Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 4(1)
Insert:
"ASIC" (short for aviation security identification card) has the same meaning as in the Aviation Transport Security Regulations 2005 .
"aviation-security-relevant offence" has the same meaning as in the Aviation Transport Security Regulations 2005 .
2 Subsection 4(1) (definition of aviation security identification card )
Repeal the definition.
3 Subsection 4(1)
Insert:
"charged" : an individual is charged with a serious offence if an information is laid against the individual for the offence, whether or not:
(a) a summons to require the attendance of the individual to answer the information has been issued; or
(b) a warrant for the arrest of the individual has been issued.
"issuing body" means:
(a) an issuing body within the meaning of the Aviation Transport Security Regulations 2005 ; or
(b) an issuing body within the meaning of the Maritime Transport and Offshore Facilities Security Regulations 2003 .
"maritime-security-relevant offence" has the same meaning as in the Maritime Transport and Offshore Facilities Security Regulations 2003 .
4 Subsection 4(1) (definition of maritime security identification card )
Repeal the definition.
5 Subsection 4(1)
Insert:
"MSIC" (short for maritime security identification card) has the same meaning as in the Maritime Transport and Offshore Facilities Security Regulations 2003 .
"resolved" : for when a charge for a serious offence is resolved in relation to an individual, see subsection ( 3).
"Secretary" means the Secretary of the Department.
"serious offence" :
(a) in relation to an applicant for, or holder of, an ASIC--means an aviation - security - relevant offence of a kind specified in the regulations for the purposes of this paragraph; and
(b) in relation to an applicant for, or holder of, an MSIC--means a maritime - security - relevant offence of a kind specified in the regulations for the purposes of this paragraph.
"Transport Secretary" means the Secretary of the Department administered by the Minister who administers the Aviation Transport Security Act 2004 .
6 Before subsection 4(2)
Insert:
Meaning of personal information
7 Subsection 4(2) ( paragraph ( a) of the definition of personal information )
Omit "aviation security identification card or a maritime security identification card", substitute "ASIC or MSIC".
8 At the end of section 4
Add:
When a charge is resolved
(3) For the purposes of this Act, a charge for a serious offence is resolved in relation to an individual if the charge is finally dealt with in any of the following ways:
(a) the charge is withdrawn;
(b) the charge is dismissed by a court;
(c) the individual is discharged by a court following a committal hearing;
(d) the individual is acquitted of the offence by a court;
(e) the individual is found guilty of the offence and a court:
(i) sentences the person for the offence; or
(ii) makes an order relating to the offence under section 19B of the Crimes Act 1914 , or a corresponding provision of a law of a State or Territory.
9 After paragraph 5(a)
Insert:
(aa) if required or permitted under a regulation made under subsection 8(3) :
(i) whether the individual has been charged with a serious offence; or
(ii) whether a charge for a serious offence has been resolved in relation to the individual;
10 At the end of subsection 8(1)
Add:
; or (c) a regulation made under subsection ( 3) requires or permits a background check to be conducted of an individual.
11 Before subsection 8(2)
Insert:
National security background checks
12 At the end of section 8
Add:
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 to the Transport Secretary 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 to the Transport Secretary 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 by an issuing body, the Secretary or the Transport Secretary 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.
13 Section 9 (at the end of the heading)
Add " --background checks required or permitted other than under regulations made under this Act ".
14 Subsection 9(1)
After "may" (first occurring), insert ", for the purposes of paragraph s 8(1)(a) and (b),".
15 Paragraph 9(1)(h)
Omit "check;", substitute "check.".
16 Paragraph 9(1)(i)
Repeal the paragraph.
17 Paragraph 9(2)(a)
Omit "under the AusCheck scheme", substitute "for the purposes of paragraphs 8(1)(a) and (b)".
18 Subparagraphs 9(4)(a)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) an ASIC or MSIC; or
19 Paragraph 9(4)(b)
Omit "the other person", substitute "the person to whom that application was made".
