Commonwealth of Australia Explanatory Memoranda

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AUSCHECK AMENDMENT BILL 2009

                                  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.