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This Act may be cited as the AusCheck Act 2007.
This Act commences on the day after it receives the Royal Assent.
The object of this Act is to provide a regulatory framework for coordinating and conducting certain criminal, security and other background checking.
In this Act:
ASIC (short for aviation security identification card) has the same meaning as in the Aviation Transport Security Regulations 2005.
AusCheck database means the database referred to in section 14.
AusCheck scheme means the scheme prescribed for the purposes of section 8.
AusCheck scheme personal information means personal information:
that is obtained under the AusCheck scheme; or
that relates to the administration of the AusCheck scheme; or
that is obtained before the commencement of Schedule 1 to the AusCheck Amendment (Global Entry Program) Act 2025 by an agency (within the meaning of the Privacy Act 1988) for the purposes of conducting (whether before or after that commencement) a background check in connection with an individual’s participation in the Global Entry program.
AusCheck staff member means:
an APS employee who performs functions relating to, or for the purposes of, the AusCheck scheme; or
a person engaged as a consultant or contractor to perform functions relating to, or for the purposes of, the AusCheck scheme.
For the definition of APS employee, see section 2B of the Acts Interpretation Act 1901.
aviation‑security‑relevant offence has the same meaning as in the Aviation Transport Security Regulations 2005.
CEO of ACIC means the Chief Executive Officer of the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.
charged: an individual is charged with a serious offence if an information is laid against the individual for the offence, whether or not:
a summons to require the attendance of the individual to answer the information has been issued; or
a warrant for the arrest of the individual has been issued.
Commonwealth authority means a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth.
critical infrastructure risk management program has the same meaning as in the Security of Critical Infrastructure Act 2018.
Defence Force magistrate has the same meaning as in the Defence Force Discipline Act 1982.
firearms background check means a background check conducted under regulations made for the purposes of paragraph 8(1)(f).
firearms licensing authority has the meaning given by regulations made for the purposes of this definition.
Global Entry program means the trusted traveller program of the Government of the United States of America, known as the Global Entry program, that enables expedited immigration and customs clearance for individuals entering the United States of America and that is open to Australian citizens.
identity verification information, in relation to an individual, means personal information consisting of the individual’s fingerprints or other biometric data about the individual, but does not include a photograph of the individual.
issuing body means:
an issuing body within the meaning of the Aviation Transport Security Regulations 2005; or
an issuing body within the meaning of the Maritime Transport and Offshore Facilities Security Regulations 2003.
law enforcement agency means an authority of the Commonwealth, or an authority of a State or Territory, that has functions relating to law enforcement.
major national event has the meaning given by section 5A.
maritime‑security‑relevant offence has the same meaning as in the Maritime Transport and Offshore Facilities Security Regulations 2003.
MSIC (short for maritime security identification card) has the same meaning as in the Maritime Transport and Offshore Facilities Security Regulations 2003.
national security agency means:
the Australian Security Intelligence Organisation; or
the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002; or
any other agency of the Commonwealth prescribed by the regulations.
national security background check, in relation to an individual, means a background check conducted in relation to the individual under an Act or legislative instrument referred to in subparagraph 8(1)(b)(i) or (ii) for a purpose referred to in paragraph 8(2)(a), (b), (c), or (d).
permanent resident means a person:
who is not an Australian citizen; and
whose normal place of residence is situated in Australia; and
whose presence in Australia is not subject to any limitation as to time imposed by law; and
who is not an unlawful non‑citizen.
personal information has the same meaning as in the Privacy Act 1988.
resolved: for when a charge for a serious offence is resolved in relation to an individual, see subsection (3).
Schedule 1A offence has the same meaning as in the Defence Force Discipline Act 1982.
Secretary means the Secretary of the Department.
serious offence:
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
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.
service offence has the same meaning as in the Defence Force Discipline Act 1982.
State or Territory authority means a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.
unlawful non‑citizen has the same meaning as in the Migration Act 1958.
