This instrument is made under the AusCheck Act 2007.
4 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) AusCheck database;
(b) background check;
(ba) critical infrastructure risk management program;
(bb) Defence Force magistrate;
(bc) Global Entry program;
(c) issuing body;
(ca) major national event;
(d) Secretary;
(e) Schedule 1A offence;
(f) service offence.
In this instrument:
Act means the AusCheck Act 2007.
adverse criminal intelligence assessment has the same meaning as in Part III of the Australian Crime Commission Act 2002.
adverse criminal record:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(2) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(3) of the MTOFS Regulations; or
(c) otherwise—has the meaning given by clause 1.3 of the SSBA Standards.
adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
ASIC has the same meaning as in the ATS Regulations but does not include a temporary ASIC issued under those regulations.
ATS Regulations means the Aviation Transport Security Regulations 2005.
AusCheck means that part of the Department that administers the AusCheck scheme.
Category A identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations; or
(c) for an individual who is an applicant for, or a holder of, an MNE accreditation, or for an individual for whom a CIRMP permits a background check—means:
(i) for an individual who was born in Australia and is an Australian citizen—either the individual’s Australian birth certificate or a notice given to the individual under section 37 of the Australian Citizenship Act 2007; or
(ii) for any other individual—a valid document that provides evidence of the start of the individual’s identity in Australia; or
(d) for an individual in respect of whom an application has been made for background checks in connection with the individual’s participation in the Global Entry program means:
(i) an Australian birth certificate; or
(ii) a notice given to the individual under section 37 of the Australian Citizenship Act 2007.
Part Part 5 - AusCheck Regulations 2017 - Transitional, application and savings provisions | Zoe
Category B identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations; or
(c) for an individual who is an applicant for, or a holder of, an MNE accreditation, or for an individual for whom a CIRMP permits a background check—means a current and valid document that:
(i) is issued to the individual by a Commonwealth, State or Territory Department or agency, or by a government of a foreign country or an agency of a government of a foreign country; and
(ii) provides photographic proof of the individual’s identity; and
(iii) includes the individual’s signature; or
(d) for an individual in respect of whom an application has been made for background checks in connection with the individual’s participation in the Global Entry program means a current and valid Australian passport.
Note: An example for the purposes of paragraph (c) is a current and valid Australian or foreign passport or a driver licence.
Category C identification document:
(a) for an individual who is an applicant for, or a holder of, an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an individual who is an applicant for, or a holder of, an MSIC—has the meaning given by subregulation 6.07B(1) of the MTOFS Regulations; or
(c) for an individual who is an applicant for, or a holder of, an MNE accreditation, or for an individual for whom a CIRMP permits a background check—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 Australia); or
(d) for an individual in respect of whom an application has been made for background checks in connection with the individual’s participation in the Global Entry program—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 Australia).
Note: An example for the purposes of paragraph (c) or (d) is a current and valid medicare card or a membership card issued by a private health insurer.
Category D identification document, for an individual who is an applicant for, or a holder of, an MNE accreditation, or for an individual for whom a CIRMP permits a background check, means a valid document that:
(a) provides evidence of the individual’s current residential address (which may be a residential address outside Australia); and
(b) is less than 6 months old.
Note: An example is a current utilities notice.
CIRMP is short for critical infrastructure risk management program.
CIRMP criminal record: an individual has a CIRMP criminal record if the individual has been:
(a) convicted of a CIRMP level 1 offence; or
(b) convicted of a CIRMP level 2 offence and sentenced to any term of imprisonment for the offence.
CIRMP level 1 offence means a CIRMP‑security‑relevant offence mentioned in an item in the table in clause 1 of Schedule 2.
CIRMP level 2 offence means a CIRMP‑security‑relevant offence mentioned in an item in the table in clause 2 of Schedule 2.
CIRMP‑security‑relevant offence means an offence mentioned in an item in a table in Schedule 2 against a law of the Commonwealth, a State or a Territory.
conviction has the meaning given by section 4A.
critical infrastructure asset has the same meaning as in the Security of Critical Infrastructure Act 2018.
entity has the same meaning as in the National Health Security Act 2007.
full name: to avoid doubt, the full name of an individual includes any middle names.
GEP criminal record: an individual has a GEP criminal record if:
(a) the individual has been convicted by a court martial or a Defence Force magistrate of:
(i) a service offence other than a Schedule 1A offence; or
(ii) a Schedule 1A offence for which a punishment of imprisonment was imposed on the individual; or
(b) the individual’s criminal history shows that the individual has been convicted of an offence (other than a service offence) against a law of the Commonwealth, a State or a Territory.
GEP participant: see subsection 11AH(2).
health security relevant offence has the meaning given by clause 1.3 of the SSBA Standards.
identification document means:
(a) a Category A identification document; or
(b) a Category B identification document; or
(c) a Category C identification document; or
(d) for an individual who is an applicant for, or a holder of, an MNE accreditation, or for an individual for whom a CIRMP permits a background check—a Category D identification document.
Immigration Department means the Department administered by the Minister administering the Migration Act 1958.
imprisonment includes periodic detention, home‑based detention and detention until the rising of a court, but does not include an obligation to perform community service.
MNE is short for major national event.
MNE accreditation means accreditation of an individual in relation to a major national event.
MNE criminal record: an individual has an MNE criminal record if the individual has been:
(a) convicted of an MNE level 1 disqualifying offence; or
(b) convicted of an MNE level 2 offence and sentenced to any term of imprisonment for the offence; or
(c) convicted of an MNE level 3 offence and sentenced to a term of imprisonment of 12 months or more for the offence.
MNE level 1 disqualifying offence means an MNE‑security‑relevant offence mentioned in an item in the table in clause 1 of Schedule 1.
MNE level 2 offence means an MNE‑security‑relevant offence mentioned in an item in the table in clause 2 of Schedule 1.
MNE level 3 offence means an MNE‑security‑relevant offence mentioned in an item in the table in clause 3 of Schedule 1.
MNE‑security‑relevant offence means an offence mentioned in an item in a table in Schedule 1 against a law of the Commonwealth, a State or a Territory.
MSIC has the same meaning as in the MTOFS Regulations but does not include a temporary MSIC (within the meaning of those regulations).
MTOFS Regulations means the Maritime Transport and Offshore Facilities Security Regulations 2003.
NHS entity means an entity to which Division 5 of Part 3 of the National Health Security Act 2007 applies.
notification period: see subsection 22(5).
offshore facility has the same meaning as in the Maritime Transport and Offshore Facilities Security Act 2003.
old regulations means the AusCheck Regulations 2007.
operational need:
(a) for an ASIC—has the meaning given by subregulation 6.01(1) of the ATS Regulations; or
(b) for an MSIC—has the meaning given by regulation 6.07F of the MTOFS Regulations.
organising body, for a major national event, means the person declared to be the organising body for the event by the Minister under section 21E.
qualified criminal record has the meaning given by clause 1.3 of the SSBA Standards.
qualified security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.
required information: see section 5.
responsible entity has the same meaning as in the Security of Critical Infrastructure Act 2018.
SSBA Standards has the same meaning as in the National Health Security Act 2007.
transferred ASIC applications has the meaning given by paragraph 6.22(2)(b) of the ATS Regulations.
transferred ASICs has the meaning given by paragraph 6.22(2)(a) of the ATS Regulations.
transferred MSIC applications has the meaning given by paragraph 6.07ZA(2)(b) of the MTOFS Regulations.
transferred MSICs has the meaning given by paragraph 6.07ZA(2)(a) of the MTOFS Regulations.
Transport Secretary means the Secretary of the Department administered by the Minister who administers the Aviation Transport Security Act 2004.
unfavourable criminal history: see section 6.
verifying person, for an identity verification check of an individual, means:
(a) if the identity verification check is in connection with MNE accreditation in relation to a major national event:
(i) AusCheck; or
(ii) the organising body for the major national event; or
(iii) a person acting on behalf of AusCheck or the organising body; or
(b) if the identity verification check is permitted under a CIRMP:
(i) AusCheck; or
(ii) the responsible entity in relation to whom the CIRMP applies; or
(iii) a person acting on behalf of AusCheck or the responsible entity.
4A Meaning of conviction
(1) A conviction of an individual who is an applicant for, or a holder of, an MNE accreditation, or of an individual for whom a CIRMP permits a background check, or of an individual for whom a background check is conducted under section 11AH or 11AJ, for an offence, has the same meaning as in Part VIIC of the Crimes Act 1914, but does not include:
(a) a spent conviction (within the meaning of subsection 85ZM(2) of that Act) if Division 3 of Part VIIC of that Act applies to the individual in relation to the conviction; or
(b) a conviction for an offence of which, under a law relating to pardons or quashed convictions, the individual is taken never to have been convicted.
Note 1: Under subsection 85ZM(1) of the Crimes Act 1914, a person is also taken to have been convicted of an offence if the person:
(a) has been found guilty of the offence but discharged without conviction; or
(b) has not been found guilty of the offence but a court has taken the offence into account in sentencing the person for another offence (see paragraphs 85ZM(1)(b) and (c) of that Act).
Note 2: Under Part VIIC of the Crimes Act 1914, if a person receives a free and absolute pardon for an offence against a law of the Commonwealth or a Territory because the person was wrongly convicted of the offence, the person is taken for all purposes never to have been convicted (see section 85ZR of that Act).
Note 3: In certain circumstances, Division 3 of Part VIIC of the Crimes Act 1914 ceases to apply to a person in relation to a spent conviction if Division 4 of that Part (Convictions of further offences) applies.
Note 4: Under the Crimes Act 1914, a person need not disclose convictions that:
(a) have been quashed (see section 85ZT of that Act); or
(b) are spent (see section 85ZV of that Act).
Note 5: Convictions for MNE level 1 disqualifying offences do not become spent for the purposes of assessing whether to issue the convicted person with an MNE accreditation—see paragraph 85ZZH(k) of the Crimes Act 1914 and section 21 of, and Schedule 2 to, the Crimes Regulations 2019.
(2) A conviction of an individual in respect of whom an application for a background check is made under the ATS regulations, or of an individual in respect of whom such a background check has been conducted, has the same meaning as in the ATS regulations.
(3) A conviction of an individual in respect of whom an application for a background check is made under the MTOFS regulations, or of an individual in respect of whom such a background check has been conducted, has the same meaning as in the MTOFS regulations.
