AusCheck (Major National Event—Asian Football Confederation Women’s Asian Cup 2026) Declaration 2025

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

AusCheck Act 2007

AusCheck (Major National Event – 2026 Asian Football Confederation Women’s Asian Cup) Declaration 2025

1.                 The AusCheck Act 2007 (the AusCheck Act) is an Act that establishes a framework for criminal and security background checks, primarily for individuals seeking access to secure areas of airports, seaports, and facilities handling security-sensitive biological agents. It aims to enhance national security by ensuring consistent and thorough background checks, as outlined in the Act and its associated regulations.
2.                 The instrument, departmental reference LIN 25/085, is made under subsection 5A(1) of the AusCheck Act, which provides that the Minister may, by legislative instrument, declare a specified event as a ‘major national event’ for the purposes of the Act. 
3.                 The instrument commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act). 

Purpose

1.                 The Act establishes a background checking function within the Department of Home Affairs (the Department). The object of the Act is to provide a regulatory framework for coordinating and conducting certain criminal, security and other background checks of individuals. The background checks that may be undertaken are limited to the purposes specified in section 8.
2.                 Paragraph 8(1)(e) of the Act provides that background checks of individuals may be conducted in connection with the accreditation of the individuals in relation to a major national event.
3.                 An event is a major national event for the purposes of the Act when the Minister makes a declaration, by legislative instrument, under subsection 5A(1) of the Act that a specified event is a major national event. The Minister must not make such a declaration unless the Minister is satisfied that it is in the national interest that the Commonwealth be involved in the conduct and coordination of background checks in connection with the accreditation of individuals in relation to the event (see subsection 5A(2) of the Act).
4.                 Under subsection 5A(3) of the Act, the Minister may have regard to, when making a declaration under subsection 5A(1), matters including the significance of the event, any risk assessment relating to the event and the potential impact of any security incident relating to the event on Australia’s reputation.
5.                 The 2026 Asian Football Confederation Women’s Asian Cup (the WAC26) is a major foreign sporting event to be comprised of 12 teams representing various countries within the Asian Football Confederation. The tournament will take place in March 2026 across three Australian cities: the Gold Coast in Queensland, Perth in Western Australia and Sydney in New South Wales. The matches will be played in five stadiums in these cities.
6.                 It is in the national interest of the Commonwealth to declare the WAC26 a major national event to provide a level of assurance that cohorts of individuals with access to security sensitive information and/or areas of the WAC26 have been background checked by AusCheck. This means they have been assessed against certain criminal and national security criteria to mitigate personnel risk.
7.             The Declaration is proposed to be supported by the establishment of two notifiable instruments, made respectively by the Minister under sections 21E and 21F of the AusCheck Regulations 2017 (the Regulations). These notifiable instruments are also registered on the Federal Register of Legislation.
8.             The first notifiable instrument, made under section 21E of the Regulations, establishes Football Australia as the organising body of the WAC26. For the purpose of section 21G of the Regulations, the organising entity of a major national event is the entity that may apply for a background check of an individual in relation to the major national event.
9.             The second notifiable instrument, made under section 21F of the Regulations, declares what matters will be assessed as part of the background check for this major national event. Under paragraph 21F(a) of the Regulations, a background check for a major national event must consist of one or more matters mentioned in paragraphs 5(a), (b), (c) and (d) of the Act. For the purposes of the WAC26, the notifiable instrument declares that a background check for WAC26 will include an assessment of the following:
   •            the individual’s criminal history;
   •            matters relevant to a security assessment of the individual;
   •            the individual’s citizenship, residency status or entitlement to work in Australia; and
   •            the identity of an individual.
10.             The second notifiable instrument further specifies, for the purpose of subparagraph 21F(b)(i) of the Regulations, that the assessment of the identity of the individual must consist of an electronic identify verification check through the Document Verification Service (DVS).
11.             This instrument enables the Department to conduct and coordinate background checks in connection with the accreditation of individuals who are working or volunteering at the WAC26.
12.             The Determination will commence on the day after it is registered on the Federal Register of Legislation.

