COUNCIL DECISION on the signature of the Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service Proposal for a COUNCIL DECISION on the signature of the Agreement between the European Union and Australia on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs and Border Protection Service
Date: 2011-05-19
Institutions: European Commission
Subjects: Australia, air transport, customs inspection, data transmission, frontier, traveller

EUROPEAN COMMISSION 

Brussels, 19.5.2011 
COM(2011) 280 final 

2011/0125 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature of the Agreement between the European Union and Australia on the 
processing and transfer of Passenger Name Record (PNR) data by air carriers to the 
Australian Customs and Border Protection Service 

 
 
  
 
EXPLANATORY MEMORANDUM 

Australian  legislation  empowers  the  Australian  Customs  Service  to  require  each  air  carrier 
operating  passenger  flight  to  and  from  Australia  to  provide  it  with  electornic  access  to 
Passenger Name Record (PNR) data prior to the passenger arriving or leaving Australia. The 
requirements of the Australian authorities are based on section 64AF of the Customs Act 1901 
of the Commonwealth (Cth), the Customs Administration Act (1985 (Cth), the Migration Act 
1958  (Cth),  the  Crimes  Act  1914  (Cth),  the  Privacy  Act  1988  (Cth)  and  the  Freedom  of 
Information Act 1982 (Cth). 

This legislation aims at obtaining PNR data electronically in advance of a flight's arrival and 
therefore significantly enhances the Australian Customs Sercice's ability to conduct efficient 
and effective advance risk assessment of passenger and to facilitate bona fide travel, thereby 
enhancing the security of Australia. The European Union in cooperating with Australia in the 
fight  against  terrorism  and  other  serious  transnational  crime  views  the  transfer  of  data  to 
Australia  as  fostering  international  police  and  judicial  cooperation  which  will  be  achieved 
though  the  transfer  of  analytical  information  flowing  from  PNR  data  by  Australia  to  the 
competent Member States authorities as well as Europol and Eurojust within their respective 
competences. 

PNR  is  a  record  of  each  passenger'  travel  requirements  which  contains  all  information 
necessary to enable reservations to be processed and controlled by air carriers.  

Air carriers are under an obligation to provide the Australian Customs Service with access to 
certain  PNR  data  to  the  extent  it  is  collected  and  contained  in  the  air  carrier's  automated 
reservation and departure control systems. 

The data protection laws of the EU do not allow European and other carriers operating flight 
from  the  EU  to  transmit  the  PNR  data  of  their  passengers  to  third  countries  which  do  not 
ensure  an  adequate  level  of  protection  of  personal  data  without  adducing  appropriate 
safeguards. A solution is required that will provide the legal basis for the transfer of PNR data 
from the EU to Australia as a recognition of the necessity and importance of the use of PNR 
data in the fight against terrorism and other serious transnational crime, whilst avoiding legal 
uncertainty  for  air  carriers.  In  addition,  this  solution  should  be  applied  homogenously 
throughout the European Union in order to ensure a legal certainty for air carriers and respect 
of individuals' rights to the protection of personal data as well as their physical security. 

The  European  Union  signed  an  agreement  in  2008  with  Australia  on  the  transfer  and 
processing of PNR data based on a set of commitments by the Australian Customs Service in 
relation to the application of its PNR programme.1 

Following  the  entry  into  force  of  the  Lisbon  Treaty  and  pending  the  conclusion  of  the 
agreement, the Council sent the 2008 Australia Agreement to the European Parliament for its 
consent  for  the  conclusion.  The  European  Parliament  adopted  a  resolution2  in  which  it 
decided  to  postpone  its  vote  on  the  requested  consent  and  requesting  a  renegotiation  of  the 
Agreement  on  the  basis  of  certain  criteria. Pending such renegotiation, the 2008 Agreement 
would remain provisionally applicable.  

1 
2 

OJ L 213, 8.8.2008, p.47.  
P7_TA-(2010)0144, 5.5.2010 

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On  21  September  2010,  the  Council  received  a  recommendation  from  the  Commission  to 
authorise  the  opening  of  negotiations  for  an  Agreement  between  the  European  Union  and 
Australia  for  the  transfer  and  use  of  Passenger  Name  Record  (PNR)  data  to  prevent  and 
combat terrorism and other serious transnational crime. 

