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AUSCHECK ACT 2007 - SECT 8

Establishment of AusCheck scheme

             (1)  The regulations may provide for the establishment of a scheme (the AusCheck scheme ) relating to the conduct and coordination of background checks of individuals if:

                     (a)  any of the following laws requires or permits a background check to be conducted of an individual for specified purposes:

                              (i)  the Aviation Transport Security Act 2004 or regulations under that Act;

                             (ii)  the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act; or

                     (b)  any other Act (other than this Act) expressly:

                              (i)  requires or permits a background check of an individual to be conducted under the AusCheck scheme for purposes specified in the Act; or

                             (ii)  provides for the making of a legislative instrument requiring or permitting a background check of an individual to be conducted under the AusCheck scheme for purposes specified in the Act; or

                     (c)  a regulation made under subsection (3) requires or permits a background check to be conducted of an individual; or

                     (d)  the check is of an individual in connection with the accreditation of the individual in relation to a major national event.

National security background checks

             (2)  If paragraph (1)(b) applies, the background check must be conducted for purposes related to:

                     (a)  Australia's national security; or

                     (b)  the defence of Australia; or

                     (c)  a national emergency; or

                     (d)  the prevention of conduct to which Part 5.3 or 5.5 of Chapter 5 of the Criminal Code (which deal with terrorism, foreign incursions and recruitment) applies.

Background checks in connection with major national events

          (2A)  If paragraph (1)(d) applies, the background check must be conducted:

                     (a)  for purposes related to matters that are peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; or

                     (b)  for purposes involving, or for purposes related to, the collection and transmission of information by a communication using a postal, telegraphic, telephonic or other like service; or

                     (c)  in, or for purposes related to, a Territory; or

                     (d)  in or with respect to a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970 ); or

                     (e)  in the course of, or for purposes related to, trade or commerce with other countries, and among the States; or

                      (f)  in relation to a person who is an employee of, an office holder in, or otherwise connected with, a corporation to which paragraph 51(xx) of the Constitution applies, where the results of the check are relevant to:

                              (i)  the relationship between the person and the corporation; or

                             (ii)  the protection of the corporation; or

                            (iii)  the activities of the corporation; or

                     (g)  for purposes related to external affairs; or

                     (h)  for purposes related to the background checking of, or the protection of, aliens; or

                      (i)  for purposes related to:

                              (i)  Australia's national security; or

                             (ii)  the defence of Australia; or

                            (iii)  a national emergency; or

                            (iv)  the prevention of conduct to which Part 5.3 or 5.5 of the Criminal Code applies; or

                      (j)  by way of the provision of a service, for a purpose of the Commonwealth, to:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                     (k)  for purposes related to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.

Background checks required or permitted under the regulations--charges for serious offences

             (3)  The regulations may require or permit a background check covering a matter referred to in paragraph 5(a), (aa) or (d) to be conducted in relation to an individual if:

                     (a)  one of the following applies:

                              (i)  the individual has applied to an issuing body for an ASIC or MSIC, and the issuing body has neither issued, nor refused to issue, the ASIC or MSIC;

                             (ii)  the individual or an issuing body has applied under regulations made under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003 for approval to issue an ASIC or MSIC to the individual, and the application has not been determined;

                            (iii)  the individual is the holder of an ASIC or MSIC;

                            (iv)  the individual or an issuing body has applied under regulations made under either of those Acts to set aside the cancellation of an ASIC or MSIC issued to the individual;

                             (v)  the individual has applied to the Administrative Appeals Tribunal for review of a decision made under regulations made under either of those Acts, or a decision made under the AusCheck scheme, relating to the issue, suspension or cancellation of an ASIC or MSIC, and the application has not been determined; and

                     (b)  the Secretary considers on reasonable grounds that:

                              (i)  the individual has been charged with a serious offence; or

                             (ii)  a charge for a serious offence has been resolved in relation to the individual.

Note:          The matters referred to in paragraphs 5(a), (aa) and (d) cover the individual's criminal history, whether the individual has been charged with a serious offence or has had a charge for such an offence resolved, and the individual's identity.

             (4)  A regulation made under subsection (3) may only require or permit a background check to be conducted for purposes related to determining whether it is appropriate for the individual to enter any area or zone to which access is restricted under:

                     (a)  the Aviation Transport Security Act 2004 or regulations under that Act; or

                     (b)  the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act.

Definitions

             (5)  A term used in subsection (2A) and the Constitution has the same meaning in that subsection as it has in the Constitution.



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