AusCheck Amendment (Global Entry Program) Regulations 2025

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

AusCheck Act 2007

AusCheck Amendment (Global Entry Program) Regulations 2025

Legislative authority

Paragraph 8(1)(e) of the AusCheck Act 2007 (the Act) provides that regulations may provide for the establishment of regulations relating to conduct and coordination of background checks in connection with an individual’s participation in the Global Entry Program (GEP).

For the purpose of paragraph 8(1)(e) of the Act, section 10AB of the Act provides that the regulations made for the purpose of GEP background checks may provisions for any of the following purposes. Broadly, these include:

• the making of applications by the individual to whom the background check relates;
• the making of applications for background checks by a person other than the individual to whom the background check relates and the related consent requirements;
• the information that is to be contained in an application for a background check;
• the giving of information to the Secretary that is directly necessary for the purpose of conducting the background check;
• the criteria against which the 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 applicant or the individual to whom the background check relates; and
• the form of advice to be given to other persons about the outcome of the background check.

Subsection 18(1) of the Act further provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. Relevantly, subsection 18(2) of the Act further provides that the regulations may provide for the charging and recovery of fees incurred by the Commonwealth.

Background

The Global Entry Program (GEP)

Australia and the United States of America (US) maintain an important and long-standing relationship built upon strong diplomatic, economic and peer to peer relationships. As a result, significant volumes of Australian citizens travel annually to the US and its territories. The GEP is a trusted traveller program that permits access to expedited immigration and customs clearance channels on arrival into the US for pre-approved, low risk travellers from GEP approved countries. To participate in the program, GEP approved countries, including Australia, are required to conduct preliminary background checks on their citizens who apply for the GEP to determine their preliminary eligibility for the program. This is followed by further screening by US authorities who make a final determination on the applicant’s eligibility. If the US grants an Australian applicant access to the GEP, the Government will be required to conduct further annual background checks on the participant during their five-year term in the program.

Australian citizens accepted into the GEP are still required to meet any visa (or other immigration) requirements imposed by the US. The GEP is not a reciprocal program between Australia and the US. Australia’s participation in the program does not provide any equivalent benefit for US citizens traveling to, or arriving in, Australia.

Implementation of the GEP 

An initial, limited phase of the GEP was completed in early 2025, supported by executive powers under section 61 of the Australian Constitution. This first phase saw a capped number of 1,000 individuals who met the criteria, admitted as participants into the GEP. A legislative basis is required to undertake GEP background checks on an ongoing basis.

The Australian Government has identified AusCheck as the appropriate entity through which to facilitate Australia’s background checking obligations for the GEP. AusCheck, who are situated within the Department of Home Affairs, presently provide background checking services for a number of security-sensitive sectors and activities.

Accordingly, the AusCheck Amendment (Global Entry Program) Act 2025 (the Amending Act) provides the legislative basis to enable the undertaking of the background checks as required for participation in the GEP. The Amending Act expanded the regulation-making power in section 8 of the AusCheck Act to allow for GEP background checks. Among other amendments, the Amending Act also inserted a new section 10AB in the Act, which provides a regulation-making power to prescribe the matters in Regulation that are to be covered by the AusCheck Scheme when conducting background checks in connection with the GEP.

For this purpose, amendments are required to the AusCheck Regulations 2017 (the AusCheck Regulations) to operationalise the background checks needed in connection with an individual’s participation in the GEP.

Purpose and effect

The purpose of the AusCheck Amendment (Global Entry Program) Regulations 2025 (the Regulations) is to support the amendments contained with the Amending Act and operationalise background checking for the purposes of the GEP.

In accordance with section 10AB of the Act, these Regulations make provision for, among other things:

• The making of applications for background checks for the purpose of GEP – Paragraphs 10AB(a), 10AB(c) and 10AB(c) of the Act

The Regulations broadly provide that the applications for GEP background checks are to be made in the manner and form approved by the Secretary for this purpose and must contain all the required information specified in the Regulations (including consent requirements).

The Regulations also permit applications to be made by persons with parental responsibilities for individuals under 18, or a third party with the parent or guardian’s consent. For those over 18, the Regulations provide that the application can be made by either the individual subject to the background check or a third party with the consent of the individual.

The Regulations also provide that an application for an initial background check is an application for a follow up background check. Follow up background checks must be conducted  by AusCheck every year following the individual’s acceptance into the GEP for the five-year period of their GEP membership. Moreover, the Regulations provide that AusCheck may conduct additional background checks on the basis of further information provided to the Secretary.

• The information that is to be contained in an application for a background check - Paragraph 10AB(1)(d) of the Act

The Regulations amend the existing definition of “required information” in section 5 and the respective definitions of Category A, B and C identification documents in the AusCheck Regulations to specify what information is required for a GEP background check application.

The Regulations require that an application for a GEP background check must contain the consent of the individual undergoing the background check (or alternatively, the consent of the person applying on their behalf) for both the background check and for their identity to be verified. The Regulations also make provisions for the consent to be obtained by the parent or guardian where the individual is under 18. For applications made on behalf of the individual by a third party, the third party must provide evidence the individual (or parent or guardian for those under 18) consent to them making the application.

The application for a background check must also be accompanied by a Category A, B and C identification document relating to the individual undergoing the background check. In summary, these documents will include an Australian birth certificate, a current and valid Australian passport and another document that evidences the individual’s use of identity while operating in the community.

• the giving to the Secretary information relating to an individual subject to a background check – Paragraph 10AB(1)(e) of the Act.

The Regulations provide an ongoing obligation on the applicant to give the Secretary notice of any changes to the individual’s “required information,” a change of status as a member in the Australian Defence Force and any information relevant to whether the individual has an unfavourable criminal history. This obligation can be discharged by a parent or guardian for those under 18, or by the person who made the application on the individual’s behalf. The Regulations also enliven the Secretary’s existing powers to request information relevant to a background check under section 11A of the AusCheck Regulations.

• the criteria against which a background check for the purposes of the GEP is to be assessed the decision or decisions that may be made as a result of a background check -10AB(1)(f) and 10AB(1)(g) of the Act.

The Regulations will provide that an individual will fail a GEP background check if any of the following occur:

1.        the individual’s identity cannot be verified to the Secretary’s satisfaction;
2.       the individual’s Australian citizenship cannot be verified to the Secretary’s satisfaction;
3.        the background check found that the individual has an unfavourable criminal history;
4.       where the Secretary’s request for further information under subsection 11A(2) has not been complied with; or
5.        the Secretary has cancelled the background check under existing subsection 11A(7). This will apply if the Secretary has previously cancelled the background check for failure to comply with a request for information.

Accordingly, an individual will pass a GEP background check if the individual did not fail the background check. For the purpose of (c) above, an individual will be found to have an unfavourable criminal history if they have a GEP criminal record, which is a new definition being inserted into the AusCheck Regulations. This will include if an individual has a service offence or Schedule 1A offence for which a punishment of imprisonment was imposed on the individual under the Defence Force Discipline Act 1982. An individual will also have a GEP criminal record if the individual’s criminal history shows the individual has been convicted of an offence against a law of the Commonwealth, a State or a Territory.