On  11  November  2010, 
the 
Recommendation  from  the  Commission  to  the  Council  to  authorise  the  opening  of  the 
negotiations. 

the  European  Parliament  adopted  a  resolution  on 

On 2 December 2010, the Council adopted a Decision, together with a negotiation directive, 
authorising the Commission to open negotiations on behalf of the European Union. Following 
negotiations between the parties, the Agreement was initialled on 6May 2011.  

This Agreement takes into consideration and is consistent with the general criteria laid down 
in  the  Communication  from  the  Commission  on  the  Global  Approach  to  the  transfer  of 
Passenger Name Record (PNR) data to third countries3 and the negotiating directives given by 
the Council.  

PNR has proven to be a very important tool in the fight against terrorism and serious crime. 
The  Agreement  has  secured  several  important  safeguards  for  those  whose  data  will  be 
transferred  and  processed.  In  particular,  the  purpose  of  processing  of  PNR  data  is  strictly 
limited  to  preventing,  detecting,  investigating  and  prosecuting  terrorist  offences  and  serious 
transnational crime. Individuals are provided with the right to access, correction, redress and 
information. . The data will be transferred using exclusively the 'push' method and the use of 
sensitive data is prohibited. The retention period of the PNR data is limited and the data will 
be  depersonalised  after  a  certain  period.  Compliance  with  these  rules  shall  be  subjecd  to 
independent oversight by the Australian Information Commissioner. 

The  Article  218(5)  of  the  Treaty  on  the  Functioning  of  the  European  Union  states  that  the 
Council shall authorise the signing of international agreements. 

The Commission therefore proposes to the Council to adopt a decision to sign the Agreement 
between the European Union and Australia on the processing and transfer of Passenger Name 
Record (PNR) data by air carriers to the Australian Customs and Border Protection Service. 

3 

COM(2010)492. 

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2011/0125 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature of the Agreement between the European Union and Australia on the 
processing and transfer of Passenger Name Record (PNR) data by air carriers to the 
Australian Customs and Border Protection Service 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 82(1)(d) and 87(2)(a) , in conjunction with Article 218 (5) thereof,  

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

On  2  December  2010,  the  Council  adopted  a  Decision,  together  with  negotiation 
directives, authorising the Commission to open negotiations on behalf of the European 
Union between the European Union and Australia for the transfer and use of Passenger 
Name  Record  (PNR)  data  to  prevent  and  combat  terrorism  and  other  serious 
transnational crime.  

(2) 

The Agreement has been negotiated. The negotiations were successfully concluded by 
the initialling of the agreement. 

(3) 

The Agreement should be signed subject to its conclusion at a later date. 

(4) 

(5) 

(6) 

This  Agreement  respects  the  fundamental  rights  and  observes  the  principles 
recognised in particular by the Charter of Fundamental Rights of the European Union, 
notably the right to private and family life, recognised in Article 7 of the Charter, the 
right to the protection of personal data, recognised in Article 8 of the Charter and the 
right  to  effective  remedy  and  fair  trial  recognised  by  Article  47  of  the  Charter.  This 
Agreement should be applied in accordance with those rights and principles. 

[In  accordance  with  Article  3  of  the  Protocol  21  on  the  Position  of  the  United 
Kingdom and Ireland in respect of the area of Freedom, Security and Justice annexed 
to the Treaty on European Union and the Treaty on the Functioning of the European 
Union, the United Kingdom and Ireland take part in the adoption of this Decision.] 

In  accordance  with  Articles  1  and  2  of  the  Protocol  22  on  the  Position  of  Denmark 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  on  the  Functioning  of  the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by the Agreement or subject to its application, 

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HAS ADOPTED THIS DECISION:  

Article 1 

The signing of the Agreement between the European Union and Australia on the processing 
and transfer of Passenger Name Record (PNR) data by air carriers to the Australian Customs 
and Border Protection Service is hereby approved, subject to its conclusion at a later date. 

The text of the Agreement to be signed is attached to this Decision. 

The  Commission  is  authorised  to  designate  the  persons  empowered  to  proceed  to  the 
signature, subject to its conclusion.  

Article 2 

This Decision shall enter into force on the day of its adoption.  