20 Paragraph 9(4)(b)
Omit all the words after "precondition", substitute:
to:
(i) the issuing of the card, licence, permit or authorisation; or
(ii) if the background check is required or permitted to be conducted as referred to in paragraph 8(1)(a) in a particular circumstance--the individual's continuing eligibility to hold the card in that circumstance.
21 After section 9
Insert:
(1) The AusCheck scheme may, for the purposes of paragraph 8(1)(c), make provision for and in relation to the following:
(a) the giving to the Secretary of information, relating to an individual in respect of whom a background check is conducted, that is directly necessary for the purpose of conducting the background check;
(b) the criteria against which a background check is to be assessed;
(c) the decision or decisions that may be made as a result of a background check;
(d) the form of advice to be given to an individual in respect of whom a background check is conducted;
(e) the form of advice to be given to other persons about the outcome of a background check.
(2) The matters referred to in subsection ( 1) may relate to:
(a) all background checks to be conducted for the purposes of paragraph 8(1)(c); or
(b) a specified class of background checks.
( 3 ) The AusCheck scheme may, for the purposes of paragraph 8(1)(c), make provision for and in relation to an individual or an issuing body notifying the Secretary or the Transport Secretary of specified matters 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 to the Transport Secretary 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 to the Transport Secretary 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 by an issuing body, the Secretary or the Transport Secretary relating to the issue, suspension or cancellation of an ASIC or MSIC, and the application has not been determined; and
(b) the individual has been charged with a serious offence, or a charge for a serious offence has been resolved in relation to the individual; and
(c) in the case of an issuing body:
(i) the individual applied to the issuing body for the ASIC or MSIC; or
(ii) the issuing body issued the ASIC or MSIC to the individual.
10A Matters covered by AusCheck scheme--online verification service
The AusCheck scheme may make provision for and in relation to matters relating to the establishment and provision of an online verification service that will enable verification:
(a) that an ASIC or MSIC has been issued to a particular individual and is in effect at a particular time; or
(b) that an individual who is in possession of an ASIC or MSIC is the person to whom the card was issued; or
(c) that a national security background check has been conducted in relation to a particular individual; or
(d) that an individual who is in possession of a card, licence, permit or other authorisation in relation to which a national security background check has been conducted is the individual to whom the card, licence, permit or authorisation was issued.
22 Before subsection 11(2)
Insert:
Directions about advising whether licence etc. has been issued to individual
23 At the end of section 11
Add:
Directions in connection with background checks required or permitted under the regulations--charges for serious offences
(3) Without limiting subsection ( 1), the AusCheck scheme may empower the Secretary to give one or more of the following kinds of direction if the Secretary considers on reasonable grounds that an individual has been charged with a serious offence:
(a) a direction to an issuing body to delay considering an application for an ASIC or MSIC to be issued to the individual until further direction from the Secretary in accordance with subsection ( 4);
(b) a direction to the Transport Secretary to delay considering an application for approval to issue an ASIC or MSIC to the individual until further direction from the Secretary in accordance with subsection ( 4);
(c) a direction to an issuing body to suspend an ASIC or MSIC issued by the issuing body to the individual until further direction from the Secretary in accordance with subsection ( 4);
(d) a direction to the Transport Secretary to delay considering an application to set aside the cancellation of an ASIC or MSIC issued to the individual until further direction from the Secretary in accordance with subsection ( 4).
Giving further directions referred to in subsection ( 3)
(4) The Secretary:
(a) must give the further direction referred to in subsection ( 3) to the relevant person as soon as practicable after the Secretary considers that:
(i) all charges for serious offences have been resolved in relation to the individual; and
(ii) a background check has been conducted covering the matter referred to in paragraph 5(a) (criminal history) after subparagraph ( i) is satisfied, whether or not the background check also covers other matters; and
(b) may give the further direction at any time before paragraph ( a) applies.