5 Required information
(1) The required information for an individual to whom an application for a background check relates is the following information:
(a) the individual’s current full name;
(aa) all former full names of the individual (if any);
(ab) all other names, titles, pseudonyms and aliases by which the person is or was known, or which the person uses or has used to identify himself or herself, (if any) (see subsection (2));
(b) the individual’s gender;
(ba) the individual’s date of birth;
(bb) the individual’s place of birth;
(c) the individual’s current residential address;
(d) if the application is made under, or as mentioned in, Division 2, 3, 3AAB or 3AAC of Part 2—all other residential addresses of the individual in the 10 years before the application is made;
(e) the individual’s preferred mailing address;
(f) the individual’s preferred telephone contact number;
(g) the individual’s preferred email address;
(h) if the individual is employed and, at the time the application is made, the individual has an operational need for an ASIC or MSIC for the purposes of that employment—the name and business address of the individual’s employer;
(i) if the individual is employed and the application is made under clause 3.6 of the SSBA Standards—the name and business address of the individual’s employer;
(ia) if the individual is, or is to be, employed for the purposes of a major national event and MNE accreditation is required for the purposes of that employment:
(i) the name and business address of the employer; and
(ii) details of the capacity in which the individual is, or is to be, employed;
(iab) if the individual is, or is to be, employed, and the application relates to a background check of the individual permitted under a CIRMP:
(i) the name and business address of the responsible entity in relation to whom the CIRMP applies; and
(ii) details of the capacity in which the individual is, or is to be, employed; and
(iii) if the individual is, or is to be, employed by an entity other than the responsible entity—the name and business address of that entity; and
(iv) the reason the individual is an individual for whom a background check is permitted under the CIRMP;
(ib) if the individual is, or is to be, a volunteer worker for an organisation for the purposes of a major national event and MNE accreditation is required for the purposes of that volunteer work:
(i) the name and business address of the organisation; and
(ii) details of the work that the individual is performing, or will perform, with the organisation;
(j) if the individual is a student and, at the time the application is made, the individual has an operational need for an ASIC or MSIC for the purposes of the individual’s studies—the name and business address of the institution at which the individual is studying;
(k) if the individual is a student and the application is made under clause 3.6 of the SSBA Standards—the name and business address of the institution at which the individual is studying;
(ka) if the individual is a student and as part of the individual’s course of study the individual is undertaking, or will undertake, work for the purposes of a major national event and MNE accreditation is required for the purposes of that work:
(i) the name and business address of the institution at which the individual is studying; and
(ii) details of the work that the individual is undertaking or will undertake, including details of the person for whom the individual is, or will be, working;
(kb) if the individual is a student and the application relates to a background check of the individual permitted under a CIRMP:
(i) the name and business address of the responsible entity in relation to whom the CIRMP applies; and
(ii) the name and business address of the institution at which the individual is studying; and
(iii) details of the work that the individual is undertaking, or will undertake, including details of the person for whom the individual is, or will be, working; and
(iv) the reason the individual is an individual for whom a background check is permitted under the CIRMP;
(l) if the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia:
(i) the number and country of issue of any passport issued to the individual; and
(ia) if the individual does not have, or cannot use or obtain, a passport—the number of any document issued to the individual by the Immigration Department as a result of the individual not having, or not being able to use or obtain, a passport; and
(ii) in any case—the number and expiry date of any visa granted to the individual enabling the individual to travel to and enter, or remain in, Australia;
(m) if the individual’s application is made under a provision referred to in paragraph 8(1)(a)—a record of the individual having given express consent to the identity of the individual being verified, and any one of the following:
(i) details of the Category A identification document for the individual (unless the Category A identification document is determined under section 5AA);
(ia) if the Category A identification document for the individual is determined under section 5AA—details of one or more Category B identification documents or Category C identification documents for the individual, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check;
(ii) details of any alternative identification requirements, and details of any other identification documents required by the alternative identification requirements, approved in relation to the individual under regulation 6.27AC of the ATS Regulations or regulation 6.08BC of the MTOFS Regulations;
(ma) if the application relates to a background check of the individual permitted under a CIRMP—a record of the express consent of the individual:
(i) for the background check of the individual to be conducted; and
(ii) if the CIRMP provides that the background check must include an identity verification check—for the identity of the individual to be verified;
(n) if the application relates to a background check of the individual in connection with MNE accreditation and the individual is under 16 years of age at the time the application is made—a record of the express consent of the parent or guardian of the individual:
(i) for a background check of the individual to be conducted; and
(ii) if, under paragraph 21F(b), the background check must include an identity verification check—for the identity of the individual to be verified;
(o) if the application relates to a background check of the individual permitted under a CIRMP and the individual is under 16 years of age at the time the application is made—a record of the express consent of the parent or guardian of the individual:
(i) for the background check of the individual to be conducted; and
(ii) if the CIRMP provides that the background check must include an identity verification check—for the identity of the individual to be verified;
(p) if the application relates to background checks in connection with an individual’s participation in the Global Entry program, all of the following:
(i) 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);
(ii) the express consent of the individual for the identity of the individual to be verified;
(iii) if the applicant is required to have express consent under subparagraph 11AF(2)(a)(ii) or (b)(ii)—evidence of such consent;
(iv) details of the Category A identification document mentioned in subparagraph 11AG(1)(b)(ii);
(v) details of the Category B identification document mentioned in subparagraph 11AG(1)(b)(iii);
(vi) details of the Category C identification document mentioned in subparagraph 11AG(1)(b)(iv).
Note: For paragraph (p), if an individual who wishes to participate in the Global Entry program 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: see subsection 11AF(3).
(2) For the purposes of paragraph (1)(ab), variants (including variants in spelling) of a name, title, pseudonym or alias are taken to be different names, titles, pseudonyms or aliases.
Note: Example 1: Mathew and Matthew are taken to be different names.
Note: Example 2: John and Jack are taken to be different names.
5AA Classes of Category A identification documents that AusCheck cannot use
For the purposes of paragraph 5(1)(m), the Secretary may, by notifiable instrument, determine a class of Category A identification documents if AusCheck cannot use details of documents of that class to verify electronically individuals’ identities for the purposes of background checks.
5A Exemption from requirement to provide details of identification document
(1) This section applies if:
(a) an individual is required to provide details of an identification document; and
(b) AusCheck cannot use the details to verify electronically the individual’s identity for the purposes of a background check; and
(c) the requirement does not relate to a background check of the individual in connection with MNE accreditation; and
(d) the requirement does not relate to a background check of the individual permitted under a CIRMP.
(2) The issuing body may apply to the Secretary for an exemption from the requirement for the individual to provide details of the identification document.
Requirements for application
(3) The application must:
(a) be made electronically; and
(b) state that the individual has an identification document whose details AusCheck cannot use to verify electronically the individual’s identity; and
(c) if the individual has another identification document—include details of that document; and
(d) in any case—include any other information that may assist the Secretary in making a decision about whether to grant an exemption in relation to the individual.
Matters to be considered
(4) In making a decision under this section in relation to the individual, the Secretary must consider the following matters:
(a) the extent to which the issuing body can show evidence of the identity of the individual;
(b) the reason why the details of the individual’s identification document cannot be used to verify electronically the individual’s identity;
(c) if the application included details of another identification document—whether AusCheck can use the details to verify electronically the individual’s identity.
Requirement for further information
(5) If the Secretary requires further information to consider the application, the Secretary may request the issuing body to give the further information within 30 days after receiving the request.
When decision must be made
(6) The Secretary must, in writing and within 30 days after receiving the application or, if further information is requested, within 30 days after receiving the further information in accordance with subsection (5):
(a) do any one of the following:
(i) grant the exemption in relation to the individual;
(ii) for an exemption in relation to a Category A identification document—grant the exemption in relation to the individual, subject to one or more conditions;
(iii) in any case—refuse to grant the exemption in relation to the individual; and
(b) notify the issuing body of the decision; and
(c) if the decision is a refusal—notify the issuing body of the reasons for the refusal.
(7) The Secretary is taken to have refused to grant the exemption if the Secretary has not made a decision on the application within the period mentioned in subsection (6).
5B Inability to verify identity of individual
(1) AusCheck is not required to continue undertaking a background check of an individual if:
(a) the background check requires details of an identification document to electronically verify the identity of the individual; and
(b) AusCheck is not provided with details of an identification document that AusCheck can use to so verify that identity.
Note: An identification document is not required if:
(a) alternative identification requirements that do not require details of an identification document have been approved in relation to the individual under regulation 6.27AC of the ATS Regulations or regulation 6.08BC of the MTOFS Regulations; or
(b) an exemption has been granted under section 5A of this instrument in relation to the individual without a condition requiring details of an identification document.
(2) This section does not apply in relation to a background check of an individual in connection with MNE accreditation or permitted under a CIRMP.
Note: See sections 21L and 21Y for when AusCheck is not required to continue undertaking a background check in relation to major national events or under CIRMPs.
6 Unfavourable criminal history
An individual has an unfavourable criminal history if the criminal history of the individual discloses that the individual has any of the following:
(a) an adverse criminal record;
(b) for an individual for whom a background check is undertaken under section 11—a qualified criminal record;
(d) if the individual is an applicant for, or a holder of, an MNE accreditation—an MNE criminal record;
(e) for an individual for whom a background check is undertaken under section 11AD, 11AE or 21DC—a CIRMP criminal record;
(f) for an individual for whom a background check is conducted under section 11AH or 11AJ—a GEP criminal record.
Part 2—AusCheck scheme
Division 1—Establishment of AusCheck scheme
7 Establishment of the AusCheck scheme
For the purposes of Part 2 of the Act, this Part establishes the AusCheck scheme.
Division 2—Background checks for aviation and maritime security purposes
8 Background check of applicants for, or holders of, ASICs or MSICs—application made by issuing body or Transport Secretary
When AusCheck may undertake a background check of an individual
(1) AusCheck may undertake a background check of an individual if an application for a background check of the individual is made under:
(a) any of the following provisions:
(i) paragraph 6.27AA(1)(a) of the ATS Regulations or paragraph 6.08BA(a) of the MTOFS Regulations (which deal with applications by an issuing body relating to applicants for ASICs or MSICs);
(ii) paragraph 6.27AA(1)(b) of the ATS Regulations or paragraph 6.08BA(b) of the MTOFS Regulations (which deal with applications by an issuing body relating to holders of ASICs or MSICs if applications for earlier background checks of the holders were incomplete etc.); or
(b) subregulation 6.27AA(3) of the ATS Regulations or subregulation 6.08LC(1) of the MTOFS Regulations (which deal with applications by the Transport Secretary relating to certain applicants for, or holders of, ASICs or MSICs).
When AusCheck must undertake a background check of an individual
(2) AusCheck must undertake a background check of an individual if an application for a background check of the individual is made under paragraph 6.27AA(1)(c) of the ATS Regulations or paragraph 6.08BA(c) of the MTOFS Regulations (which deal with applications by an issuing body relating to holders of ASICs or MSICs convicted of certain offences).
Application requirements
(3) An application for a background check of an individual that is made under a provision referred to in paragraph (1)(a) of this section must:
(a) be made electronically; and
(b) include all of the required information for the individual; and
(c) be made in the form (if any) approved for the purposes of this paragraph under subsection (6); and
(d) meet any other requirements specified by the Secretary for the purposes of this paragraph under subsection (7).
(4) An application for a background check of an individual that is made under a provision referred to in paragraph (1)(b) of this section must:
(a) be made in writing; and
(b) be made in the form (if any) approved for the purposes of this paragraph under subsection (6); and
(c) meet any other requirements specified by the Secretary for the purposes of this paragraph under subsection (7).