Done at Brussels, 

For the Council 
The President 

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ANNEX  

AGREEMENT 

Between the European Union and Australia on the processing and transfer of Passenger 
Name  Record  (PNR)  data  by  air  carriers  to  the  Australian  Customs  and  Border 
Protection Service 

THE EUROPEAN UNION, 

of the one part, and  

AUSTRALIA, 

of the other part,  

Together hereinafter referred to as 'the Parties', 

DESIRING to prevent and combat terrorism and serious transnational crime effectively as a 
means of protecting their respective democratic societies and common values;  

SEEKING to enhance and encourage cooperation between the Parties in the spirit of the EU- 
Australian partnership; 

RECOGNISING  that  information  sharing  is  a  fundamental  component  of  the  fight  against 
terrorism  and  serious  transnational  crime,  and  in  this  context  the  use  of  Passenger  Name 
Record (PNR) data is an essential tool;  

RECOGNISING  the  importance  of  preventing  and  combating  terrorism  and  serious 
transnational crime, while respecting fundamental rights and freedoms, in particular, privacy 
and the protection of personal data;  

MINDFUL of Article 6 of the Treaty on European Union on respect for fundamental rights, 
the right to privacy with regard to the processing of personal data as stipulated in Article 16 of 
the  Treaty  on  the  Functioning  of  the  European  Union,  the  principles  of  proportionality  and 
necessity  concerning  the  right  to  private  and  family  life,  the  respect  for  privacy,  and  the 
protection of personal data under Article 8 of the European Convention on the Protection of 
Human  Rights  and  Fundamental  Freedoms,  Council  of  Europe  Convention  No  108  for  the 
Protection  of  Individuals  with  regard  to  Automatic  Processing  of  Personal  Data  and  its 
additional  Protocol  181,  Articles  7  and  8  of  the  Charter  of  Fundamental  Rights  of  the 
European Union and Article 17 of the International Covenant on Civil and Political Rights on 
the right to privacy; 

RECOGNISING  that,  in  2008,  Australia  and  the  EU  signed  the  Agreement  Between  the 
European Union and Australia on the Processing and Transfer of European Union – Sourced 
Passenger Name Record (PNR) Data by Air Carriers to the Australian Customs Service which 
is applied provisionally from the time of signature but has not entered into force;  

NOTING that the European Parliament decided on 5 May 2010 to postpone the vote on the 
request for consent to that Agreement and by its Resolution of 11 November 2010 welcomed 
the recommendation from the European Commission to the Council of the European Union to 
negotiate a new agreement;  

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RECOGNISING  the  relevant  provisions  of  the  Australian  Customs  Act  1901  (Cth)  (the 
Customs Act), and in particular section 64AF thereof whereby, if requested, all international 
passenger air service operators, flying to, from or through Australia, are required to provide 
the Australian Customs and Border Protection Service with PNR data, to the extent that they 
are collected and contained in the air carrier's reservations and departure control systems, in a 
particular manner and form;  

RECOGNISING  that  the  Customs  Administration  Act  1985  (Cth),  the  Migration  Act  1958 
(Cth), the Crimes Act 1914 (Cth), the Privacy Act 1988 (Cth), the Freedom of Information Act 
1982  (Cth),  the  Auditor-General  Act  1997  (Cth),  the  Ombudsman  Act  1976  (Cth)  and  the 
Public  Service  Act  1999  (Cth)  provide  for  data  protection,  rights  of  access  and  redress, 
rectification and annotation and remedies and sanctions for misuse of personal data;  

NOTING  the  commitment  of  Australia  that  the  Australian  Customs  and  Border  Protection 
Service processes PNR data strictly for the purpose of preventing, detecting, investigating and 
prosecuting  terrorist  offences  and  serious  transnational  crime  in  strict  compliance  with 
safeguards on privacy and the protection of personal data, as set out in this Agreement; 

STRESSING  the  importance  of  sharing  of  analytical  data  obtained  from  PNR  by  Australia 
with police and judicial authorities of Member States, and Europol or Eurojust, as a means to 
foster international police and judicial cooperation; 

AFFIRMING that this Agreement does not constitute a precedent for any future arrangements 
between  Australia  and  the  European  Union,  or  between  either  of  the  Parties  and  any  State, 
regarding the processing and transfer of PNR data or any other form of data and noting that 
the necessity and feasibility of similar arrangements for sea passengers may be examined;  

HAVE AGREED AS FOLLOWS: 

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CHAPTER I 

  GENERAL PROVISIONS 

Article 1  

Purpose of Agreement 

To ensure the security and safety of the public this Agreement provides for the transfer of EU-
sourced PNR data to the Australian Customs and Border Protection Service. This Agreement 
stipulates the conditions under which such data may be transferred and used, and the manner 
in which the data shall be protected.  