Consultation

1.             The following parties were consulted and all were supportive of the approach, and participate in the Department’s current background checking operations:
   •            Australian Security Intelligence Organisation;
   •            Australian Federal Police;
   •            Australian Criminal Intelligence Commission;
   •            NSW Police Force;
   •            Western Australian Police; and
   •            Queensland Police Service.
2.             These agencies are all partners in security, these agencies are interested in the background checks that are being conducted.
3.             Consultation also occurred with Football Australia, which has an active role in bringing this event to Australia, and will be the organising body for this major national event. 
4.             In these circumstances, the Minister was satisfied that appropriate consultation was undertaken in accordance with section 17 of the Legislation Act.

Details of the instrument

1.             For the purpose of subsection 5A(1) of the Act, the Declaration declares the WAC26 to be a major national event.

Parliamentary scrutiny etc. 

1.             The Determination is a legislative instrument and is subject to disallowance under section 42 of the Legislation Act.
2.             A Statement of Compatibility with Human Rights has been prepared in relation to the Determination. The Statement of Compatibility concludes that, to the extent that the Determination impacts human rights, the impact is reasonable, necessary and proportionate. The Statement is included at Attachment A.

Statement of Compatibility with Human Rights

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

AusCheck (Major National Event – 2026 Asian Football Confederation Women’s Asian Cup) Declaration 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

The AusCheck Act 2007 (the Act) establishes a background checking function within the Department of Home Affairs (the Department). The object of the Act is to provide a regulatory framework for coordinating and conducting certain criminal, security and other background checks of individuals. The background checks that may be undertaken are limited to the purposes specified in section 8.

Paragraph 8(1)(e) of the Act provides that background checks of individuals may be conducted in connection with the accreditation of the individuals in relation to a major national event.

An event is a major national event for the purposes of the Act when the Minister makes a declaration, by legislative instrument, under subsection 5A(1) of that Act that a specified event is a major national event. The Minister cannot make such a declaration unless the Minister is satisfied that it is in the national interest that the Commonwealth be involved in the conduct and coordination of background checks in connection with the accreditation of individuals in relation to the event (see subsection 5A(2) of the Act).

Under subsection 5A(3) of the Act, the Minister may also have regard to, when making a declaration under subsection 5A(1), matters including the significance of the event, any risk assessment relating to the event and the potential impact of any security incident relating to the event on Australia’s reputation.

Under subsection 5A(1) of the Act, the AusCheck (Major National Event – 2026 Asian Football Confederation Women’s Asian Cup) Declaration 2025 (the Disallowable Legislative Instrument) declares the Asian Football Confederation Women’s Asian Cup 2026 (WAC26) to be a major national event for the purposes of the Act.

The WAC26 is a major foreign sporting event to be comprised of 12 teams representing various countries within the Asian Football Confederation. The tournament will take place in March 2026 across three Australian cities: the Gold Coast in Queensland, Perth in Western Australia and Sydney in New South Wales. The matches will be played in five stadiums in these cities.

The Disallowable Legislative Instrument is also supported by the making of two notifiable instruments, made by the Minister under sections 21E and 21F of the AusCheck Regulations 2017 (the Regulations).

The first notifiable instrument, made under section 21E of the Regulations, establishes Football Australia as the organising body of the WAC 26. For the purpose of section 21G of the Regulations, the organising entity is the entity that may apply for a background check of an individual in relation to the major national event.

The second notifiable instrument, made under section 21F of the Regulations, declares what matters will be assessed as part of the background check for this major national event. Under paragraph 21F(a) of the Regulations, a background check for a major national event must consist of one or more matters mentioned in in paragraphs 5(a), (b), (c) and (d) of the Act. For the purposes of the WAC26, the notifiable instrument declares that a background check for WAC26 will include an assessment of:

The second notifiable instrument also specifies, for the purpose of subparagraph 21F(b)(i) of the Regulations that the assessment of the identity of the individual must consist of an electronic identify verification check (verified through myID’s Digital Identity System for persons with a “basic identity strength” myID).

This instrument enables the Department to conduct and coordinate background checks in connection with the accreditation of individuals who are working or volunteering at the WAC26.

The Disallowable Legislative Instrument will commence on the day after it is registered on the Federal Register of Legislation.

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

Rights to equality and non‑discrimination

The declaration of an event as an MNE enables the Department to conduct background checks for the accreditation of individuals in relation to the declared MNE. To the extent that the declaration of an MNE enlivens the background check provisions in the AusCheck Regulations, the rights to equality and non-discrimination are engaged. Article 2(1) of the ICCPR and Article 2(2) of the ICESCR provide that the rights in both covenants are to be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Similarly, Article 26 of the ICCPR provides that 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.