(5) An application for a background check of an individual that is made under a provision referred to subsection (2) of this section must:
(a) be made electronically; and
(b) include the information notified by the individual under subregulation 6.41(1) of the ATS Regulations or subregulation 6.08LB(2) of the MTOFS Regulations (as the case may be); and
(c) include all of the required information for the individual mentioned in paragraphs 5(1)(a), (aa), (ab), (ba) and (c); and
(d) be made in the form (if any) approved for the purposes of this paragraph under subsection (6); and
(e) meet any other requirements specified by the Secretary for the purposes of this paragraph under subsection (7).
(6) The Secretary may, in writing, approve a form for the purposes of paragraph (3)(c), (4)(b) or (5)(d).
(7) The Secretary may, by notifiable instrument, specify requirements for the purposes of paragraph (3)(d), (4)(c) or (5)(e).
9 Background check of applicants for, or holders of, ASICs or MSICs—deemed application by individuals convicted of certain offences
(1) This section applies if:
(a) an individual notifies the Secretary under subregulation 6.41(1) of the ATS Regulations, or subregulation 6.08LB(2) of the MTOFS Regulations, of the matters mentioned in that subregulation; and
(b) the individual consents to a background check of the individual being conducted under the AusCheck scheme.
(2) The individual is taken, for the purposes of the AusCheck scheme, to have applied to AusCheck for a background check of the individual.
(3) AusCheck must undertake a background check of the individual.
10 Background check of holders of MSICs that are in force for 4 years etc.
(1) This section applies if:
(a) an individual:
(i) holds an MSIC that is in force for 4 years; or
(ii) held an MSIC that was to be in force for 4 years and the MSIC was cancelled under paragraph 6.08M(1)(f) or (g) or regulation 6.08N of the MTOFS Regulations; and
(b) a background check of the individual was undertaken prior to the issue of the MSIC; and
(c) the Secretary gave advice about the background check under Division 5 of this Part; and
(d) the individual has not withdrawn his or her consent to an additional background check of the individual being conducted under the AusCheck scheme on the second anniversary of the day a record of that advice is made in the AusCheck database.
(2) The issuing body for the MSIC is taken, for the purposes of the AusCheck scheme, to have applied for a background check of the individual on the second anniversary of that day.
(3) AusCheck must undertake a background check of the individual.
Division 3—Background checks for national health security purposes
11 Background check of individuals for national health security purposes
When AusCheck may undertake a background check of an individual
(1) AusCheck may undertake a background check of an individual if an application for a background check of the individual is made by an NHS entity under clause 3.6 of the SSBA Standards.
When AusCheck must undertake a background check of an individual
(2) If an NHS entity informs AusCheck of information relating to an individual under clause 3.6.2 of the SSBA Standards, then:
(a) the NHS entity is taken, for the purposes of the AusCheck scheme, to have applied to AusCheck for a background check of the individual; and
(b) AusCheck must undertake a background check of the individual.
Application requirements
(3) An application for a background check of an individual that is made under the provision referred to in subsection (1) must:
(a) be made electronically; and
(b) include all of the required information for the individual; and
(c) be made in the form (if any) approved for the purposes of this subsection under subsection (4); and
(d) meet any other requirements specified by the Secretary for the purposes of this subsection under subsection (5).
(4) The Secretary may, in writing, approve a form for the purposes of paragraph (3)(c).
(5) The Secretary may, by notifiable instrument, specify requirements for the purposes of paragraph (3)(d).
Division 3AA—Background checks for major national event purposes
11AA Background check of applicants for, or holders of, MNE accreditation—application by organising body
(1) AusCheck may undertake a background check of an individual in connection with the accreditation of the individual in relation to a major national event if an application for a background check of the individual is made under section 21G.
(2) The application must:
(a) be made electronically; and
(b) include all of the required information for the individual; and
(c) if, under paragraph 21F(b), the background check must include an electronic identity verification check—include:
(i) the details required under section 21H or a copy of an exemption (or a copy of an application for an exemption) under section 21K from the requirement to provide those details; and
(ii) the record (if any) required under section 21H; and
(d) be made in the form (if any) approved for the purposes of this paragraph under subsection (3); and
(e) meet any other requirements specified by the Secretary for the purposes of this paragraph under subsection (4).
(3) The Secretary may, in writing, approve a form for the purposes of paragraph (2)(d).
(4) The Secretary may, by notifiable instrument, specify requirements for the purposes of paragraph (2)(e).
11AB Background check of applicants for, or holders of, MNE accreditation—deemed application
(1) AusCheck may undertake a background check of an individual in connection with the accreditation of the individual in relation to a major national event if, after a background check (the original background check) of the individual has been undertaken in relation to the major national event, the Secretary considers on reasonable grounds that the individual:
(a) has an MNE criminal record; or
(b) constitutes a threat to the security of the major national event.
(2) In considering a matter under subsection (1), the Secretary must take into account:
(a) any information given to the Secretary by the individual or the organising body for the event; and
(b) any information given to the Secretary by a law enforcement, or national security, agency (however described) about the individual; and
(c) anything else relevant that the Secretary knows about.
(3) If AusCheck undertakes a background check of an individual under subsection (1):
(a) the organising body is taken to have applied for the background check of the individual; and
(b) the application for that background check is taken to be the same as the application for the original background check.
11AC AusCheck not to conduct or continue a background check in relation to major national event after event has concluded
To avoid doubt, AusCheck must not conduct, or continue to conduct, a background check of an individual in connection with the accreditation of the individual in relation to a major national event after the event has concluded.
Division 3AAB—Background checks for critical infrastructure risk management program purposes
11AD Background check for critical infrastructure risk management program purposes—application by responsible entity or individual
(1) AusCheck may undertake a background check of an individual if:
(a) a CIRMP permits a background check of the individual; and
(b) an application for a background check of the individual is made under section 21Q.
(2) The application must:
(a) be made electronically; and
(b) include all of the required information for the individual; and
(c) include a statement, made by the responsible entity, as to:
(i) whether the CIRMP permits or requires an assessment of information relating to one or more of the matters mentioned in paragraph 5(a), (b), (c) or (d) of the Act; and
(ii) if the CIRMP permits or requires an assessment of information relating to the matters in paragraph 5(b) of the Act—how the responsible entity deals with an adverse security assessment or a qualified security assessment under the CIRMP; and
(d) if, under the CIRMP, the background check must include an electronic identity verification check—include:
(i) the details required under section 21V or a copy of an exemption (or a copy of an application for an exemption) under section 21X from the requirement to provide those details; and
(ii) the record (if any) required under section 21V; and
(e) be made in the form (if any) approved for the purposes of this paragraph under subsection (3); and
(f) meet any other requirement specified by the Secretary for the purposes of this paragraph under subsection (4).
(3) The Secretary may, in writing, approve a form for the purposes of paragraph (2)(e).
(4) The Secretary may, by notifiable instrument, specify requirements for the purposes of paragraph (2)(f).
11AE Background check for critical infrastructure risk management program purposes—deemed application
(1) AusCheck may undertake a background check of an individual if:
(a) a background check (the original background check) of the individual has been undertaken under section 11AD; and
(b) after the original background check the Secretary considers, on reasonable grounds, that the individual:
(i) has a CIRMP criminal record; or
(ii) if the original background check was undertaken for the purpose of granting the individual access to a critical infrastructure asset declared by the Minister, by notifiable instrument, for the purposes of this subparagraph—constitutes a threat to the security of the asset.
(2) In considering a matter under paragraph (1)(b), the Secretary must take into account:
(a) any information given to the Secretary by the individual or the responsible entity in relation to whom the CIRMP applies; and
(b) any information given to the Secretary by a law enforcement, or national security, agency (however described) about the individual; and
(c) anything else relevant that the Secretary knows about.
(3) If AusCheck undertakes a background check of an individual under subsection (1):
(a) the applicant for the original background check is taken to have applied for the background check of the individual; and
(b) the application for that background check is taken to be the same as the application for the original background check.
Division 3AAC—Background checks for participation in the Global Entry program
Subdivision A—Background checks on application
11AF Background checks of individual in connection with participation in the Global Entry program—application on invitation
When AusCheck may invite an individual to apply for background checks
(1) AusCheck may invite an individual to apply for background checks in connection with the individual’s participation in the Global Entry program if AusCheck is advised by the entity administering the program that an application has been made for the individual to participate in the program.
Who may make an application for background checks
(2) The application for background checks may be made by:
(a) if the individual is 18 years of age or over:
(i) the individual; or
(ii) another person with the express consent of the individual; or
(b) if the individual is under 18 years of age:
(i) the responsible parent or parents for the individual (within the meaning of subsection (3)); or
(ii) another person with the express consent of the responsible parent or parents for the individual.
Applications and background checks involving individuals who are under 18
(3) If this instrument requires or permits a thing to be done by, or consent to be given by, an individual who is under 18 years of age in relation to background checks for the purposes of the individual’s participation in the Global Entry program, the thing is to be done by, or the consent is to be given by:
(a) the person (the responsible parent) who has parental responsibility (within the meaning of Part VII of the Family Law Act 1975) for the individual; or
(b) if there is more than one such person—the persons (the responsible parents) who jointly have parental responsibility for the individual.
(4) Any information required by this instrument to be given to such an individual must instead be given to the responsible parent or parents for the individual.
11AG Background checks of individual in connection with participation in the Global Entry program—application requirements and withdrawal of applications
Application requirements
(1) An application for background checks for an individual that is made under subsection 11AF(2) must:
(a) be made in the manner and form (if any) approved for the purposes of this paragraph under subsection (2) of this section; and
(b) include the following for the individual:
(i) all of the required information;
(ii) a copy of a Category A identification document;
(iii) a copy of a Category B identification document;
(iv) a copy of a Category C identification document; and
(c) meet any other requirements specified by the Secretary for the purposes of this paragraph under subsection (3).
(2) The Secretary may, in writing, approve a manner and a form for the purposes of paragraph (1)(a).
(3) The Secretary may, by notifiable instrument, specify requirements for the purpose of paragraph (1)(c).
Withdrawal of application
(4) An application made under subsection 11AF(2) in connection with an individual’s participation in the Global Entry program may be withdrawn at any time by written notice given to the Secretary by:
(a) the individual; or
(b) if the application was made by another person—that other person.
11AH Conducting background checks in connection with participation in the Global Entry program
Initial background checks
(1) AusCheck must conduct a background check (the initial background check) of an individual if:
(a) the individual was invited to apply for background checks under subsection 11AF(1); and
(b) an application for background checks was made by or for the individual under subsection 11AF(2); and
(c) the application meets the requirements of subsection 11AG(1); and
(d) the application has not been withdrawn under subsection 11AG(4).
Meaning of GEP participant
(2) An individual is a GEP participant if:
(a) the individual passes the initial background check (see section 21DE); and
(b) the individual was accepted into the Global Entry program; and
(c) the application made in connection with the individual’s participation in the program has not been withdrawn under subsection 11AG(4); and
(d) the individual has not otherwise ceased to participate in the program.
Follow‑up background checks
(3) AusCheck must conduct a background check (a follow‑up background check) of an individual who is a GEP participant in each of the following 1 year periods:
(a) the year starting immediately after the individual was accepted into the Global Entry program;
(b) each succeeding year.
