Part 1—Preliminary
1 Name
This instrument is the AusCheck Regulations 2017.
3 Authority
This instrument is made under the AusCheck Act 2007.
4 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) AusCheck database;
(b) background check;
(c) issuing body;
(d) Secretary;
(e) Transport Secretary.
In this instrument:
Act means the AusCheck Act 2007.
adverse criminal record:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(2) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by regulation 6.08A of the MTOFS Regulations; or
(c) otherwise—has the meaning given by clause 1.3 of the SSBA Standards.
adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
ASIC has the same meaning as in the ATS Regulations but does not include a temporary ASIC issued under those regulations.
ATS Regulations means the Aviation Transport Security Regulations 2005.
Category A identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations.
Category B identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations.
Category C identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations.
entity has the same meaning as in the National Health Security Act 2007.
health security relevant offence has the meaning given by clause 1.3 of the SSBA Standards.
identification document means:
(a) a Category A identification document; or
(b) a Category B identification document; or
(c) a Category C identification document.
Immigration Department means the Department administered by the Minister administering the Migration Act 1958.
MSIC has the same meaning as in the MTOFS Regulations but does not include a temporary MSIC (within the meaning of those regulations).
MTOFS Regulations means the Maritime Transport and Offshore Facilities Security Regulations 2003.
NHS entity means an entity to which Division 5 of Part 3 of the National Health Security Act 2007 applies.
notification period: see subsection 22(5).
old regulations means the AusCheck Regulations 2007.
operational need:
(a) for an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an MSIC—has the meaning given by regulation 6.07F of the MTOFS Regulations.
qualified criminal record:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(3) of the ATS Regulations; or
(b) otherwise—has the meaning given by clause 1.3 of the SSBA Standards.
qualified security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
required information: see section 5.
SSBA Standards has the same meaning as in the National Health Security Act 2007.
transferred ASIC applications has the meaning given by paragraph 6.22(2)(b) of the ATS Regulations.
transferred ASICs has the meaning given by paragraph 6.22(2)(a) of the ATS Regulations.
transferred MSIC applications has the meaning given by paragraph 6.07ZA(2)(b) of the MTOFS Regulations.
transferred MSICs has the meaning given by paragraph 6.07ZA(2)(a) of the MTOFS Regulations.
unfavourable criminal history: see section 6.
5 Required information
The required information for an individual to whom an application for a background check relates is the following information:
(a) the individual’s name, gender and date and place of birth;
(b) any other name by which the individual is or was known;
(c) the individual’s current residential address;
(d) all other residential addresses of the individual in the 10 years before the application is made;
(e) the individual’s preferred mailing address;
(f) the individual’s preferred telephone contact number;
(g) the individual’s preferred email address;
(h) if the individual is employed and, at the time the application is made, the individual has an operational need for an ASIC or MSIC for the purposes of that employment—the name and business address of the individual’s employer;
(i) if the individual is employed and the application is made under clause 3.6 of the SSBA Standards—the name and business address of the individual’s employer;
(j) if the individual is a student and, at the time the application is made, the individual has an operational need for an ASIC or MSIC for the purposes of the individual’s studies—the name and business address of the institution at which the individual is studying;
(k) if the individual is a student and the application is made under clause 3.6 of the SSBA Standards—the name and business address of the institution at which the individual is studying;
(l) if the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia:
(i) the number and country of issue of any passport issued to the individual; and
(ia) if the individual does not have, or cannot use or obtain, a passport—the number of any document issued to the individual by the Immigration Department as a result of the individual not having, or not being able to use or obtain, a passport; and
(ii) in any case—the number and expiry date of any visa granted to the individual enabling the individual to travel to and enter, or remain in, Australia;
(m) if the individual’s application is made under paragraph 8(1)(a)—a record of the individual having given express consent to the identity of the individual being verified, and any one of the following:
(i) details of the Category A identification document for the individual (unless the Category A identification document is determined under section 5AA);
(ia) if the Category A identification document for the individual is determined under section 5AA—details of one or more Category B identification documents or Category C identification documents for the individual, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check;
(ii) details of any alternative identification requirements, and details of any other identification documents required by the alternative identification requirements, approved in relation to the individual under regulation 6.27AC of the ATS Regulations or regulation 6.08BC of the MTOFS Regulations.