Article 2  

Definitions 

For the purposes of this Agreement: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

'Agreement'  shall  mean  this  Agreement  and  its  Annexes,  and  any  amendments 
thereto; 

'personal  data'  shall  mean  any  information  relating  to  an  identified  or  identifiable 
natural  person:  an  identifiable  person  is  one  who  can  be  identified,  directly  or 
indirectly,  in  particular  by  reference  to  an  identification  number  or  to  one  or  more 
factors  specific  to  his  physical,  physiological,  mental,  economic,  cultural  or  social 
identity;  

’processing’ shall mean any operation or set of operations which is performed upon 
PNR  data,  whether  or  not  by  automatic  means,  such  as  collection,  recording, 
organisation,  retention,  adaptation  or  alteration,  retrieval,  consultation,  use, 
disclosure by transmission or transfer, dissemination or otherwise making available, 
alignment or combination, blocking, erasure or destruction;  

‘air  carriers’  shall  mean  air  carriers  that  have  reservation  systems  and/or  PNR  data 
processed  in  the  territory  of  the  European  Union  and  operate  passenger  flights  in 
international air transportation to, from or through Australia; 

'reservation systems' shall mean an air carrier's reservation system, departure control 
system or equivalent systems providing the same functionalities; 

‘Passenger Name Record data' or 'PNR data' shall mean the information processed in 
the EU by air carriers on each passenger's travel requirements as listed in Annex 1 
which contains the information necessary for processing and control of reservations 
by the booking and participating air carriers;  

(g) 

'passenger' shall mean passenger or crew member including the captain; 

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(h) 

'sensitive data' shall mean any personal data revealing racial or ethnic origin, political 
opinions, religious or philosophical beliefs, trade union membership, or health or sex 
life.  

Article 3  

Scope of application 

1. 

Australia  shall  ensure  that  the  Australian  Customs  and  Border  Protection  Service 
processes PNR data received pursuant to this Agreement strictly for the purpose of 
preventing,  detecting,  investigating  and  prosecuting  terrorist  offences  or  serious 
transnational crime: 

2. 

Terrorist offences shall include: 

(a) 

acts of a person that involve violence, or are otherwise dangerous to human life 
or create a risk of damage to property or infrastructure, and which, given their 
nature and context, are reasonably believed to be committed with the aim of: 

(i) 

intimidating or coercing a population; 

(ii) 

intimidating,  compelling,  or  coercing  a  government  or  international 
organisation to act or abstain from acting;  

(iii)  seriously  destabilising  or  destroying 

fundamental  political, 
constitutional,  economic,  or  social  structures  of  a  country  or  an 
international organisation; 

the 

(b) 

assisting,  sponsoring  or  providing  financial,  material  or  technological  support 
for, or financial or other services to or in support of, acts described in a);  

(c)  providing  or  collecting  funds,  by  any  means,  directly  or  indirectly,  with  the 
intention that they should be used or in the knowledge that they are to be used, 
in full or in part, in order to carry out any of the acts described in a) or b); or 

(d) 

aiding, abetting, or attempting acts described in a), b) or c). 

3. 

Serious  transnational  crime  shall  mean  any  offence  punishable  in  Australia  by  a 
custodial sentence or a detention order for a maximum period of at least four years or 
a  more  serious  penalty  and  as  it  is  defined  by  the  Australian  law,  if  the  crime  is 
transnational in nature. A crime is considered as transnational in nature in particular 
if:  

(a) 

it is committed in more than one country; 

(b) 

(c) 

it  is  committed  in  one  country  but  a  substantial  part  of  its  preparation, 
planning, direction or control takes place in another country; 

it  is  committed  in  one  country  but  involves  an  organised  criminal  group  that 
engages in criminal activities in more than one country; or 

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4. 

