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2022-2023-2024-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSCHECK AMENDMENT (GLOBAL ENTRY PROGRAM) BILL 2025
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Tony Burke MP)
AUSCHECK AMENDMENT (GLOBAL ENTRY PROGRAM) BILL 2025
GENERAL OUTLINE
The AusCheck Amendment (Global Entry Program) Bill 2025 (the Bill) amends the
AusCheck Act 2007 (the AusCheck Act) to establish the legislative basis for the
fulfilment of Australia's background checking obligations under the United States of
America's Global Entry program (the GEP).
Australia and the United States of America (USA) have an important and longstanding
relationship built upon strong diplomatic, security, economic and peer-to-peer
relationships. As a result, significant numbers of Australian citizens travel annually to the
USA and its territories. Currently, Australian citizens entering the USA generally have
no means of accessing expedited customs clearance, a benefit available to citizens of
other nations under the GEP. Accordingly, on 6 August 2024, the Minister for Home
Affairs, the Hon Tony Burke MP, and the Minister for Foreign Affairs, Senator the Hon
Penny Wong, announced that Australia would join the GEP from 2025, in a phased
approach, delivering on Australia's participation in the GEP for the thousands of
Australian travellers who visit the USA frequently.
The GEP is a trusted traveller program that permits access to expedited immigration and
customs clearance channels on arrival into the United States for pre-approved, low risk
travellers from GEP-approved countries. To participate in the program, GEP-approved
countries are required to conduct background checks on their citizens who apply for the
GEP to inform the USA assessment of their eligibility for the program, in addition to
further screening undertaken by USA authorities. USA authorities are the decision-
makers regarding an applicant's eligibility for the GEP. If the USA grants an Australian
applicant access to the GEP, the Australian Government will be required to conduct
periodic annual background checks on the participant during their five-year term in the
program.
When implemented, the GEP will allow Australians access to expedited immigration and
customs channels when entering the United States. Australian citizens accepted into the
GEP are still required to meet any visa (or other immigration) requirements imposed by
the United States. The GEP is not a reciprocal program between Australia and the USA.
Australia's participation in the program does not provide any equivalent benefit for USA
citizens traveling to, or arriving in, Australia.
Australia is implementing GEP in a two-phased approach. Currently, phase one allows a
limited number of Australian citizens to apply for the GEP. Phase one commenced in
January 2025, with a limited number of places available, with Australia processing
background checks for up to 1000 individuals. Phase two will facilitate an ongoing,
uncapped number of Australian GEP applicants by establishing a legislative authority
under the AusCheck Act to enable the undertaking of the required background checks,
strengthens the protection of personal information collected and enables cost recovery.
The Australian Government has identified AusCheck as the appropriate entity through
which to facilitate Australia's background checking obligations for the GEP, and the
amendments in the Bill will make the required legislative changes to the AusCheck Act
to enable background checking for that purpose.
The Bill primarily achieves this objective by expanding the regulation-making power in
section 8 of the AusCheck Act to allow for the expansion of the AusCheck scheme for
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the purpose of GEP background checks. To support this, the Bill also makes a number of
consequential and supporting amendments to the AusCheck Act, including:
• inserting a number of new definitions in subsection 4(1) of Act to support the
amendments relating to GEP background checks;
• amending the existing definition of AusCheck scheme personal information to
include information obtained by an agency for the purposes of GEP background
checks prior to the commencement of the amendments in Schedule 1 to the Bill;
• amending the definition of background check in section 5 of the AusCheck Act
to expand the types of background checks permissible under the AusCheck
Scheme for the GEP to include a check for certain offences under the Defence
Force Discipline Act 1982, to meet the USA's eligibility criteria for the program;
• inserting new section 10AB in the AusCheck Act, which provides a regulation-
making power to prescribe the matters in Regulation that are to be covered by the
AusCheck scheme when conducting background checks in connection with the
GEP.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill do not impose any new expenditure and the overall financial
impact is assessed as low. The ongoing costs of resourcing and administering the
measures in this Bill will require ongoing departmental funding. The cost of background
checks required under the GEP in phase two will be cost recovered from applicants; the
quantum of that cost is still to be determined, and to be prescribed by regulations made
under the AusCheck Act as amended.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with human rights in relation to the amendments contained
in the Bill is at Attachment A. The Statement assesses the amendments to be compatible
with Australia's human rights obligations.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
Amendment Act AusCheck Amendment (Global Entry Program) Act 2025
AusCheck Act AusCheck Act 2007
Bill AusCheck Amendment (Global Entry Program) Bill 2025
Defence Act Defence Force Discipline Act 1982
GEP Global Entry program
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AUSCHECK AMENDMENT (GLOBAL ENTRY PROGRAM) ACT 2025
NOTES ON CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of the Bill, once enacted, will be the AusCheck
Amendment (Global Entry Program) Act 2025 (the Amendment Act).
