AusCheck Amendment Regulations 2010 (No. 2) (Cth)

AusCheck Amendment Regulations 2010 (No. 2)¹

Select Legislative Instrument 2010 No. 286

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 24 November 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. 2).

Commencement

These Regulations commence on the day after they are registered.

Amendment of AusCheck Regulations 2007

Schedule 1 amends the AusCheck Regulations 2007.

Schedule 1 Amendments

(regulation 3)

Regulation 5

substitute

When background checks may be undertaken

(1)AusCheck may undertake a background check if it receives an application for a background check made under:

(a)subregulation (2), (3) or (4); or

(b)any of the following provisions of the Maritime Transport and Offshore Facilities Security Regulations 2003:

(i)regulation 6.08LBA;

(ii)subregulation 6.08LC (1);

(iii)subregulation 6.08LD (1); or

(c)any of the following provisions of the Aviation Transport Security Regulations 2005:

(i)subregulation 6.27AA (3);

(ii)regulation 6.41A.

(2)An issuing body may apply for a background check about an individual who:

(a)has applied to the issuing body for:

(i)a security identification card; or

(ii)a national health security check; and

(b)has been given a notice mentioned in paragraph 13 (2) (b).

(3)The holder of a security identification card is taken to have applied for a background check if the holder:

(a)notifies the Secretary in writing of the matters mentioned in:

(i)subregulation 6.08LB (2) of the Maritime Transport and Offshore Facilities Security Regulations 2003; or

(ii)subregulation 6.41 (1) of the Aviation Transport Security Regulations 2005; and

(b)has given consent for the matters in:

(i)subparagraphs 6.08LB (2) (e) (i), (ii) and (iii) of the Maritime Transport and Offshore Facilities Security Regulations 2003; or

(ii)subparagraphs 6.41 (1) (e) (i), (ii) and (iii) of the Aviation Transport Security Regulations 2005.

(4)If a national health security check has been done about an individual, an issuing body may apply for a further national health security check about the individual if the issuing body considers that:

(a)the circumstances of the individual may have changed since the completion of the previous national health security check; and

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

5AHow application to be made

(1)An application for a background check mentioned in subparagraph 5 (1) (b) (iii) or subregulation 5 (2) must be made electronically using:

(a)a facility made available at the website mentioned in regulation 13; or

(b)another facility made available by the Secretary.

(2)Any other application mentioned in subregulation 5 (1) must be made in writing.

5BValidity of national health security check not extended

The period of validity of a national health security check is not extended by an application under subregulation 5 (4).

Subregulation 6 (1)

omit

under subregulation 5 (1)

insert

mentioned in subparagraph 5 (1) (b) (iii) or subregulation 5 (2)

Subregulation 6 (1A)

substitute

(1A)An application mentioned in subparagraph 5 (1) (b) (ii) or subparagraph 5 (1) (c) (i) for a background check about the holder of a security identification card must include the holder’s name, date of birth and residential address.

(1B)An application mentioned in subparagraph 5 (1) (b) (i) or (c) (ii) must include the information given to the issuing body making the application by the holder of the security identification card under:

(a)subregulation 6.08LB (2) of the Maritime Transport and Offshore Facility Security Regulations 2003; or

(b)subregulation 6.41 (1) of the Aviation Transport Security Regulations 2005.

(1C)For a national health security check under subregulation 5 (4), AusCheck may establish a compliance system to confirm and update details provided for subregulation (1).

Paragraph 8 (3) (a)

substitute

(a)for an application mentioned in paragraph 5 (1) (b) or (c), or subregulation 5 (3) or (4) — 14 days; or

Subregulation 9 (1)

omit

The advice to be given to an issuing body of the outcome of a background check is:

insert

If an issuing body makes an application mentioned in subparagraph 5 (1) (b) (iii) or subregulation 5 (2) or (4), the Secretary is to give the issuing body the following advice on the outcome of the check:

After subregulation 9 (1)

insert

(1A)If the Transport Secretary makes an application mentioned in subparagraph 5 (1) (b) (ii) or (c) (i), the Secretary must:

(a)give the Transport Secretary the advice mentioned in paragraph (1) (a); and

(b)if the background check discloses any of the matters in subregulation (1D) — give the advice mentioned in paragraph (1) (a) to the issuing body for the security identification card held by the holder.

(1B)If an issuing body applies for a background check under subparagraph 5 (1) (b) (i) or (c) (ii), the Secretary must give the advice mentioned in paragraph (1) (a) to the issuing body for the security identification card held by the holder.

(1C)If an application is taken to have been made under subregulation 5 (3), the Secretary must:

(a)give the holder the advice mentioned in paragraph (1) (a); and

(b)if the background check discloses any of the matters in subregulation (1D) — give the advice mentioned in paragraph (1) (a) to the issuing body for the security identification card held by the holder.

(1D)For paragraphs (1A) (b) and (1C) (b), the matters are that the holder has any of the following:

(a)an adverse criminal record;

(b)a conviction for a disqualifying offence;

(c)if the holder holds an aviation security identification card that expires more than 12 months after the last day of the month in which the background check, undertaken when the person applied for the card, was completed — a qualified criminal record.

Subregulation 9 (2)

after

If the advice

insert

given under subregulation (1), (1A), (1B) or (1C)

Subregulation 9 (3)

after

advice

insert

mentioned in subregulation (1), (1A), (1B) or (1C)

Paragraph 9 (3) (b)

substitute

(b)either:

(i)for a national health security check — is an issuing body mentioned in paragraph (c) of the definition of issuing body in regulation 3; or

(ii)for a background check that does not include a national health security check — is an issuing body mentioned in paragraph (a) or (b) of that definition.

[10] Regulation 10, heading

substitute

Advice to Transport Secretary of outcome — criminal record

Paragraph 10 (1) (a)

after

holds

insert

or has applied for

Paragraph 10 (1) (c)

substitute

(c)the Transport Secretary has told the Secretary that an application has been made:

(i)under regulation 6.08F of the Maritime Transport and Offshore Facilities Security Regulation 2003 or regulation 6.29 of the Aviation Transport Security Regulations 2005 for approval to issue a security identification card to the individual; or

(ii) under subregulation 6.08MA (2) of the Maritime Transport and Offshore Facilities Security Regulation 2003 or subregulation 6.43A (2) of the Aviation Transport Security Regulations 2005 to set aside the cancellation of a security identification card issued to the individual.

Subregulation 10 (1A)

omit

copy of:

insert

copy of the following documents held by the Secretary:

Paragraphs 10 (1A) (a) and (b)

omit

and

Paragraph 10 (1A) (c)

substitute

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

Subregulations 10 (2) and (3)

omit

After regulation 10

insert

10AAAdvice to Transport Secretary of outcome — security assessment

(1)This regulation applies if a background check is undertaken for an individual who holds or has applied for a security identification card.

(2)If the outcome of the background check discloses that a security assessment of the individual is an adverse or qualified security assessment, the Secretary must give the Transport Secretary a copy of the security assessment.

Paragraph 13 (2) (b)

after

is made

insert

under subregulation 5 (2)

Note

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