5AA Classes of Category A identification documents that AusCheck cannot use
For the purposes of paragraph 5(m), the Secretary may, by notifiable instrument, determine a class of Category A identification documents if AusCheck cannot use details of documents of that class to verify electronically individuals’ identities for the purposes of background checks.
5A Exemption from requirement to provide details of identification document
(1) This section applies if:
(a) an individual is required to provide details of an identification document; and
(b) AusCheck cannot use the details to verify electronically the individual’s identity for the purposes of a background check.
(2) The issuing body may apply to the Secretary for an exemption from the requirement for the individual to provide details of the identification document.
Requirements for application
(3) The application must:
(a) be made electronically; and
(b) state that the individual has an identification document whose details AusCheck cannot use to verify electronically the individual’s identity; and
(c) if the individual has another identification document—include details of that document; and
(d) in any case—include any other information that may assist the Secretary in making a decision about whether to grant an exemption in relation to the individual.
Matters to be considered
(4) In making a decision under this section in relation to the individual, the Secretary must consider the following matters:
(a) the extent to which the issuing body can show evidence of the identity of the individual;
(b) the reason why the details of the individual’s identification document cannot be used to verify electronically the individual’s identity;
(c) if the application included details of another identification document—whether AusCheck can use the details to verify electronically the individual’s identity.
Requirement for further information
(5) If the Secretary requires further information to consider the application, the Secretary may request the issuing body to give the further information within 30 days after receiving the request.
When decision must be made
(6) The Secretary must, in writing and within 30 days after receiving the application or, if further information is requested, within 30 days after receiving the further information in accordance with subsection (5):
(a) do any one of the following:
(i) grant the exemption in relation to the individual;
(ii) for an exemption in relation to a Category A identification document—grant the exemption in relation to the individual, subject to one or more conditions;
(iii) in any case—refuse to grant the exemption in relation to the individual; and
(b) notify the issuing body of the decision; and
(c) if the decision is a refusal—notify the issuing body of the reasons for the refusal.
(7) The Secretary is taken to have refused to grant the exemption if the Secretary has not made a decision on the application within the period mentioned in subsection (6).
5B Inability to verify identity of individual
AusCheck is not required to continue undertaking a background check of an individual if:
(a) the background check requires details of an identification document to electronically verify the identity of the individual; and
(b) AusCheck is not provided with details of an identification document that AusCheck can use to so verify that identity.
Note: An identification document is not required if:
(a) alternative identification requirements that do not require details of an identification document have been approved in relation to the individual under regulation 6.27AC of the ATS Regulations or regulation 6.08BC of the MTOFS Regulations; or
(b) an exemption has been granted under section 5A of this instrument in relation to the individual without a condition requiring details of an identification document.
6 Unfavourable criminal history
An individual has an unfavourable criminal history if the criminal history of the individual discloses that the individual has any of the following:
(a) an adverse criminal record;
(b) a qualified criminal record;
(c) a conviction (within the meaning of the MTOFS Regulations) for a disqualifying offence (within the meaning of those regulations).
Part 2—AusCheck scheme
Division 1—Establishment of AusCheck scheme
7 Establishment of the AusCheck scheme
For the purposes of Part 2 of the Act, this Part establishes the AusCheck scheme.