Section 2 Commencement
2. Section 2 sets out when the provisions in the Amendment Act will commence.
3. Subsection 2(1) provides that each provision of the Amendment Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect according to its
terms.
4. The effect of table item 1 is that sections 1 to 3 and anything else not covered elsewhere
by this table commences the day after the Amendment Act receives Royal Assent.
5. The effect of table item 2 is that Schedule 1 to the Amendment Act commences on a
single day to be fixed by Proclamation. Table item 2 further provides that if the
provisions do not commence within the period of twelve (12) months from the
Amendment Act receiving Royal Assent, Schedule 1 will commence the day after the
end of that period. Allowing a 12-month period between the Royal Assent and
commencement is necessary to ensure there is time for the establishment of the
administrative and operational framework necessary to administer the expanded
scheme.
6. The note following the table states that the table relates only to the provisions of the
Amendment Act as originally enacted. The table will not be amended to consider any
later amendments of the Amendment Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part of
the Amendment Act. Information may be inserted in this column, or information in it
may be edited, in any published version of the Amendment Act.
Section 3 Schedules
8. Section 3 provides that legislation specified in a Schedule to the Amendment Act is
amended or repealed as set out in the applicable items in the Schedule concerned. This
section also provides that any other item in a Schedule to the Amendment Act has effect
according to its terms.
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SCHEDULE 1 - Amendments
AusCheck Act 2007
Subsection 4(1) (at the end of the definition of AusCheck scheme
personal information)
9. This item inserts new paragraph 4(1)(c) at the end of the current definition of
AusCheck scheme personal information in subsection 4(1). New paragraph (c)
provides that AusCheck scheme personal information includes information that is
obtained before the commencement of Schedule 1 to the Bill, by an 'agency', as
defined in section 6 of the Privacy Act 1988 and for the purposes of conducting a
background check in connection with the individual's participation in the GEP.
10. This amendment ensures that information collected by AusCheck for the purpose of
GEP background checks before or after the commencement of Schedule 1 is
appropriately subject to the protection of information provisions in section 15 of the
AusCheck Act. Section 15 includes a number of offences relating to the unauthorised
use or disclosure of AusCheck scheme personal information by AusCheck staff
members. The expanded definition will ensure that information collected as part of the
GEP will subject to the same safeguards as other information collected through the
AusCheck scheme. The amendment of the definition will also permit this information
to be retained and used for the purposes provided for in section 14 of the AusCheck
Act.
Subsection 4(1)
11. This item amends current subsection 4(1) of the AusCheck Act to insert several new
defined terms to support the amendments of the AusCheck Act made by the
Amendment Act. This item inserts definitions for Defence Force magistrate, Global
Entry program, Schedule 1A offence and service offence.
12. The term Defence Force magistrate is defined by reference to the Defence Force
Discipline Act 1982 and has the same meaning as in that Act.
13. The purpose of this amendment is to support the expanded definition of 'background
check' provided by Item 3. Item 3 provides that a background check for the purpose of
the GEP is to consider whether the person subject to the background check has been
convicted of a service offence or Schedule 1A offence by a Defence Force magistrate
under the Defence Force Discipline Act 1982.
