Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
AusCheck Bill 2007

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.