Meaning of personal information
To avoid doubt:
personal information, in relation to an individual, includes the following:
the number of an ASIC or MSIC issued to the individual;
any other identifier assigned to the individual;
a photograph of the individual.
When a charge is resolved
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:
the charge is withdrawn;
the charge is dismissed by a court;
the individual is discharged by a court following a committal hearing;
the individual is acquitted of the offence by a court;
the individual is found guilty of the offence and a court:
sentences the person for the offence; or
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.
A background check, in relation to an individual, is an assessment of information relating to one or more of the following:
the individual’s criminal history;
if required or permitted under a regulation made under subsection 8(3):
whether the individual has been charged with a serious offence; or
whether a charge for a serious offence has been resolved in relation to the individual;
matters relevant to a security assessment (as defined in subsection 35(1) of the Australian Security Intelligence Organisation Act 1979) of the individual;
if the background check is conducted for the purposes of paragraph 8(1)(a) or (f)—matters relevant to a criminal intelligence assessment (within the meaning of Part III of the Australian Crime Commission Act 2002) of the individual;
if the background check is conducted for the purposes of paragraph 8(1)(e)—whether a court martial or a Defence Force magistrate:
has convicted the individual of a service offence (other than a Schedule 1A offence); or
has convicted the individual of a Schedule 1A offence and imposed a punishment of imprisonment on the individual;
the individual’s citizenship status, residency status or the individual’s entitlement to work in Australia, including but not limited to, whether the person is an Australian citizen, a permanent resident or an unlawful non‑citizen;
the identity of the individual.
The Minister may, by legislative instrument, declare that a specified event is a major national event for the purposes of this Act.
The Minister must not make a declaration under subsection (1) in relation to an event unless the Minister is satisfied that it is in the national interest that the Commonwealth be involved in the conduct and coordination of background checks in connection with the accreditation of individuals in relation to the event.
In considering whether to make a declaration under subsection (1) in relation to an event, the Minister may have regard to:
the significance of the event; and
the need (if any) to coordinate security arrangements in relation to the event with one or more States or Territories or one or more foreign governments; and
any risk assessment relating to the event; and
the potential impact of any security incident relating to the event on Australia’s reputation; and
the anticipated attendees at the event; and
any other matter the Minister considers relevant.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
This Act extends to every external Territory.
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:
any of the following laws requires or permits a background check to be conducted of an individual for specified purposes:
the Aviation Transport Security Act 2004 or regulations under that Act;
the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act; or
any other Act (other than this Act) expressly:
requires or permits a background check of an individual to be conducted under the AusCheck scheme for purposes specified in the Act; or
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
a critical infrastructure risk management program permits a background check of an individual to be conducted under the AusCheck scheme; or
a regulation made under subsection (3) requires or permits a background check to be conducted of an individual; or
the check is of an individual in connection with the accreditation of the individual in relation to a major national event; or
the check is of an individual in connection with the individual’s participation in the Global Entry program; or
the check is of an individual in connection with any of the following:
a decision under a law of a State or Territory about whether to issue a firearms licence to the individual or otherwise relating to the issue of such a licence (including in relation to conditions);
a decision about whether to renew, revoke, vary or suspend a licence mentioned in subparagraph (i);
in relation to an individual who holds a firearms licence—an application by a law enforcement agency or a national security agency.
National security background checks
If paragraph (1)(b) applies, the background check must be conducted for purposes related to:
Australia’s national security; or
the defence of Australia; or
a national emergency; or
the prevention of conduct to which Part 5.3, 5.3A 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
If paragraph (1)(d) applies, the background check must be conducted:
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
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
in, or for purposes related to, a Territory; or
in or with respect to a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or
in the course of, or for purposes related to, trade or commerce with other countries, and among the States; or
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:
the relationship between the person and the corporation; or
the protection of the corporation; or
the activities of the corporation; or
for purposes related to external affairs; or
for purposes related to the background checking of, or the protection of, aliens; or
for purposes related to:
Australia’s national security; or
the defence of Australia; or
a national emergency; or
the prevention of conduct to which Part 5.3, 5.3A or 5.5 of the Criminal Code applies; or
by way of the provision of a service, for a purpose of the Commonwealth, to:
the Commonwealth; or
an authority of the Commonwealth; or
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
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:
one of the following applies:
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;
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;
the individual is the holder of an ASIC or MSIC;
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;
the individual has applied to the Administrative Review 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
the Secretary considers on reasonable grounds that:
the individual has been charged with a serious offence; or
a charge for a serious offence has been resolved in relation to the individual.
