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AusCheck Amendment Bill 2009

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2008-2009

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

AUSCHECK AMENDMENT BILL 2009

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments to be moved on behalf of Government

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Hon Robert McClelland, MP)

 



AUSCHECK AMENDMENT BILL 2009

 

OUTLINE

The purpose of these amendments to the AusCheck Amendment Bill 2009 is to respond to a report of the Senate Standing Committee on Legal and Constitutional Affairs (the Senate Committee).

 

In its report completed on 18 June 2009, the Senate Committee made a number of recommendations for amending the AusCheck Amendment Bill.  The Senate Committee expressed concerns about ambiguity in the scope of the regulation-making power in the AusCheck Amendment Bill, the breadth of the definition for ‘national security’ and the handling of personal information by AusCheck collected for the purpose of the AusCheck Scheme. 

 

These amendments have been framed to address the Committee's concerns. 

 

The amendments will clarify that in order for AusCheck to conduct background checks for individuals (other than those conducted under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003 ), those background checks must be authorised by an Act, other than the AusCheck Act.  The authorisation can be provided for by expressly providing, in the Act, that a legislative instrument may provide for background checks under the AusCheck scheme.

 

The amendments will also restrict the purposes for which national security background checks may be undertaken by omitting the references to the executive and incidental powers of the Commonwealth (proposed paragraphs 8(c)(v) and (vi) in the AusCheck Amendment Bill).

 

The amendments also amend the AusCheck Amendment Bill so that AusCheck cannot collect, use, directly deal with nor store biometric information about an individual, other than to pass that information directly to the relevant law enforcement, intelligence or tracking body for the purpose of conducting a background check.

 

Finally, the amendments will make an additional amendment in the AusCheck Act to include an offence for third party disclosure of personal information where this is not authorised.

 

FINANCIAL IMPACT

The proposed amendments will not have a financial impact.



NOTES ON AMENDMENTS

 

Amendment 1

 

This amendment omits the reference to ‘AusCheck scheme’ from the definition of identity verification information.  Identity verification information may be collected other than under the AusCheck scheme prescribed in the regulations.

 

Amendment 2

 

This amendment amends the proposed definition of national security background check as a consequence of the recasting of section 8 of the AusCheck Act by Amendment 3.

 

Amendment 3

 

Amendment 3 gives effect to recommendations 1 and 2 of the Senate Committee.

 

This amendment omits the amendment to section 8 proposed by the AusCheck Amendment Bill.  The amendment means any new national security background checking scheme under the AusCheck Act must be conducted for purposes related to Australia’s national security, the defence of Australia, a national emergency, or the prevention of terrorism.  Background checks will not be able to be undertaken under the AusCheck Act, as proposed by the AusCheck Amendment Bill, if their only source of authorisation relates to the executive power of the Commonwealth or to matters incidental to any of the legislative powers of the Parliament. 

 

In addition, a background checking scheme must be authorised by an Act, other than the AusCheck Act.  A legislative instrument may require or permit background checks under the AusCheck scheme, providing it is permitted by an Act.

 

The Acts Interpretation Act 1901 provides in section 38 that a Commonwealth Act may be referred to by the word ‘Act’ alone with the effect that the background check requirement must be established under Commonwealth legislation.  Accordingly, new background checking regimes to be administered under the AusCheck Act can be established under Commonwealth legislation only.

 

Amendment 3 also includes a saving provision so that the existing AusCheck Regulations 2007 are not effected by the recasting of section 8.

 

Amendment 4

 

This amendment inserts a new heading in for Division 1 of Part 3 to reflect the new coverage of the Part, which includes provisions relating to the retention of information.

 

 

 

 

Amendments 5 and 6

 

These amendments are both technical drafting amendments.  The amendments insert the words ‘under the AusCheck scheme’ into paragraphs 13(c)(iii) and (iv) so that the wording in those provisions is consistent with the wording of paragraphs 13(a) and (b).

 

Amendment 7

 

Amendment 7 gives effect to recommendation 3 of the Senate Committee.

 

This amendment omits all of the amendments proposed by item 14 of the AusCheck Amendment Bill.  The amendments made by item 14 were all concerned with limiting the use and disclosure of identity verification information.  These amendments are not required as a result of the inclusion of proposed new section 14A by amendment 9. 

