Department of Home Affairs, AusCheck and Disclosure of an Aviation Security Relevant Offence
Introduction
The Department of Home Affairs has a branch called ‘AusCheck’ which regulates and monitors the compliance of people who hold an Australian Security Identity Card. This is a complex and technical area of law as there are numerous pieces of legislation which apply.
Persons who hold an Australian Security Identity Card have disclosure obligations to AusCheck upon being convicted of an ‘aviation security relevant offence.’
This article will explore an aviation licence holder’s obligation to disclose an aviation security-relevant offence to AusCheck of the Department of Home Affairs. Most holders of an Australian Security Identified Card also hold a licence with Civil Aviation Security Authority.
In a related article – Department of Home Affairs, AusCheck and Disclosure of an Aviation Security Relevant Offence we discuss a person who holds an Australian Security Identified Card obligation of disclosure upon conviction of an aviation security relevant offence.
This article is general in nature and should not be relied upon as legal advice. If you are seeking legal advice, you can call us on 07 5532 3133 to speak with one of our firm’s civil litigation lawyers who can assist you with your matter.
What does the law say?
Under the Aviation Transport Security Regulations 2005 (Cth) (‘Regulations’) there is an obligation for a person who is an applicant for, or holder of, an Australian Security Identity Card to notify, in writing, of a conviction and sentence for a tier 1 or tier 2 offence to AusCheck. If the person has been convicted of or sentenced to imprisonment for a tier 3 offence, this must be disclosed to AusCheck.
The person must notify AusCheck in writing within 7 days after being sentenced.
Penalties may apply if a person fails to notify AusCheck within this timeframe.
What is an aviation security-relevant offence and what are the different tiers?
The Regulations set out various types of offences which constitute an ‘aviation security relevant offence’. As discussed above, there are 3 different tiers of offences.
Whilst all 3 tiers are serious, the tier 1 offences are the most serious offences. Some examples of tier 1 offences include offences involving:
- terrorism;
- espionage or selling national secrets;
- treason;
- weapons of mass destruction
- criminal organizations or gang;
- smuggling or trafficking people.
Some examples of tier 2 offences include:
- assaulting or threatening a person on an aircraft, vessel, offshore facility, airport or port;
- an offence under the Aviation Transport Security Act 2004 (Cth) that is punishable by imprisonment (whether or not the person is in fact sentenced to imprisonment).
Common examples of tier 3 offences include:
- Murder or manslaughter;
- An offence relating to assault;
- An offence relating to sexual abuse or sexual exploitation of a child;
- An offence relating to intimidation;
- An offence relating to affray or riot;
- An offence relating to firearms, ammunition, weapons or the use of an item as a weapon;
- An offence relating to production, possession, supply, import or export of an illegal drug or controlled substance;
- An offence relating to extortion or blackmail;
- An offence relating to theft;
- An offence relating to forgery or fraud.
The above is not an exhaustive list. At the time of writing this article, there are 26 tier 3 offences in total.
What can happen after disclosing an aviation security-relevant offence to AusCheck?
Upon AusCheck considering the disclosure, AusCheck may:
- Suspend a person’s Australian Security Identity Card; or
- Cancel a person’s Australian Security Identity Card.
Suspension of the ASIC
If AusCheck determines to suspend a person’s Australian Security Identity Card this usually means that the suspension takes effect when the holder is told about the suspension and must return the Australian Security Identity Card to AusCheck not later than 7 days after the person is told in writing about the suspension. Failing to do so may attract penalties. Generally, the suspension persists until the Australian Security Identity Card is cancelled or expired.
Cancellation of the ASIC
A person’s Australian Security Identity Card can be cancelled on numerous grounds. The most common ground we see is that the person has an ‘adverse criminal record’.
The Regulations define an adverse criminal record where a person has been convicted of a tier 1 or tier 2 offence, or when a person has been convicted and sentence to imprisonment for a tier 3 offence.
If a person’s Australian Security Identity Card is cancelled then it is no longer valid, but it is possible to apply for the cancellation to be set aside within a certain timeframe. Persons convicted for certain aviation-relevant offences are not able to apply for their cancellation to be set aside.
Review of ASIC Cancellation and Discretionary ASIC
If a person’s Australian Security Identification Card is cancelled, upon application for a review, AusCheck may decide to set aside the cancellation, provide a Discretionary Australian Security Identification Card to the person or confirm the original cancellation decision.
Application for Review
Applications for a review are generally submitted online by an online form. In the online form there is an opportunity for the applicant to submit material along with their application. In this case study, we successfully assisted a client with setting aside the decision to cancel their Australian Security Identification Card – >insert link<.
If you find yourself in this position you should seek to engage a lawyer to assist you with preparing your application and enhance your prospects of success for your application. This is because, if successful, it would be a much cheaper and likely less time-consuming alternative than having to apply for a review at the Administrative Appeals Tribunal.
Conclusion
If you hold an Australian Security Identification Card and have been convicted of an aviation security-relevant offence, there are disclosure obligations to AusCheck. Failing to do so may attract a penalty. It is important that you seek independent legal advice as soon as possible, particularly if your Australian Security Identification Card is suspended or cancelled.
This article is general in nature and should not be relied upon as legal advice. If you are seeking legal advice, you can call us on 07 5532 3133 to speak with one of our firm’s litigation lawyers who can assist you with your matter.
We offer a non-obligation twenty (20) minute consultation to discuss your matter generally and have a law office on the Gold Coast and a law office in Brisbane.