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.
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:
the Aviation Transport Security Act 2004 or regulations under that Act; or
the Maritime Transport and Offshore Facilities Security Act 2003 or regulations under that Act.
Firearms background checks
If paragraph (1)(f) applies, a firearms background check of an individual may only take into account one or more of the following:
an assessment by the Australian Security Intelligence Organisation of the individual under the Australian Security Intelligence Organisation Act 1979;
a criminal intelligence assessment (within the meaning of Part III of the Australian Crime Commission Act 2002) of the individual under that Act;
the citizenship status of the individual.
Definitions
A term used in subsection (2A) and the Constitution has the same meaning in that subsection as it has in the Constitution.
The AusCheck scheme may, for the purposes of paragraphs 8(1)(a) and (b), make provision for and in relation to the following:
the making of applications for a background check by the individual to whom the background check relates;
the making of applications for a background check by a person other than the individual to whom the background check relates, with the consent of the individual to whom the background check relates;
the information that is to be contained in an application for a background check;
the criteria against which an application for a background check is to be assessed;
the decision or decisions that may be made as a result of an application for a background check;
the form of advice to be given to the applicant for a background check;
the form of advice to be given to an individual in respect of whom a background check is conducted;
the form of advice to be given to other persons about the outcome of a background check.
The matters referred to in subsection (1) may relate to:
all background checks to be conducted for the purposes of paragraphs 8(1)(a) and (b); or
a specified class of background checks.
Without limiting the way in which a class of background checks may be described for the purposes of subsection (2), a class may be described by reference to a specified legislative or non‑legislative scheme, a specified law of the Commonwealth, specified provisions of a law of the Commonwealth or specified purposes.
For the purposes of paragraph (1)(b), an individual is taken to have given consent to another person making an application for a background check in relation to the individual if:
the individual has applied for:
an ASIC or MSIC; or
any other card, licence, permit or authorisation; and
before making the application referred to in paragraph (a), the individual was advised by the person to whom that application was made, in accordance with the requirements (if any) specified in the regulations, that a background check was a precondition to:
the issuing of the card, licence, permit or authorisation; or
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.
The AusCheck scheme may, for the purposes of paragraph 8(1)(c), make provision for and in relation to the following:
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;
the criteria against which a background check is to be assessed;
the decision or decisions that may be made as a result of a background check;
the form of advice to be given to an individual in respect of whom a background check is conducted;
the form of advice to be given to other persons about the outcome of a background check.
The matters referred to in subsection (1) may relate to:
all background checks to be conducted for the purposes of paragraph 8(1)(c); or
a specified class of background checks.
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 of specified matters if:
one of the following applies:
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;
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;
the individual is the holder of an ASIC or MSIC;
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;
the individual has applied to the Administrative Review 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
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
in the case of an issuing body:
the individual applied to the issuing body for the ASIC or MSIC; or
the issuing body issued the ASIC or MSIC to the individual.
The AusCheck scheme may, for the purposes of paragraph 8(1)(d), make provision for and in relation to any of the following:
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;
the criteria against which a background check is to be assessed;
the decision or decisions that may be made as a result of a background check;
the form of advice to be given to an individual in respect of whom a background check is conducted;
the form of advice to be given to other persons about the outcome of a background check.
The matters referred to in subsection (1) may relate to:
all background checks to be conducted for the purposes of paragraph 8(1)(d); or
a specified class of background checks.