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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL HEALTH SECURITY AMENDMENT (BACKGROUND CHECKING) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing, the Hon.
Nicola Roxon MP)
NATIONAL HEALTH SECURITY AMENDMENT (BACKGROUND CHECKING) BILL 2009
OUTLINE
This Bill amends the National Health Security Act 2007 (NHS Act) to clarify
that the Minister may require background checks of individuals who handle
or dispose of security sensitive biological agents (SSBAs). The background
checks will be conducted by the Australian Background Checking Service
(AusCheck) of the Attorney-General's Department.
Part 3 of the NHS Act establishes a scheme for the regulation of SSBAs
which:
. enables the Minister for Health and Ageing to determine a list of SSBAs.
This list is available on the website of the Department of Health and
Ageing at http://www.health.gov.au/ssba#list;
. provides for the making of legally enforceable standards for the secure
handling of SSBAs;
. provides for the collection, and recording on a National Register of
SSBAs, of information about the nature and location of SSBAs legitimately
handled by entities in Australia; and
. includes powers for monitoring compliance with the regulatory scheme
through an inspection regime.
Section 35 of the NHS Act, contained in Part 3, enables the Minister to
determine, by legislative instrument, a standard to set requirements
relating to the security status of individuals who are entitled to handle
or dispose of SSBAs (SSBA Standards). In developing those requirements
which would have commenced on 1 July 2009, AusCheck was chosen to conduct
background criminal and security checks of individuals who would be
authorised to handle or dispose of SSBAs. However, since there was no
legislative framework in place at that time for AusCheck to conduct the
background checks, a determination made on 26 June 2009 omitted the
requirement for background checking. 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.
The change will clarify that in determining the requirements of a standard
relating to the security status of individuals who handle or dispose of
SSBAs, the Minister may require background checks of those individuals.
The background checks will be conducted under the AusCheck scheme.
Consultation on the need for background checking of persons who handle or
dispose of SSBAs began in 2006 with the Council of Australian Governments
(COAG) review of hazardous biological agents. The legislative response to
the COAG review resulted in the enactment of Part 3 of the NHS Act that
contains section 35 which enables the Minister to determine standards
relating to the security status of individuals who are entitled to handle
or dispose of SSBAs.
The SSBA Standards that were determined by the Minister on 13 November 2008
included requirements for entities to authorise personnel who handle SSBAs
to undergo background checking consisting of national criminal history and
security checks.
There was extensive consultation in 2008 in developing the SSBA Standards.
Consultation occurred with the National Counter Terrorism Committee's
Chemical, Biological, Radiological and Nuclear (CBRN) Security
Subcommittee, which includes representatives of each state, the Australian
Capital Territory and Northern Territory.
Public comment was also invited on draft SSBA Standards which were posted
on the Department of Health and Ageing website. During June and July 2008,
consultation workshops were held in each capital city (except Darwin and
Hobart) with the consultation period closing on 1 August 2008. Attendees
at the workshops included laboratories in the areas of animal health,
defence, diagnostics, public health and research.
Road shows for the SSBA Regulatory Scheme were conducted in all capital
cities in August and September 2008 to further consult affected
stakeholders.
Consultation as to the agency which would perform background checking have
occurred with the Department's advisory groups: the Implementation Advisory
and Consultative Committee (IACC) and the Regulation and Standards Working
Group (RSWG).
The IACC is a committee chaired by the Department to provide advice on
implementation of the SSBA Regulatory Scheme and comprises representatives
of twelve government agencies including the Australian Chemical,
Biological, Radiological and Nuclear Data Centre and the Australian
Security Intelligence Organisation. Members of the RSWG are persons with
scientific or technical knowledge of SSBAs including representatives from
the Animal Health Committee, the Office of the Gene Technology Regulator,
Department of Foreign Affairs and Trade, and the Public Health Laboratory
Network.
The states and territories were consulted on the need to amend the NHS Act
to enable AusCheck to conduct background checks for the SSBA Regulatory
Scheme at the National Counter Terrorism Committee's CBRN Security
Subcommittee meeting on 9-10 September 2009.
FINANCIAL IMPACT STATEMENT
The financial impact of this Bill is nil because the measure can be
implemented within existing resources.
REGULATION IMPACT STATEMENT
A Business Cost Calculator (BCC) was undertaken in relation to the SSBA
Standards made on 13 November 2008 that had initially included the costs of
a background check that may be conducted by AusCheck. That BCC report is
available at:
http://www.health.gov.au/internet/main/publishing.nsf/Content/ssba-bcc-
report.htm.
Since this Bill implements background checking arrangements for which the
costs have already been assessed, no further regulatory impact analysis is
required.
NATIONAL HEALTH SECURITY AMENDMENT (BACKGROUND CHECKING) BILL 2009
NOTES ON CLAUSES
Clause 1 - Short title
This is a formal provision that specifies the short title of the Bill, once
enacted, as the National Health Security Amendment (Background Checking)
Act 2009.
Clause 2 - Commencement
This clause provides for the commencement of the Bill to occur on the day
it receives the Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this
Bill is amended or repealed as set out by the applicable items in the
relevant Schedule, and any other item in a Schedule to this Bill has effect
according to its terms. Schedule 1 to the Bill amends the NHS Act.
SCHEDULE 1-NATIONAL HEALTH SECURITY ACT 2007
1 After subsection 35(2)
Subsection 35(1) enables the Minister to determine, by legislative
instrument, standards relating to SSBAs. Paragraph 35(2)(b) provides that
a standard may specify requirements about the security status of
individuals who are entitled to handle or dispose of SSBAs.
This item inserts new subsection 35(2A). The new provision sets out that
an example of those requirements is background checking of persons who
handle or dispose of SSBAs which will be conducted by AusCheck. The
AusCheck scheme is established under the AusCheck Act 2007.
The new subsection 35(2A) will align with the amendments made by the
AusCheck Amendment Act 2009 which enables the AusCheck regulations to
provide for a scheme relating to the conduct and coordination of background
checks by AusCheck, if any other Act expressly provides for the making of a
legislative instrument requiring a background check of an individual to be
conducted under the AusCheck scheme.