Purposes of background checks
(4) AusCheck may conduct a background check of an individual under this section only for the purposes of determining whether the individual fails or passes the background check in relation to the Global Entry program.
Note 1: For when an individual fails or passes a background check in relation to the Global Entry program, see section 21DE.
Note 2: AusCheck is 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
(5) An individual who is a GEP participant must give the Secretary notice of a change to any of the following information previously advised to AusCheck in connection with an application for background checks in connection with the individual’s participation in the Global Entry program:
(a) the required information for the individual;
(b) 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);
(c) information relevant to whether the individual has an unfavourable criminal history.
(6) The change to the information must be notified to the Secretary, in writing, within 30 days after the individual becomes aware of the change.
(7) If the application for background checks for the individual was made by another person under subsection 11AF(2), the individual’s obligation under subsection (6) of this section may be discharged on behalf of the individual by the person who made the application.
Subdivision B—Additional background checks
11AJ Additional background checks of individuals for the purposes of participation in the Global Entry program—deemed application
(1) AusCheck may conduct a background check (an additional background check) of an individual who is a GEP participant if the Secretary considers, on reasonable grounds, that the individual has, or may have, an unfavourable criminal history.
(2) In considering whether an individual has, or may have, an unfavourable criminal history, the Secretary must take into account:
(a) any information given to the Secretary by, or on behalf of, the individual; and
(b) any information given to the Secretary by a law enforcement or national security agency (however described) about the individual; and
(c) 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; and
(d) anything else relevant that the Secretary knows about.
(3) If AusCheck conducts an additional background check of an individual under subsection (1):
(a) the applicant for background checks under subsection 11AF(2) is taken to have applied for the additional background check; and
(b) the application for background checks under subsection 11AF(2) is taken to also be the application for the additional background check.
Division 3A—Further information etc. for background checks
11A Secretary may request information etc. for background checks
(1) This section applies if an application is made for one or more background checks of an individual.
Secretary may request information etc.
(2) The Secretary may, in writing, request:
(a) the individual; or
(aa) if the individual is not the applicant—the applicant;
(b) the issuing body, NHS entity, organising body or responsible entity that applied for the background check (if the individual did not apply for the background check); or
(c) if the individual holds an ASIC or MSIC—the issuing body that issued the card;
to do a specified thing (including giving specified information) if the Secretary reasonably suspects that doing the thing is necessary for the purposes of:
(d) meeting any requirements of this instrument for the application; or
Example: The requirements of subsection 8(3), (4), (5) or 11(3).
(e) ensuring that the Secretary has all of the required information for the individual; or
(f) if the application is made under subsection 9(2), 10(2), 11(2), 11AJ(3), 16A(3), 20B(3), 21C(3) or 21DC(5)—meeting any requirements specified for the purposes of this paragraph under subsection (3) of this section in relation to the application; or
(g) completing the background check.
(3) The Secretary may, by notifiable instrument, specify requirements for the purposes of paragraph (2)(f).
Day by which request must be complied with
(4) The request must specify the day on or before which the thing must be done. The day must be at least 30 days after the date of the notice.
(5) The Secretary may, on application in writing, extend the time for doing the thing and specify a later day on or before which the thing must be done.
Information taken to be included in application
(6) For the purposes of the AusCheck scheme, any information given to the Secretary in response to the request is taken to form part of the application for the background check.
Consequences if request not complied with
(7) The Secretary may cancel the background check if the thing is not done by the specified day.
Note: See also sections 15A and 20A (AusCheck may advise issuing body etc. of the cancellation).
Division 4—Preliminary assessment that individual has an unfavourable criminal history
12 Preliminary assessment by Secretary that an individual has an unfavourable criminal history
(1) This section applies if:
(a) AusCheck is undertaking a background check of an individual; and
(b) the Secretary makes a preliminary assessment that the individual has an unfavourable criminal history.
(2) The Secretary must give the individual a written notice that:
(a) set outs the preliminary assessment and the reasons for the preliminary assessment; and
(b) informs the individual that the individual may, on or before a day (the specified day) specified in the notice, make representations to the Secretary about the preliminary assessment.
(3) The specified day must be at least:
(a) if the application for the background check of the individual was made under a provision referred to in paragraph 8(1)(a) or subsection 11(1), or under section 21G—28 days after the notice is given; or
(b) otherwise—14 days after the notice is given.
(4) The individual may, before the specified day, request the Secretary to specify a later day for the making of representations about the preliminary assessment.
(5) If the individual makes a request under subsection (4), the Secretary may, by written notice given to the individual, specify a later day for the making of representations about the preliminary assessment.
(6) The Secretary must not give advice about the background check of the individual under Division 5 of this Part before:
(a) if the individual makes representations about the preliminary assessment on or before the specified day (or any later day specified under subsection (5))—those representations are considered by the Secretary; or
(b) otherwise—the end of the specified day (or any later day specified under subsection (5)).
Division 5—Advice about background check of individuals
Subdivision A—Advice about background checks for aviation and maritime security purposes
13 Advice about background check of an individual—application made, or taken to have been made, by an issuing body
(1) This section applies if:
(a) an application for a background check of an individual:
(i) is made by an issuing body under a provision referred to in paragraph 8(1)(a) or subsection 8(2); or
(ii) is taken to have been made by an issuing body under subsection 10(2) or 16A(3); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the issuing body whether or not the individual has an unfavourable criminal history.
(3) If:
(a) the individual holds an ASIC or MSIC; and
(b) the issuing body has been advised in relation to a previous background check of the individual; and
(c) the advice in relation to the previous background check was that the individual had an unfavourable criminal history;
the Secretary must also advise the issuing body whether there has been a material change in the individual’s criminal history.
(4) If the Secretary advises the issuing body under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
Advice relating to adverse criminal intelligence assessment
(4A) The Secretary must advise the issuing body whether or not the Department has been given an adverse criminal intelligence assessment of the individual.
Advice relating to security assessment
(5) If the application is made under a provision referred to in paragraph 8(1)(a) or is taken to have been made under subsection 10(2) or 16A(3), the Secretary must advise the issuing body whether or not a security assessment of the individual is an adverse security assessment or qualified security assessment.
Advice relating to whether the individual is an unlawful non‑citizen etc.
(7) If:
(a) the application is made under a provision referred to in paragraph 8(1)(a) or is taken to have been made under subsection 10(2) or 16A(3); and
(b) the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia;
the Secretary must advise the issuing body of the result of that assessment.
Advice relating to identity of individual
(8) If:
(a) the application is made under a provision referred to in paragraph 8(1)(a); and
(b) the background check includes an assessment of information relating to the identity of the individual;
the Secretary must advise the following of the final result of that assessment:
(c) the issuing body;
(d) if the final result of that assessment is that the identity of the individual has failed to be verified—the individual.
14 Advice about background check of an individual—application made by the Transport Secretary
(1) This section applies if:
(a) an application for a background check of an individual who has applied for, or who holds, an ASIC or MSIC is made by the Transport Secretary under a provision referred to in paragraph 8(1)(b); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) If the individual has an unfavourable criminal history, the Secretary must advise the issuing body for the ASIC or MSIC.
(4A) If:
(a) the issuing body for the ASIC or MSIC has been advised in relation to a previous background check of the individual; and
(b) the advice in relation to the previous background check was that the individual had an unfavourable criminal history;
the Secretary must also advise the issuing body whether there has been a material change in the individual’s criminal history.
(5) If the Secretary advises the issuing body for the ASIC or MSIC under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
Advice relating to adverse criminal intelligence assessment
(6) The Secretary must advise the issuing body for the ASIC or MSIC whether or not the Department has been given an adverse criminal intelligence assessment of the individual.
15 Advice about background check of an individual—deemed application by an individual
(1) This section applies if:
(a) an application for a background check of an individual who has applied for, or who holds, an ASIC or MSIC is taken to have been made by the individual under subsection 9(2); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the individual whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the individual under subsection (2) that the individual has an unfavourable criminal history, the Secretary must give the individual the reasons for that advice.
(4) If the Secretary advises the individual under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the issuing body for the ASIC or MSIC of that advice.
(5) If:
(a) the issuing body for the ASIC or MSIC has been advised in relation to a previous background check of the individual; and
(b) the advice in relation to the previous background check was that the individual had an unfavourable criminal history;
the Secretary must also advise the issuing body whether there has been a material change in the individual’s criminal history.
15A Advice about background check that is cancelled
If:
(a) the Secretary cancels a background check of an individual under subsection 11A(7); and
(b) had AusCheck completed the check, the Secretary would have been required or authorised under this Subdivision to give to the individual or an issuing body (the advisee):
(i) advice; or
(ii) a document or a copy of a document;
(or would have been so required or authorised depending on the results of the background check);
the Secretary must advise the advisee that the background check is cancelled.
16 Advice about background check etc. in certain circumstances
(1) This section applies if:
(a) a background check of an individual was undertaken by AusCheck; and
(b) the Secretary gave advice under this Subdivision that the individual has an unfavourable criminal record because the individual has an adverse criminal record; and
(c) an application in relation to the individual has been made under:
(i) subregulation 6.29(1) or 6.43A(2) of the ATS Regulations; or
(ii) subregulation 6.08F(1) or 6.08MA(2) of the MTOFS Regulations.
(2) AusCheck must give the Secretary the following:
(a) the advice referred to in paragraph (1)(b);
(b) a document setting out the individual’s criminal history;
(c) any other information relevant to the background check of the individual.
16A AusCheck may undertake new background checks
(1) This section applies if:
(a) the Secretary gives advice about a background check (the original check) of an individual under this Subdivision; and
(b) the Secretary later reasonably suspects that:
(i) any of the requirements of this instrument for the application for the original check were not satisfied; or
(ii) the Secretary did not have all of the required information for the individual when AusCheck undertook the original check; or
(iii) any of the requirements specified for the purposes of paragraph 11A(2)(f) under subsection 11A(3) in relation to the application for the original check were not satisfied; or
(iv) the advice is inaccurate or incomplete.
(1A) This section also applies if:
(a) the Secretary cancels a background check (the original check) of an individual under subsection 11A(7); and
(b) the thing that the Secretary requested be done under subsection 11A(2) in relation to the original check is later done.
(2) AusCheck may undertake a new background check of the individual.
(3) If AusCheck does so, for the purposes of the AusCheck scheme:
(a) the person who applied for the original check is taken to have applied for the new background check; and
(b) the application for the new background check is taken to be the same as the application for the original check (as affected by subsection 11A(6)).
Note: Paragraph (b) may be relevant to whether the Secretary may make a request under subsection 11A(2) in relation to the application.
17 Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
18 Secretary may give advice to new issuing body for transferred ASIC or MSIC applications etc.
If:
(a) the Secretary decides that an issuing body (the new issuing body) is to be the issuing body for:
(i) transferred ASIC applications or transferred ASICs; or
(ii) transferred MSIC applications or transferred MSICs; and
(b) the Secretary would have been required or authorised to give advice under this Subdivision to the issuing body that was the original issuing body in relation to such an application or such an ASIC or MSIC;
the Secretary may give that advice to the new issuing body.