14. The term Global Entry program is defined to mean the "trusted traveller program of
the Government of the United States of America, known as the Global Entry program,
that enables expedited immigration and customs clearance for Australian citizens
entering the United States of America and that is open to Australian Citizens." For the
purposes of this definition, 'Australian citizen' has the same meaning as in the
Australian Citizenship Act 2007.
15. The purpose of this amendment is to support the use of Global Entry program in
amended subsection 8(1) and new section 10AB of the Amendment Act, which are
respectively contained in item 4 and item 5 of this Schedule. This definition sets out
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what the GEP is for the purpose of the extended regulation-making power in section 8.
New paragraph 8(1)(e) extends the potential scope of the AusCheck scheme, in order
to enable regulations to be made for the purpose of coordinating and conducting
background checks of an individual in relation to their participation in the GEP.
16. The term Schedule 1A offence is defined by reference to the Defence Force Discipline
Act 1982 and has the same meaning as in that Act. The purpose of this amendment is
to support the expanded definition of 'background check' provided by Item 3. Item 3
provides that a background check, for the purpose of the GEP, is to consider whether
an individual has been convicted of a Schedule 1A offence under the Defence Force
Discipline Act 1982.
17. The term service offence is defined by reference to the Defence Force Discipline Act
1982 and has the same meaning as in that Act. The purpose of this amendment is to
support the expanded definition of 'background check' provided by Item 3. Item 3
provides that a background check, for the purpose of the GEP, is to consider whether
an individual has been convicted of a serious offence under the Defence Force
Discipline Act 1982.
After paragraph 5(ba)
18. This item inserts new paragraph 5(bb) in section 5 of the AusCheck Act, which
provides for the definition of background check. New paragraph 5(bb) operates to
establish a new class of information that may be assessed as part of a background check
under an extended AusCheck scheme for the GEP.
19. New paragraph 5(bb) provides that if a background check is conducted for the purpose
of new paragraph 8(1)(e) (inserted by item 4), the background check may assess
whether a court martial, or a Defence Force magistrate, has convicted the individual of
a service offence other than a Schedule 1A offence (subparagraph 5(bb)(i)).
20. Additionally, paragraph 5(bb) provides that if a background check is conducted for the
purpose of new paragraph 8(1)(e) (inserted by item 4), the background check may
assess whether a court martial or a Defence Force magistrate has convicted the
individual of a Schedule 1A offence and imposed a punishment of imprisonment on
the individual.
21. The extension to the definition of background check is only applicable to the
AusCheck scheme as it relates to an assessment of an individual in connection with the
individual's participation in the GEP. However, background checks of individuals for
the purpose of an extended AusCheck scheme made for the purpose of new
paragraph 8(1)(e) (ie. for the GEP) may also assess other information utilised in
existing background check processes as provided within the AusCheck Act.
22. US Customs and Border Protection (CBP) requires a check for criminal convictions
for the purpose of GEP eligibility. A check for convictions of relevant ADF service
offences is required to make assessments against the USA eligibility criteria of the
program for this purpose.
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At the end of subsection 8(1)
23. This item inserts new paragraph 8(1)(e) in subsection 8(1) of the AusCheck Act.
24. Subsection 8(1) of the AusCheck Act provides that regulations may provide for the
establishment of an AusCheck scheme relating to the conduct and coordination of
background checks of individuals for the reasons specified in subsection 8(1).
25. New paragraph 8(1)(e) expands the purposes for which regulations may be made for
the establishment of the AusCheck scheme. New paragraph 8(1)(e) provides that
regulations may be made to undertake background checks of individuals in connection
with the individual's participation in the GEP. This will allow for regulations to be
made to facilitate the conduct and coordination of background checks of individuals in
connection with the individual's participation in the GEP which enables the effective
ongoing facilitation of Australia's GEP background checking obligations.
