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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSCHECK AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Hon Robert McClelland, MP)
AUSCHECK AMENDMENT BILL 2009
Outline
The main purpose of this Bill is to amend the AusCheck Act 2007 ('the Act')
to provide a capacity for background checks under the Act to be carried out
for national security purposes. The current Act only allows background
checks for the purposes of the Aviation Transport Security Act 2004 and the
Maritime Transport and Offshore Facilities Security Act 2003.
No requirement for any person to actually have a background check will be
imposed as a result of the amendment to the Act. Rather, the amendments
will provide a bare capacity for the Attorney-General's Department,
carrying out its responsibility for conducting background checks, to
conduct background checks that are required under authority of some other
law. A background check under the Act could then be identified as a
requirement for access to places, things, substances or employment
positions as specified by a regulatory scheme.
Background checking is used worldwide in a variety of security situations.
For example, in Australia, the United States and the United Kingdom, all
airport personnel must undergo background checks. Background checking is
generally used as one element of a personnel security framework and is part
of the broader 'security culture' of an organisation consisting of staff
awareness and understanding, ongoing security measures and checks, and the
implementation of appropriate access controls for assets.
Where the Government decides that a background check should be a national
security background check, separate legislative or other regulatory
provisions would be required to establish the requirement for a check.
A national security background check could be used to implement background
checking policy in a number of areas where there is a perceived national
security risk. For example, the Council of Australian Governments (COAG)
Review of Hazardous Materials has identified access to security sensitive
biological materials as an area where activities need to be regulated to
address national security risks
(http://www.health.gov.au/internet/main/publishing.nsf/Content/ssba.htm#stan
dards).
The amendments will also include specific provisions to authorise and
protect biometric information about an individual where this is required in
order to complete a background check. In conducting criminal history
background checks it is sometimes necessary to confirm the identity of an
individual so that police services can distinguish between people with the
same or similar name and date of birth. In these circumstances, it may not
be possible to complete the background check unless the identity of the
individual can be confirmed through the provision of further identification
information such as fingerprints. The amendments are intended to ensure
that if AusCheck is required to facilitate the provision of this
information to the relevant police jurisdiction, then this information will
be (i) afforded all of the additional protections given to other AusCheck
personal information; and (ii) not be available for any purpose other than
a further background check. This is intended to reflect the purpose of
collecting this information in the first place which is the verification of
a particular individual's identity only.
As a consequence of the inclusion of a capacity to conduct national
security background checks, the Bill also includes amendments to the
provisions that give authority for AusCheck to provide an online
verification service. The online verification service is currently
restricted to verifying aviation security identification cards and maritime
security identification cards. With the addition of a national security
background check capacity, this authority is consequently expanded so that
an online verification service may be used to verify other types of cards
or licences that may be issued indicating that a person has undergone a
national security background check.
Financial Impact Statement
The amendments in this Bill have negligible financial implications.
NOTES ON CLAUSES
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 on which it receives Royal Assent.
Clause 3: Schedule(s)
3. This is a machinery provision that enables the Schedule to amend Acts
simply by including amendments under the title of the relevant Act.
Schedule 1 - Amendments
AusCheck Act 2007
Item 1 - Subsection 4(1)
4. This item inserts a new definition of identity verification
information. This definition is used in the amendments to section 14 of
the Act so that identity verification information that is biometric
information, other than a photograph, is only available for the purpose of
conducting a subsequent background check. Biometric information is not
defined in the Act and hence will take on its ordinary meaning. A
photograph is excluded from the definition of identity verification
information as it is necessary for the operation of the online verification
service. For example, an authorised user may need to use the online
verification service in order to visually compare the photograph of an
individual recorded on the database as holding an aviation security
identification card (ASIC) with the individual who is presenting that ASIC.
Item 2 - Subsection 4(1)
5. This item includes a new definition of national security background
check. This definition is included as a consequence of the amendments to
section 8.
Item 3 - Subsection 4(2) (paragraph (b) of the definition of personal
information)
6. This item amends the definition of personal information for the
purposes of the Act so that it is broad enough to cover identifiers other
than an aviation security identification card or a maritime security
identification card. This amendment is made as a consequence of the
inclusion of the national security background check capacity.
Item 4 - Paragraph 5(b)
7. This item clarifies that the reference to security assessment in the
definition of background check refers to a security assessment within the
meaning of the Australian Security Intelligence Organisation Act 1979.