• the form of advice that is to be given to an applicant for a background check for the purposes of the GEP, the individual in respect of whom the background check is conducted or to another person - Paragraphs 10AB(1)(h), 10AB(1)(i) and 10AB(1)(j) of the Act.

The Regulations provide that following the completion of a background check, the individual, or a person applying on their behalf, must be notified that they failed the background check and the reasons for the fail, in the circumstance the fail is as a result of having an unfavourable criminal record. In the circumstance where a parent or guardian applied for an individual who is under 18, the Secretary must notify the parent or guardian of this.

Additionally, the Regulations provide that the Secretary must advise the US entity that administers the GEP about whether an individual passed or failed a background check. However, the Regulations provide that the Secretary must not provide the US entity any other information about the background check of the individual (e.g. the reasons for the fail).

These Regulations also make a number of ancillary changes to the AusCheck Regulations to support the above amendments. These include:

• inserting references to terms inserted into the Act by the Amending Act, including “Defence Force Magistrate,” “Global Entry program”, “Schedule 1A offence” and “service offence”.
• amending the existing definition of “conviction,” “relevant information,” “Category A identification document,” “Category B identification document” and “Category C identification document in section 4 of the AusCheck Regulations;
• inserting a new definition of “GEP criminal record,” with a corresponding amendment to the definition of the “unfavourable criminal history” in section 6;
• amending section 30 of the AusCheck Regulations to allow the Secretary to charge fees for one or more background checks and inserting a new subsection into section 30, providing the Secretary with a discretionary power to provide refunds;
• inserting section 44 into the AusCheck Regulations. This section is an application provision that broadly provides that applications made before commencement of the Instrument (e.g. the initial, limited phase of the GEP mentioned earlier), are taken to have been made under the Regulations. The application provision also exempts individuals who passed a background check, or who are still undergoing a background check at commencement, from being subject to fees from their initial five-year period as a GEP participant.

Consultation

The Department consulted extensively with United States Customs and Border Protection (USCBP) prior to the development of Regulations to ensure, the amendments achieved the intent of both Australia and the United States of America. This consultation with USCBP assisted in framing the design of a number of the amendments.

The Department also engaged with the Department of Foreign Affairs and Trade as part of engagement with USCBP.

The Department consulted with the Department of Defence in relation to the assessment of Service Offence history as part of the background checking process for current and prior Australian Defence Force service members. This consultation included discussions regarding the appropriate offences to capture within the background check for the purposes of the GEP and transfer of this information from the Department of Defence to the Department.

Finally, the Department consulted with the Australian Criminal Intelligence Commission (ACIC) in relation to nationally coordinated criminal history checks provided to the Department by ACIC as part of the background checking process.

The Department consulted with the Attorney General’s Department to inform the privacy protections contained within the amendments.

Finally, the Department consulted with the Office of the Australian Information Commissioner in the design of these amendments to ensure the privacy safeguards contained adequately reflect the nature of amendments, particularly given the amendments involve the sharing of information with a foreign government.

In these circumstances, the Minister was satisfied that appropriate consultation was undertaken, in accordance with section 17 of the Legislation Act 2003 (Legislation Act).

Details and operations

Details of the Regulations are set out in Attachment A.

The Regulations are a disallowable legislative instrument for the purposes of section 42 of the Legislation Act.

The Regulations commence immediately after the commencement of Schedule 1 to the Amending Act.

Other matters

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.

Attachment A

Details of the AusCheck Amendment (Global Entry Program) Regulations 2025

Section 1  Name

Section 1 provides that the name of the instrument is the AusCheck Amendment (Global Entry Program) Regulations 2025 (the Instrument).

Section 2  Commencement

Section 2 provides that the Instrument commences immediately after the commencement of Schedule 1 to the AusCheck Amendment (Global Entry Program) Act 2025.

Section 3  Authority

Section 3 provides that the Instrument is made under the AusCheck Act 2007 (the Act).

Section 4  Schedules

Section 4 provides that each instrument that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to the Instrument has effect according to its terms.

Schedule 1 – Amendments

AusCheck Regulations 2017

Item 1 – Section 4 (after paragraph (ba) of the note to the heading)

Item 1 of the Schedule amends the note after the heading to section 4 of the AusCheck Regulations 2017 (the Regulations) to insert a new paragraph (bb) and (bc). This note provides that a number of expressions used in the Regulations are defined in the Act. The inclusion of new paragraphs (bb) and (bc) respectively provide that ‘Defence Force magistrate’ and ‘Global Entry program’ are terms defined in the Act. These terms are used in Instrument for the purpose of Global Entry program (GEP) background checks.

Item 2 – Section 4 (at the end of the note to the heading)

Item 2 of the Schedule amends the note after the heading to section 4 of the Regulations to insert a new paragraph (e) and (f). These paragraphs, like the amendments in Item 1 of the Schedule, amends the note to specify, respectively, that ‘Schedule 1A offence’ and ‘service offence’ are defined in the Act. These terms are also used in this Instrument for the purpose of GEP background checks.

Item 3 – Section 4 (at the end of the definition of Category A identification document)

Item 3 of the Schedule amends the definition of ‘Category A identification document’ to add a new paragraph (d). New paragraph (d) provides that for the purpose of an individual in respect of whom an application for a background check in connection with the individual’s participation in GEP, a Category A identification document means either an Australian birth certificate or a notice given to the individual under section 37 of the Australian Citizenship Act 2007.

Item 4 – Section 4 (before the note to the definition of Category B identification document)

Item 4 of the Schedule amendments the definition of ‘Category B identification document’ to add a new paragraph (d). New paragraph (d) provides that for an individual in respect of whom an application has been made for background checks in relation to the individual’s participation in the GEP, a Category B identification document means a current and valid Australian passport.

Item 5 – Section 4 (before the note to the definition of Category C identification document)

Item 5 of the Schedule amends the definition of ‘Category C identification document’ to add a new paragraph (d). New paragraph (d) provides that for an individual in respect of whom an application for a background check in connection with the individual’s participation in GEP, a Category C identification document means a current and valid document that provides evidence of the individual’s use of identity while operating in the community (which may be a community outside of Australia). 

Item 6 – Section 4 (the note to the definition of Category C identification document)

Item 6 to the Schedule inserts reference to new paragraph (d) in the note to the definition of a Category C identification document. The amended note provides an example of what is meant by the documents referenced in either paragraphs (c) or (d). The note provides that a current or valid document that provides evidence of the individual’s use of identity while operating in the community includes a current and valid Medicare card, or a membership card by a private health insurer.