Note: For decisions that an issuing body is to be an issuing body for transferred ASIC applications or transferred ASICs, see regulation 6.22 of the ATS Regulations. For decisions that an issuing body is to be an issuing body for transferred MSIC applications or transferred MSICs, see regulation 6.07ZA of the MTOFS Regulations.
Subdivision B—Advice about background checks for national health security purposes
19 Advice about background check of an individual—application made by an NHS entity
(1) This section applies if:
(a) an application for a background check of an individual is made by an NHS entity under the provision referred to in subsection 11(1); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history etc.
(2) The Secretary must advise the NHS entity:
(a) whether or not the individual has an unfavourable criminal history; and
(b) whether or not a security assessment of the individual is an adverse security assessment or qualified security assessment; and
(c) if the background check includes an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia—the result of that assessment.
(3) If the Secretary advises the NHS entity under paragraph (2)(a) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the health security relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the NHS entity under paragraph (2)(a) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
20 Advice about background check of an individual—application taken to have been made by an NHS entity
(1) This section applies if:
(a) an application for a background check of an individual is taken to have been made by an NHS entity under paragraph 11(2)(a) or subsection 20B(3); and
(b) AusCheck undertakes a background check of the individual.
Advice relating to criminal history
(2) The Secretary must advise the NHS entity whether or not the individual has an unfavourable criminal history.
(3) If the Secretary advises the NHS entity under subsection (2) that the individual has a qualified criminal record, the advice must be accompanied by a document setting out the health security relevant offences to which the qualified criminal record relates.
(4) If the Secretary advises the NHS entity under subsection (2) that the individual has an unfavourable criminal history, the Secretary must inform the individual of that advice and the reasons for that advice.
20A Advice about background check that is cancelled
If:
(a) an NHS entity applies for a background check of an individual; and
(b) the Secretary cancels the background check under subsection 11A(7);
the Secretary must advise the NHS entity and the individual that the background check is cancelled.
20B AusCheck may undertake new background checks
(1) This section applies if:
(a) the Secretary gives advice about a background check (the original check) of an individual under this Subdivision; and
(b) the Secretary later reasonably suspects that:
(i) any of the requirements of this instrument for the application for the original check were not satisfied; or
(ii) the Secretary did not have all of the required information for the individual when AusCheck undertook the original check; or
(iii) any of the requirements specified for the purposes of paragraph 11A(2)(f) under subsection 11A(3) in relation to the application for the original check were not satisfied; or
(iv) the advice is inaccurate or incomplete.
(1A) This section also applies if:
(a) the Secretary cancels a background check (the original check) of an individual under subsection 11A(7) and gives advice of the cancellation under section 20A; and
(b) the thing that the Secretary requested be done under subsection 11A(2) in relation to the original check is later done.
(2) AusCheck may undertake a new background check of the individual.
(3) If AusCheck does so, for the purposes of the AusCheck scheme:
(a) the NHS entity that applied for the original check is taken to have applied for the new background check; and
(b) the application for the new background check is taken to be the same as the application for the original check (as affected by subsection 11A(6)).
Note: Paragraph (b) may be relevant to whether the Secretary may make a request under subsection 11A(2) in relation to the application.
21 Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
Subdivision C—Advice about background checks for major national event purposes
21A Advice about background check of an individual—application made by organising body etc.
(1) This section applies if, under section 11AA, 11AB or 21C, AusCheck undertakes a background check of an individual in connection with the accreditation of the individual in relation to a major national event.
Advice relating to criminal history etc.
(2) The Secretary must advise the organising body for the major national event:
(a) if the background check included an assessment of the individual’s criminal history—whether or not the individual has an unfavourable criminal history; and
(b) if the background check included a security assessment of the individual—whether or not the security assessment of the individual is an adverse security assessment or qualified security assessment; and
(c) if the background check included an assessment of information relating to whether the individual is an unlawful non‑citizen or holds a visa entitling the individual to work in Australia—the result of that assessment.
(3) If the Secretary advises the organising body under paragraph (2)(a) that the individual has an unfavourable criminal history, the Secretary:
(a) must include in the advice whether the individual has been convicted of an MNE level 1 disqualifying offence, an MNE level 2 offence or an MNE level 3 offence; and
(b) must not include in the advice details of the type of offence of which the individual has been convicted; and
(c) must inform the individual of that advice and the reasons for that advice.
(4) If:
(a) the Secretary has advised the organising body that the individual has been convicted of an MNE level 2 offence or an MNE level 3 offence (the relevant MNE offence); and
(b) the organising body requests the Secretary, in writing, to provide to the organising body details of the relevant MNE offence; and
(c) the individual provides express consent for the Secretary to provide details of the relevant MNE offence to the organising body;
the Secretary must provide to the organising body a document setting out the details of the relevant MNE offence and any sentence imposed for the offence.
21B Advice about background check that is cancelled
If:
(a) a background check of an individual in connection with the accreditation of the individual in relation to a major national event is cancelled under subsection 11A(7); and
(b) had AusCheck completed the check, the Secretary would have been required or authorised, or would have been so required or authorised depending on the results of the background check, to give to the individual or the organising body for the major national event:
(i) advice; or
(ii) a document;
the Secretary must advise the individual or organising body (as the case requires) that the background check is cancelled.
21C AusCheck may undertake new background checks
(1) This section applies if:
(a) the Secretary gives advice about a background check (the original check) of an individual under this Subdivision in connection with the accreditation of the individual in relation to a major national event; and
(b) the Secretary later reasonably suspects that:
(i) any of the requirements of this instrument for the application for the original check were not satisfied; or
(ii) the Secretary did not have all of the required information for the individual when AusCheck undertook the original check; or
(iii) any of the requirements specified under subsection 11A(3) for the purposes of paragraph 11A(2)(f) in relation to the application for the original check were not satisfied; or
(iv) the advice is inaccurate or incomplete.
(1A) This section also applies if:
(a) the Secretary cancels a background check (the original check) of an individual under subsection 11A(7) and gives advice of the cancellation under section 21B; and
(b) the thing that the Secretary requested be done under subsection 11A(2) in relation to the original check is later done.
(2) AusCheck may undertake a new background check of the individual.
(3) If AusCheck does so, for the purposes of the AusCheck scheme:
(a) the organising body for the major national event is taken to have applied for the new background check; and
(b) the application for the new background check is taken to be the same as the application (if any) for the original check (as affected by subsection 11A(6)).
Note: Paragraph (3)(b) may be relevant to whether the Secretary may make a request under subsection 11A(2) in relation to the application.
21D Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
Subdivision D—Advice about background checks for critical infrastructure risk management programs
21DA Advice about background check of an individual
(1) This section applies if AusCheck undertakes a background check of an individual under section 11AD, 11AE or 21DC.
Advice relating to criminal history etc.
(2) The Secretary must advise the responsible entity in relation to whom the CIRMP applies:
(a) if the background check included an assessment of the individual’s criminal history—whether or not the individual has an unfavourable criminal history; and
(b) if the background check included a security assessment of the individual—whether or not the security assessment of the individual is an adverse security assessment or qualified security assessment; and
(c) if the background check included an assessment of information relating to whether the individual holds a visa entitling the individual to work in Australia—whether or not the individual has a right to work in Australia, and if so, the class of visa held.
(3) If the Secretary advises the responsible entity under paragraph (2)(a) that the individual has an unfavourable criminal history, the Secretary:
(a) must include in the advice details of the type of offence of which the individual has been convicted; and
(b) must inform the individual of that advice and the reasons for that advice.
(4) If:
(a) the Secretary has advised the responsible entity in relation to a previous background check of the individual; and
(b) the advice in relation to the previous background check was that the individual had an unfavourable criminal history;
the Secretary must also advise the responsible entity whether there has been a material change in the individual’s criminal history.
(5) If:
(a) the Secretary has advised the responsible entity that the individual has been convicted of a CIRMP‑security‑relevant offence (the relevant CIRMP offence); and
(b) the responsible entity requests the Secretary, in writing, to provide the responsible entity with details of the relevant CIRMP offence; and
(c) the individual provides express consent for the Secretary to provide details of the relevant CIRMP offence to the responsible entity;
the Secretary must provide to the responsible entity a document setting out the details of the relevant CIRMP offence and any sentence imposed for the offence.
21DB Advice about background check that is cancelled
If:
(a) a background check of an individual is cancelled under subsection 11A(7); and
(b) had AusCheck completed the check, the Secretary would have been required or authorised, or would have been so required or authorised depending on the results of the background check, to give to the individual or the responsible entity in relation to whom the CIRMP that permits the background check applies:
(i) advice; or
(ii) a document;
the Secretary must advise the individual or responsible entity (as the case requires) that the background check is cancelled.
21DC AusCheck may undertake new background checks
(1) This section applies if:
(a) the Secretary gives advice about a background check (the original check) of an individual under this Subdivision; and
(b) the Secretary later reasonably suspects that:
(i) any of the requirements of this instrument for the application for the original check were not satisfied; or
(ii) the Secretary did not have all of the required information for the individual when AusCheck undertook the original check; or
(iii) any of the requirements specified under subsection 11A(3) for the purposes of paragraph 11A(2)(f) in relation to the application for the original check were not satisfied; or
(iv) the advice is inaccurate or incomplete.
(2) This section also applies if:
(a) the Secretary cancels a background check (the original check) of an individual under subsection 11A(7) and gives advice of the cancellation under section 21DB; and
(b) the thing that the Secretary requested be done under subsection 11A(2) in relation to the original check is later done.
(3) This section also applies if an individual informs the Secretary, as required under section 21ZB, that the individual has been convicted of a CIRMP level 1 offence or has been convicted of a CIRMP level 2 offence and sentenced to any term of imprisonment for the offence.
(4) AusCheck may undertake a new background check of the individual.
(5) If AusCheck does so, for the purposes of the AusCheck scheme:
(a) the applicant of the original check is taken to have applied for the new background check; and
(b) the application for the new background check is taken to be the same as the application (if any) for the original check (as affected by subsection 11A(6)).
Note: Paragraph (5)(b) may be relevant to whether the Secretary may make a request under subsection 11A(2) in relation to the application.
21DD Secretary must give further advice if initial advice is inaccurate or incomplete
If the Secretary becomes aware that advice about a background check of an individual that has been given under this Subdivision is inaccurate or incomplete, the Secretary must give further advice in accordance with this Subdivision that is accurate and complete.
Subdivision E—Advice about background checks for participation in the Global Entry program
21DE When an individual fails or passes a background check
(1) An individual fails a background check conducted under section 11AH or 11AJ if:
(a) the individual’s identity cannot be verified to the Secretary’s satisfaction; or
(b) the individual’s Australian citizenship cannot be verified to the Secretary’s satisfaction; or
(c) the background check finds that the individual has an unfavourable criminal history; or
(d) 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; or
(e) the Secretary cancels the background check under subsection 11A(7).
Note 1: 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 (see section 12).
Note 2: AusCheck is not required to continue conducting a background check once it is established the individual has failed the background check.
(2) 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.