The differential treatment by the Department of individuals on the basis of criminal history engages the rights of equality and non‑discrimination. Subdivision C of Division 5 of the AusCheck Regulations allows the Department to give advice about background checks of individuals undertaken in connection with their accreditation for a MNE, including an assessment of an individual’s criminal history information (MNE background check). The Department will assess the individual’s criminal history information against MNE-security-relevant offences, which are contained in Schedule 1 of the AusCheck Regulations.

The objective of this assessment is to identify individuals who have been convicted of MNE security-relevant offences, which indicate that the individual is a threat or risk to national security, or has the propensity to commit a serious offence which increases the likelihood or risk that the individual will cause harm at the MNE. This assessment informs the eligibility of an individual to be accredited to work or volunteer at MNEs.

Subdivision C of Division 5 of the AusCheck Regulations is a reasonable, necessary and proportionate limitation on the rights to equality and non-discrimination as it does not capture all individuals with a criminal history. Distinctions made on the basis of criminal history are only necessary for individuals who have MNE-security‑relevant offences that appear in their criminal history. This is the least restrictive means, in the context of background checks, of identifying individuals who may threaten national security. The criterion for MNE-security‑relevant offences is explicitly stated in legislation and therefore is lawful and non-arbitrary.

Right to an effective remedy

Article 2(3) of the ICCPR provides that an individual should have an effective remedy for any violation of rights or freedoms recognised in the ICCPR. The article also provides that the remedy shall be determined and enforced by a competent judicial, administrative or legislative authority.

To the extent that the declaration of an MNE enlivens the background check provisions in the AusCheck Regulations, the rights to effective remedy will be engaged. Section 26 of the AusCheck Regulations provides a right of review by the Administrative Review Tribunal (ART) for an applicant:

The definition of ‘unfavourable criminal history’ in section 6 of the AusCheck Regulations includes an ‘MNE criminal record’. ‘MNE criminal record’ is defined in section 4 to be where there is a conviction of an MNE level 1 disqualifying offence, or conviction and imprisonment for an MNE level 2 or 3 offence.

Where an applicant is refused an exemption in relation to identity verification requirements or receives an unfavourable criminal history decision, the applicant may apply to the ART for a review of that decision. The ART is a competent administrative authority which has the power to review a decision made by the Department, and to set aside, remit or affirm that decision.

To the extent that an individual’s rights under the ICCPR may be violated, section 26 of the AusCheck Regulations promotes the right to an effective remedy.

Right to privacy

Article 17(1) of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  To the extent that the declaration of an MNE enlivens the background check provisions in the AusCheck Regulations and provides for the collection, use, storage and disclosure of personal information, including criminal history information, the instrument engages the right to privacy.

Part 3 of the AusCheck Act deals with the collection, retention, use, disclosure and protection of AusCheck scheme personal information. ‘AusCheck scheme personal information’ is defined in Section 4 of the AusCheck Act as personal information obtained under the AusCheck scheme, or that relates to the administration of the AusCheck scheme. Section 8 of the AusCheck Act establishes the AusCheck scheme, and subsection 8(1)(d) notes that the AusCheck scheme includes any background checks of individuals if the check is of an individual in connection with the accreditation of the individual in relation to a MNE. To the extent that the declaration of an MNE enlivens the relevant provisions of the AusCheck Act in relation to an MNE, the right to privacy will be engaged. 

The limitation on the right to privacy is legitimately authorised by section 13 of the AusCheck Act.

The purpose of the authorisation in relation to the MNE background check provisions within the AusCheck scheme is to:

Personal information collected for an MNE background check may be used or disclosed under section 14 of the AusCheck Act for the following purposes:

The instrument also engages the right to privacy through the prescription of the Department as excluded from restrictions under Division 3 of Part VIIC of the Crimes Act 1914, which provides a person a right of non-disclosure for offences that have been spent and limits the use and disclosure of information about those offences in certain circumstances.

The Crimes Regulations 2019 prescribes an exclusion at Schedule 2 of Division 3 of Part VIIC in relation to MNE level 1 disqualifying offences for the purpose of an MNE background check. This limitation to the right of privacy is necessary to ensure that a conviction for an MNE level 1 disqualifying offence can be taken into account when assessing an individual’s criminal history, even where it would otherwise be considered spent. These offences are directly related to national security and considered to be so serious in nature that disclosure is in the national interest. This enhances and protects the integrity of background checks conducted for MNE purposes under the AusCheck scheme. Without such an exclusion, the Department would not have capacity to direct that an MNE accreditation not be issued or be revoked in circumstances where a person has been convicted of such an offence and it would have otherwise have been spent.