26. The amendment of subsection 8(1) provides a head of power for the expansion of the
AusCheck Scheme to facilitate background checks for the GEP, with relevant matters
to be prescribed in regulations made under the Act. Regulations made for the purposes
of new paragraph 8(1)(e) are constrained by the inclusion of new section 10AB, which
sets out matters that regulations may be made for under paragraph 8(1)(e). The
regulation-making power is therefore limited to those matters set out in new section
10AB which facilitate the GEP AusCheck Scheme expansion, including the making of
applications and the form of advice to be given to an individual following background
checks. Further detail of new section 10AB is provided under item 5 below.
After section 10AA
27. This item inserts new section 10AB into Part 2 of the AusCheck Act.
28. New subsection 10AB(1) details the matters that regulations made for the purpose of
new paragraph 8(1)(e) may provide for or relate to.
29. The purpose of new subsection 10AB(1) is to place appropriate limitations on the scope
of the regulation-making power in relation to the AusCheck scheme for the purposes
of the GEP. The matters specified for the purposes of subsection 10AB(1), which may
be prescribed in the regulations for the purpose of a GEP background check, are
outlined below.
30. New paragraph 10AB(1)(a) specifies regulations may be made in relation to an
application for a background check by the individual to whom the background check
relates for the purposes of the GEP. This will allow for the regulations setting out the
application process for an AusCheck background check for the purposes of the GEP to
be distinct from the application process for other background checks allowable under
the AusCheck Scheme.
31. New paragraph 10A(1)(b) specifies regulations may be made in relation to an
application for a background check for the purposes of the GEP made by an individual
who is under the age of 18. Subparagraph 10AB(1)(b)(i) allows for the regulations to
specify that consent to undertake the background check is to be provided by the parent
or legal guardian of the child under the age of 18. Subparagraph 10AB(1)(b)(ii) allows
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for regulations to be made concerning the process of undertaking an application for a
background check by a parent or guardian for an individual under the age of 18.
32. New paragraph 10AB(1)(c) specifies that regulations may be made in relation to the
making of applications for a background check for the purposes of the GEP by a person
other than the individual to whom the background check relates, with the consent of
the individual to whom the background check relates, or their parent or legal guardian.
33. The purpose of this provision is to enable applications to be made by parties other than
the individual to whom the background check relates or the parent or guardian of a
person to whom the background check relates. This enables applications to be made,
for example, on behalf of someone who may have a disability and is therefore unable
to apply for the GEP independently. It also allows for the making of applications on
behalf of someone who is unable to consent, with the consent of their legal guardian.
34. New paragraph 10AB(1)(d) specifies that regulations may be made in relation to the
information that is to be contained in an application for an AusCheck GEP background
check.
35. The purpose of paragraph 10AB(1)(d) is to establish information requirements for
background checks under the AusCheck scheme which are unique to applications for
background checks made for the purposes of paragraph 8(1)(e) of the Amendment Act.
36. New paragraph 10AB(1)(e) specifies that regulations may be made in relation to the
giving of information to the Secretary, relating to an individual in respect of whom a
background check is conducted, that is directly necessary for the purpose of conducting
the background check. The information provided to the Secretary may be, for example,
from the US, the Applicant, or Commonwealth background checking agencies.
37. New paragraph 10AB(1)(f) specifies that regulations may be made to establish criteria
against which a background check for the purposes of the GEP is to be assessed.
38. New paragraph 10AB(1)(g) specifies that regulations may be made in relation to the
decision or decisions that may be made as a result of a background check for the
purposes of the GEP.
39. The purpose of paragraph 10AB(g) is to enable the AusCheck scheme to make
provisions that prescribe the criteria or decision-making methodology to be applied
when making a decision as a result of a background check for the purposes of the GEP.
40. New paragraph 10AB(1)(h) specifies that regulations may be made in relation to the
form of advice to be given to an applicant for a background check for the purposes of
the GEP.
41. New paragraph 10AB(1)(i) specifies that regulations may be made in relation to the
form of advice to be given to an individual in respect of whom a background check is
conducted for the purposes of the GEP.