Item 7 – Section 4 (definition of conviction)

Item 7 to the Schedule repeals the definition of ‘conviction’ from section 4 of the Regulations, which provides the definitions used in the Regulations. Additionally, item 4 substitutes the prior definition of ‘conviction’ with “conviction has the meaning given by section 4A”. This amended wording in section 4 pinpoints that conviction is defined in new section 4A, which is being inserted into the Regulations by Item 8A of the Schedule.

Item 8 – Section 4

Item 8 of the Schedule inserts a new defined term , “GEP criminal record”, into section 4 of the Regulations. This definition provides that an individual has a GEP criminal record if either paragraph (a) or (b) to the definition are satisfied. A GEP criminal record is being inserted into the definition of ‘Unfavourable criminal history’ in section 6 of the Regulations by Item 11 of the Schedule.

Paragraph (a) provides that a person will have a GEP criminal record if they have been convicted by a court martial or Defence Force magistrate of either a service offence other than a Schedule 1A offence or a Schedule 1A offence for which a punishment of imprisonment was imposed.

Paragraph (b) provides that a person will have a GEP criminal record if the individual’s criminal history shows the individual has been convicted of an offence (other than a service offence) against a law of the Commonwealth, a State or a Territory.

Item 8 also inserts a signpost to the definition of ‘GEP participant’, which is contained in new subsection 11AH(2).

Item 9 – After section 4

Item 9 to the Schedule inserts a new section 4A into the Regulations and provides the definition of ‘conviction’. The definition of ‘conviction’ in new section 4A largely replicates the previous definition, which was contained in section 4. Broadly, the definition of conviction for the Regulations provides that it has the same meaning as in Part VIIC of the Crimes Act 1914. Consistent with the previous definition, a conviction does not include a spent conviction, within the meaning of section 85Z(2) of the Crimes Act 1914, or a conviction which has since been squashed or for which the person has been pardoned.

Subsection 4A(1) to the new definition of conviction provides that a background check conducted under section 11AH or 11AJ, which are being inserted by this Instrument, relies on this definition of conviction.

The new definition of conviction also contains new subsections 4A(2) and 4A(3), which were not contained in the previous definition of conviction. These subsections respectively clarify that a conviction for the purpose of background checks made under the ATS regulations or MTOFS regulations rely on the definition of conviction in those regulations, and not the equivalent definition in section 4A. These new subsections do not alter the effect of this term for background checks made under the ATS or MTOFS regulations and merely provide added clarity to the existing arrangements.

Item 10 – Paragraph 5(1)(d)

Item 10 to the Schedule amends paragraph 5(1)(d) to the definition of ‘required information’ by substituting the existing reference to “3AAB” with “3AAB or 3AAC”. This amendment provides that paragraph (d) to the definition applies to an application for a background check made under, or mentioned in, new Division 3AAC. Division 3AAC, which is being inserted by Item 13 to the Schedule, provides provisions relating to background checks for the purpose of the GEP.

In effect, the amendment made by Item 10 means that the ‘required information’ for an application for a GEP background check of an individual includes all other residential addresses of the individual subject to the background check in the 10 years before the application is made.

Item 11 – At the end of subsection 5(1)

Item 11 to the Schedule inserts a new paragraph (p) to the definition of ‘required information’. It specifies that if an application relates to a background check in connection with an individual’s participation in the GEP, all of the following information prescribed in new paragraph (p) is required. This includes:

• the express consent of the individual for the initial background check under subsection 11AH(1) and all follow up background checks under subsection 11AH(3) – subparagraph 5(1)(p)(i);
• the express consent of the individual for the identity of the individual to be verified - subparagraph 5(1)(p)(ii);
• evidence of the consent, ff the applicant is required to have the express consent under subparagraph 11AF(2)(a)(ii) or (b)(ii) – subparagraph 5(1)(p)(iii);
• details of a Category A, B and C identification document in relation to the individual mentioned in subparagraph 11AG(1)(b)(ii), 11AG(1)(b)(iii) and 11AG(1)(b)(iv)– subparagraphs 5(1)(p)(iv), (p)(v) and (p)(vi).

The note beneath paragraph 5(1)(p) draws the reader’s attention to subsection 11AF(3). The note provides that if an individual who wishes to participate in the GEP is under 18 years of age, consent is to be given by the person who holds, or the people who jointly hold, parental responsibility for the individual.

Item 12 – At the end of section 6

Item 12 amends the definition of ‘unfavourable criminal history’ in section 6 of the Regulations by inserting a new paragraph (f). New paragraph (f) provides that for an individual for whom a background check is conducted under section 11AH or 11AJ, an individual will have an unfavourable criminal history if they have a GEP criminal record. The definition of  ‘GEP criminal record’ is being inserted by Item 8 of the Schedule.

Item 13 -  After Division 3AAB of Part 2

Item 13 to the Schedule inserts a new Division 3AAC – Background Checks for participation in the Global Entry Program.

Division 3AAC – Background checks for participation in the Global Entry Program

Subdivision A – Background checks on application

Section 11AF – Background checks of individual in connection with participation in the Global Entry program – application on invitation

New section 11AF provides the process for applying for a GEP background check following an invitation from AusCheck to make an application.

Subsection 11AF(1) provides that AusCheck may invite an individual to apply for background checks in connection with the individual’s participation in the GEP if AusCheck are advised by the entity administering the GEP (in effect, the US Customs and Border Protection agency) that an application has been made for the individual to participate in the program.

Subsection 11AF(2) provides who may make an application for a GEP background check following an invitation made by AusCheck under 11AF(1):

Paragraph 11AF(2)(a) provides, if the application for a background check relates to an individual that is 18 years of age or over, the application may be made by the individual or another person with the express consent of the individual.

Paragraph 11AF(2)(B) provides, if the application for a background check relates to an individual under 18 years of age, the application may be made by the responsible parent or parents for the individual (defined in subsection 11AF(3)), or another person with the express consent of the responsible parent or parents.

Subsection 11AF(3) clarifies consent and application requirements for background checks involving individuals under 18. It provides that if the Instrument requires or permits a thing to be done by, or consent to be given by, an individual under 18 in relation to a GEP background check, it may be done or given by those specified in paragraphs 11AF(3)(a) or (b):

Paragraph 11AF(3)(a) provides that the thing may be done or consent may be given by a person who has parental responsibility for the individual (within the meaning of Part VII of the Family Law Act 1975).

Paragraph 11AF(3)(b) provides that if there is one or more such person as specified in paragraph 11AF(3)(a), the thing may be done or the consent may be given by persons who jointly have parental responsibility for the individual.

Subsection 11AF(4) provides that any information required by the Instrument to be given to such an individual (i.e. the person under 18) must instead be given to the responsible parent or parents for the individual. This paragraph generally relates to the advice that may be given to an individual that follows a background check under new Subdivision E of Division 5 of Part 2 of the Regulations.

Section 11AG – Background checks of individual in connection with participation in the Global Entry program – application requirements and withdrawal of applications

New section 11AG generally provides requirements relating to the making and withdrawal of applications for GEP background checks.