Division 2—Background checks for aviation and maritime security purposes
8 Background check of applicants for, or holders of, ASICs or MSICs—application made by issuing body or Transport Secretary
When AusCheck may undertake a background check of an individual
(1) AusCheck may undertake a background check of an individual if an application for a background check of the individual is made under:
(a) paragraph 6.27AA(1)(a) of the ATS Regulations or paragraph 6.08BA(a) of the MTOFS Regulations (which deal with applications by an issuing body relating to applicants for ASICs or MSICs); or
(b) subregulation 6.27AA(3) of the ATS Regulations or subregulation 6.08LC(1) of the MTOFS Regulations (which deal with applications by the Transport Secretary relating to certain applicants for, or holders of, ASICs or MSICs).
When AusCheck must undertake a background check of an individual
(2) AusCheck must undertake a background check of an individual if an application for a background check of the individual is made under paragraph 6.27AA(1)(c) of the ATS Regulations or paragraph 6.08BA(c) of the MTOFS Regulations (which deal with applications by an issuing body relating to holders of ASICs or MSICs convicted of certain offences).
Application requirements
(3) An application for a background check of an individual that is made under a provision referred to in paragraph (1)(a) of this section must:
(a) be made electronically; and
(b) include the required information for the individual.
(4) An application for a background check of an individual that is made under a provision referred to in paragraph (1)(b) of this section must:
(a) be made in writing; and
(b) include the individual’s name, date of birth and residential address.
(5) An application for a background check of an individual that is made under a provision referred to subsection (2) of this section must:
(a) be made electronically; and
(b) include the information notified by the individual under subregulation 6.41(1) of the ATS Regulations or subregulation 6.08LB(2) of the MTOFS Regulations (as the case may be).
9 Background check of applicants for, or holders of, ASICs or MSICs—deemed application by individuals convicted of certain offences
(1) This section applies if:
(a) an individual notifies the Secretary under subregulation 6.41(1) of the ATS Regulations, or subregulation 6.08LB(2) of the MTOFS Regulations, of the matters mentioned in that subregulation; and
(b) the individual consents to a background check of the individual being conducted under the AusCheck scheme.
(2) The individual is taken, for the purposes of the AusCheck scheme, to have applied to AusCheck for a background check of the individual.
(3) AusCheck must undertake a background check of the individual.
10 Background check of holders of MSICs that are in force for 4 years etc.
(1) This section applies if:
(a) an individual:
(i) holds an MSIC that is in force for 4 years; or
(ii) held an MSIC that was to be in force for 4 years and the MSIC was cancelled under paragraph 6.08M(1)(f) or (g) or regulation 6.08N of the MTOFS Regulations; and
(b) a background check of the individual was undertaken prior to the issue of the MSIC; and
(c) the Secretary gave advice about the background check under Division 5 of this Part; and
(d) the individual has not withdrawn his or her consent to an additional background check of the individual being conducted under the AusCheck scheme on the second anniversary of the day a record of that advice is made in the AusCheck database.
(2) The issuing body for the MSIC is taken, for the purposes of the AusCheck scheme, to have applied for a background check of the individual on the second anniversary of that day.
(3) AusCheck must undertake a background check of the individual.
Division 3—Background checks for national health security purposes
11 Background check of individuals for national health security purposes
When AusCheck may undertake a background check of an individual
(1) AusCheck may undertake a background check of an individual if an application for a background check of the individual is made by an NHS entity under clause 3.6 of the SSBA Standards.
When AusCheck must undertake a background check of an individual
(2) If an NHS entity informs AusCheck of information relating to an individual under clause 3.6.2 of the SSBA Standards, then:
(a) the NHS entity is taken, for the purposes of the AusCheck scheme, to have applied to AusCheck for a background check of the individual; and
(b) AusCheck must undertake a background check of the individual.
Application requirements
(3) An application for a background check of an individual that is made under the provision referred to in subsection (1) must:
(a) be made electronically; and
(b) include the required information for the individual.