42. New paragraph 10AB(1)(j) specifies that regulations may be made in relation matters
in relation to the form of advice to be given to other persons about the outcome of a
background check for the purposes of the GEP.
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43. The purpose of new paragraph 10AB(1)(j) is to allow for regulations to provide for the
form of advice which may be given to the Government of the United States of America
about the outcome of a background check conducted for the purposes of the GEP. This
includes limiting the information provided to the USA to a finding that the applicant is
either "Eligible" or "Not Eligible". The ability for AusCheck to provide advice to the
Government of the USA is necessary for the USA to complete their assessment of the
individual's application for GEP and make a final determination as to eligibility. This
provision also allows for the regulations to provide for the form of advice which may
be given to third parties who apply for a GEP background check with consent (of either
the individual to whom the background check relates, or a parent or guardian), and
parents or guardians who made an AusCheck GEP background check application on
behalf of a minor.
44. New subsection 10AB(2) clarifies that the regulations made for the purposes of
10AB(1) may relate either to all background checks conducted for the purposes of
paragraph 8(1)(e) or a specified class of background checks for the purposes of
paragraph 8(1)(e). This provision provides scope for the regulations to determine what
information may be assessed as part of a GEP background check.
Application and transitional provisions
45. Subitem 6(1) provides that the amendment of the definition of AusCheck scheme
personal information (inserted by item 2) in subsection 4(1) of the AusCheck Act
applies to the use and disclosure of information by a person after the commencement
of that item, whether the person obtains the information before or after commencement.
The intention of subitem (1) is that, for the purposes of applying subsection 15(1A) to
disclosure of information by a person, it does not matter whether that person obtained
the information before or after commencement.
46. Subitem 6(2) further provides for the application of the offence provision in existing
subsection 15(1A) of the AusCheck Act. Item 6(2) provides that information
mentioned in the expanded definition of AusCheck Scheme personal information is to
be considered AusCheck Scheme personal information if it is obtained by a person at
the time the person obtains it, if obtained by a person before the commencement of this
item.
47. The purpose of subitem 6(2) is to avoid doubt that the offence in subsection 15(1A)
can apply to a person who obtains information before commencement but discloses it
after commencement. This provision clarifies that the amendment to this definition
applies in relation to any use or disclosure of AusCheck scheme personal information
by a person after the commencement of this item, whether the person obtained the
information before or after the commencement. The primary purpose of this application
provision is to enliven the protection of information provisions in section 15 related to
information obtained for the purpose of the GEP background checks.
48. The retroactive nature of these provision means that information obtained as a result of
background checks done before the commencement of the Amendment Act will be
subject to the protected information framework on commencement. This will ensure
that all information obtained by AusCheck relating to GEP background checks under
phase 1 will be subject to the same level of protection, regardless of when it was
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obtained. Subitems 6(1) and (2) avoid doubt that the offence in subsection 15(1A)
apply to a person who obtains phase 1 information before commencement and disclose
it after commencement.
49. This provision is being introduced to ensure that all GEP personal information
collected by the Department, whether collected prior to the commencement of this
legislation or following, is subject to the same information handling processes and
protections outlined under the AusCheck Act and in place for existing AusCheck
background checking services. This will ensure a secure and efficient process for
handling of applications and applicant information.
50. Subitem 6(3) provides that new paragraph 5(bb), inserted by item 3, applies in relation
to a conviction that occurs before or after the commencement of this item. The purpose
of this provision is to put beyond doubt that for the purpose of the background checks
under new 8(1)(e) for the expanded GEP AusCheck Scheme, convictions of the kind
specified under paragraph 5(bb) may be assessed as part of the background check if the
conviction occurred before or after the commencement of this item.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
AusCheck Amendment (Global Entry Program) Bill 2025
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The AusCheck Amendment (Global Entry Program) Bill 2025 (the Bill) will amend the
AusCheck Act 2007 (AusCheck Act) to establish a legislative basis for the fulfilment of
Australia's background checking obligations under the United States of America's Global
Entry program (GEP).
