subclause (1) provides for a background checking scheme to be established by regulations.  The background checking scheme will involve AusCheck as a government agency conducting and coordinating background checks in relation to individual people.  The intention is that the background checking scheme will be comprised of specified classes of background checks that will be conducted by AusCheck in a way that is fast, fair and reliable.

 

9.         Initially, AusCheck will conduct background checks in relation to people who have applied for an ASIC or a MSIC.  Those cards are required to be held by people working in certain aviation and maritime industry positions as part of security schemes for aviation and maritime facilities.  The establishment of the AusCheck scheme is intended to streamline and improve consistency in current background checking requirements.  Criteria against which the results of the background checks are measured and decision-making powers in relation to the use of the background checks are contained in the regulations under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003.  As a result, regulations made under the provisions of the Bill to establish a specific class of background checks for ASIC and MSIC applicants will contain mainly administrative requirements authorising the use of the electronic information flows and AusCheck’s checking coordination service.

 

10.       This clause does allow for other specified classes of background checks to be established in the future.  Such specified classes of background checks would comprise coordination of relevant background checks relating to a particular industry or area of activity.  An example might be the transport of dangerous goods.  It is anticipated that the substance of a regulatory scheme that required coordinated background checks would be contained in regulations under a relevant Act.

 

11.       Subclause (2) describes the purposes for which a specified class of background checks can be established under the provisions of the Bill.  They include:

 

  • matters relating to external affairs, such as giving effect to an international agreement or dealing with matters of international concern

 

·        prevention of the carrying out of terrorist acts

 

  • purposes relating to national security or defence of Australia

 

  • dealing with a national emergency

 

  • purposes related to the expenditure of money by the Commonwealth, including granting financial assistance to a State

 

  • exercising the executive power of the Commonwealth

 

  • purposes related to a Territory or to a Commonwealth place

 

  • trade and commerce between Australia and another place or between the States and Territories

 

  • providing a service to a constitutional corporation that relates to the relationship between the corporation and its employees

 

  • matters relating to postal, telegraphic, telephonic or similar services

 

  • providing a service to the Commonwealth or a Commonwealth authority

 

  • utilising the spare capacity of AusCheck staff or maintaining or improving the specialised skills of AusCheck staff through providing a service, and

 

  • anything else that the Commonwealth has power to make laws about.

 

 

Clause 9 – Matters covered by AusCheck scheme

 

12.       This clause allows regulations to provide for the details of the AusCheck scheme of background checking.

 

13.       Subclause (1) sets out a range of matters that may be provided for.  The regulations can provide for an application for a background check to be made by the person to whom the background check will relate.  Alternatively the regulations can provide for the application to be made by another person (for example, an employer) with the consent of the person to whom the background check will relate.  The regulations can set out what information must be included in an application and the form of the advice to be given to the applicant and the person to whom the background check relates when the check is completed. 

 

14.       The criteria against which the information produced by the background check is to be assessed and the decisions that can be made based on the outcome of a background check can also be set out in the regulations.  However, it will not be necessary for those substantive matters to be contained in the regulations about a specified class of background checks if they are contained in other legislation.  Such will be the case in relation to the specified class of background checks in relation to ASICs and MSICs, where the criteria and the decision making powers are contained in regulations under the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.

 

15.       Subclause (2) allows the regulations to set out differing requirements for particular types of background checks.  This will allow specified classes of background checks to be appropriately designed for different industry or activity requirements.  Subclause (3) supports this by allowing different types of specified classes of background checks to be identified by reference to the legislation to which they relate (for example, the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003) or the purpose for which the specified class of background checks is used or some other relevant description.

 

Clause 10 – AusCheck scheme may require an individual to apply for a background check in relation to certain matters

 

16.       This clause provides the capacity for regulations to establish a specific class of background checks as a requirement for people to do particular things or enter particular places.  As part of such a specified class of background checks, a person would be required to apply for a background check and a favourable decision based on the outcome of that check would be a condition of that person holding certain jobs or being given access to certain information or places.  Such a specified class of background checks would be similar in nature to the existing background checking provisions under the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003, which require a person to undergo a background check and meet specified criteria in order to be permitted to enter security zones.

 

17.       This provision would be used if a specified class of background checks was required to implement policy that was not dealt with by other legislation.  It is likely that any future background checking schemes will be designed under the provisions of an Act providing a relevant policy framework.  Substantive aspects of such a background checking scheme would be established by the portfolio with relevant policy responsibility.

 

Clause 11 – Secretary may give directions under AusCheck scheme

 

18.       This clause gives the Secretary of the Department the power to give directions to a person who has applied for a background check or to a person who is able to take action or who is required to take action in relation to a background check.  Subclause (2) specifies that this power includes the capacity to direct a person to advise whether or not a licence, a permit or other authorisation has been issued to a person in respect of whom a background check has been carried out.  In relation to background checks for ASICs and MSICs this would allow the Secretary to direct issuing bodies to advise whether an ASIC or an MSIC has been issued to a person who applied for one.  The purpose of this provision is to allow AusCheck to keep an accurate database of ASIC and MSIC card holders as part of its function of improving national security provisions.

