Proposed new eligibility criteria for the ASIC and MSIC schemes

On 31 August 2016, the Australian Government announced reforms to prevent individuals with links to serious or organised crime from accessing security-sensitive areas of our airports and seaports.

Pending legislative approval, these changes will ensure access to secure aviation and maritime infrastructure is less at risk from individuals with a history of serious or organised crime.

At a glance

  • All new ASIC and MSIC applications received on, or after, the date of commencement* will be assessed against the new eligibility criteria.
  • Existing cardholders will be required to self-report against the new eligibility criteria from this time.
  • The new criteria shifts the focus from low level or minor offences to higher risk offences related to serious or organised crime.
  • ASIC or MSIC applications will be assessed against a single set of criteria, reducing the need to complete separate background checks for each application.
  • Some applicants who have previously applied for a discretionary assessment may now become eligible for an ASIC or MSIC on initial application.

How will these changes affect me?

What are the offences under the new criteria?

  • The new eligibility criteria will introduce additional offence categories which are not currently captured in the schemes.
  • The new criteria will focus on significant criminal offences associated with serious and organised crime, such as:
    • offences under anti-criminal organisation legislation;
    • the illegal sale and possession of firearms and other weapons; and
    • illegal importation of goods and interfering with goods under Border Force control.
  • The inclusion of new offences, such as foreign incursion and recruitment, will enhance the schemes’ ability to exclude persons convicted of offences of the highest severity.
  • These offences will be in addition to those currently focusing on unlawful interference with aviation and or maritime infrastructure.

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How will the new criteria work?

  • The proposed amendments will tier offences for the first time. For example, less serious offences will require a higher imprisonment threshold to become an aviation or maritime-security-relevant offence, while more serious offences will only require conviction.
  • View the proposed ASIC and MSIC eligibility criteria.
  • View a comparison of the current and proposed new criteria PDF: 346 KB ReadSpeaker
  • The five tiers of eligibility criteria comprise:
    • Tier 1 contains a list of disqualifying offences. Persons captured under Tier 1 of the eligibility criteria will be disqualified from being issued an ASIC/MSIC and will not have access to the discretionary assessment by the Attorney General's Department (AGD). They will continue to have access to appeal the decision through application to the Administrative Appeals Tribunal (AAT).
    • Tiers 2–5 contain offences that would result in a person being found to have an adverse criminal record and unable to be issued an ASIC/MSIC following the initial application. These persons will be eligible to apply for an ASIC/MSIC through the discretionary assessment.
  • A benefit of the tiered approach is that a larger number of applicants will be initially eligible for an ASIC or MSIC. This is due to the shift in focus from low level or minor offences to higher risk offences related to serious or organised crime.

For example:

An applicant for an MSIC has a conviction for unlawfully importing tobacco and sentenced to three years' imprisonment.

Current criteria

  • The applicant is found eligible (offence not captured under Maritime Security Relevant Offences (MSRO))

New criteria

  • The applicant is found ineligible. Ineligible applicants will continue to have the option to seek a discretionary assessment, or appeal a decision.

Rationale

  • This offence indicates the person was willing to circumvent Australia's border integrity and may pose a serious or organised crime risk.

  • The proposed new eligibility criteria list a new offence criteria relating to illegal importation or exportation of goods, fauna or flora (refer Tier 3.5).

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What will the new criteria mean for me?

  • Applicants who have previously applied for a discretionary assessment may now be initially eligible for an ASIC or MSIC. This will mean these will people will be issued their ASIC or MSIC quicker, reducing impact to their employment.
  • Unified eligibility criteria—the introduction of the new criteria will harmonise the ASIC and MSIC schemes. This means the same offences will apply to both the aviation and maritime-security-relevant-offences.
  • Clarified outcomes—disqualifying offences will now apply to the ASIC scheme. Currently, disqualifying offences only apply to the MSIC scheme. Your application will now have three possible outcomes—eligible, adverse, or disqualified.
  • Improved appeals—ASIC applicants will now be able to seek reconsideration of decisions made by the Secretary (as per the current process available to MSIC applicants). This is in addition to the discretionary assessment.
  • Availability of information—introducing the ability to reinstate cancelled four-year MSICs once necessary information for a successful background check is later provided. Cards or background checks will now be cancelled, where sufficient information is not available for AusCheck to complete a background check.

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What are my rights of appeal?

  • Your rights of appeal improve under the new criteria. ASIC applicants will now be able to seek reconsideration of decisions made by the Secretary.
  • All existing appeals processes remain available for applicants. For those persons who may be found adverse under the new criteria, the current options for a discretionary assessment and appeals process remain.

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Are there any other changes that will affect me?

  • From the date of commencement*, the discretionary assessment process will be managed by the Attorney-General's Department.
  • This is a functional move only and will have no impact to applicants or the discretionary assessment process.