Application requirements

Subsection 11AG(1) provides that an application for a background check that is made under subsection 11AF(2) must meet the following requirements:

• it must be made in the manner and form (if any) approved for this purpose under subsection 11AG(2) – paragraph 11AG(1)(a);
• it must include all of the required information for the individual undergoing the background check, and copies of identification documents across all categories – paragraph 11AG(1)(b); and
• it must meet any other requirement specified by the Secretary for the purpose of this paragraph under subsection 11AG(3).

Subsection 11AG(2) provides that the Secretary, in writing, may approve a manner and form of the application of an application made for the purpose of paragraph 11AG(1)(a).

Subsection 11AG(3) provides that the Secretary may, by notifiable instrument, specify other requirements relating to applications for GEP background checks for the purpose of paragraph 11AG(1)(c).

Withdrawal of application

Subsection 11AG(4) provides provisions for the withdrawal of an application made under subsection 11AF(2). The subsection provides that an application for a GEP background check may be withdrawn at any time by a written notice given to the Secretary by either the individual, or, if the application was made by another person, that other person.

11AH – Conducting background checks in connection with participation in the Global Entry program

New section 11AH provides for the conduct of background checks in connection with participation in the GEP. This section specifies details for both the initial background check of individuals and the follow-up background checks, which must be conducted annually following an individual’s acceptance into the GEP for the individual’s five-year period as a GEP participant.

Initial background checks

Subsection 11AH(1) provides that AusCheck must conduct an initial background check of an individual if the following matters occur:

• the individual was invited by AusCheck to apply for background checks under subsection 11AF(1) – Paragraph 11AH(1)(a);
• the application for a background check was made by or for the individual under subsection 11AF(2) – Paragraph 11AH(1)(b);
• the application meets the requirements of subsection 11AG(1) – Paragraph 11AH(1)(c); and
• the application has not been withdrawn under subsection 11AG(4) – Paragraph 11AH(1)(d).

Meaning of GEP participant

Subsection 11AH(2) provides the meaning of ‘GEP participant’, which is referenced in section 11AH and 11AJ. This subsection provides that a person will be a ‘GEP participant’ if all of the following are met:

• the individual passes the initial background check under section 21DE – Paragraph 11AH(2)(a);
• the individual was accepted into the GEP – Paragraph 11AH(2)(b);
• the application made in connection with the individual’s participation in the program has not been withdrawn under subsection 11AG(4) – Paragraph 11AH(2)(c); and
• the individual has not otherwise ceased to participate in the GEP – Paragraph 11AH(2)(d).

Follow-up background checks

Subsection 11AH(3) provides that AusCheck must conduct a follow-up background check of an individual who is a GEP participant (this is specified by subsection 11AH(2)), in each of the following one-year periods as specified by this subsection. This subsection provides that the first follow up background check must be conducted the year starting immediately after the individual was accepted into the GEP, with an additional follow-up background check to be conducted each succeeding year.

Purpose of background checks

Subsection 11AH(4) provides the purpose for which AusCheck may conduct an initial or a follow-up background check. The subsection provides that AusCheck may only conduct a background check under this section for the purposes of determining whether or not the individual fails or passes the background check in relation to GEP.

Note 1 beneath subsection 11AH(4) clarifies that section 21DE, which is being inserted by this Instrument, provides when an individual fails or passes a GEP background check.

Note 2 beneath subsection 11AH(4) clarifies that AusCheck are not required to continue conducting a background check once it is determined that the individual fails the background check.

Giving information necessary for follow-up background checks

Subsection 11AH(5) establishes on GEP participants to give the Secretary notice on of a change to the information relating to the background check. Subsection 11AH(5) specifically provides that an individual to whom subsection 11AH(2) applies must give the Secretary a notice of a change to any of the following information previously advised to AusCheck in connection with the individual’s participation in GEP.

The obligation relates to any of the following information:

• a change to the ‘required information’ for the individual. Relevant information is defined in section 5 of the Regulations and is amended by this Instrument – Paragraph 11AH(5)(a);
• a change to the status (if any) of the individual as an officer or member of the Australian Defence Force (within the meaning of the Defence Act 1903) – Paragraph 11AH(5)(b);
• information relevant to whether the individual has an ‘unfavourable criminal history.’ Unfavourable criminal history is defined in section 6 of the Regulations and is amended by this Instrument – Paragraph 11AH(5)(c).

Subsection 11AH(6) provides that the change to the information, as specified by subsection 11AH(5), must be notified to the Secretary, in writing, within 30 days after the individual becomes aware of the change.

Subsection 11AH(7) provides that if the application for a background check of the individual was made by another person under subsection 11AF(2), the individual’s obligation under subsection 11AH(6) to notify the Secretary may be discharged on behalf of the individual by the person who made the application under subsection 11AF(2). This subsection permits a third party who made the application on an individual’s behalf providing the information to the Secretary about change of information relating to the person who they made the application on behalf of.

Subdivision B – Additional background checks

Section 11AJ – Additional background checks of individuals for the purposes of participation in the Global Entry program – deemed application

Section 11AJ provides when AusCheck may undertake an additional background check of an individual who is a GEP Participant. Additional background checks are background checks made in addition to the  initial background check (subsection 11AH(1)) and the follow-up background check (subsection 11AH(3)).

Subsection 11AJ(1) provides that AusCheck may conduct an additional background check of an individual who is a GEP participant (defined in new subsection 11AH(2)) if the Secretary considers, on reasonable grounds, that the individual has, or may have, an unfavourable criminal history.

The ‘reasonable grounds’ referred to in paragraph 11AJ(1) requires that there be a reasonable basis for the Secretary to consider that the person has an unfavourable criminal history. This is a prerequisite before the discretion to conduct an additional background check can be exercised by AusCheck. In accordance with subsection 11AJ(2), the Secretary must take into account a range of matters to determine if an individual has, or may have, an unfavourable criminal history.

Subsection 11AJ(2) provides matters that must be taken into account by the Secretary when considering a matter for the purposes of paragraph 11AJ(1):

• any information given to the Secretary by, or on behalf of, the individual - paragraph 11AJ(2)(a); and
• any information given to the Secretary by a law enforcement or national security agency (however described) about the individual) - paragraph 11AJ(2)(b); and
• any information given to the Secretary by the Chief of the Defence Force, a service chief or an authorised officer under the Defence Force Discipline Act 1982 - paragraph 11AH)(2)(c); and
• anything else relevant that the Secretary knows about – paragraph 11AH(2)(d).

Subsection 11AJ(3) is a deeming provision that operates to provide that, if AusCheck conducts an additional background check of an individual under subsection 11AJ(1):

• the applicant for the background check under subsection11AF(2) is taken to have applied for the additional background check; and
• the application for the background check under subsection 11AF(2) is taken to also be the application for the additional background check.