 

This amendment also amends subsections 14(1) and (2) with the effect that identity verification information may not be included in the AusCheck database. 

 

Subsection 14(1) provides the authority for the Secretary to establish a database of information relating to the AusCheck scheme and this provision is amended to exclude identity verification information from that power.  This amendment complements the amendment to subsection 14(2) which explicitly excludes identity verification information from being included on the database.

 

Amendment 8

 

This amendment is a technical amendment.  It clarifies that personal information that is also identity verification information can only be used in accordance with proposed new subsection 14(2AB) for a subsequent background check in relation to the person.  That information could be used by one of AusCheck’s checking partners, for example, to avoid confusing persons with similar names when assessing a criminal history.

 

Amendment 9

 

Amendment 9 gives effect to recommendations 3 and 5 of the Senate Committee.

 

This amendment inserts a new item 19 into the AusCheck Amendment Bill .  This provision is intended to give effect to the Senate Committee’s recommendation that AusCheck’s role in relation to biometric information should be limited to passing this information directly to the relevant body only. 

 

Proposed new section 14A acknowledges that AusCheck does not solicit identity verification information and is not authorised to solicit such information.  Proposed new section 14A limits AusCheck’s authorisation to receive, retain, use and disclose identity verification information to very limited circumstances. 

 

In no cases will AusCheck copy or file identity verification information it receives.

 

Proposed new paragraph 14A(a) will provide that:

  • where AusCheck has received identity verification information, and
  • the information is directly necessary for the purposes of verifying the identity of an individual for the purposes of a background check,
  • AusCheck will provide the information to the agency or organisation that is verifying the individual’s identity.  These bodies would include Commonwealth State and Territory police services and the CrimTrac agency. 

 

Proposed new paragraph 14A(b) will mean that:

  • where identity verification information received by AusCheck is not directly necessary for the purposes of verifying the identity of an individual for the purposes of a background check
  • AusCheck will provide the information to the person to whom the identity verification information relates.  In most instances this is expected to the person who provided the information to AusCheck.  However, the provision will also authorise AusCheck to provide the information to the person whose information it is when the information has been provided to AusCheck but does not relate to a current background check.

 

These practices and processes are supported by AusCheck’s standard operating procedures Requesting Further Information for Checking Partners .

 

This amendment also inserts new item 20 into the AusCheck Amendment Bill.  The effect of item 20 is to insert a new offence in section 15.  This new offence is designed to expand the range of disclosure offences to prohibit unauthorised third party disclosures.  The proposed offence only applies to personal information and is intended to cover a range of circumstances, including the following:

  • AusCheck appropriately discloses information to an issuing body in accordance with the AusCheck Act, and that issuing body intentionally discloses the information for a purpose not permitted under the AusCheck Act. 
  • AusCheck discloses information to a law enforcement body in accordance with the AusCheck Act, that law enforcement body appropriately discloses the information to second person (eg, during the course of an investigation), and that second person inappropriately discloses the information to a third person.

 

New item 21 is a consequential amendment reflecting the insertion of new subsection 15(1A).

 

New item 22 clarifies that a disclosure that is authorised under the AusCheck Act or a disclosure that is otherwise required or authorised by law is not contrary to the new offence provision at new subsection 15(1A).  This exemption is designed to cover a range of circumstances, including the following:

  • AusCheck lawfully discloses AusCheck scheme personal information to a relevant law enforcement, intelligence or tracking body for the purpose of conducting a background check, and that body subsequently discloses that information for the purposes of a subsequent background check as authorised by subparagraph 14(2)(b)(i), and that member discloses that information to another person.
  • AusCheck lawfully discloses AusCheck scheme personal information to a member of the Australian Federal Police and that member discloses that information to another person for the purposes of responding to an incident that poses a threat national security incident as authorised by subparagraph 14(2)(b)(iii).
  • AusCheck lawfully discloses AusCheck scheme personal information to another body in relation to an appeal or review of a decision made in relation to a background check, and that body subsequently discloses the information pursuant to a requirement or authorisation under another law.