Note: Passing a background check does not ensure an individual’s participation in the Global Entry program. Participation in the program remains a matter for the discretion of the Government of the United States of America.
21DF Advice about background check of an individual
(1) This section applies if AusCheck conducts a background check of an individual under section 11AH or 11AJ in connection with the individual’s participation in the Global Entry program.
Advice to the entity administering the Global Entry program
(2) After conducting the background check, the Secretary must advise the entity that administers the Global Entry program whether the individual failed or passed the background check.
Note: For when an individual fails or passes a background check, see section 21DE.
(3) The Secretary must not provide any other information about the background check of the individual to the entity that administers the Global Entry program.
Notifying the individual
(4) If the individual failed the background check by reason of having an unfavourable criminal history, the Secretary must advise the individual of the reasons the individual was found to have an unfavourable criminal history.
Note: If the individual is under 18 years of age, the Secretary must instead advise the responsible parent of the individual (see subsection 11AF(3)).
(5) If the individual is not the applicant for the background checks, the Secretary may discharge the obligation under subsection (4) by giving the information to the person who made the application under subsection 11AF(2).
Division 5A—Matters relating to major national events
Subdivision A—Organising bodies and types of assessments and identity checks
21E Organising bodies for major national events
The Minister may, by notifiable instrument, declare a person to be the organising body for a major national event.
21F Minister may declare types of assessments and identity verification checks for background checks
The Minister may, by notifiable instrument, declare:
(a) that background checks of individuals in connection with MNE accreditation in relation to a major national event must include assessment of information relating to one or more of the matters mentioned in paragraphs 5(a), (b), (c) and (d) of the Act, as specified in the instrument; and
(b) if the Minister declares that background checks must include assessment of information relating to the matter mentioned in paragraph 5(d) of the Act—that those assessments must consist of:
(i) electronic identity verification checks; or
(ii) in person identity verification checks; or
(iii) both electronic identity verification checks and in person identity verification checks.
Subdivision B—Applying for background checks and requirements for identity verification checks
21G Arranging background check
An organising body for a major national event may apply to AusCheck for a background check of an individual in connection with the accreditation of the individual in relation to the major national event.
21H Electronic identity verification checks
If, under paragraph 21F(b), a background check of an individual in connection with MNE accreditation in relation to a major national event must include an electronic identity verification check, AusCheck must not conduct the check unless, subject to section 21K, the following are provided to AusCheck:
(a) details of a Category A identification document or a Category B identification document, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check;
(b) if an individual is at least 16 years of age at the time of the check—a record of the individual having given express consent to the identity of the individual being verified.
21J In person identity verification checks
(1) If, under paragraph 21F(b), a background check of an individual in connection with MNE accreditation in relation to a major national event must include an in person identity verification check, the check must be conducted in accordance with this section.
Individuals who are 18 years of age or older
(2) Subject to section 21K, if an individual is at least 18 years of age at the time of the in person identity verification check, the individual must attend the check in person and must give to the verifying person conducting the check:
(a) the following documents:
(i) a Category A identification document;
(ii) a Category B identification document that is different from the Category A identification document;
(iii) a Category C identification document that is different from the Category A identification document and the Category B identification document;
(iv) if evidence of the individual’s current residential address is not set out in a document already given—a Category D identification document; and
(b) if the individual’s identity has been verified electronically before the in person identity verification check has been conducted—the identity documents the details of which were used to electronically verify the individual’s identity.
Individuals under 18 years of age
(3) Subject to section 21K, if an individual is under 18 years of age at the time of the in person identity verification check, the individual must attend the check in person and must give to the verifying person conducting the check:
(a) a Category A identification document; and
(b) if the individual’s identity has been verified electronically before the in person identity verification check has been conducted—the identity documents the details of which were used to electronically verify the individual’s identity.
Identity to be verified at time the individual attends the check
(4) The verifying person conducting the in person identity verification check must verify the individual’s identity at the time the individual attends the check, unless the individual is exempted under section 21K from the requirement to attend the identity verification check in person.
Identification documents must be provided for each identity verification
(5) To avoid doubt, the individual must give the documents referred to in subsection (2) or (3) to the verifying person conducting the in person identity verification check even if the individual has previously given the same documents to the verifying person, or to a verifying person, in relation to another background check for MNE accreditation.
21K Exemptions
(1) This section applies if, for the purposes of an identity verification check under section 21H or 21J in connection with MNE accreditation in relation to a major national event, an individual is unable:
(a) for an electronic identity verification check—to provide details of a Category A identification document or a Category B identification document, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check; or
(b) for an in person identity verification check—either:
(i) to provide a Category A identification document; or
(ii) to attend the identity verification check in person.
(2) The individual or the organising body for the major national event may apply to the Secretary for an exemption from whichever of the following requirements applies:
(a) to provide details of a Category A identification document or details of a Category B identification document;
(b) to provide a Category A identification document;
(c) to attend the identity verification check in person.
Requirements for application
(3) The application must:
(a) be made electronically; and
(b) set out which of the requirements mentioned in subsection (2) the individual is unable to satisfy; and
(c) set out the reasons why the individual is unable to satisfy those requirements; and
(d) if the application is for an exemption from the requirement to attend an identity verification check in person—be accompanied by the following:
(i) a photograph of the individual (taken no more than one month before the date of the application) showing the individual’s full face and the individual’s head and shoulders;
(ii) copies of the identification documents required under subsection 21J(2) or (3) that are certified in accordance with subsection (4) of this section; and
(e) include any other information that may assist the Secretary in making a decision about whether to grant an exemption in relation to the individual.
Certification of documents
(4) For the purposes of subparagraph (3)(d)(ii), a copy of an identification document must be certified, in writing, by a person prescribed by section 7 of the Statutory Declarations Regulations 2018, to be a true copy of the original identification document.
Matters to be considered
(5) In making a decision under this section in relation to the individual, the Secretary must consider the following matters:
(a) the reasons set out in the application under paragraph (3)(c);
(b) any other information provided under paragraph (3)(e).
Requirement for further information
(6) If the Secretary requires further information to consider the application, the Secretary may request the applicant to give the further information within 30 days after receiving the request.
When decision must be made
(7) The Secretary must, in writing and within 30 days after receiving the application or, if further information is requested, within 30 days after receiving the further information in accordance with subsection (6):
(a) do either of the following:
(i) grant the exemption in relation to the individual;
(ii) refuse to grant the exemption in relation to the individual; and
(b) notify the applicant of the decision; and
(c) if the decision is a refusal—notify the applicant of the reasons for the refusal.
(8) The Secretary is taken to have refused to grant the exemption if the Secretary has not made a decision on the application within the period mentioned in subsection (7).
21L AusCheck not required to continue background check if identity not verified
AusCheck is not required to continue undertaking a background check of an individual in connection with MNE accreditation if the identity of the individual is unable to be verified in accordance with section 21H or 21J (as affected by section 21K).
Subdivision C—Decisions in relation to MNE accreditation
21M Decisions in relation to MNE accreditation
(1) This section applies if:
(a) AusCheck undertakes a background check of an individual in connection with the accreditation of the individual in relation to a major national event; and
(b) under section 21A or 21D, the Secretary advises the organising body for the major national event of the result of the background check.
(2) If the Secretary advises the organising body that:
(a) if the background check included a criminal record check of the individual—the individual has been convicted of an MNE level 1 disqualifying offence; or
(b) if the background check included a security assessment of the individual—the security assessment of the individual is an adverse security assessment or qualified security assessment;
the organising body:
(c) must decide not to issue an MNE accreditation to the individual in relation to the major national event; or
(d) if the organising body has issued an MNE accreditation to the individual in relation to the major national event—must decide to cancel the individual’s MNE accreditation within 48 hours after receiving the Secretary’s advice.
(3) Except as provided under subsection (2), nothing in this section limits the decision an organising body may make in connection with MNE accreditation in relation to a major national event.
(4) An organising body for a major national event commits an offence if:
(a) the Secretary advises the organising body as mentioned in subsection (2) in relation to an individual; and
(b) the organising body:
(i) issues an MNE accreditation to the individual in relation to the major national event after receiving the Secretary’s advice; or
(ii) if, before receiving the Secretary’s advice, the organising body has issued an MNE accreditation to the individual in relation to the major national event—fails to cancel the MNE accreditation within 48 hours after receiving the Secretary’s advice.
Penalty for a contravention of subsection (4): 5 penalty units.
21N Organising body must advise Secretary of certain decisions
An organising body commits an offence if:
(a) the Secretary advises the organising body about a background check of an individual under section 21A; and
(b) after receiving the Secretary’s advice, the organising body makes a decision to issue, or not to issue, an MNE accreditation to the individual in relation to a major national event; and
(c) the organising body does not inform the Secretary of the decision within 7 days after making the decision.
Penalty: 5 penalty units.
21P Organising body must inform Secretary of cancellation or suspension of an MNE accreditation
An organising body commits an offence if:
(a) the Secretary advises the organising body about a background check of an individual under section 21A or 21D; and
(b) after receiving the Secretary’s advice, the organising body issues an MNE accreditation to the individual for a particular period; and
(c) the organising body cancels or suspends the accreditation before the end of that period; and
(d) the organising body does not inform the Secretary of the cancellation or suspension within 48 hours after that cancellation or suspension occurs.
Penalty: 5 penalty units.
Division 5B—Matters relating to critical infrastructure risk management programs
Subdivision A—Applying for background checks and requirements for identity verification checks
21Q Arranging background check
The following persons may apply to AusCheck for a background check of an individual if a CIRMP permits a background check of the individual:
(a) the individual;
(b) the responsible entity in relation to whom the CIRMP applies.
21V Electronic identity verification checks
(1) This section applies if a CIRMP permits a background check of an individual and provides that the background check must include an electronic identity verification check.
(2) AusCheck must not conduct the check unless, subject to section 21X, the following are provided to AusCheck:
(a) details of a Category A identification document or a Category B identification document, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check;
(b) if the individual is at least 16 years of age at the time of the check—a record of the individual having given express consent to the identity of the individual being verified.
21W In person identity verification checks
(1) If a CIRMP permits a background check of an individual and provides that the background check must include an in person identity verification check, the check must be conducted in accordance with this section.
Individuals who are 18 years of age or older
(2) Subject to section 21X, if the individual is at least 18 years of age at the time of the in person identity verification check, the individual must attend the check in person and must give to the verifying person conducting the check:
(a) the following documents:
(i) a Category A identification document;
(ii) a Category B identification document that is different from the Category A identification document;
(iii) a Category C identification document that is different from the Category A identification document and the Category B identification document;
(iv) if evidence of the individual’s current residential address is not set out in a document already given—a Category D identification document; and
(b) if the individual’s identity has been verified electronically before the in person identity verification check has been conducted—the identity documents the details of which were used to electronically verify the individual’s identity.
Individuals under 18 years of age
(3) Subject to section 21X, if an individual is under 18 years of age at the time of the in person identity verification check, the individual must attend the check in person and must give to the verifying person conducting the check:
(a) a Category A identification document; and
(b) if the individual’s identity has been verified electronically before the in person identity verification check has been conducted—the identity documents the details of which were used to electronically verify the individual’s identity.