This ‘deemed application’ provision is required to enliven the powers of AusCheck to conduct the additional background checks and to specify who has responsibilities relating to the additional background application (e.g. who has responsibilities to provide information to the Secretary).

Item 14 - Subsection 11A(1)

Item 14 amends subsection 11A(1) to omit “background check” and substitute with “one or more background checks”. Section 11A provides that the Secretary may request additional information for the purpose of conducting background under the AusCheck Regulations.

The effect of this amendment is to enable the application of section 11A for any of the background checks conducted for the purpose of GEP. This amendment is necessary as an application for an initial background check is also an application for both a follow up background check and an additional background check. This amendment ensures that the Secretary’s powers to request information applies to any background check made for purpose of GEP.

Item 15 - After paragraph 11A(2)(a)

Item 15 inserts new paragraph (aa) to subsection 11A(2).  The new paragraph states that “if the individual is not the applicant – the applicant;”.

The effect of this amendment is to ensure that the Secretary’s discretionary power to request a person do a specified thing, including providing information, under section 11A can be made to an applicant for the background check, rather than the individual subject to the background check. This amendment is intended to support  new 11AF(2), which allows applications for GEP background checks to be made by someone other than the individual subject to the background check.  

Item 16 - After paragraph 11A(2)(f)

Item 16 amends paragraph 11A(2)(f) to insert “11AJ(3)” after “11(2)”.

As outlined in Item 15 above, subsection 11A(2) provides the Secretary with the authority to request information, or to do a specified thing, from an individual or applicant  for background check. Relevantly, paragraph 11A(2)(f) provides that, for certain background check applications, - that the Secretary may require an individual or another person to do a specified thing for a purpose contained in paragraph 11A(d)-(g). 11A2(f) provides that the particular applications for background checks specified must meet any requirements specified for this purpose in a notifiable instrument made by the Secretary.

The effect of this amendment is that the Secretary may request an individual (or the applicant if different) for the additional GEP background checks conducted under section 11AJ to meet any requirements specified for the purpose of paragraph 11A(2)(f) (e.g. any requirements specified in a notifiable instrument made for this paragraph).

Item 17 - At the end of Division 5 of Part 2

Item 17 inserts new Subdivision E into Division 5 of Part 2 of the AusCheck Regulations. This new Subdivision includes new sections 21DE and 21DF, prescribing when an individual passes or fails a GEP background check and when and to whom the Secretary must provide advice about the outcomes of the GEP background checks.

Subdivision E – Advice about background checks for participation in the Global Entry program

New section 21DE – When an individual fails or passes a background check

New section 21DE provides the circumstances where an individual fails or passes a background check.

Subsection 21DE(1) provides that an individual fails a background check conducted under section 11AH or 11AJ if:

• the individual’s identity cannot be verified to the Secretary’s satisfaction – paragraph 21DE(1)(a));
• an individual’s Australian citizenship cannot be verified to the Secretary’s satisfaction – paragraph 21DE)(1)(b));
• the background check finds that the individual has unfavourable criminal history - paragraph 21DE(1)(c));
• in the case where the Secretary has made a request under subsection 11A(2) in relation to the individual – the request has not been complied with – paragraph 21DE(1)(d);
• the Secretary cancels the background check under subsection 11A(7) – paragraph 21DE(1)(e).

Note 1 to subsection 21DE(1) reminds the reader of the operation of section 12 of the AusCheck Regulations. Section 12 of the AusCheck Regulations provides that if the Secretary has made a preliminary assessment that an individual has an unfavourable criminal history, the Secretary must give the individual an opportunity to make representations about the preliminary assessment.

Note 2 to subsection 21DE(1) states that AusCheck is not required to continue conducting a background check once it has established the individual has failed the background check.

New subsection 21DE(2) provides that for the purposes of this section, an individual passes a background check if the background check was conducted and the individual did not fail the background check.

The note to subsection 21DE(2) reminds the reader that passing a background check does not ensure an individual’s participation in the GEP. Participation in the program remains a matter for the discretion of the Government of the United States of America.

New section 21DF

Section 21DF provides who the Secretary must advise in relation to a background check conducted under section 11AH (which provides the legislative authority for AusCheck to conduct the initial and a follow-up background check) or 11AJ (which provides the legal authority for AusCheck to conduct an additional background check).

Subsection 21DF(1) provides  that section 21DF applies if AusCheck conducts a background check of an individual under new section 11AH or 11AJ in connection with the individual’s participation in the GEP.

Advice to the entity administering the Global Entry program

Subsection 21DF(2) provides that the Secretary must advise the entity that administers the GEP whether the individual failed or passed the background check.

The note to subsection 21DF(2) notifies to the reader to refer to section 21DE for when an individual fails or passes a background check.

Subsection 21DF(3) states that the Secretary must not provide any other information about the background check of the individual to the entity that administers the GEP. The purpose and effect of this provision, is to ensure that no other information other than whether the individual has failed or passed a background check (subsection 21DF(2)), is to be provided to the entity that administers the GEP, such as, reasons for why the individual has failed the background check.

Notifying the individual

Subsection 21DF(4) provides that the Secretary must advise the individual of the reasons they were found to have an unfavourable criminal history if the individual failed the background check by reason of having an unfavourable criminal history.

The effect of this amendment is that the individual is only informed where they failed a background check by reason of having an unfavourable criminal history.

The note beneath subsection 21DF(4) clarifies the effect of subsection 11AF(3). It provides that where the individual is under 18 years of age, the Secretary must instead advise the responsible parent of the individual.

Subsection 21DF(5) provides that if the individual is not the applicant for the background checks, the Secretary may discharge the obligation under subsection 21DF(4)  by giving the information to the person who made the application under subsection 11AF(2).

Item 18 - Section 26

Item 18 inserts a subsection number ‘(1)’ before ‘Applications’. This is a technical amendment to accommodate the insertion of new subsection 26(2) by Item 19 below.

Item 19 - At the end of section 26

Item 19 inserts new subsection 26(2) which provides that paragraph 26(1)(c) does not apply in relation to advice given under section 21DF in connection with an individual’s participation in the GEP.

Paragraph 26(1)(c) allows an application to be made to the Administrative Review Tribunal for review of the decision of the Secretary to advise under Division 5 that an individual has an unfavourable criminal history. The effect of this amendment would be to exclude merits review in respect of advice by the Secretary given under section 21DF in connection with an individual’s participation in the GEP.

The exclusion of advice under section 21DF from merits review is justified on the basis that the Secretary’s determination and subsequent advice is made upon objective fact and not the subjective satisfaction or discretion of the Secretary.

Under section 21DF, if an individual failed the background check by reason of having unfavourable criminal history the Secretary must advise the individual of the reasons they were found to have unfavourable criminal history. In accordance with new paragraph 21DE(1)(c), an individual fails a background check by reason of having an unfavourable criminal history. An individual has an unfavourable criminal history if they hold a GEP criminal record (new paragraph 6(f)). The definition of GEP criminal record has been inserted in section 4 in Item 8 above and includes if an individual has been convicted of certain service offences or non-service offences against a law of the Commonwealth, State or Territory.

