Addendum to the Explanatory Memorandum
(Circulated by the authority of the Minister for Justice, the Hon Michael Keenan MP)General Outline
On page 6, remove the sentence: 'Appropriate safeguards are in place to protect the disclosure of AusCheck scheme personal information under the AusCheck Act', insert:
"Appropriate legislative safeguards are in place to protect the use and disclosure of AusCheck scheme personal information under the AusCheck Act. AusCheck scheme personal information is also subject to the privacy protections in the Privacy Act 1988, including the Australian Privacy Principles."
On page 6, after the sentence: 'The AusCheck Guidelines implement recommendation 46 of the AusCheck Privacy Impact Assessment for the development of a protocol relating to the disclosure of AusCheck scheme personal information', insert a new paragraph:
"The Guidelines provide a compulsory decision-making framework for AusCheck staff members to determine whether disclosure of AusCheck scheme personal information is appropriate and for prescribed purposes only. Under subregulation 15(2) of the AusCheck Regulations, all AusCheck staff members are required to comply with the AusCheck Guidelines. Therefore failure of an AusCheck staff member to comply with the Guidelines may constitute a criminal offence under section 15 of the AusCheck Act."
On page 7, after the sentence: 'Information is only shared with nominated Senior Executives, and written undertakings outline the law enforcement or national security purposes for the information', insert a new paragraph:
"The AusCheck Guidelines require the public reporting of disclosures of personal information from the AusCheck database to recognised Commonwealth authorities and accredited agencies, in the AGD Annual Report. This includes the names of the authorities or agencies to which information was provided and the purposes, frequency and method of provision of access to personal information."
On page 7, after the sentence: 'The AusCheck Guidelines will continue to apply to how information is shared with Commonwealth authorities under subparagraph 14(2)(b)(iii)', insert:
"Information provided by AusCheck to other agencies will also be protected by these agencies' own privacy or secrecy obligations."
Statement of Compatibility with Human Rights
Schedule 4 - Anti-Money Laundering and Counter-Terrorism Financing amendments
On page 15, after the sentence: 'The amended definition will also provide for a regulation-making power that is intended to enable additional international bodies, including those with multijurisdictional law enforcement coordination and cooperation functions, to be prescribed', insert:
"The ability to prescribe additional international bodies through regulation is necessary in order to ensure that any newly-constituted international bodies, in particular those with multi-jurisdictional law enforcement coordination and cooperation functions similar in nature to INTERPOL and Europol, are able to be listed in future as expeditiously as possible. The strategic and tactical value of financial intelligence in the detection and disruption of transnational crime diminishes significantly over time. By enabling the timely addition of future international bodies to the existing definition of 'foreign law enforcement agencies', this measure will ensure that the value of AUSTRAC financial intelligence information is preserved and able to be appropriately leveraged by the necessary agencies and networks. This will both assist in fulfilling our international obligations to combat money laundering and the financing of terrorism, and beneficially affect Australia's relations with foreign countries and international organisations."
Schedule 5 - Disclosure etc. of AusCheck scheme personal information
On page 16, remove the paragraph: 'The disclosure of information will continue to be protected by robust safeguards including criminal offences in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme personal information, the use of privacy notices to inform applicants and acquire consent for the collection and disclosure of their personal information, the accreditation process for agencies seeking access to information and requirements relating to disclosure under the AusCheck Guidelines; and memoranda of understanding with relevant authorities', insert:
"The disclosure of information will continue to be protected by robust safeguards including the privacy protections in the Privacy Act 1988, criminal offences in section 15 of the AusCheck Act for the unlawful disclosure of AusCheck scheme personal information, the use of privacy notices to inform applicants and acquire consent for the collection and disclosure of their personal information, the accreditation process for agencies seeking access to information and requirements relating to disclosure under the AusCheck Guidelines; memoranda of understanding with relevant authorities; and public reporting of disclosures of personal information from the AusCheck database to accredited agencies. Information provided by AusCheck to other agencies will also be protected by these agencies' own privacy or secrecy obligations."
Human rights implications
Schedule 5 - Disclosure etc. of AusCheck scheme personal information
On page 23, after the sentence: 'The AusCheck Guidelines are publicly available on the AusCheck website and require proactive steps for agencies to be approved for access to AusCheck information', insert:
"AusCheck staff members are required to comply with the Guidelines, under subregulation 15(2) of the AusCheck Regulations 2007."
On page 23, after the words: 'The AusCheck Guidelines also publish the agencies approved for access to the database, and ...', delete the remainder of the sentence and insert:
"require the AGD to publish information about these agencies and the purposes and frequency of access to AusCheck information, in the AGD Annual Report."
On page 23, before the words: 'will be updated to reflect the amendments in Schedule 5 to the Bill and continue to protect the disclosure of AusCheck scheme personal information', insert:
"and privacy notice".
On page 23, after the paragraph: 'Information sharing arrangements are also governed by memoranda of understanding with relevant authorities. AusCheck currently has MOUs to govern its information sharing with the Australian Federal Police (AFP) and the Australian Customs and Border Protection Service (ACBPS) - prior to its integration with the Department of Immigration and Border Protection', insert a new paragraph:
"Information provided by AusCheck to Commonwealth, State and Territory agencies will also be protected by these agencies' own privacy or secrecy obligations."
Notes on Clauses
Schedule 4 - Anti-money laundering and counter-terrorism financing amendments
Item 2 - Section 5 (definition of foreign law enforcement agency)
On page 45, after the sentence: 'The amended definition of 'foreign law enforcement agency' in section 5 of the AML/CTF Act will also provide for a regulation-making power to enable additional international bodies, including those with multijurisdictional law enforcement coordination and cooperation functions, to be prescribed in the future', insert:
"The ability to prescribe additional international bodies through regulation is necessary in order to ensure that any newly-constituted international bodies, in particular those with multi-jurisdictional law enforcement coordination and cooperation functions similar in nature to INTERPOL and Europol, are able to be listed in future as expeditiously as possible. The strategic and tactical value of financial intelligence in the detection and disruption of transnational crime diminishes significantly over time. By enabling the timely addition of future international bodies to the existing definition of 'foreign law enforcement agencies', this measure will ensure that the value of AUSTRAC financial intelligence information is preserved and able to be appropriately leveraged by the necessary agencies and networks. This will both assist in fulfilling our international obligations to combat money laundering and the financing of terrorism, and beneficially affect Australia's relations with foreign countries and international organisations."
Schedule 5 - Disclosure etc. of AusCheck scheme personal information
Item 3 - Subparagraph 14(2)(b)(iii)
On page 48, after the words: 'As described in the outline and in item 1 and 2 above, the AusCheck scheme contains appropriate safeguards to protect the use and disclosure of AusCheck scheme personal information. Safeguards include...', insert:
"privacy protections in the Privacy Act 1998".
On page 48, after the words: 'memoranda of understanding with relevant authorities and the AusCheck Guidelines which underpin AusCheck's information sharing', insert:
"and which must be complied with by AusCheck staff."