Division 4—Preliminary assessment that individual has an unfavourable criminal history
12 Preliminary assessment by Secretary that an individual has an unfavourable criminal history
(1) This section applies if:
(a) AusCheck is undertaking a background check of an individual; and
(b) the Secretary makes a preliminary assessment that the individual has an unfavourable criminal history.
(2) The Secretary must give the individual a written notice that:
(a) set outs the preliminary assessment and the reasons for the preliminary assessment; and
(b) informs the individual that the individual may, on or before a day (the specified day) specified in the notice, make representations to the Secretary about the preliminary assessment.
(3) The specified day must be at least:
(a) if the application for the background check of the individual was made under a provision referred to in paragraph 8(1)(a) or subsection 11(1)—28 days after the notice is given; or
(b) otherwise—14 days after the notice is given.
(4) The individual may, before the specified day, request the Secretary to specify a later day for the making of representations about the preliminary assessment.
(5) If the individual makes a request under subsection (4), the Secretary may, by written notice given to the individual, specify a later day for the making of representations about the preliminary assessment.
(6) The Secretary must not give advice about the background check of the individual under Division 5 of this Part before:
(a) if the individual makes representations about the preliminary assessment on or before the specified day (or any later day specified under subsection (5))—those representations are considered by the Secretary; or
(b) otherwise—the end of the specified day (or any later day specified under subsection (5)).
Division 5—Advice about background check of individuals
Subdivision A—Advice about background checks for aviation and maritime security purposes
13 Advice about background check of an individual—application made, or taken to have been made, by an issuing body
(1) This section applies if:
(a) an application for a background check of an individual:
(i) is made by an issuing body under a provision referred to in paragraph 8(1)(a) or subsection 8(2); or
(ii) is taken to have been made by an issuing body under subsection 10(2); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the issuing body whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the issuing body under subsection (2) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the aviation‑security‑relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the issuing body under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
Advice relating to security assessment
(5) If the application is made under a provision referred to in paragraph 8(1)(a) or is taken to have been made under subsection 10(2), the Secretary must advise the issuing body whether or not a security assessment of the individual is an adverse security assessment or qualified security assessment.
(6) If the Secretary advises the issuing body under subsection (5) that the security assessment of the individual is a qualified security assessment, the Secretary must give the Transport Secretary a copy of the security assessment.
Advice relating to whether the individual is an unlawful non‑citizen etc.
(7) If:
(a) the application is made under a provision referred to in paragraph 8(1)(a) or is taken to have been made under subsection 10(2); and
(b) the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia;
the Secretary must advise the issuing body of the result of that assessment.
Advice relating to identity of individual
(8) If:
(a) the application is made under a provision referred to in paragraph 8(1)(a); and
(b) the background check includes an assessment of information relating to the identity of the individual;
the Secretary must advise the following of the final result of that assessment:
(c) the issuing body;
(d) if the final result of that assessment is that the identity of the individual has failed to be verified—the individual.
14 Advice about background check of an individual—application made by the Transport Secretary
(1) This section applies if:
(a) an application for a background check of an individual who has applied for, or who holds, an ASIC or MSIC is made by the Transport Secretary under a provision referred to in paragraph 8(1)(b); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the Transport Secretary whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the Transport Secretary under subsection (2) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the aviation‑security‑relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the Transport Secretary under subsection (2) that the individual has an unfavourable criminal history, the Secretary must:
(a) inform the issuing body for the ASIC or MSIC of that advice; and
(b) if the Transport Secretary is given a document under subsection (3)—give that issuing body a copy of that document.
(5) If the Secretary advises the Transport Secretary under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
15 Advice about background check of an individual—deemed application by an individual
(1) This section applies if:
(a) an application for a background check of an individual who has applied for, or who holds, an ASIC or MSIC is taken to have been made by the individual under subsection 9(2); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the individual whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the individual under subsection (2) that the individual has an unfavourable criminal history, the Secretary must give the individual the reasons for that advice.