5. 

1. 

2. 

3. 

(d) 

it is committed in one country but has substantial effects in another country. 

In exceptional cases, PNR data may be processed by Australia where necessary for 
the  protection  of  the  vital  interests  of  any  individual,  such  as  risk  of  death,  serious 
injury or threat to health.  

In  addition,  for 
the  purpose  of  supervision  and  accountability  of  public 
administration  and  the  facilitation  of  redress  and  sanctions  for  the  misuse  of  data, 
PNR  data  may  be  processed  on  a  case-by-case  basis  where  such  processing  is 
specifically required by Australian law.  

Article 4  

Ensuring provision of PNR data 

Air  carriers  shall  provide  PNR  data  contained  in  their  reservation  systems  to  the 
Australian  Customs  and  Border  Protection  Service.  They  shall  not  be  prevented  by 
any provision of the law of either Party from complying with relevant Australian law 
which obliges them to so provide the data. 

Australia  shall  not  require  air  carriers  to  provide  PNR  data  elements  which  are  not 
already collected or held in their reservation systems. 

Should  PNR  data  transferred  by  air  carriers  include  data  beyond  those  listed  in 
Annex 1, the Australian Customs and Border Protection Service shall delete it. 

Article 5 

Adequacy 

Compliance  with  this  Agreement  by  the  Australian  Customs  and  Border  Protection  Service 
shall, within the meaning of relevant EU data-protection law, constitute an adequate level of 
protection for PNR data transferred to the Australian Customs and Border Protection Service 
for the purpose of this Agreement. 

Article 6  

Police and judicial cooperation  

1. 

The Australian Customs and Border Protection Service shall ensure the availability, 
as  soon  as  practicable,  of  relevant  and  appropriate  analytical  information  obtained 
from PNR data to police or judicial authorities of the Member State concerned, or to 
Europol  and  Eurojust,  within  the  remit  of  their  respective  mandates,  and  in 
accordance  with  law  enforcement  or  other  information  sharing  agreements  or 
arrangements  between  Australia  and  any  Member  State  of  the  European  Union, 
Europol or Eurojust, as applicable. 

2. 

A police or judicial authority of a Member State of the European Union, or Europol 
or Eurojust, within the remit of their respective mandates, may request access to PNR 

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data  or  relevant  and  appropriate  analytical  information  obtained  from  PNR  data 
which  is  necessary  in  a  specific  case  to  prevent,  detect,  investigate,  or  prosecute 
within  the  European  Union  a  terrorist  offence  or  serious  transnational  crime.  The 
Australian  Customs  and  Border  Protection  Service  shall,  in  accordance  with  the 
agreements or arrangements referred to in 1, make such information available. 

CHAPTER II 

SAFEGUARDS APPLICABLE TO THE PROCESSING OF PNR DATA 

Article 7  

Data protection and non- discrimination 

1. 

2. 

PNR data shall be subject to the provisions of the Privacy Act 1988 (Cth) (Privacy 
Act)  which  governs  the  collection,  use,  storage  and  disclosure,  security  and  access 
and  alteration  of  personal  information  held  by  most  Australian  Government 
departments and agencies. 

Australia  shall  ensure  that  the  safeguards  applicable  to  the  processing  of  PNR  data 
under  this  Agreement  and  relevant  national  laws  apply  to  all  passengers  without 
discrimination,  in  particular  on  the  basis  of  nationality  or  country  of  residence  or 
physical presence in Australia. 

Article 8  

Sensitive data 

Any  processing  by  the  Australian  Customs  and  Border  Protection  Service  of  sensitive  PNR 
data shall be prohibited. To the extent that the PNR data of a passenger which is transferred to 
the Australian Customs and Border Protection Service include sensitive data, the Australian 
Customs and Border Protection Service shall delete it. 

Article 9  

Data security and integrity 

1. 

