Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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.
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