Commonwealth Numbered Regulations - Explanatory Statements

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AUSCHECK AMENDMENT REGULATION 2012 (NO. 1) (SLI NO 208 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 208

Issued by the authority of the Attorney-General

AusCheck Act 2007

AusCheck Amendment Regulation 2012 (No. 1)

Purpose

Subsection 18(1) of the AusCheck Act 2007 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 8 of the Act provides that the regulations may provide for the establishment of a scheme relating to the conduct and coordination of background checking of individuals.  Section 9 of the Act defines the matters in relation to which the AusCheck scheme may make provisions.

There is an existing background checking regulatory framework established by the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations).  The AusCheck Regulations 2007 (AusCheck Regulations) set out provisions for background checking that are relevant to the maritime security regulatory framework.

AusCheck, within the Attorney-General's Department, coordinates background checks of individuals for the maritime security regulatory framework, maintains the AusCheck system (which includes a database), and provides a card verification service in relation to Maritime Security Identification Cards (MSICs).  The AusCheck Regulations set out the administrative processes that AusCheck uses to carry out these functions. 

Since 1 December 2010, individuals have been able to apply for a MSIC with a validity of two years or for a MSIC with a validity of four years.  An individual who applied for a four year MSIC did so with the knowledge that, provided they are a card holder and wished to remain a card holder, they are required to be the subject of a follow-up background check at the mid-way point of the four year period.  No follow-up background checks have occurred yet.  Under the Maritime Regulations prior to the commencement of the Regulation, follow-up background checks were due to commence from 1 October 2012.

The Regulation provides for the automation of the application process for all follow-up background checks.  Follow-up background checks will occur on the second anniversary of the original decision that an individual was eligible to be issued with a MSIC being recorded in the AusCheck database.  In some circumstances an individual will not be subject to this follow-up background check, for example if the individual withdraws their consent to the check.

Provision for 'follow-up background checks' previously existed in the Maritime Regulations but these provisions created an administrative burden by requiring issuing bodies to manually apply, on behalf of an individual, to AusCheck for a follow-up background check.  The Regulation implements the original intention to automate the application process for follow-up checks.  This reduces the administrative burden on issuing bodies and streamlines the follow-up background check process whilst maintaining its integrity and accuracy.

Amendments were also made to the Maritime Regulations to facilitate the automation of the application process for all follow-up background checks.  .

The Regulation also made other minor changes to the AusCheck Regulations 2007 to clarify issues identified since those Regulations were last amended.

Consultation was undertaken by the Attorney-General's Department with the Department of Infrastructure and Transport (DIT), the Department of Health and Ageing, Australian Security Intelligence Organisation, CrimTrac and the Department of Finance and Deregulation (Office of Best Practice Regulation).  DIT undertook wide industry consultation on the changes to the Maritime Regulations.

The Office of Best Practice Regulation advised that no regulatory impact statement was needed.

Details of the Regulation are set out in the Attachment.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.   The Regulation commenced on the day after registration.

Statement of Compatibility with Human Rights 

On the basis that this legislative instrument is of a mechanical nature and does not engage with any human rights, it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 

ATTACHMENT

Details of the Regulation are as follows:

Section 1 - Name of Regulation

This section provides for the title of the Regulation as the AusCheck Amendment Regulation 2012 (No. 1).

Section 2 - Commencement

This section provides for the Regulation to commence on the day after registration.

Section 3 - Amendment of AusCheck Regulations 2007

This section provides for Schedule 1 to the Regulation to amend the AusCheck Regulations 2007 (the Principal Regulations).

Schedule 1- Amendments

Item [1] - Regulation 3, after definition of unlawful non-citizen

This item inserts a note to clarify that the terms 'AusCheck database', 'aviation security identification card' and 'maritime security identification card' may be defined by reference to subsection 4(1) of the AusCheck Act 2007.

Item [2] - Regulation 5 heading

This item provides a heading giving greater clarity to the subject matter of regulation 5 as regulation 5 sets out the provisions determining when AusCheck is authorised to conduct background checks.

Item [3] - Subparagraph 5(1)(b)(ii) and (iii)

This item removes subparagraph 5(1)(b)(iii). This removes the reference to the previous authority to perform follow-up background checks in the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations).  Subregulation 5(1A) establishes AusCheck's authority to perform follow-up background checks.

Item [4] - After subregulation 5(1)

This item authorises the undertaking of follow-up background checks on persons who applied for maritime security identification cards with a four year expiry under the circumstances described in subregulation 5(5).

Item [5] - After Subregulation 5(4)

This item sets out which individuals are subject to a follow-up background check.  Follow-up checks will take place on individuals who applied for and were found eligible to be issued with a four year Maritime Security Identification Card (MSIC).  The follow-up check will begin on the second anniversary of AusCheck's original background check decision as recorded in the AusCheck database.  An issuing body, who applies on behalf of an individual, is notified of the date the decision is recorded in the AusCheck database shortly after the decision is made.  Issuing bodies and individuals can also contact AusCheck at any stage to confirm the date of the original decision. 

Individuals whose four year MSIC are cancelled for reasons that will not permit a card to be re-issued will not be subject to the follow-up background check.  Cancellation reasons of this type are listed in paragraph 5(5)(c). Furthermore, paragraph 5(5)(d) provides that background checks will not be conducted on individuals who provide notice of their withdrawal of consent for the follow-up check at any time prior to the commencement of the follow-up background check. 

Subregulation 5(6) clarifies that a follow-up background check is only taken to have been applied for once during the maximum four year validity period associated with each separate application for a four year MSIC.   

Item [6] - Subregulation 6(1)

Subregulation 6(1) sets out the personal information that is to be provided by issuing bodies to AusCheck about individuals who are to be the subject of a background check.  This item removes the reference to subparagraph 5(1)(b)(iii) requiring issuing bodies to provide personal information for follow-up background checks.  This is no longer required as the follow-up background check process is automated (i.e. an application is taken to have been made) and no longer requires a manual application to be made.  Follow-up background checks are to be conducted based on personal information already provided by issuing bodies, on behalf of an individual, and stored in the AusCheck database.  Furthermore, the amendments to the Maritime Regulations introduced a requirement for an individual's name and address details to be updated in the AusCheck database if they change.

Item [7] - Paragraphs 6(1)(b) and (ba)

This item clarifies the existing requirement for residential information to be included with a background check application.  The required information includes the individual's current residential address and all other previous residential addresses in the 10 years prior to the time of application. Short-term accommodation would not be regarded as constituting a residential address and would not be required to be supplied.  Examples of short-term accommodation include short-term stays at a hotel/motel or residences of friends or family, and accommodation located within off-shore maritime facilities and fly-in/fly-out mining camps.

Item [8] - Subregulation 9(1)

This item removes the reference to subparagraph 5(1)(b)(iii) concerning follow-up background checks and replaces it with a reference to subregulation 5(5). This amendment is consequential to items 3, 4 and 5.

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