The evidence of any convictions in respect of the individual will derive from a Nationally Coordinated Criminal History Check conducted for the individual. As all of the requisite evidence and criteria going towards an individual (or the applicant) being advised under section 21DF that they have failed their background check are based on objective assessment with no room for discretion by the Secretary.  As such, merits review would have very limited utility, and is therefore excluded.

In addition, where a preliminary assessment has indicated an individual has an unfavourable criminal record, section 12 of the AusCheck Regulations will apply. This section provides that the Secretary must inform an individual of the preliminary assessment that they have an unfavourable criminal history and provide the individual with an opportunity to make representations. This section affords a level of natural justice to individuals who are found to have an unfavourable criminal history. Practically, after receiving the representations by the individual, the Secretary will review the accuracy of the information provided that led to the finding of an unfavourable criminal history.

Item 20 -  Subsection 30(1)

Item 20 omits “a background check” from subsection 30(1) and substitutes with “one or more background checks”.

The effect of this amendment is to enable the Secretary to charge a fee under this subsection for one or more background checks of an individual. This amendment is intended to support instances where one or more background checks may be conducted in respect of an individual’s application (or an application made on an individual’s behalf) for a background check. By way of example, this includes follow-up background checks for the purpose of the GEP program (subsection 11AH(2)) as well as the instances of a deemed application which underpin additional background checks under subsection 11AJ(1).

Item 21 - Subsection 30(2)

Item 21 omits “nature and complexity of the background check” from subsection 30(2) and substitutes with “number, nature and complexity of the background checks”.

The purpose and effect of this amendment is to stipulate that the amount of the fee must be based on the number, nature and complexity of the background checks of an individual. This amendment is consistent with Item 20 above which has the effect that the Secretary may charge a fee under section 30 for an application of one or more background checks of an individual. Both amendments at Items 20 and 21 contemplate a situation where an application may be made for one or more background checks.

Item 22 - at the end of subsection 30(2)

Item 22 inserts a new Note 3 at the end of subsection 30(2), which provides that an example of a situation where an application may be for more than one background checks is an application made under subsection 11AF(2), which is for both the initial background check and the follow-up background checks of an individual.

This amendment is consistent with the amendments at Items 20 and 21 above which contemplates a situation where an application may be made for one or more background checks. The insertion of Note 3 intends to provide an example of this situation by referring to subsection 11AF(2), where the application for the initial background check is also an application for follow up background checks of the individual conducted annually in accordance with subsection 11AH(3).

Item 23- Subsection 30(4)

Item 23 amends subsection 30(4) to insert “expects to incur an expense” after “expense”.

The effect of this amendment is to allow the Secretary to charge fees for background checks that have not yet been conducted. This is to account for the situation where an applicant’s fee paid at the time they make an application for a background check covers future follow up background checks. In this situation, there has been no cost incurred, though it is a cost that is expected to occur during the life of that person’s GEP participation.

Item 24 - At the end of section 30

Item 24 adds a new subsection 30(5) to section 30. This subsection provides an express power for the Secretary, if satisfied that it is appropriate in all circumstances, to refund the whole of part of the fee charged under subsection 30(1).

This subsection expressly provides a power in the regulations for the Secretary to refund fees (either in full or in part) charged for background checks under the AusCheck Regulations. As it relates to GEP background checks, this new subsection provides an avenue to, where the Secretary considers it appropriate, provide refunds for background checks where a fee has been charged but the background check has not been conducted.

Item 25 - At the end of Part 10

Item 25 inserts a Division 8 at the end of Part 5 of the AusCheck Regulations and contains new sections 43 and 44. The purpose of this new division is to deal with transitional matters in relation to the commencement of the amendments progressed in by this Instrument.

Division 8 – AusCheck Amendment (Global Entry Program) Regulations 2025

New section 43

New section 43 inserts the following defined terms for the purposes of this new Division 8:

Commencement day means the day that Schedule 1 to the AusCheck Amendment (Global Entry Program) Regulations 2025 commences.

New section 44

New section 44 is an application provision which deals with how the Instrument affects applications for background checks that were made before commencement day, or to persons who are become GEP members prior to the commencement of this Instrument.

Transitional – pre-commencement applicants

New subsection 44(1) provides that an application for background checks in connection with an individual’s participation in the GEP that was made before commencement day is taken to be an application made under subsection 11AF(2), unless no background checks on the individual have been started by the commencement day.

The purpose of this amendment is to ensure that in respect of background checks that have been made and commenced before the commencement day, that the background checks have a legislative basis in the AusCheck Regulations. The effect of this amendment will be that those applications that were made before the commencement day, for which background checks on the individual have been started, will be treated as if it were an application made under subsection 11AF(2).

New subsection 44(2) provides that a background check conducted by AusCheck in connection with an individual’s participation in the GEP before the commencement day is taken to be a background check conducted under 11AH(1). The purpose and effect of this amendment is to ensure that any background checks that have been conducted by AusCheck before commencement day have a legislative basis in the AusCheck Regulations.

New subsection 44(3) states that if before the commencement day, a person made an application for background checks in connection with an individual’s participation in the GEP, but on the commencement day, no background checks on the individual has been started, that AusCheck may require the applicant to update and resubmit the application under subsection 11AF(2). This amendment provides AusCheck with the discretion to require applicants who made an application before the commencement day, but for which no background checks have been started, to update and resubmit their application.

New subsection 44(4) provides that an application resubmitted under subsection 44(3) is taken to be made on the day it is resubmitted.

Transition – pre-commencement GEP participants

New subsection 44(5) provides that the amendments of AusCheck Regulations made by the Instrument apply in relation to an individual who is a participant in the GEP, regardless of whether the individual first became a participant in the program before, on or after the commencement day.

The purpose and effect of new subsection 44(5) is to ensure that any individual who is a participant in the GEP from before, on or after the commencement day are captured by the amendments of this Instrument to the AusCheck Regulations. This ensures that a limited cohort of GEP participants, who applied in the initial limited phase of the GEP which took place before the commencement date, are subject to the requirements of this Instrument.

New subsection 44(6) provides that despite subsection 44(5), an individual who made an application for a GEP background check before the commencement day is not liable to pay a fee under section 30 for any background checks of the individual in relation to the application conducted under subsection 11AH(1) or (3) before, on or after that commencement.  This ensures that this cohort of GEP participants will not be liable to pay a fee for their initial background check (subsection 11AH(1)) or any follow-up background checks (subsection 11AH(3)) conducted before, on or after the commencement day. This subsection gives effect to commitments made by the Government in relation to this particular cohort that they would not be liable to pay any fees in respect of the background checks for the duration of their five-year participation in the GEP program.

