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AusCheck Bill 2007

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2004-2005-2006-2007

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

AUSCHECK BILL 2006

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Attorney-General,

the Honourable Philip Ruddock MP)

 



 

AMENDMENTS TO THE AUSCHECK BILL 2006

 

 

OUTLINE

 

The purpose of these amendments to the AusCheck Bill 2006 (the Bill), is to respond to a report of the Senate Legal and Constitutional Affairs Committee (the Senate Committee) and rectify or clarify the drafting of certain provisions.

 

In its report completed on 14 March 2007, the Senate Committee acknowledged the general in-principle support for the Bill expressed by the majority of submissions and witnesses.  The Senate Committee also expressed concerns about the breadth of the Bill’s regulation-making power, privacy issues relating to the functions described in the Bill, and the lack of accountability mechanisms set out in the Bill.  The Senate Committee made a number of recommendations in respect of the Bill.  These amendments seek to address certain of the Committee’s concerns. 

 

The regulation-making power will be amended so that the addition of background checking functions to the AusCheck scheme may only be done through amendment to the AusCheck Act.  After this amendment is made, the scope for the AusCheck scheme will be limited to background checking for the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Act 2003 .

 

The capacity to expand the definition of background check by regulation will be removed.  Instead an express reference to identity documentation checks will be included so that AusCheck will be in a position to conduct these checks using the proposed national document verification service, or some other means, once this is available.

 

The amendments will also provide a greater degree of specificity to the personal information that AusCheck will be authorised to collect, use and disclose and the types of organisations to which such information may be disclosed.  In particular, the amendments will:

·          make it clear that collection, use and disclosure of personal information for document verification purposes is authorised for the purposes of the Privacy Act 1988 , and that information on the database may be used or disclosed for document verification purposes

·          limit the collection, correlation, analysis and dissemination of criminal intelligence and security intelligence to that done by specified bodies (the Commonwealth and Commonwealth authorities), and for purposes relating broadly to national security or law enforcement, and

·          state explicitly that personal information includes card numbers and photographs.

 

The amendments will include provision for just compensation in clause 17 of the Bill.  This provision is precautionary only, and has been included in order to ensure the validity of the provision in the event of a possible argument that the use of the name ‘AusCheck’ amounts to an acquisition of property.

 

In addition, the amendments will make minor technical amendments.

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments will not have a financial impact.



NOTES ON AMENDMENTS

 

Clause 4

 

Corrections to Explanatory Memorandum

The following errors in the Explanatory Memorandum for the AusCheck Bill 2006 are corrected:

·          paragraph 4, dot point one: the reference to clause 45 in the second line should be a reference to clause 14.  Clause 14 is the provision in which the term AusCheck database is used, while the definition of the term appears in clause 4.

·          paragraph 4, dot point three: the reference to clause 25 should be a reference to clause 9.  Clause 9 is the provision about regulations in relation to background checking schemes.

Amendment 1 - Definitions

This amendment includes three new definitions in the interpretation section of the Bill.  The terms aviation security identification card and maritime security identification card are used in relation to new provisions that clarify that the AusCheck scheme includes document verification for aviation security identification cards and maritime security identification cards.  The term Commonwealth authority is used in the substituted subparagraph 14(2)(b)(iii) which relates to the collection, correlation, analysis or dissemination of criminal intelligence or security intelligence.

Amendment 2 - Technical amendment

This amendment is a technical amendment and follows as a consequence of a further amendment to clarify the meaning of personal information .

Amendment 3 - Personal information

This amendment adds a new subclause 4(2) to put beyond doubt that personal information includes information about the number of an aviation security identification card or a maritime security identification card issued to an individual, and also a photograph of the individual that appears on such a card. 

 

Clause 5

Amendment 4 - Definition of background check

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; and verification checks of documents relating to the identity of the individual.

 

This amendment inserts a specific reference to verification of documents relating to the identity of the person being background checked in place of paragraph 5(d) in the Bill.  That paragraph, which is removed by this amendment, would have allowed additional kinds of checks to be added by regulation to background checks coordinated by AusCheck but was criticised by the Senate Committee as being too broad.  It is replaced by a provision that specifically adds verification of identity documents to the matters included in background checks coordinated by AusCheck so that AusCheck will be in a position to utilise the proposed national document verification service when it becomes available.