Australia and the United States of America (US) have an important and longstanding
relationship built upon strong diplomatic, security, economic and peer to peer
relationships. As a result, significant volumes of Australian citizens travel annually to the
USA and its territories. Currently, Australian citizens entering the USA have no means of
accessing expedited customs clearance, something available to citizens of other nations.
To rectify this, the Government of Australia has entered into an arrangement with the USA
to extend eligibility for the GEP to Australian citizens.
The GEP is a trusted traveller program that permits access to expedited immigration and
customs clearance channels on arrival into the USA for pre-approved, low risk travellers
from GEP approved countries. To participate in the program, GEP approved countries are
required to conduct background checks on their citizens who apply for the GEP to inform
the USA assessment of their eligibility for the program in addition to further screening by
USA authorities. USA authorities are the decision makers regarding an applicant's
eligibility. If the USA grants an Australian applicant access to the GEP, the government
will be required to conduct further annual background checks on the participant during
their five year term in the program.
When implemented, the GEP will allow Australians access to expedited immigration and
customs channels when entering the USA. Australian citizens accepted into the GEP are
still required to meet any visa (or other immigration) requirements imposed by the USA.
The GEP is not a reciprocal program between Australia and the USA. Australia's
participation in the program does not provide any equivalent benefit for USA citizens
traveling to, or arriving in, Australia.
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Australia is implementing GEP in a two-phase approach. Currently, in the absence of a
long-term framework for undertaking the agreed-upon background checking obligations,
phase one allows only a limited number of Australian citizens are able to apply for the
GEP. Phase one commenced early in early 2025. Phase two will facilitate an uncapped
number of Australian GEP applicants by establishing a legislative basis to enable the
undertaking of the required GEP background checks. The government has identified
AusCheck as the appropriate entity through which to facilitate Australia's background
checking obligations for the GEP, and this Bill makes the required legislative changes to
the AusCheck Act to enable background checking for that purpose.
The Bill primarily achieves this objective by expanding the regulation-making power in
section 8 of the AusCheck Act, to allow for the expansion of the AusCheck scheme for the
purpose of GEP background checks. To support this amendment, the Bill also makes a
number of consequential and supporting amendments to the AusCheck Act, including:
• inserting a number of new definitions in subsection 4(1) of the AusCheck Act to
facilitate their use within the AusCheck Act;
• amending the existing definition of "AusCheck scheme personal information" to
include information obtained by an agency for the purposes of GEP background
checks prior to the commencement of schedule 1 of this Bill;
• amending the definition of background check in section 5 of the AusCheck Act to
expand the types of background checks allowable under the AusCheck scheme for
the GEP to include a check for certain offences under the Defence Force Discipline
Act 1982 to meet USA eligibility criteria for the program;
• inserting new section 10AB which provides for the matters to be covered by the
AusCheck scheme when conducting background checks in connection with the GEP.
Human rights implications
This Bill engages the following rights:
• the right to privacy in Article 17 of the International Covenant on Civil and
Political Rights (ICCPR), Article 16 of the Convention on the Rights of the Child
(CRC) and Article 22(1) of the Convention on the Rights of Persons with
Disabilities (CRPD); and,
• the right non-discrimination in Article 2 of the CRC.
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The right to privacy
Article 17 of the ICCPR provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
Article 16 of the CRC provides:
1. No child shall be subjected to arbitrary or unlawful interference with his or her
privacy, family, home or correspondence, nor to unlawful attacks on his or her honour
and reputation.
2. The child has the right to the protection of the law against such interference or
attacks.
Article 22(1) of the CRPD provides:
1. No person with disabilities, regardless of place of residence or living arrangements,
shall be subjected to arbitrary or unlawful interference with his or her privacy, family,
home or correspondence or other types of communication or to unlawful attacks on his
or her honour and reputation. Persons with disabilities have the right to the protection
of the law against such interference or attacks.