(4) If the Secretary advises the individual under subsection (2) that the individual has an unfavourable criminal history, the Secretary must:
(a) inform the issuing body for the ASIC or MSIC of that advice; and
(b) if the individual has a qualified criminal record—give that issuing body a document setting out the aviation‑security‑relevant offences to which the qualified criminal record relates.
16 Secretary must give the Transport Secretary advice about background check etc. in certain circumstances
(1) This section applies if:
(a) a background check of an individual was undertaken by AusCheck; and
(b) the Secretary gave advice under this Subdivision that the individual has an unfavourable criminal record because the individual has an adverse criminal record; and
(c) the Transport Secretary informs the Secretary that an application in relation to the individual has been made under:
(i) subregulation 6.29(1) or 6.43A(2) of the ATS Regulations; or
(ii) subregulation 6.08F(1) or 6.08MA(2) of the MTOFS Regulations.
(2) The Secretary must give the Transport Secretary the following:
(a) the advice referred to in paragraph (1)(b);
(b) a document setting out the individual’s criminal history;
(c) any other information relevant to the background check of the individual.
17 Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
18 Secretary may give advice to new issuing body for transferred ASIC or MSIC applications etc.
If:
(a) the Transport Secretary tells the Secretary that an issuing body (the new issuing body) is to be the issuing body for:
(i) transferred ASIC applications or transferred ASICs; or
(ii) transferred MSIC applications or transferred MSICs; and
(b) the Secretary would have been required or authorised to give advice under this Subdivision to the issuing body that was the original issuing body in relation to such an application or such an ASIC or MSIC;
the Secretary may give that advice to the new issuing body.
Note: The Transport Secretary is required to tell the Secretary of the matter mentioned in paragraph (a) of this section under subregulation 6.22(3) of the ATS Regulations or subregulation 6.07ZA(3) of the MTOFS Regulations (as the case may be).
Subdivision B—Advice about background checks for national health security purposes
19 Advice about background check of an individual—application made by an NHS entity
(1) This section applies if:
(a) an application for a background check of an individual is made by an NHS entity under the provision referred to in subsection 11(1); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history etc.
(2) The Secretary must advise the NHS entity:
(a) whether or not the individual has an unfavourable criminal history; and
(b) whether or not a security assessment of the individual is an adverse security assessment or qualified security assessment; and
(c) if the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia—the result of that assessment.
(3) If the Secretary advises the NHS entity under paragraph (2)(a) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the health security relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the NHS entity under paragraph (2)(a) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
20 Advice about background check of an individual—application taken to have been made by an NHS entity
(1) This section applies if:
(a) an application for a background check of an individual is taken to have been made by an NHS entity under paragraph 11(2)(a); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the NHS entity whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the NHS entity under subsection (2) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the health security relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the NHS entity under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
21 Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
Division 6—Online verification service
22 Issuing body must give Secretary certain information after background check of an individual
(1) This section applies if the Secretary gives an issuing body advice (the background check advice) about a background check of an individual under section 13.
Information about individual with operational need for ASIC or MSIC
(2) If:
(a) the issuing body proposes to issue an ASIC or MSIC to the individual; and
(b) the application for the background check of the individual did not include the information referred to in paragraph 5(h) or (j) (as the case may be);
the issuing body must, before issuing the ASIC or MSIC to the individual, give the Secretary that information.
Information about holder, or proposed holder, of ASIC or MSIC
(3) If the issuing body issues, or proposes to issue, an ASIC or MSIC to the individual, the issuing body must, within the notification period, give the Secretary:
(a) the following information:
(i) if the issuing body issues, or proposes to issue, a replacement ASIC or MSIC to the individual because the individual’s name has changed—the individual’s former and current names;
(ii) if subparagraph (i) does not apply—the individual’s name;
(iii) the number and expiry date of the ASIC or MSIC;
(iv) for an ASIC—the locations for which it is, or will be, valid; and
(b) a photograph of the individual.
