AusCheck Amendment Regulations 2010 (No. 1) (Cth)

AusCheck Amendment Regulations 2010 (No. 1)¹

Select Legislative Instrument 2010 No. 150

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the AusCheck Act 2007.

Dated 29 June 2010

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

ROBERT McCLELLAND

Attorney-General

Name of Regulations

These Regulations are the AusCheck Amendment Regulations 2010 (No. 1).

Commencement

These Regulations commence on 14 July 2010.

Amendment of AusCheck Regulations 2007

Schedule 1 amends the AusCheck Regulations 2007.

Schedule 1 Amendments

(regulation 3)

[1] Regulation 3, definition of adverse criminal record, paragraph (b)

omit

Regulations 2003.

insert

Regulations 2003; or

[2] Regulation 3, definition of adverse criminal record, after paragraph (b)

insert

(c)for an individual who is an applicant for, or the subject of, a national health security check — an adverse criminal record within the meaning of Part 1 of the Security-sensitive Biological Agent Standards (SSBA) Standards determined under section 35 of the National Health Security Act 2007.

[3] Regulation 3, after definition of convicted of a disqualifying offence

insert

criminal history information means information about the disposition of a criminal matter by a court.

[4] Regulation 3, definition of issuing body, paragraph (b)

omit

Regulations 2003.

insert

Regulations 2003; or

[5] Regulation 3, definition of issuing body, after paragraph (b)

insert

(c)an entity:

(i)to whom Division 5 of Part 3 of the National Health Security Act 2007 applies; and

(ii)that is not an exempt entity under section 40 of that Act.

[6] Regulation 3, after definition of issuing body

insert

national health security check means a background check, undertaken under paragraph 35 (2) (b) of the National Health Security Act 2007, of an individual to handle or access information about a security‑sensitive biological agent.

Note See subsection 35 (2A) of the National Health Security Act 2007 for an example.

[7] Regulation 3, definition of qualified criminal record

substitute

qualified criminal record has the meaning given by:

(a)for a national health security check — Part 1 of the Security-sensitive Biological Agent Standards (SSBA) Standards determined under section 35 of the National Health Security Act 2007; or

(b)in any other case — regulation 6.01 of the Aviation Transport Security Regulations 2005.

[8] Regulation 3, after definition of security identification card

insert

Transport Secretary means the Secretary of the Department administering the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003.

[9] Paragraph 5 (1) (a)

substitute

(a)has applied for:

(i)a security identification card; or

(ii)a national health security check; and

[10] After subregulation 5 (2)

insert

(3)An issuing body may apply for an additional national health security check about an individual if the issuing body considers that:

(a)the circumstances of the individual may have changed; and

(b)the change may affect the individual’s eligibility status for an authorisation that relies on a national health security check.

(4)The period of validity of a national health security check is not extended by an application under subregulation (3).

[11] Subregulation 6 (1)

after

application

insert

under subregulation 5 (1)

[12] After paragraph 6 (1) (a)

insert

(aa)any other name previously used by the individual;

[13] After paragraph 6 (1) (b)

insert

(ba)any other residential address of the individual in the previous 10 years;

[14] After subregulation 6 (1)

insert

(1A)However, for an additional national health security check under subregulation 5 (3), AusCheck may establish a compliance system to confirm and update details provided for subregulation (1).

[15] Regulation 7

omit

For the purpose

insert

(1)For the purpose

[16] Regulation 7, note

omit

14, 20 and 21

insert

14 and 20 to 24

[17] Regulation 7, after the note

insert

(2)For paragraph (1) (a), the information may include criminal history information from other countries, only if the legislation authorising background checking sets out circumstances in which criminal history information from another country is to be collected and criteria against which to assess that information.

[18] Subregulation 8 (3)

substitute

(3)The day mentioned in the notice must be at least:

(a)for an additional national health security check under subregulation 5 (3) — 14 days; or

(b)in any other case — 28 days.

[19] Subregulation 8 (5)

substitute

(5)The Secretary must not give any advice about the outcome of the background check until:

(a)if the individual, in making representations, has requested that the advice be given — as soon as practicable; or

(b)in any other case — after any representations made by the individual before the end of the day mentioned in the notice or any later day nominated under subregulation (4) have been considered.

[20] Regulation 9, heading

substitute

Advice about outcome of background check

[21] Subregulation 9 (2)

omit

criminal history.

insert

offences that are relevant to the kind of security check for which the issuing body applied.

[22] After subregulation 9 (2)

insert

(3)The Secretary may also give the advice to another issuing body if the issuing body:

(a)is considering whether to allow the individual access to a secure area or facility that is subject to background checking requirements; and

(b)is part of the same background checking scheme as the issuing body that applied for the background check.

(4)If an issuing body intends to authorise an individual, relying on the remaining period of validity of a national health security check issued for the individual by another issuing body:

(a)it must tell AusCheck that it intends to do so; and

(b)AusCheck must tell the issuing body whether:

(i)the individual has an eligibility status of eligible, not eligible or qualified; and

(ii)the national health security check has expired or has been suspended or cancelled.

[23] Regulation 10, heading

substitute

Advice to Transport Secretary of outcome of certain background checks

[24] Subregulation 10 (1)

substitute

(1)This regulation applies if:

(a)a background check is undertaken for an individual who holds a security identification card; and

(b)the advice that is given to an issuing body of the outcome of the background check discloses that the individual has an adverse criminal record; and

(c)the Transport Secretary has told the Secretary that an application has been made to the Transport Secretary for approval to issue a security identification card to the individual.

(1A)The Secretary must give the Transport Secretary a copy of:

(a)the individual’s criminal history; and

(b)the assessment that was made by the Secretary of information relating to the individual’s criminal history for the background check; and

(c)any other information held by the Secretary relevant to the individual’s background check.

[25] Subregulation 10 (2)

omit

DOTARS

insert

Transport

[26] Subregulation 10 (3)

substitute

(3)The Secretary must notify the Transport Secretary if the assessment mentioned in paragraph (1A) (b) discloses a new offence that is relevant to the kind of security check for which the issuing body applied.

[27] After regulation 10

insert

10AInternal review of advice given

If the Secretary becomes aware that advice already given to an issuing body under these Regulations is inaccurate or incomplete, the Secretary must give further advice to the issuing body that is accurate and complete.

[28] Subregulation 13 (1)

substitute

(1)The Secretary must keep a website about the AusCheck scheme.

[29] Subregulation 14 (5)

substitute

(5)If a security identification card is cancelled or suspended before its expiry date or is lost, stolen or destroyed, the issuing body must tell the Secretary within 48 hours after:

(a) the cancellation or suspension; or

(b) the issuing body becoming aware of the loss, theft or

destruction.

(5A)If an issuing body cancels or suspends an authorisation that relies on a national health security check before its expiry date, the issuing body must tell the Secretary within 48 hours after the cancellation or suspension.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See