Interferences with privacy are permissible, provided that they are authorised by law and
not arbitrary. In order for an interference with the right to privacy not to be arbitrary, the
interference must be for a reason consistent with the provisions, aims and objectives of the
ICCPR and be reasonable in the particular circumstances. The United Nations Human
Rights Committee has interpreted 'reasonableness' in this context to mean that "any
interference with privacy must be proportional to the end sought and be necessary in the
circumstances of any given case".
The Bill engages the right to privacy under Article 17 of the ICCPR, Article 16 of the
CRC and Article 22(1) of the CRPD by seeking to amend the AusCheck Act to allow for
the expansion of the AusCheck scheme for the purpose of GEP background checks.
Given that an applicant provides personal information voluntarily, or with consent
(including by a parent or guardian), to the extent the proposed amendments may limit a
person's right to privacy, the legislative expansion of the AusCheck scheme to enable the
collection of personal information for the purpose of a GEP background check will
provide the necessary long term framework to facilitate an uncapped number of Australian
GEP applicants, ensuring that the collection of personal information is lawful and not
arbitrary. Personal information collected for the purpose of a GEP background check will
include information of children over the age of 10, engaging the right to privacy in Article
16 of the CRC. As the age of criminal responsibility in most Australian jurisdictions is 10
(12 in the Australian Capital Territory), the ACIC do not conduct criminal history checks
on children under 10. As children over the age of 10 are capable of having a criminal
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history and participation in the GEP requires a criminal history check, it is not arbitrary or
unlawful to collect the personal information of children over the age of 10 for the purposes
of conducting a criminal history check.
All, personal information collected through the AusCheck GEP background check process
will be 'AusCheck scheme personal information' (as defined in subsection 4(1) of the
AusCheck Act) providing a safeguard for information collected for GEP background
checking purposes. This will include personal information obtained for the purpose of
conducting GEP background checks prior to the commencement of the proposed
amendments, ensuring that all information obtained by AusCheck relating to GEP
background checks will be subject to the same level of protection, regardless of when it
was obtained.
The use and disclosure of AusCheck scheme personal information is subject to stringent
safeguards under sections 13, 14 and 15 of the AusCheck Act. Appropriate safeguards on
personal information collected through AusCheck GEP background checks will also be
provided through the Privacy Act 1988 (Privacy Act). All personal information collected
and held by the government must adhere to the Australian Privacy Principles (APPs) as set
out under the Privacy Act. Failure to comply with privacy obligations can have serious
legal, financial and reputational consequences.
The Bill will provide further safeguards on the limitation of the right to privacy by
including express consent requirements that will apply in particular circumstances for GEP
background checks. Broadly, these are:
• requiring the consent of a parent or guardian for an application for a background
check by an individual under the age of 18 (a minor);
• requiring the consent of the individual to whom the background check relates for
an application for a background check by a person other than the individual to
whom the background check relates; and
• requiring the consent of a parent or guardian for an application for a background
check by a person other than the individual to whom the background check relates.
The consent requirement embedded in the Bill provides a safeguard on the limitation to
the right to privacy by ensuring that there is full and express consent as to the handling of
personal information as part of the background check.
In practice, when an individual provides consent for a background check for themselves or
on behalf of another, they will be required to consent to the information handling process
as outlined within a Privacy Notice. The Privacy Notice will outline the information
handling processes for both the background check and disclosure of the information
collected for the purposes of the GEP background check, including the potential disclosure
of a preliminary unfavourable criminal history or service offence history assessment, as a
consequence of the AusCheck outcome, i.e. 'Eligible' or 'Not Eligible', of the background
check, to a third party.
