Chapter 2
Provisions
2.1
AusCheck, the Australian Background Checking Service, is responsible for
coordinating the background criminal and security checks on applicants for
Aviation Security Identification Cards (ASIC) and Maritime Security
Identification Cards (MSIC). Schedule 1 of the Bill sets out the proposed
amendments to the AusCheck Act 2007. Amendments in the Schedule are dealt with
in order of item number.
2.2
Items 1 through 5 would make changes or additions to definitions
in sections 4 and 5 of the Act. Item 1 inserts a definition for 'identity
verification information' to include, in the context of an AusCheck scheme, an
individual's fingerprints or other biometric data about the individual, but not
the individual's photograph. Item 2 inserts a definition for 'national security
background check' as being a check carried out for the purpose set out in
various new subparagraphs in section 8 of the Act. These two concepts are
expanded upon later in this chapter.
2.3
Existing subsection 4(2), read together with the relevant part of
subsection 4(1), aims to define 'personal information'. The current provision
specifically identifies an individual's MSIC or ASIC card number, or the
photograph on their card, as personal information. The Bill would remove
reference to ASIC and MSIC cards, and substitute another provision so that 'any
other identifier' and/or a photograph of the individual would fall within the
definition of 'personal information'.
2.4
Paragraph 5(b) would clarify the meaning of 'security assessment' for
the purposes of a background check taking place under the Act. The Bill would
import the meaning of 'security assessment' from the Australian Security
Intelligence Organisation Act 1979.
2.5
Items 5 and 6 would amend the definition of 'background check'.
Currently, the term is defined by reference to a number of areas of inquiry,
such as criminal history, a previous security assessment, citizenship status,
and 'verification of documents relating to ... identity'. This rather confusing
clause, at paragraph 5(d) would be amended to refer simply to 'the identity of
the individual'. This would broaden the meaning of 'background check' to
encompass any assessment of information relating to the identity of an
individual.
2.6
Section 8 deals with the establishment of checking schemes under
AusCheck, and currently refers only to MSIC and ASIC cards, established under
the relevant Acts.[1]
The circumstances in which a scheme may be established are dramatically broadened
by the amendment, which would add 6 further grounds upon which regulations may
provide for the establishment of a scheme. These are:
-
Australia's national security;
-
The defence of Australia;
-
A national emergency;
-
The prevention of conduct to which Part 5.3 of Chapter 5 of the Criminal
Code applies;[2]
-
The executive power of the Commonwealth; and
-
Matters incidental to the execution of any of the legislative
powers of the Parliament or the executive power of the Commonwealth.[3]
2.7
Section 9 addresses the matters that an AusCheck scheme may make
provision for. These include, for example, the information that should be
contained in an application for a check, how that information should be
assessed, and the manner and form given to the subject of the check.[4]
The section also provides for a scheme to address matters relating to the
establishment and provisions of an online verification service to verify that
an identification card has been issued to a person, is in effect, and that the owner
and holder of the card are the same person.[5]
2.8
The amendments would see these verification powers extended to cover
individuals and identification cards that have been subject to national
security background checking. However, the extension would provide for the
verification service to verify not merely whether a card or other
identification has been issued, but whether a background check has been
conducted on an individual.
2.9
Item 9 would deem an individual to have consented to the conduct of a
background check upon their application for not only a MSIC or ASIC card, but
'any other card, license, permit or authorisation' provided they were advised
that the background check was a 'precondition' of the identification being
issued.
2.10
Amendments to Section 13 create a distinction between the treatment of
personal information and 'identity verification information'. In addition to
existing purposes, the collection, use and disclosure of personal information
would be allowed when determining whether a check has been conducted on a
person, and whether the holder and subject of a form of identification is the
same person. The collection, use and disclosure of identity verification
information would be taken to be lawful when it is 'directly necessary for the
purpose of verifying the identity of an individual' who is the subject of a background
check, provided that the information is used or disclosed only to the extent
necessary.[6]
2.11
Items 14 through 19 go to the uses to which personal and 'identity
verification' information may be put. The amendments would repeal the existing
subsection 14(2), which goes to the uses that may be made of 'personal
information' under an AusCheck scheme. The effect of the amendment would be to
impose additional restrictions on the use of the newly-defined identity
verification information. Whereas under the existing arrangements personal
information may be used for a variety of purposes including threats to national
security, the new provision would isolate identity verification information
from being used for those purposes. The Explanatory Memorandum states that:
The intention of the amendments is that biometric [identity
verification] information is used only for background checking purposes – that
is, to make sure of the identity of a person – and not for other purposes
associated with the AusCheck scheme ... data such as fingerprints cannot be
disclosed for the purposes of responding to an incident that poses a threat to
national security and cannot be used for the collection, correlation etc. of
criminal intelligence or security intelligence information for law enforcement
or national security purposes.[7]
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