Directions under subsection ( 3) to suspend ASICs or MSICs--other cards also taken to be suspended
(5) If an ASIC or MSIC is suspended as referred to in paragraph ( 3)(c), then any other card issued to the individual under the Aviation Transport Security Regulations 2005 or the Maritime Transport and Offshore Facilities Security Regulations 2003 is taken also to be suspended.
Other matters connected with giving directions under subsection ( 3)
(6) The AusCheck scheme may make provision for matters connected with the giving of a direction under subsection ( 3), including the following:
(a) preventing the individual from making any other application under the Aviation Transport Security Regulations 2005 or the Maritime Transport and Offshore Facilities Security Regulations 2003 , or entering any area or zone to which access is restricted under those regulations, until after the further direction referred to in subsection ( 3) has been given;
(b) preventing an issuing body or other person from issuing any card to the individual under those regulations until after the further direction referred to in subsection ( 3) has been given;
(c) preventing a person from escorting the individual in any area or zone to which access is restricted under those regulations until after the further direction referred to in subsection ( 3) has been given;
(d) returning a suspended card issued to the individual under those regulations to a specified person;
(e) updating registers of cards and other records kept by an issuing body;
(f) an issuing body or the Secretary notifying other persons of matters in connection with the giving of the direction, for the purpose of preventing:
(i) an unlawful interference with aviation (within the meaning of the Aviation Transport Security Act 2004 ); or
(ii) an unlawful interference with maritime transport or offshore facilities (within the meaning of the Maritime Transport and Offshore Facilities Security Act 2003 ); or
(iii) the commission of an offence against a law of the Commonwealth or a State or Territory; or
(iv) an incident that poses a threat to national security.
24 Before paragraph 13(1)(a)
Insert:
(aa) the collection, use or disclosure is for the purposes of, or for purposes directly relating to, determining whether a background check under the AusCheck scheme is required or permitted to be conducted in respect of a particular individual; or
25 Subparagraphs 13(1)(c)(i) and (ii)
Omit "aviation security identification card or a maritime security identification card", substitute "ASIC or MSIC".
26 After subparagraph 14(2)(b)(i)
Insert:
(ia) monitoring and enforcing compliance with a requirement under the AusCheck scheme, the Aviation Transport Security Regulations 2005 or the Maritime Transport and Offshore Facilities Security Regulations 2003 to notify the Secretary or the Transport Secretary of a specified matter;
27 At the end of paragraph 14(2)(b)
Add:
(iv) without limiting subparagraph ( iii)--determining whether any individual referred to in paragraph 8(3)(a) has been charged with a serious offence, or whether a charge for a serious offence has been resolved in relation to any such individual.
28 Paragraph 14(2A)(a)
Omit "aviation security identification card or a maritime security identification card", substitute "ASIC or MSIC".
29 Paragraph 14(2A)(b)
Omit "such an identification card", substitute "an ASIC or MSIC".
30 Paragraph 18(2)(c)
Omit "50", substitute "100".
Part 2 -- Application of amendments
31 Application of amendments
(1) The amendments made by this Schedule apply in relation to an applicant for an ASIC or MSIC, whether the application is made before, on or after the commencement of this item.
(2) The amendments made by this Schedule apply in relation to the holder of an ASIC or MSIC, whether the ASIC or MSIC is issued before, on or after the commencement of this item.
(3) The amendments made by this Schedule apply in relation to an individual charged with a serious offence on or after the commencement of this item.
(4) Sections 13 and 14 of the AusCheck Act 2007 , as in force on and after the commencement of this item, apply in relation to personal information whether it is collected before, on or after that commencement.
32 Savings provision--online verification service
Despite the repeal of paragraph 9(1)(i) of the AusCheck Act 2007 by this Schedule, regulations in force for the purposes of that paragraph immediately before the commencement of this item continue in force on and after that commencement for the purposes of section 10A of that Act (as inserted by this Schedule).