The purpose of collecting, using, storing and disclosing information is reasonable and necessary to pursue the objective of national security and public order. This is achieved by using an individual’s personal information, such as their criminal record, to identify and disclose whether they would constitute a threat to secure areas, systems, processes or people. The collection and storage of personal information also assists law enforcement agencies respond to security incidents by providing an up‑to‑date database of individuals who hold an MNE accreditation check as a result of an MNE background check.

Appropriate safeguards exist to ensure that use of an individual’s personal information is reasonable and proportionate. Personal information is provided voluntarily by an individual with their consent to be used for a background check. An individual will be provided with a privacy notice by the Department detailing how their information will be utilised to ensure informed consent. The Department will update the privacy notice to capture the amendments in this instrument. Section 29 of the AusCheck Regulations allows the Secretary of the Department of Home Affairs to issue guidelines about the use and disclosure of information in the database. The guidelines are currently publically available on the Department’s website. All Department staff members are required to comply with the guidelines. Section 15 of the AusCheck Act also provides an offence provision for the Department staff members who unlawfully disclose AusCheck scheme personal information.

Right to work

Article 6(1) of the ICESCR provides for the right to work, including the right of everyone to the opportunity to gain a living by work which the persons freely chooses or accepts. To the extent that the declaration of an MNE enlivens the relevant provisions of the AusCheck Act in relation to an MNE, the right to work may be engaged.  The assessment by the Department of an individual’s criminal history or a national security assessment may lead to an obligation on an organising body not to issue an MNE accreditation, or to cancel an MNE accreditation, if the person has been convicted of an MNE level 1 disqualifying offence. Holding an MNE accreditation may be an essential requirement for people who work or volunteer at MNE, for example, people who work in secure areas of an MNE. Therefore the Department’s assessment could limit the right to work of some individuals, particularly if an individual has been convicted of an MNE level 1 disqualifying offence or has an adverse or qualified security assessment.

In these circumstances, section 21M of the AusCheck Regulations provides that if the Secretary advises the organising body that a person has been convicted of an MNE level 1 disqualifying offence, or has an adverse or qualified security assessment, then the organising body must not issue an MNE accreditation for that person. It further provides that if the person has already been accredited, the MNE accreditation must be cancelled. It is an offence for the organising body to issue an MNE accreditation or to fail to cancel an MNE accreditation after receiving the Secretary’s advice. For persons convicted and sentenced for MNE level 2 and 3 offences, the organising body has a discretion as to whether to issue or cancel an MNE accreditation. The organising body may, with the express consent of the person, request that the Department provide details of the relevant MNE level 2 or 3 offence to help the organising body exercise this discretion.

To the extent that these provisions may limit the right to work, the limitation is proportionate, as the failure to be issued an MNE accreditation (or the cancellation of an MNE accreditation) only affects the person’s ability to work or volunteer at a declared MNE and does not impact any other employment. MNE offences are serious offences that present a threat to national security and public order. Given the risks associated with large scale events, it is reasonable to conduct background checks on individuals who may work or volunteer at an MNE. The limitations are also the least rights restrictive option. An organising body will only be required to not issue an MNE accreditation if the Secretary advises the organising body that a person has been convicted of an MNE level 1 disqualifying offence, or has an adverse or qualified security assessment. This reflects the serious nature of those offences and of national security risks. MNE level 2 and 3 offences will not be automatically disqualifying. The amendments in this instrument are aimed at ensuring that persons who work or volunteer at an MNE do not pose a risk to national security or public order.

Article 4 of the ICESCR provides that countries may limit economic, social and cultural rights if those limits are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. The outcome of advice from the Secretary that a person has an unfavourable criminal history or a security assessment and should not be issued an MNE accreditation is an appealable decision. The outcome of an unfavourable criminal history or adverse or qualified security assessment is based on the threat of the individual to national security and public order and therefore the limitation is considered to be reasonable and necessary to promote national security and public order.

Conclusion

The 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.

The Honourable Tony Burke MP

Minister for Home Affairs