Bills Digest no. 73 2009–10
National Health Security Amendment (Background Checking)
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National Health Security Amendment
(Background Checking) Bill 2009
Date introduced: 19 November 2009
House: House of
Portfolio: Health and Ageing
Commencement: On royal assent
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
The National Health Security
Amendment (Background Checking) Bill 2009 (the NHS Bill) seeks to
amend the National Health Security Act 2007 (the NHS Act)
to enable the Minister to require that the Australian Background
Checking Service of the Attorney-General s Department (AusCheck)
conducts background checking of people who handle or dispose of
security sensitive biological agents (SSBAs).
As to information about the establishment of the national health
security regime in Australia and the basis of the policy commitment
behind such a regime, please refer to the Bills Digest for the
National Health Security Amendment Bill 2009.
Briefly, the NHS Act was designed to enhance Australia s
capability to protect the health of the nation and to respond to
naturally occurring epidemics or to terrorist attacks involving
chemical, biological and radiological agents.  The NHS Bill amends the NHS Act to
enable background checks of individuals to determine their
suitability to handle or dispose of security-sensitive biological
agents, which may include bacteria, viruses or toxins from
biological sources such as animals, plants and microbes.
As to general information about the establishment of the
Auscheck scheme in Australia and the basis of the policy commitment
behind that scheme, please refer to the Bills Digest for the
AusCheck Amendment Bill 2009 (the AusCheck Bill).
The AusCheck Bill, which has passed both Houses, had been
referred to the Senate Legal and Constitutional Affairs Legislation
Committee (the Committee) for inquiry and report.
During its inquiry, the Committee noted that the AusCheck Bill,
as introduced, would have expanded the operation of the
AusCheck Act 2007 (the AusCheck Act) to the effect that,
via regulations, background checks would be expanded to include
checks for many and broadly-defined national security purposes; as
well as for defence, national emergencies and matters relating to
the executive power of the Commonwealth and matters incidental to
the legislative powers of the Parliament. Currently, the AusCheck
Act is limited to background checks for the Aviation Transport
Security Act 2004 and the Maritime Transport and Offshore
Facilities Act 2003.
One of the Committee s recommendations was that:
a clause be inserted into the Bill clarifying
that no background checking scheme may be established under either
the AusCheck Act nor regulations promulgated under the Act in the
absence of another Act of Parliament providing for the
establishment of such a scheme.
The AusCheck Bill was subsequently amended and it is stated in
the supplementary Explanatory Memorandum to the amended version of
the AusCheck Bill that:
The purpose of these amendments to the AusCheck
Amendment Bill 2009 is to respond to a report of the Senate
Standing Committee on Legal and Constitutional Affairs (the Senate
In its report completed on 18 June 2009, the
Senate Committee made a number of recommendations for amending the
AusCheck Amendment Bill. The Senate Committee expressed concerns
about ambiguity in the scope of the regulation-making power in the
AusCheck Amendment Bill, the breadth of the definition for national
security and the handling of personal information by AusCheck
collected for the purpose of the AusCheck Scheme.
These amendments have been framed to address
the Committee's concerns. 
That was confirmed in the Explanatory Memorandum to the NHS
There is currently no requirement for
background checking of persons who handle or dispose of SSBAs.
The legislative framework for AusCheck to
provide background checks under the SSBA Standards was included in
the AusCheck Amendment Bill 2009 which was introduced into
Parliament during the 2009 Autumn sittings. The AusCheck Amendment
Bill was referred to the Senate Standing Committee on Legal and
Constitutional Affairs in May 2009. The Senate Committee
recommended that no background checking scheme could be established
under the AusCheck legislation in the absence of another Act of
Parliament providing for the establishment of such a scheme.
The change proposed by this Bill has arisen
because of the Senate Committee s recommendation and is simply to
enable a principal Act, the NHS Act, to establish a background
checking scheme to be conducted by AusCheck.
On 26 November 2009, the Senate Selection of Bills Committee
recommended that the NHS Bill not be referred to any parliamentary
committee for inquiry and report.
It is also noted that the Senate Standing Committee for the
Scrutiny of Bills chose to make no comment on the NHS Bill.
The Minister states that the proposed change has been subject to
However, as at 24 November 2009, no stakeholder comment on the
proposed amendment has been made accessible.
According to the Government, there would be no financial impact
from the NHS Bill as the proposed measures could be implemented
within existing resources.
There is only one amendment proposed in the NHS Bill.
Item 1 proposes to insert new
subsection 35(2A) into the NHS Act.
Subsections 35(1) and (2) of the NHS Act gives the Minister
discretionary power to determine standards relating to security
sensitive biological agents (SSBAs). These standards may set out
requirements relating to matters including the security status of
people who may handle or dispose of SSBAs. Proposed new
subsection 35(2A) explicitly provides that background
checks of people by AusCheck, in determining whether they should be
authorised to handle or dispose of SSBAs, is an example of such a
It is noted that the NHS Bill itself does not refer to any
review or appeal process and that the NHS Act also does not provide
for review of decisions relating to background checks. However, it is noted
that under subregulations 8(2) and (3) of the AusCheck
Regulations 2007 (the AusCheck Regulations), where the
Secretary of the Attorney-General s Department makes a preliminary
assessment that the outcome of a background check should include
information about the person s unfavourable criminal history:
(2) The Secretary must give the individual
(a) about the substance of the unfavourable
criminal history advice; and
(b) giving the individual an opportunity to
make representations to the Secretary on or before the day
mentioned in the notice, or a later day nominated under
subregulation (4), about whether the individual s criminal history
discloses any of the matters mentioned in paragraph 9 (1) (a).
(3) The day mentioned in the notice must be at
least 28 days after the day on which the notice is given.
Subregulations 8(5) and (6) of the AusCheck Regulations also
(5) The Secretary must not give any advice
about the outcome of the background check until after any
representations made by the individual before the end of the day
mentioned in the notice or any later day nominated under
subregulation (4) have been considered.
(6) If the Secretary decides that advice of the
outcome of background check should include unfavourable criminal
history advice about the individual, the Secretary must tell the
individual of the decision.
Lastly, under regulations 12 of the AusCheck Regulations:
An individual about whom advice of the outcome
of a background check contains unfavourable criminal history advice
may apply to the Administrative Appeals Tribunal for review of the
decision to give the unfavourable criminal history advice.
The proposed amendment is consistent with the Committee s
recommendation, as discussed above.
2 December 2009
Bills Digest Service
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