 

19.       A penalty could be imposed by the regulations for failure to comply with a direction by the Secretary.

 

 

 

Clause 12 – Delegation by Secretary

 

20.       The Secretary of the Department is able to delegate the Secretary’s powers or functions under the AusCheck scheme to an employee of the Department who holds an SES or Executive Level 2 or equivalent position.  A person to whom those powers or functions are delegated must exercise them consistently with any directions of the Secretary.

 

Part 3 – Information management

 

Division 1 – Collection, use and disclosure of information

 

Clause 13 – Authorisation of information collection, use and disclosure

 

21.       This clause authorises, for the purposes of the Privacy Act 1988, the collection, use and disclosure of personal information for specified purposes related to the operation of the AusCheck scheme.  The use of personal information that is authorised by this provision is for purposes related to conducting a background check, or advising on the outcome of a background check, in relation to the person whose personal information it is and updating information about that person. 

 

 

Clause 14 – Authorisation of retention and subsequent use of information

 

22.       This clause allows AusCheck to establish and maintain a database of information relating to specific classes of background checks.  It also restricts the use to which information in the database may be used.  One of the purposes for which the AusCheck background checking function is being established is to ensure that an accurate database of ASIC and MSIC security card holders is available for use in a security incident involving aviation or maritime infrastructure.  The provisions in subclause (2) support that purpose by providing for the database to be maintained and accessed for responding to security incidents.  It also can be used to streamline processing of applications for re-issue of security cards by allowing existing information about the person to be considered.

 

23.       Although ASIO and the AFP have broad powers to collect and use information, this provision clarifies that the information in the database can be used for the purposes of security and criminal intelligence.

 

24.       There is no objection to the use of information that is not able to be used to identify a person or organisation; subclause (3) authorises that de-identified information derived from the database can be used for research and industry and government planning.  This allows the use of statistical information obtained from the database.

 

 

 

Division 2 – Protection of personal information

 

Clause 15 – Protection of information

 

25.       This provision provides additional protection for information obtained by AusCheck for the purposes of providing a background checking service.  It makes it an offence for a person currently or formerly employed in relation to AusCheck background checking to disclose information acquired in relation to background checking unless it is:

 

  • for the purpose of the AusCheck scheme

 

  • with the consent of the person whose personal information is disclosed

 

  • giving the information to the person whose personal information it is, or

 

  • giving information to the Australian Federal Police for the purpose of the AusCheck scheme.

 

26.       Disclosure of information for those reasons is authorised under the Bill.

 

27.       Subclause (4) provides that a person currently or formerly employed by the Department is not required to disclose information obtained by AusCheck in relation to providing a background checking service to a court except if it is necessary to give effect to provisions of the Bill or to the AusCheck scheme, or if it is necessary for criminal proceedings before a court or tribunal for an offence under the Bill or under AusCheck Regulations.

 

28.       The onus of showing that a disclosure of information falls within one of the exceptions will rest on a defendant.  Although such a reversal of the normal onus of proof requirements is contrary to general criminal law policy, it is considered to be justified in this situation both because of the importance of protecting the privacy of people the subject of AusCheck background checks and because the nature of the exceptions means is likely to be peculiarly within the knowledge of a person accused of an unauthorised disclosure of information whether it fell within the scope of those exceptions.  As a result it would be significantly more costly and difficult for the prosecution to establish that a disclosure was not covered by the exceptions than for the defendant to establish that it was.

 

29.       In this clause a reference to ‘information’ includes AusCheck scheme personal information and other kinds of information.  “AusCheck scheme personal information” is defined in clause 4 to mean as personal information that is either obtained about a person through a background check coordinated by AusCheck or personal information that relates to the administrative processes supporting the AusCheck scheme.

 

Part 4 – Transitional provision in relation to information collected before commencement

 

Clause 16 – Authorisation of use and disclosure of personal information collected for specified purposes

 

This clause provides for the transfer to AusCheck of information held by the AFP and the Department of Transport and Regional Services and other government agencies in relation to background checks about applicants for ASIC and MSIC cards.  Without this provision, the AusCheck database would not have a complete set of information about persons currently holding ASICs and MSICs until all current cards are due for renewal.  In the case of MSICs, this will not be for up to five years as the current cards are valid for a five year period.  As a result the Government’s objective of having an up to date database of ASIC and MSIC card holders that could be used in a security incident involving aviation or maritime sites could not be met.

 

By authorising, for the purposes of the Privacy Act 1988, a handover of personal information to AusCheck from other government agencies involved in background checking for ASIC and MSIC cards and the future use of that information by AusCheck, this provision has some retrospective effect.  The benefits to the community generally from having a complete database of ASIC and MSIC security card holders is considered sufficient to justify that retrospective effect.

 

Part 5 – Other matters

 

Clause 17

 

This clause authorises the Department to use the name “AusCheck” in providing a specified class of background checks under the provisions of the Bill.  This will ensure that the Department is not contravening any State or Territory regulations relating to the use of business names.

 

Clause 18 – Regulations

 

The Governor-General is given power to make regulations about matters that the Bill says will be set out in regulations.  There is also power to make regulations for matters that need to be prescribed in order to give effect to the provisions in the Bill.

 

In particular, the regulations are able to provide for:

 

  • charges to be made by AusCheck on a cost recovery basis

 

  • review of decisions made under regulations establishing a specific class of background checks

 

  • imposition of penalties of up to 50 penalty units

 

  • guidelines for background checking, and

 

  • reviewing the AusCheck scheme.