Item 5 - Paragraph 5(d)
8. This item amends the definition of background check for the purposes
of the Act, by omitting the specific reference to the verification of
documents in relation to the identity of an individual. This amendment is
made so that an individual's identity may be confirmed other than through
verifying documentation.
Item 6 - Section 8
9. This item amends section 8 as a consequence of the amendment to
paragraph 5(d).
Item 7 - At the end of section 8
10. This item adds national security to the purposes for which the
regulations may establish the AusCheck scheme. These purposes are intended
to permit the use of background checks as part of a strategy to protect the
nation against attack, including domestic attack.
Item 8 - At the end of paragraph 9(1)(i)
11. This item amends the description of the online verification service
that may be provided for in the AusCheck scheme to include verification
that an individual has undergone a national security background check.
Item 9 - At the end of section 9
12. This item amends paragraph 9(1)(b) to recognise and clarify that
where an individual has applied for a particular card, licence, permit or
authorisation then they are background checked as a result of proceeding
with that application. In this situation, the background check is a
condition of that application rather than something to which the individual
has separately consented.
Item 10 - Section 13
13. This item amends section 13 as a consequence of the inclusion of the
amendment to insert a new subsection 13(2).
Item 11 - Section 13
14. This item excludes identity verification information from the
operation of subsection 13(1) as a consequence of the separate treatment of
this subset of personal information under new subsection 13(2).
Item 12 - At the end of paragraph 13(c)
15. This item amends the authority for the Secretary to provide an online
verification service. The amendment is consequential to the inclusion of
the national security background check capacity, and provides that an
online verification service may be used to verify other types of
authorities that may be issued indicating that a person has undergone a
national security background check.
Item 13 - At the end of section 13
16. This item inserts a new subsection 13(2) to provide that the
collection, use and disclosure of identity verification information is
taken to be authorised under the Privacy Act 1988 for a much narrower range
of purposes than other personal information.
Item 14 - Subsection 14(2)
17. This item and following items amend the provision that authorises the
use and or disclosure of AusCheck scheme personal information so that
identity verification information (for example, fingerprints) is given
enhanced protection. The amendments do this through separating out
identity verification information so this information is restricted to use
or disclosure for the purpose of subsequent background checking only. The
intention of the amendments is that biometric information is only used for
background checking purposes - that is, to make sure of the identity of the
person - and not for other purposes associated with the AusCheck scheme.
This is achieved by splitting the provisions in current subsection 14(2)
with the following effect.
. Under proposed new subsection 14(2) AusCheck scheme personal
information may be included in the AusCheck database (as it may be
currently).
. Under proposed new subsection 14(2AA), the inclusion of the words
'(other than identity verification information)' has the effect of
excluding identity verification information from disclosure under that
provision. That is, biometric data such as fingerprints cannot be
disclosed for the purposes of responding to an incident that poses a
threat to national security and cannot be used for the collection,
correlation, etc of criminal intelligence or security intelligence
information for law enforcement or national security purposes.
Item 15 - Subsection 14(2A)
18. This item amends the authority for the use or disclosure of AusCheck
scheme personal information for the purpose of verifying that a person has
been issued with an aviation security identification card or maritime
security identification card so that identity verification information may
not be used for this purpose. Because photographs are excluded from the
definition of identity verification information, photographs may continue
to be used for online verification service purposes.
Item 16 - At the end of subsection 14(2A)
19. This item amends the authority for the use or disclosure of AusCheck
scheme personal information to include use or disclosure for the purpose of
verifying that an individual has undergone a national security background
check.
Item 17 - After subsection 14(2A)
20. This item inserts new subsection 14(2AB). In contrast to new
subsection 14(2AA), identity verification information is not excluded from
proposed new subsection 14(2AB) with the effect that use of biometric data
such as fingerprints may only be used or disclosed for the purpose of
carrying out a subsequent background check under the AusCheck scheme.
Item 18 - Subsection 14(2B)
21. This item amends subsection 14(2B) to ensure that information
disclosed under new subsection 14(2AB) is the minimum necessary for the
purposes of carrying out a subsequent background check.
Item 19 - Subsection 14(3)
22. This item is intended to ensure identity verification information may
not be de-identified so that it can be used in such a way that de-
identified information may be used.