(4) The Secretary may grant an issuing body an exemption from the requirement to give the Secretary a photograph of an individual under paragraph (3)(b).
(5) The notification period is:
(a) if the ASIC or MSIC is issued within 30 days after the Secretary gives the background check advice—the period ending at the end of those 30 days; or
(b) otherwise—the period ending 30 days after the ASIC or MSIC is issued to the individual.
Information about cancellation or suspension of ASIC or MSIC
(6) If:
(a) the issuing body issues an ASIC or MSIC to the individual; and
(b) the ASIC or MSIC is cancelled or suspended before its expiry date;
the issuing body must inform the Secretary of the cancellation or suspension within 48 hours after that cancellation or suspension occurs.
Information about lost, stolen or destroyed ASIC or MSIC
(7) If:
(a) the issuing body issues an ASIC or MSIC to the individual; and
(b) the ASIC or MSIC is lost, stolen or destroyed;
the issuing body must inform the Secretary of that matter within 48 hours after becoming aware of the loss, theft or destruction.
23 Issuing body must inform Secretary of decision not to issue ASIC or MSIC to certain individuals
If:
(a) AusCheck undertakes a background check of an individual; and
(b) the Secretary advises an issuing body under section 13 that:
(i) the individual does not have an unfavourable criminal history; or
(ii) the security assessment of the individual is not an adverse security assessment or qualified security assessment; or
(iii) the individual is not an unlawful non‑citizen; or
(iv) the individual holds a visa entitling the individual to work in Australia; and
(c) the issuing body decides not to issue an ASIC or MSIC to the individual;
the issuing body must inform the Secretary of that decision as soon as practicable after the decision is made.
24 NHS entity must inform Secretary of cancellation or suspension of an authorisation under SSBA Standards
If:
(a) the Secretary gives an NHS entity advice about a background check of an individual under section 19 or 20; and
(b) the NHS entity authorises the individual under clause 3.3 of the SSBA Standards for a particular period; and
(c) the NHS entity cancels or suspends the authorisation before the end of that period;
the NHS entity must inform the Secretary of the cancellation or suspension within 48 hours after that cancellation or suspension occurs.
Division 7—Other matters
25 Assessment of information relating to an individual’s criminal history from foreign countries
(1) This section applies if a background check of an individual includes an assessment of information relating to the individual’s criminal history.
(2) The information relating to the individual’s criminal history must not include information (the foreign information) from a country other than Australia unless the law that requires or authorises the background check of the individual to be conducted under the AusCheck scheme:
(a) specifies the circumstances in which the foreign information may be assessed; and
(b) sets out the criteria against which the foreign information must be assessed.
26 Review by the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Secretary to do any of the following:
(a) to refuse to grant an exemption in relation to an individual under subsection 5A(6);
(b) to grant an exemption in relation to an individual under subsection 5A(6) subject to one or more conditions;
(c) to advise under Division 5 that an individual has an unfavourable criminal history.
27 Website
The Secretary must keep a website about the AusCheck scheme.
Part 3—AusCheck database
28 Treatment of new issuing body for transferred ASIC or MSIC applications etc. for the purposes of the AusCheck database
If the Transport Secretary tells the Secretary that an issuing body (the new issuing body) is to be the issuing body for:
(a) transferred ASIC applications or transferred ASICs; or
(b) transferred MSIC applications or transferred MSICs;
then, for the purposes of the AusCheck database, the new issuing body is taken to be, and to have always been, the issuing body for such an application or such an ASIC or MSIC.
Note: The Transport Secretary is required to tell the Secretary of the matter mentioned in this section under subregulation 6.22(3) of the ATS Regulations or subregulation 6.07ZA(3) of the MTOFS Regulations (as the case may be).
29 Guidelines about use and disclosure of information included in AusCheck database
(1) The Secretary may issue written guidelines about the use and disclosure of information included in the AusCheck database.