 

Clause 8

Amendment 5 - AusCheck scheme

This amendment replaces clause 8 in the Bill with a new clause 8 that restricts the scope of the AusCheck scheme to background checking for security identification cards issued under the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.  In addition the amendment clarifies that verification of such cards issued as a result of a positive outcome from the background check is included in references to the AusCheck scheme.

 

The amendment responds to recommendations from the Senate Committee that it was inappropriate for the Bill to include power for regulations to provide for additional types of background checks to be coordinated by AusCheck without authorisation of primary legislation.  The effect of the amendment is to restrict AusCheck to coordinating background checks for security identification cards issued under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003, keeping a database of cardholders and applicants and verification of those cards.

 

Clause 9

Amendment 6 - Matters covered by AusCheck scheme

Clause 9 allows regulations to provide for the administrative details of the AusCheck scheme of background checking.

 

Subclause 9(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 issuing body) 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. 

 

This amendment makes it clear that the regulations can set out the administrative details around the online verification of current security identification cards issues under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003.  All the substantive details about who requires such a card, the qualifications for them, what information must be on them and when they must be displayed are contained in regulations made under the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.

 

Clause 10

Amendment 7 - Clause 10 to be omitted

This amendment opposes clause 10 in the Bill.

 

Clause 10 would have allowed new classes of background check to be established by regulation in relation to matters within the Attorney-General’s portfolio.  This amendment removes the provision in accordance with the recommendation of the Senate Committee, which considered it too broad and that it was inappropriate for regulations to provide for new background checks without the authorisation of other primary legislation.

 

Clause 13

Amendment 8 - Collection use and disclosure of information

This amendment restricts the authorised collection, use and disclosure of personal information to purposes directly related to conducting background checks, advising of the outcome of background checks, maintaining an up to date database of cardholders and verifying the current cards.  The amendment is in response to the recommendation of the Senate Committee, which considered that the collection, use and disclosure of information by AusCheck should be more directly related to its functions.  This amendments should be read in conjunction with amendment 5, the effect of which is that the only types of background checks that AusCheck will coordinate will be those for security identification cards issued under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003.

 

This amendment should also be read in conjunction with amendment 9 below.

Amendment 9 - Collection use and disclosure of information

This amendment adds a new paragraph to clause 13 to clarify that AusCheck is authorised under the Privacy Act 1988 to collect use and disclose information as part of an online verification service to verify whether a particular card has been issued to a particular person and remains current or that the person presenting a card is the person to whom it was issued.  As a result of the privacy concerns expressed by the Senate Committee this amendment has been included to ensure that the uses of the information collected by AusCheck as centralised background check coordinator are clearly described in the legislation.

 



Clause 14

Amendment 10 - AusCheck database

In response to concerns expressed by the Senate Committee this amendment restricts the use of the information in the AusCheck database for criminal intelligence or security intelligence purposes to use by the Commonwealth or Commonwealth authorities that have functions related to law enforcement or national security.  In addition, the information must be used for purposes related to law enforcement or national security.

 

Amendment 11 - Verification of cards

This amendment inserts additional provisions into clause 14 to clarify that a limited amount of information from the AusCheck database can be used to verify that a security identification card issued under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003 is current or that it has been issued to the person who is using it.  Such use of the database realises the national security enhancements intended in the establishment of the centralised background checking coordination function.  The amendment is included to ensure that the uses of the information are clearly set out in the legislation.

 

Clause 17

Amendment 12 - technical amendment

This amendment is a technical amendment and follows as a consequence of the inclusion by amendment 13 of a provision about acquisition of property on just terms in clause 17.

Amendment 13 - Use of name by Commonwealth

This amendment ensures the Constitutional validity of clause 17, which authorises the use by the Commonwealth of the name ‘AusCheck’ in providing background checks under the provisions of the Bill.  The provision gives legislative authority for the name to used in this context regardless of any other usage of the name.  However, there is a small chance that a person may have some property in the name that would be affected by the Commonwealth gaining authority to also use it.  Such a situation could result in the technical acquisition of property and this amendment is included as a precaution to ensure that provision does not fail because of Constitutional invalidity.