Transitional – meaning of conviction for ATS regulations and MTOFS regulations

New subsection 44(7) provides that subsection 4A(2) and (3), as inserted into the AusCheck Regulations by the Instrument, apply in relation to a conviction of an individual in respect of whom a background check is made, regardless of whether the conviction occurs before, on or after the commencement day; or the application for the background check is made before, on or after the commencement day.

This section clarifies the amendment made to the definition of “conviction” by Item 9 of this Instrument to specifically reference that a ‘conviction’, in particular circumstance in the AusCheck Regulations, relies on its meaning in the ATS and MTOFS Regulations.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

AusCheck Amendment (Global Entry Program) Regulations 2025

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

Australia and the United States of America (US) maintain an important and longstanding relationship built upon strong diplomatic, economic and peer to peer relationships. As a result, significant volumes of Australian citizens travel annually to the US and its territories. The Global Entry Program (GEP) is a trusted traveller program that permits access to expedited immigration and customs clearance channels on arrival into the US for pre-approved, low risk travellers from GEP approved countries.

To participate in the program, GEP approved countries, including Australia, are required to conduct preliminary background checks on their citizens who apply for the GEP to determine their preliminary eligibility for the program. This is followed by further screening by US authorities who make a final determination on an applicant’s eligibility. If the US grants an Australian applicant access to the GEP, the Australian Government will be required to conduct further annual background checks on the participant during their five-year term in the program.

The Australian Government has identified AusCheck as the appropriate entity through which to facilitate Australia’s background checking obligations for the GEP. Accordingly, the AusCheck Amendment (Global Entry Program) Act 2025 (the Amending Act) provides the legislative basis to enable the undertaking of the background checks as required for participation in the GEP.

The purpose of the AusCheck Amendment (Global Entry Program) Regulations 2025 (the Disallowable Legislative Instrument) is to support the amendments contained within the Amending Act and operationalise background checking for the purposes of the GEP.

In accordance with section 10AB of the Amending Act, the Disallowable Legislative Instrument makes provision for, among other things:

The making of applications for background checks for the purpose of GEP

The Disallowable Legislative Instrument broadly provides that applications for GEP background checks are to be made in the manner and form approved by the Secretary for this purpose and must contain all the required information specified (including consent requirements). It also makes provisions for applications to be made on behalf of another person (with their consent), and for applications to be made by those who have parental responsibility for those under 18.

While not expressly provided for in the instrument, those over 18 and who lack the capacity to consent can have an application for a GEP background check made on their behalf. This is because AusCheck will, in accordance with relevant Commonwealth, State and Territory guardianship laws, recognise background check applications made by those with legal guardianship of those individuals.

The Disallowable Legislative Instrument also provides that an application for an initial background check is an application for a follow up background check. Follow up background checks must be conducted by AusCheck every year following an individual’s acceptance into the GEP for the five-year period of GEP membership. Moreover, it provides that AusCheck may conduct additional background checks to ascertain if the individual subject to a background check has a ‘GEP criminal record’.

The information to be included in an application for a background check

The Disallowable Legislative Instrument requires that an application for a GEP background check must include the consent of the individual undergoing the background check (or alternatively, the consent of the person or persons jointly who have parental responsibility for those under 18) for both the background check and for their identity to be verified.

The application for a background check must also be accompanied by a Category A, B and C identification document relating to the individual undergoing the background check. In summary, these documents include an Australian birth certificate, a current and valid Australian passport and another document that evidences the individual’s use of identity while operating in the community.

The giving to the Secretary information relating to an individual subject to a background check

The Disallowable Legislative Instrument provides an ongoing obligation on the applicant to give the Secretary notice of any changes to the individual’s “required information”, a change of status as a member in the Australian Defence Force and any information relevant to whether the individual has an unfavourable criminal history.

The criteria against which a background check for the purposes of the GEP is to be assessed and the decision or decisions that may be made as a result of a background check

The Disallowable Legislative Instrument provides that an individual will fail a GEP background check if their identity or citizenship cannot be verified, they have an unfavourable criminal history or they have failed to comply with a request for further information.

For this purpose, the Disallowable Legislative Instrument provides that an individual will have an unfavourable criminal history if they have a ‘GEP criminal record’. A ‘GEP criminal record’ is defined as where an individual has:

-          a service offence or Schedule 1A offence for which a punishment of imprisonment was imposed under the Defence Force Discipline Act 1982

-          been convicted of an offence against a law of the Commonwealth, a State or a Territory.

Accordingly, an individual will pass a GEP background check if the individual does not fail the background check.

The form of advice that is to be given to an applicant for a background check, the individual in respect of whom the background check is conducted, or the ‘US entity’

The Disallowable Legislative Instrument provides that following the completion of a background check, the individual, or a person applying on their behalf, must be notified that they failed the background check and the reasons for the fail, in the circumstance the fail is as a result of having an unfavourable criminal record. It additionally provides that the Secretary must advise the US entity that administers the GEP about whether an individual passed or failed a background check.

The Disallowable Legislative Instrument also make a number of ancillary changes to the AusCheck Regulations 2017 (AusCheck Regulations) to support the above amendments. These include:

• inserting references to terms inserted into the Act by the Amending Act, including “Defence Force Magistrate”, “Global Entry program”, “Schedule 1A offence” and “service offence”;
• amending the existing definition of “conviction” (so it can be relied upon for GEP background checks), “relevant information” (to require applications to include GEP-specific consent requirements);
• amending the existing definitions of “Category A identification document”, “Category B identification document” and “Category C identification document in section 4 of the AusCheck Regulations. These respective definitions are being amended so an application for a GEP background check must include a copy of an Australian birth certificate, a current and valid Australian passport and another document that evidences the individual’s use of identity while operating in the community;
• inserting a new definition of “GEP criminal record”, with a corresponding amendment to the definition of the “unfavourable criminal history” in section 6;
• amending section 26 to exclude merits review by the Administrative Review Tribunal in relation to advice given under new section 21DF (e.g. that the individual failed the background check);
• amending section 30 of the AusCheck Regulations to allow the Secretary to charge fees for one or more background checks and inserting a new subsection into section 30, permitting the Secretary to provide refunds in limited circumstances;
• inserting section 44 into the AusCheck Regulations.

Section 44 is an application provision that broadly provides that applications made before commencement (e.g. applications made during the pilot trial of GEP for a limited number of applicants), are taken to have been made under the AusCheck Regulations. The application provision also exempts individuals who passed a background check, or who are still undergoing a background check at commencement, from being subject to fees from their initial five-year period as a GEP participant.

The Disallowable Legislative Instrument commences immediately after the commencement of Schedule 1 to the Amending Act.

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

• the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), Article 16 of the Convention on the Rights of the Child (CRC) and Article 22(1) of the Convention on the Rights of Persons with Disabilities (CRPD);
• the rights of equality and non-discrimination in Article 26 of the ICCPR; and
• the rights to an effective remedy and to a fair and public hearing in Articles 2(3) and 14(1) of the ICCPR.