Identity to be verified at time the individual attends the check
(4) The verifying person conducting the in person identity verification check must verify the individual’s identity at the time the individual attends the check, unless the individual is exempted under section 21X from the requirement to attend the identity verification check in person.
Identification documents must be provided for each identity verification
(5) To avoid doubt, the individual must give the documents referred to in subsection (2) or (3) to the verifying person conducting the in person identity verification check even if the individual has previously given the same documents to the verifying person, or to a verifying person, in relation to another background check permitted under the CIRMP or any other CIRMP.
21X Exemptions
(1) This section applies if, for the purposes of an identity verification check under section 21V or 21W, an individual for whom a CIRMP permits a background check to be conducted is unable:
(a) for an electronic identity verification check—to provide details of a Category A identification document or a Category B identification document, being details AusCheck can use to verify electronically the individual’s identity for the purposes of a background check; or
(b) for an in person identity verification check—either:
(i) to provide a Category A identification document; or
(ii) to attend the identity verification check in person.
(2) The individual, or the responsible entity in relation to whom the CIRMP applies, may apply to the Secretary for an exemption from whichever of the following requirements applies:
(a) to provide details of a Category A identification document or details of a Category B identification document;
(b) to provide a Category A identification document;
(c) to attend the identity verification check in person.
Requirements for application
(3) The application must:
(a) be made electronically; and
(b) set out which of the requirements mentioned in subsection (2) the individual is unable to satisfy; and
(c) set out the reasons why the individual is unable to satisfy those requirements; and
(d) if the application is for an exemption from the requirement to attend an identity verification check in person—be accompanied by the following:
(i) a photograph of the individual (taken no more than one month before the date of the application) showing the individual’s full face and the individual’s head and shoulders;
(ii) copies of the identification documents required under subsection 21W(2) or (3) that are certified in accordance with subsection (4) of this section; and
(e) include any other information that may assist the Secretary in making a decision about whether to grant an exemption in relation to the individual.
Certification of documents
(4) For the purposes of subparagraph (3)(d)(ii), a copy of an identification document must be certified, in writing, by a person prescribed by section 7 of the Statutory Declarations Regulations 2018, to be a true copy of the original identification document.
Matters to be considered
(5) In making a decision under this section in relation to the individual, the Secretary must consider the following matters:
(a) the reasons set out in the application under paragraph (3)(c);
(b) any other information provided under paragraph (3)(e).
Requirement for further information
(6) If the Secretary requires further information to consider the application, the Secretary may request the applicant to give the further information within 30 days after receiving the request.
When decision must be made
(7) The Secretary must, in writing and within 30 days after receiving the application or, if further information is requested, within 30 days after receiving the further information in accordance with subsection (6):
(a) do either of the following:
(i) grant the exemption in relation to the individual;
(ii) refuse to grant the exemption in relation to the individual; and
(b) notify the applicant of the decision; and
(c) if the decision is a refusal—notify the applicant of the reasons for the refusal.
(8) The Secretary is taken to have refused to grant the exemption if the Secretary has not made a decision on the application within the period mentioned in subsection (7).
21Y AusCheck not required to continue background check if identity not verified
AusCheck is not required to continue undertaking a background check of an individual for whom a CIRMP permits a background check to be conducted if the identity of the individual is unable to be verified in accordance with section 21V or 21W (as affected by section 21X).
Subdivision B—Provision of information relating to background checks for critical infrastructure risk management program purposes
21ZA Responsible entity must inform Secretary of certain decisions
Decision to grant access to certain assets
(1) A responsible entity commits an offence if:
(a) the Secretary advises the responsible entity about a background check of an individual under section 21DA or 21DD; and
(b) in the advice, the Secretary advises that:
(i) the individual has an unfavourable criminal history; or
(ii) the security assessment of the individual is an adverse security assessment or qualified security assessment; and
(c) after receiving the advice, the responsible entity makes a decision to grant, or continue to grant, the individual access to a critical infrastructure asset declared by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(d) the responsible entity does not inform the Secretary of the decision within 7 days after making the decision.
Penalty: 5 penalty units.
Decision to revoke access to certain assets
(2) A responsible entity commits an offence if:
(a) the responsible entity makes a decision to grant, or continue to grant, an individual access to a critical infrastructure asset declared by the Minister for the purposes of paragraph (1)(c); and
(b) the responsible entity later makes a decision to revoke the individual’s access to the asset; and
(c) the responsible entity does not inform the Secretary of the decision within 48 hours after making the decision.
Penalty: 5 penalty units.
21ZB Individual must inform Secretary of certain CIRMP‑security‑relevant offences
CIRMP level 1 offence—conviction
(1) An individual commits an offence if:
(a) the Secretary advises a responsible entity about a background check of the individual under section 21DA or 21DD; and
(b) after receiving the advice, the responsible entity makes a decision to grant, or continue to grant, the individual access to a critical infrastructure asset declared by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(c) during the period of 2 years beginning on the day the Secretary gives the advice, the individual is convicted of a CIRMP level 1 offence; and
(d) the individual does not inform the Secretary, in writing, of the following matters within 7 days after individual is convicted:
(i) the individual’s name, date of birth and residential address;
(ii) the date the individual was convicted;
(iii) the court in which the individual was convicted.
Penalty: 5 penalty units.
CIRMP level 2 offence—conviction and imprisonment
(2) An individual commits an offence if:
(a) the Secretary advises a responsible entity about a background check of the individual under section 21DA or 21DD; and
(b) after receiving the advice, the responsible entity makes a decision to grant, or continue to grant, the individual access to a critical infrastructure asset declared by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(c) during the period of 2 years beginning on the day the Secretary gives the advice, the individual is convicted of a CIRMP level 2 offence and sentenced to any term of imprisonment for the offence; and
(d) the individual does not inform the Secretary, in writing, of the following matters within 7 days after individual is sentenced:
(i) the individual’s name, date of birth and residential address;
(ii) the date the individual was convicted and sentenced;
(iii) the court in which the individual was convicted and sentenced.
Penalty: 5 penalty units.
Division 6—Online verification service
22 Issuing body must give Secretary certain information after background check of an individual
(1) This section applies if the Secretary gives an issuing body advice (the background check advice) about a background check of an individual under section 13.
Information about individual with operational need for ASIC or MSIC
(2) If:
(a) the issuing body proposes to issue an ASIC or MSIC to the individual; and
(b) the application for the background check of the individual did not include the information referred to in paragraph 5(1)(h) or (j) (as the case may be);
the issuing body must, before issuing the ASIC or MSIC to the individual, give the Secretary that information.
Information about holder, or proposed holder, of ASIC or MSIC
(3) If the issuing body issues, or proposes to issue, an ASIC or MSIC to the individual, the issuing body must, within the notification period, give the Secretary:
(a) the following information:
(i) if the issuing body issues, or proposes to issue, a replacement ASIC or MSIC to the individual because the individual’s full name has changed—the individual’s former and current full names;
(ii) if subparagraph (i) does not apply—the individual’s full name;
(iii) the number and expiry date of the ASIC or MSIC;
(iv) for an ASIC—the locations for which it is, or will be, valid; and
(b) a photograph of the individual.
(4) The Secretary may grant an issuing body an exemption from the requirement to give the Secretary a photograph of an individual under paragraph (3)(b).
(5) The notification period is the period ending 7 days after the ASIC or MSIC is issued to the individual.
Information about cancellation or suspension of ASIC or MSIC
(6) If:
(a) the issuing body issues an ASIC or MSIC to the individual; and
(b) the ASIC or MSIC is cancelled or suspended before its expiry date;
the issuing body must inform the Secretary of the cancellation or suspension within 48 hours after that cancellation or suspension occurs.
Information about lost, stolen or destroyed ASIC or MSIC
(7) If:
(a) the issuing body issues an ASIC or MSIC to the individual; and
(b) the ASIC or MSIC is lost, stolen or destroyed;
the issuing body must inform the Secretary of that matter within 48 hours after becoming aware of the loss, theft or destruction.
23 Issuing body must inform Secretary of decision not to issue ASIC or MSIC to certain individuals
If:
(a) AusCheck undertakes a background check of an individual; and
(b) the Secretary advises an issuing body under section 13 that:
(i) the individual does not have an unfavourable criminal history; or
(ii) the security assessment of the individual is not an adverse security assessment or qualified security assessment; or
(iia) the Department has not been given an adverse criminal intelligence assessment of the individual; or
(iii) the individual is not an unlawful non‑citizen; or
(iv) the individual holds a visa entitling the individual to work in Australia; and
(c) the issuing body decides not to issue an ASIC or MSIC to the individual;
the issuing body must inform the Secretary of that decision as soon as practicable after the decision is made.
24 NHS entity must inform Secretary of cancellation or suspension of an authorisation under SSBA Standards
If:
(a) the Secretary gives an NHS entity advice about a background check of an individual under section 19 or 20; and
(b) the NHS entity authorises the individual under clause 3.3 of the SSBA Standards for a particular period; and
(c) the NHS entity cancels or suspends the authorisation before the end of that period;
the NHS entity must inform the Secretary of the cancellation or suspension within 48 hours after that cancellation or suspension occurs.
Division 7—Other matters
25 Assessment of information relating to an individual’s criminal history from foreign countries
(1) This section applies if a background check of an individual includes an assessment of information relating to the individual’s criminal history.
(2) The information relating to the individual’s criminal history must not include information (the foreign information) from a country other than Australia unless the law that requires or authorises the background check of the individual to be conducted under the AusCheck scheme:
(a) specifies the circumstances in which the foreign information may be assessed; and
(b) sets out the criteria against which the foreign information must be assessed.
26 Review by the Administrative Review Tribunal
(1) Applications may be made to the Administrative Review Tribunal for review of decisions of the Secretary to do any of the following:
(a) to refuse to grant an exemption in relation to an individual under subsection 5A(6), 21K(7) or 21X(7);
(b) to grant an exemption in relation to an individual under subsection 5A(6) subject to one or more conditions;
(c) to advise under Division 5 that an individual has an unfavourable criminal history.
(2) Paragraph (1)(c) does not apply in relation to advice given under section 21DF in connection with an individual’s participation in the Global Entry program.
27 Website
The Secretary must keep a website about the AusCheck scheme.
Part 3—AusCheck database
28 Treatment of new issuing body for transferred ASIC or MSIC applications etc. for the purposes of the AusCheck database
If the Secretary decides that an issuing body (the new issuing body) is to be the issuing body for:
(a) transferred ASIC applications or transferred ASICs; or
(b) transferred MSIC applications or transferred MSICs;
then, for the purposes of the AusCheck database, the new issuing body is taken to be, and to have always been, the issuing body for such an application or such an ASIC or MSIC.
Note: For decisions that an issuing body is to be an issuing body for transferred ASIC applications or transferred ASICs, see regulation 6.22 of the ATS Regulations. For decisions that an issuing body is to be an issuing body for transferred MSIC applications or transferred MSICs, see regulation 6.07ZA of the MTOFS Regulations.