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For example, in circumstances where a third party applies for a background check on
behalf of an individual, that individual will have to expressly consent to the third party
receiving advice on the outcome of the background check. In circumstances where a 'Not
Eligible' notification is provided or where an individual receives an unfavourable criminal
history or service offence history assessment, this may disclose something to the third
party about the criminal record or service offence history of the individual. Requiring the
Privacy Notice to make clear that in consenting to the third party making an application on
their behalf, they are expressly consenting to the provision of this information to the third
party ensures that the individual understands the nature of the information that could be
implied from a notification of an AusCheck outcome and consents to the third party
receiving that information. This will ensure that the individual who the background check
relates can make an informed decision relating to the disclosure of their personal
information.
Further safeguards exist through the GEP system itself, as AusCheck will not disclose
personal information to the USA. Only the outcome of GEP background checks will be
disclosed to the USA (that is, an 'Eligible' or 'Not Eligible' notification). The ability to
disclose the outcome advice to persons other than the person subject to the background
check resides in paragraph 10AB(1)(j). This paragraph provides the AusCheck Scheme
may make provision for and in relation to the form of advice to given to other persons
about the outcome of a background check.
Despite the broad terminology, for the purposes of 10AB(1)(j), it is the policy intention
that "other persons" be limited to the US, third parties who apply for a GEP background
check with consent (of either the individual to whom the background check relates, or a
parent or guardian), and parents or guardians who made an AusCheck GEP background
check on behalf of a minor. The sharing of eligibility outcome with the USA is required
for the purposes of facilitating the GEP. The sharing of eligibility outcome with third
parties will have been consented to by the individual to whom the background check
relates, or consented to by a parent or guardian, as part of the application process. The
sharing of eligibility outcome with parents or guardians of minors is consistent with the
nature of their role as parents and guardians.
To the extent that the amendments will enable AusCheck to make provision for the
collection of personal information to conduct background checks for the GEP, any
limitation on the right to privacy is reasonable, necessary and proportionate because either
the individual to whom the background check relates, or a parent or guardian, consents to
the collection and use of that information and therefore its collection and use is lawful and
not arbitrary.
The right to non-discrimination
Article 2(1) of the CRC provides:
States Parties shall respect and ensure the rights set forth in the present Convention to
each child within their jurisdiction without discrimination of any kind, irrespective of the
child's or his or her parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, disability, birth or
other status.
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As noted above, Article 16 provides that no child shall be subjected to arbitrary or
unlawful interference with his or her privacy. Under the amendments being made to the
AusCheck Act an application to be considered for the GEP automatically includes an
AusCheck GEP background check. However, only children over the age of 10 will
undergo criminal history checks, as the ACIC does not conduct criminal history checks on
children under the age of 10. Children under the age of 10 will only have identity
verification checks conducted.
This engages the right protected in Article 2(1) of the CRC on the basis that the effect of
the Bill will be to exempt a cohort of individuals, based on a particular attribute, from
being subject to the same checks as other children, for the purpose of the GEP.
Within Australian jurisdictions all children below the age of 10 are deemed to be
incapable of having committed a criminal offence (except for the Australian Capital
Territory where the age of criminal culpability is 12 as at February 2025). As children
under the age of 10 are deemed not to be criminally responsible, there would be no records
to be retrieved and therefore the GEP will not undertake criminal record checks for
children under 10.
Article 2(1) of the CRC provides that the rights in the CRC, including the right to privacy
in Article 16, will be respected without discrimination. However it is not discriminatory to
only conduct a background criminal check on a child over the age of 10, as children under
this age will not have a criminal record and consequently, there would be no value in
conducting a background criminal check on a child under the age of 10. If ACIC did not
have an age threshold, then providing personal information to AusCheck to conduct a
criminal check on children under the age of 10 could amount to a limitation on the right to
privacy of that child, as there would be no purpose for AusCheck to have that information.
While the effect of the Bill will differentiate between children over the age of 10 from
those under 10, this is not discriminatory in circumstances where children under 10 will
not have a criminal record, whereas it is possible for children over the age of 10 to have a
criminal record.
Conclusion
The amendments in the Bill are compatible with human rights because to the extent that
they may limit human rights, those limitations are not arbitrary or unlawful.
The Honourable Tony Burke MP
Minister for Home Affairs
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