Right to privacy

Article 17 of the ICCPR provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 16 of the CRC provides:

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Article 22(1) of the CRPD provides:

1. No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.

Interferences with privacy are permissible, if they are authorised by law and not arbitrary. For an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to mean that “any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.”

The Disallowable Legislative Instrument engages the right to privacy under Article 17 of the ICCPR, Article 16 of the CRC and Article 22(1) of the CRPD by amending the AusCheck Regulations to provide for the collection and use of personal information for matters related to the conduct, coordination and reporting of results of GEP background checks. All personal information collected through the AusCheck GEP background check process is ‘AusCheck scheme personal information’ as defined in subsection 4(1) of the AusCheck Act 2007 (AusCheck Act). This includes personal information obtained for the purpose of conducting GEP background checks prior to the commencement of the Disallowable Legislative Instrument, ensuring that all information obtained by AusCheck relating to GEP background checks are subject to the same level of privacy protection, regardless of when the Disallowable Legislative Instrument commences.

The use and disclosure of AusCheck scheme personal information is subject to stringent safeguards under sections 13, 14 and 15 of the AusCheck Act. Appropriate safeguards on personal information collected through AusCheck GEP background checks are also provided under the Privacy Act 1988 (Privacy Act). All personal information collected and held by the Government must adhere to the Australian Privacy Principles (APPs) as set out under the Privacy Act. Failure to comply with privacy obligations can have serious legal, financial, and reputational consequences. These safeguards ensure that the collection and use of personal information for the purpose of GEP background checks is permissible and engagement with the right to privacy is no more restrictive than required.

The personal information of an individual over 18 cannot be obtained, disclosed or used without the consent, and evidence of that consent, of that individual, as amended by section 11AF of the Disallowable Legislative Instrument. The personal information of an individual under 18 cannot be obtained, disclosed or used without the consent, and evidence of that consent, of a parent or responsible parent (defined in Part VII of the Family Law Act 1975), as amended by section 11AF of the Disallowable Legislative Instrument. The personal information of an individual over 18 who lacks capacity to consent cannot be obtained, disclosed or used without the consent, and evidence of that consent, of an individual who has the legal right to act on the individual’s behalf, as enabled by relevant Commonwealth, State and Territory legislation dealing with guardianship, administration, enduring powers of attorney and substitute decision making for adults who lack capacity.

Further safeguards exist through the GEP process as AusCheck cannot disclose additional personal information of an applicant’s unfavourable criminal history that is obtained through the AusCheck background checking process to US Customs & Border Protection (USCBP). Only the outcome of GEP background checks are disclosed to the US (that is, a ‘Pass’ or ‘Fail’ notification) – this is defined under section 21DE of the Disallowable Legislative Instrument.

To the extent the Disallowable Legislative Instrument enables AusCheck to collect and use personal information, any limitation on the right to privacy is reasonable, necessary and proportionate because collection and use of personal information is enabled, subject to stringent safeguards, only for the purpose of conducting GEP background checks, where either the individual to whom the background check relates, or a person or persons with parental responsibility, or the legal right to act on an individual’s behalf, consent to that collection and use, and therefore its collection and use is lawful and not arbitrary.

Rights to equality and non-discrimination

Article 26 of the ICCPR provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In its General Comment 18 on Article 26 of the ICCPR, the UN Human Rights Committee (UNHRC) stated that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [ICCPR].

Under the Disallowable Legislative Instrument, AusCheck will find a ‘fail’ result on an application for a background check for the purposes of participation in the GEP if the person’s background check contains an unfavourable criminal history, they cannot satisfy identity requirements, or they are unable to provide evidence that they hold Australian citizenship. This engages the right protected in Article 26 on the basis that the effect will be to exempt a cohort of individuals, based on ‘other status’, from participating in the GEP.

Global Entry is a USCBP Trusted Traveler program that allows expedited clearance for pre-approved, low-risk travellers upon arrival in the US. As a pre-screened Global Entry member, travellers arrive in the US, check-in at the Global Entry kiosk and avoid regular processing queues with no paperwork and reduced wait times. The rationale behind this program is so that ‘low-risk’ travellers, i.e. travellers with no criminal history are able to be processed much faster through screening points including access to US Transportation Security Administration’s (TSA) PreCheck.

The GEP is open to travellers from limited approved nationalities by the US. The US has agreed to allow Australian citizens to apply for the GEP on the condition that Australia conducts a preliminary background check on Australian citizen applicants to assist in determining their eligibility for the program. This is followed by further screening by US authorities who make a final determination on the applicant’s eligibility. Australia’s acceptance to this arrangement strengthens the relationship between US and Australia and allows Australian citizens to enjoy benefits of the GEP.

Application to participate in the GEP is voluntary and Australian citizens are not restricted to enter the US by not being a GEP member. Subject to US visa and entry requirements, individuals can freely apply to enter the US, with or without participation in the GEP. Further, as applications to the GEP are voluntary, applicants consent to application criteria and processes.

To the extent the Disallowable Legislative Instrument may limit a person’s right to equality and non-discrimination by enabling differential treatment based on other status, the Disallowable Legislative Instrument is reasonable, necessary and proportionate because it is limited to providing for the required GEP eligibility requirements, in the most least rights restrictive way, for voluntary participation in the GEP.

Rights to an effective remedy and fair and public hearing

Article 2(3) of the ICCPR provides:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 14(1) of the ICCPR provides:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14 of the ICCPR includes protections relating to justice and ensuring a fair hearing. The right to a fair trial and a fair hearing applies to both criminal and civil proceedings, and in cases before both courts and tribunals. The Disallowable Legislative Instrument engages this right because it provides that individuals who receive an unfavourable outcome for a background check for the GEP will not have the opportunity to have the outcome reviewed by the Administrative Review Tribunal (ART) under Section 26 of the AusCheck Regulations.

This is because AusCheck is not exercising discretion in their assessment of applicants; the final decision on an applicant’s eligibility for participation in the GEP sits with the US and AusCheck are limited to making a factual assessment of eligibility criteria in relation to each applicant.

Further, there is a procedural fairness mechanism provided. When AusCheck obtains information that a GEP applicant may have an unfavourable criminal history, this information is provided to applicants for comment. Applicant comments provided in response are considered prior to a background check outcome being finalised. To the extent this procedural fairness mechanism does not provide applicants the opportunity to comment on unfavourable findings in relation to Australian citizenship or identity, this is reasonable and proportionate. This is because Australian citizenship and identify confirmation is a necessary pre-requisite for the performance of background checks. The assessment of an applicant’s citizenship and identity is objective and it is not reasonable to extend procedural fairness mechanisms to unfavourable findings on citizenship or identity. Further, applicants apply directly to the USCBP for the GEP and through this application process an Australian passport is required. Applicants are expected to already have the necessary Australian identity documentation to facilitate travel to the US and an application for the GEP.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate, and not arbitrary or unlawful.

The Hon Tony Burke MP

Minister for Home Affairs