(2) If the Secretary issues guidelines under subsection (1), an AusCheck staff member must comply with the guidelines.
Part 4—Miscellaneous matters
30 Fees
(1) The Secretary may charge a fee for an application for a background check of an individual in relation to which expenses are incurred by the Commonwealth under the Act or this instrument.
Note: Under paragraph 18(2)(a) of the Act, a fee must not be such as to amount to taxation.
(2) The amount of the fee must be based on the nature and complexity of the background check of an individual.
Note 1: A higher fee may be required for an initial background check of an individual than for a subsequent background check of the individual.
Note 2: The fee for a background check of an individual may vary depending on the kinds of information mentioned in section 5 of the Act that are to be assessed as part of the background check.
(3) If:
(a) a fee under subsection (1) is payable by an issuing body or NHS entity; and
(b) the issuing body or NHS entity is not the Commonwealth or an unincorporated Commonwealth authority;
the fee is a debt due to the Commonwealth and is recoverable by the Secretary on behalf of the Commonwealth.
Part 5—Transitional, application and savings provisions
Division 1—AusCheck Regulations 2017
31 Transitional provision—applications for background checks
(1) This section applies in relation to an application for a background check of an individual if:
(a) the application was made, or was taken to have been made, before the repeal of the old regulations; and
(b) immediately before that repeal, the application has not been finally dealt with in accordance with the old regulations.
(2) On and after 1 August 2017, the application is taken to have been made, and may be dealt with, in accordance with this instrument.
32 Transitional provision—preliminary assessments
(1) This section applies if a notice was given to an individual under regulation 8 of the old regulations before their repeal.
Saving of pre‑repeal notices
(2) If:
(a) the day mentioned in the notice, or nominated by the Secretary under subregulation 8(4) of the old regulations, is on or after the day on which the old regulations are repealed; and
(b) the individual has not made any representations to the Secretary immediately before the repeal of the old regulations;
the notice continues to have effect, on and after 1 August 2017, as if it had been given under section 12 of this instrument.
Representations made but not considered before repeal
(3) If:
(a) the individual made representations to the Secretary in accordance with the notice before the repeal of the old regulations; and
(b) immediately before that repeal, the Secretary has not considered the representations;
subsection 12(6) of this instrument applies, on and after 1 August 2017, in relation to the representations.
33 Application provision—requirement to give advice to Transport Secretary in certain circumstances
If:
(a) before the repeal of the old regulations, the Transport Secretary told the Secretary of a matter relating to an individual that is mentioned in paragraph 10(1)(c) of the old regulations; and
(b) immediately before that repeal, the Secretary has not complied with subregulation 10(1A) of the old regulations;
the Secretary must, on or after 1 August 2017, comply with subsection 16(2) of this instrument in relation to the individual.
34 Application provision—online verification service requirements
(1) This section applies if:
(a) before the repeal of the old regulations, an issuing body or NHS entity was required to comply with regulation 14 or 14A of the old regulations in relation to a matter relating to an individual; and
(b) immediately before that repeal, the time for complying with regulation 14 or 14A of the old regulations (as the case may be) has not ended.
(2) On and after 1 August 2017, the issuing body or NHS entity is required to comply with whichever of sections 22, 23 and 24 of this instrument are applicable in relation to the matter relating to the individual.
35 Savings provision—guidelines
If:
(a) guidelines were issued under regulation 15 of the old regulations; and
(b) the guidelines were in force immediately before the repeal of the old regulations;
the guidelines continue in force, and may be dealt with, on and after 1 August 2017 as if they had been issued under section 29 of this instrument.
Division 2—AusCheck Amendment (System Functionality) Regulations 2017
36 Application provision—amendments made by AusCheck Amendment (System Functionality) Regulations 2017
The amendments made by the AusCheck Amendment (System Functionality) Regulations 2017 apply in relation to applications for background checks made after that instrument commences.