29 Guidelines about use and disclosure of information included in AusCheck database
(1) The Secretary may issue written guidelines about the use and disclosure of information included in the AusCheck database.
(2) If the Secretary issues guidelines under subsection (1), an AusCheck staff member must comply with the guidelines.
Part 4—Miscellaneous matters
30 Fees
Application fees
(1) The Secretary may charge a fee under this subsection for an application for one or more background checks of an individual.
(2) The amount of the fee must be based on the number, nature and complexity of the background checks of an individual.
Note 1: A higher fee may be required for an initial background check of an individual than for a subsequent background check of the individual.
Note 2: The fee for a background check of an individual may vary depending on the kinds of information mentioned in section 5 of the Act that are to be assessed as part of the background check.
Note 3: 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.
Additional fees if further information etc. requested
(2A) The Secretary may charge a fee under this subsection for an application for a background check of an individual if:
(a) the Secretary makes a request in relation to the application under subsection 11A(2); and
(b) the background check is not cancelled under subsection 11A(7).
(2B) The amount of the fee must be based on:
(a) the nature and complexity of a background check of an individual; and
(b) the effect on a background check of an individual of a request needing to be made under subsection 11A(2).
(2C) A fee under subsection (2A) of this section is in addition to any fee the Secretary charges for the application under subsection (1).
General matters
(3) If a fee under subsection (1) or (2A) is payable:
(a) by an individual; or
(b) by an issuing body, NHS entity, organising body or responsible entity that is not the Commonwealth or an unincorporated Commonwealth authority;
the fee is a debt due to the Commonwealth and is recoverable by the Secretary on behalf of the Commonwealth.
(4) The Secretary may charge a fee under subsection (1) or (2A) in respect of a matter only if the Commonwealth incurs expenses, or expects to incur expenses, in relation to the matter under the Act or this instrument.
Note: Under paragraph 18(2)(a) of the Act, a fee must not be such as to amount to taxation.
(5) The Secretary may, if satisfied that it is appropriate in all circumstances, refund the whole or part of a fee that is charged under subsection (1).
Part 5—Transitional, application and savings provisions
Division 1—AusCheck Regulations 2017
31 Transitional provision—applications for background checks
(1) This section applies in relation to an application for a background check of an individual if:
(a) the application was made, or was taken to have been made, before the repeal of the old regulations; and
(b) immediately before that repeal, the application has not been finally dealt with in accordance with the old regulations.
(2) On and after 1 August 2017, the application is taken to have been made, and may be dealt with, in accordance with this instrument.
32 Transitional provision—preliminary assessments
(1) This section applies if a notice was given to an individual under regulation 8 of the old regulations before their repeal.
Saving of pre‑repeal notices
(2) If:
(a) the day mentioned in the notice, or nominated by the Secretary under subregulation 8(4) of the old regulations, is on or after the day on which the old regulations are repealed; and
(b) the individual has not made any representations to the Secretary immediately before the repeal of the old regulations;
the notice continues to have effect, on and after 1 August 2017, as if it had been given under section 12 of this instrument.
Representations made but not considered before repeal
(3) If:
(a) the individual made representations to the Secretary in accordance with the notice before the repeal of the old regulations; and
(b) immediately before that repeal, the Secretary has not considered the representations;
subsection 12(6) of this instrument applies, on and after 1 August 2017, in relation to the representations.
34 Application provision—online verification service requirements
(1) This section applies if:
(a) before the repeal of the old regulations, an issuing body or NHS entity was required to comply with regulation 14 or 14A of the old regulations in relation to a matter relating to an individual; and
(b) immediately before that repeal, the time for complying with regulation 14 or 14A of the old regulations (as the case may be) has not ended.
(2) On and after 1 August 2017, the issuing body or NHS entity is required to comply with whichever of sections 22, 23 and 24 of this instrument are applicable in relation to the matter relating to the individual.
35 Savings provision—guidelines
If:
(a) guidelines were issued under regulation 15 of the old regulations; and
(b) the guidelines were in force immediately before the repeal of the old regulations;
the guidelines continue in force, and may be dealt with, on and after 1 August 2017 as if they had been issued under section 29 of this instrument.
36 Application provision—amendments made by AusCheck Amendment (System Functionality) Regulations 2017
The amendments made by the AusCheck Amendment (System Functionality) Regulations 2017 apply in relation to applications for background checks made after that instrument commences.
37 Application provision—amendments made by the AusCheck Legislation Amendment (Required Information) Regulations 2019
Required information
(1) The amendments made by Division 2 of Part 1 of Schedule 1 to the AusCheck Legislation Amendment (Required Information) Regulations 2019 apply in relation to applications for background checks made on or after 1 July 2019.
(2) The amendments made by Division 3 of Part 1 of Schedule 1 to the AusCheck Legislation Amendment (Required Information) Regulations 2019 apply in relation to issuing, or proposing to issue, an ASIC or MSIC if:
(a) the notification period ends on or after 1 July 2019; and
(b) the issuing body did not give the Secretary the matters required by subsection 22(3) of this instrument (as in force on 30 June 2019) in relation to the ASIC or MSIC on or before 30 June 2019.
Requests for information
(3) Section 11A, as inserted by the AusCheck Legislation Amendment (Required Information) Regulations 2019, applies in relation to:
(a) an application for a background check made on or before 30 June 2019 if the background check was not completed on or before 30 June 2019; or
(b) an application for a background check made on or after 1 July 2019.
Additional background checks
(4) For the purposes of sections 16A and 20B, as inserted by the AusCheck Legislation Amendment (Required Information) Regulations 2019, it does not matter whether the Secretary gave the advice about the original check before, on or after 1 July 2019.
Fees
(5) The amendment of subsection 30(1) made by the AusCheck Legislation Amendment (Required Information) Regulations 2019 does not apply in relation to a fee charged on or before 30 June 2019.
(6) Subsections 30(2A), (2B) and (2C), as inserted by the AusCheck Legislation Amendment (Required Information) Regulations 2019, apply in relation to a request made under subsection 11A(2) on or after 1 July 2019, whether the application for the background check was made before, on or after 1 July 2019.
38 Application provision—amendments made by the AusCheck Legislation Amendment (2019 Measures No. 1) Regulations 2019
The amendment of section 22 made by Part 2 of Schedule 1 to the AusCheck Legislation Amendment (2019 Measures No. 1) Regulations 2019 applies in relation to issuing an ASIC or MSIC on or after the commencement of this section.
39 Application provision—amendments made by the Transport Security Legislation Amendment (Serious Crime) Regulations 2021
The amendments made by the Transport Security Legislation Amendment (Serious Crime) Regulations 2021 apply in relation to applications for background checks made after that instrument commences.
40 Application provision—amendments made by Schedule 1
(1) The amendments of sections 13, 14, 15A and 16A made by Schedule 1 to the Transport Security Legislation Amendment (Serious Crime) Regulations 2022 apply in relation to any background check for which an application is made after the commencement of that Schedule.
(2) The amendments of section 16 made by Schedule 1 to the Transport Security Legislation Amendment (Serious Crime) Regulations 2022 apply in relation to any application in relation to an individual made under subregulation 6.29(1) or 6.43A(2) of the ATS Regulations or subregulation 6.08F(1) or 6.08MA(2) of the MTOFS Regulations after commencement of that Schedule, whether the background check of the individual was undertaken before or after that commencement.
(3) The amendments of sections 18 and 28 made by Schedule 1 to the Transport Security Legislation Amendment (Serious Crime) Regulations 2022 apply in relation to any decision that an issuing body is to be the issuing body for transferred ASIC applications or transferred ASICs, or transferred MSIC applications or transferred MSICs, made after the commencement of that Schedule.
41 Application provision—amendments made by Schedule 2
The amendments of sections 13 and 14 made by Schedule 2 to the Transport Security Legislation Amendment (Serious Crime) Regulations 2022 apply in relation to any background check for which an application is made after the commencement of that Schedule.
42 Application provision—amendments made by the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023
(1) The amendments of sections 13, 14 and 23 made by Schedule 1 to the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023 apply in relation to any background check for which an application is made after the commencement of that Schedule (the commencement time).
(2) The amendments of sections 13, 14 and 23 made by Schedule 1 to the Transport Security Legislation Amendment (Criminal Intelligence Threshold) Regulations 2023 also apply in relation to any background check of an individual if:
(a) an application for the background check is made before the commencement time; and
(b) the Secretary does not, before the commencement time, advise the issuing body mentioned in that section whether or not an adverse criminal intelligence assessment of the individual has been given to the Secretary.
commencement day means the day that Schedule 1 to the AusCheck Amendment (Global Entry Program) Regulations 2025 commences.
44 Application provision—amendments made by the AusCheck Amendment (Global Entry Program) Regulations 2025
Transitional—pre‑commencement applicants
(1) An application for background checks in connection with an individual’s participation in the Global Entry program that was made before the commencement day is taken to be an application made under subsection 11AF(2), unless no background checks on the individual had been started by the commencement day.
(2) A background check conducted by AusCheck in connection with an individual’s participation in the Global Entry program before the commencement day is taken to be a background check conducted under 11AH(1).
(3) If:
(a) before the commencement day, a person made an application for background checks in connection with an individual’s participation in the Global Entry program; and
(b) on the commencement day, no background checks on the individual had been started;
AusCheck may require the applicant to update and resubmit the application under subsection 11AF(2).
(4) An application resubmitted under subsection (3) is taken to be made on the day it is resubmitted.
Transitional—pre‑commencement GEP participants
(5) The amendments made by Schedule 1 to the AusCheck Amendment (Global Entry Program) Regulations 2025 apply in relation to an individual who is a participant in the Global Entry program, regardless of whether the individual first became a participant in the program before, on or after the commencement day.
(6) Despite subsection (5), an individual who made an application before the commencement day is not liable to pay a fee under section 30 for any background checks of the individual in relation to that application conducted under subsection 11AH(1) or (3) before, on or after that commencement.
Note: This subsection does not apply in relation to an individual who resubmits an application under subsection (3) of this section.
Transitional—meaning of conviction for ATS regulations and MTOFS regulations
(7) Subsections 4A(2) and (3), as inserted by Schedule 1 to the AusCheck Amendment (Global Entry Program) Regulations 2025, apply in relation to a conviction of an individual in respect of whom a background check is made, regardless of whether:
(a) the conviction occurs before, on or after the commencement day; or
(b) the application for the background check is made before, on or after the commencement day.
Division 9—Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026
45 Application provision—amendments made by the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026
(1) The amendments of sections 13, 14 and 23 made by Division 4 of Part 2 of Schedule 2 to the Combatting Antisemitism, Hate and Extremism (Firearms and Customs Laws) Act 2026 apply in relation to the following:
(a) an application for a background check made on or after the commencement of this section;
(b) an application for a background check made before the commencement of this section that had not been completed before that commencement.
(2) In relation to a background check covered by paragraph (1)(b), subsections 13(4A) and 14(6) and subparagraph 23(b)(iia), as in force on or after the commencement of this section, apply as if a reference to an adverse criminal intelligence assessment included a reference to a high risk criminal intelligence assessment (within the meaning of this instrument as in force immediately before that commencement).