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If I currently have an ASIC/MSIC will I need to undergo an additional background check?

  • The new criteria will apply to all applications. This includes the MSIC second year background check for four year MSIC cardholders.

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What are my self-reporting obligations?

  • All ASIC and MSIC holders continue to have self-reporting requirements.
  • Self-reporting requirements against current criteria offences will continue until the date of commencement*.
  • From the date of commencement*, you will be required to self-report against the new eligibility criteria.
  • It is, and will continue to be, an offence not to self-report if you are convicted and sentenced of an offence with the corresponding imprisonment threshold outlined in the eligibility criteria.
    • You are required by law to notify your Issuing Body or the Secretary of the Attorney-General's Department in writing within 7 days of the conviction.
  • Under the self-reporting system, if you are found adverse or disqualified following a background check, your card will be cancelled and you are required to return your card to your Issuing Body.

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Where can I find the new eligibility criteria?

  • From the date of commencement*, the new eligibility criteria will be set out in the Aviation Transport Security Regulations 2005 and the Maritime Transport and Offshore Facilities Security Regulations 2003.
  • More information about the changes and your continuing obligation to self-report will be made available before commencement of the new eligibility criteria.

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What happens if my ASIC/MSIC background check is unsuccessful?

  • Unsuccessful applicants have the option to seek a discretionary assessment if found adverse (Tiers 2–5), or appeal the decision if found disqualified (Tier 1).
  • Information on the current ASIC and MSIC discretionary assessment process can be found at:
  • From the date of commencement*, the discretionary assessments will be managed by the Attorney-General's Department.
  • Information will be available on the Attorney-General's Department's website before commencement.

*Commencement is planned for 1 February 2017 however this is dependent on receiving Parliamentary approval. Applicants and industry will be advised of the confirmed commencement date.

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Proposed ASIC/MSIC eligibility criteria

Tier 1—Disqualifying offences include those involving or relating to:

1.1

terrorism;

1.2

treason, sedition, espionage or selling national secrets;

1.3

engagement in hostile activities in a foreign country or involvement with foreign armed forces;

1.4

an offence relating to weapons of mass destruction;

1.5

hijacking or destroying an aircraft, vessel or offshore facility that is used in commerce or owned by the government;

1.6

endangerment of an aircraft, airport, vessel, port or offshore facility that is used in commerce or owned by the government;

1.7

acts of piracy at sea;

1.8

an offence relating to involvement with a criminal organisation or gang; and

1.9

smuggling or trafficking of people.

Tier 2—Offences for which conviction is adverse include those involving or relating to:

2.1

assaulting or threatening a person on an aircraft, vessel or offshore facility, or in an airport or port;

2.2

theft of an aircraft or vessel that is used in commerce or owned by the government;

2.3

questioning conducted by a person or body investigating serious and organised crime or corruption; and

2.4

an offence under the Aviation Transport Security Act 2004 or the Maritime Transport and Offshore Facilities Security Act 2003 that is punishable by imprisonment (whether or not the person is in fact sentenced to imprisonment.

Tier 3- Offences for which a sentence of imprisonment is adverse include those involving or relating to:

3.1

murder or manslaughter, or an offence of a kind equivalent to murder or manslaughter;

3.2

firearms, ammunition, weapons or the use of an item as a weapon;

3.3

to explosives or explosive devices;

3.4

production, possession, supply, import or export of an illegal drug or controlled substance;

3.5

illegal import or export of goods, fauna or flora;

3.6

bribery or corruption;

3.7

perjury or otherwise involving perversion of the course of justice;

3.8

an offence involving the use of a false identity or false identity documents;

3.9

interference with goods under customs control; and

3.10

use or access of data or electronic communications.

Tier 4—Offences for which a sentence of 12 months imprisonment is adverse include those involving or relating to:

4.1

false imprisonment, deprivation of liberty or taking a hostage

4.2

racial hatred or racial vilification;

4.3

assaulting or resisting a law enforcement officer or other public officer;

4.4

impersonating a law enforcement officer or other public officer;

4.5

extortion or blackmail;

4.6

dealing with proceeds of crime;

4.7

money laundering or currency violations; and

4.8

arson or an offence of a kind equivalent to arson.

Tier 5–Offences for which a sentence of 30 months imprisonment is adverse include those involving or relating to

5.1

theft (other than offences referred to above);

5.2

forgery or fraud;

5.3

sexual abuse or sexual exploitation of a child;

5.4

assault (other than offences referred to above), including indecent or sexual assault;

5.5

intimidation (other than offences referred to above);

5.6

endangerment of others (other than offences referred to above);

5.7

affray or riot; and

5.8

tax evasion.

1 This item includes any act or intention to convert explosive material from ammunition or fireworks into an improvised explosive device.

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