To  prevent  accidental  or  unlawful  destruction  or  accidental  loss,  alteration, 
unauthorised disclosure or access or any unlawful forms of processing:  

(a)  PNR  data-processing  equipment  shall  be  held 

in  a  secure  physical 
environment,  and  maintained  with  high-level  systems  and  physical  intrusion 
controls; 

(b)  PNR  data  shall  be  stored  separately  from  any  other  data.  For  the  purpose  of 
matching, data may flow to the PNR system, but not from the PNR system to 
other  databases.  Access  to  the  PNR  system  shall  be  limited  to  a  restricted 
number  of  officials  within  the  Australian  Customs  and  Border  Protection 
Service  who  are  specifically  authorised  by  the  Chief  Executive  Officer  to 

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process  PNR  data  for  the  purpose  of  this  Agreement.  These  officials  shall 
access  the  PNR  system  in  secure  work  locations  that  are  inaccessible  to 
unauthorised individuals;  

(c)  Access to the PNR system, by the officials described in b) shall be controlled 
by  security  access  systems  such  as  layered  logins  using  a  user  ID  and 
password; 

(d)  Access  to  the  network  of  the  Australian  Customs  and  Border  Protection 
Service and any data contained in the PNR system shall be audited. The audit 
record generated shall contain the user name, the work location of the user, the 
date  and  time  of  access,  the  content  of  the  query  and  the  number  of  records 
returned; 

(e)  All  PNR  data  shall  be  transferred  from  the  Australian  Customs  and  Border 

Protection Service to other authorities in a secure manner;  

(f)  The PNR system shall ensure fault detection and reporting;  

(g)  PNR data shall be protected against any manipulation, alteration or addition or 

corruption by means of malfunctioning of the system; 

(h)  No copies of the PNR database shall be made, other than for disaster recovery 

back-up purposes. 

Any  breach  of  data  security,  in  particular  leading  to  accidental  or  unlawful 
destruction  or  accidental  loss,  alteration,  unauthorised  disclosure  or  access  or  any 
unlawful forms of processing shall be subject to effective and dissuasive sanctions.  

The  Australian  Customs  and  Border  Protection  Service  shall  report  any  breach  of 
data  security  to  the  Office  of  the  Australian  Information  Commissioner,  and  notify 
the European Commission that such a breach has been reported.  

Article 10  

Oversight and accountability 

Compliance with data protection rules by the government authorities processing PNR 
data  shall  be  subject  to  the  oversight  by  the  Australian  Information  Commissioner 
who,  under  the  provisions  of  the  Privacy  Act,  has  effective  powers  to  investigate 
compliance by agencies with the Privacy Act, and monitor and investigate the extent 
to  which  the  Australian  Customs  and  Border  Protection  Service  complies  with  the 
Privacy Act. 

The  Australian  Customs  and  Border  Protection  Service  has  arrangements  in  place 
under  the  Privacy  Act  for  the  Australian  Information  Commissioner  to  undertake 
regular  formal  audits  of  all  aspects  of  Australian  Customs  and  Border  Protection 
Service’s EU-sourced PNR data use, handling and access policies and procedures. 

The Australian Information Commissioner will, in particular, hear claims lodged by 
an individual  regardless of their  nationality  or country  of  residence, concerning the 

2. 

3. 

1. 

2. 

3. 

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protection of his or her rights and freedoms with regard to the processing of personal 
data.  The  individual  concerned  will  be  informed  of  the  outcome  of  the  claim.  The 
Australian Information Commissioner will further assist individuals concerned with 
exercising  their  rights  under  this  Agreement,  in  particular  rights  of  access, 
rectification and redress.  

4. 

Individuals  also  have  the  right  to  lodge  a  complaint  with  the  Commonwealth 
Ombudsman  regarding  their  treatment  by  the  Australian  Customs  and  Border 
Protection Service. 

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1. 

2. 

1. 

2. 

3. 

4. 

Article 11 

Transparency 

Australia  shall  request  air  carriers  to  provide  passengers  with  clear  and  meaningful 
information in relation to the collection, processing and purpose of the use of PNR 
data. Preferably this information will be provided at the time of booking. 

Australia  shall  make  available  to  the  public,  in  particular  on  relevant  government 
websites, information on the purpose of collection and use of PNR by the Australian 
Customs  and  Border  Protection  Service.  This  shall  include  information  on  how  to 
request access, correction and redress. 

Article 12  

Right of access 

Any individual shall have the right to access his or her PNR data, following a request 
made to the Australian Customs and Border Protection Service. It shall be provided 
without  undue  constraint  or  delay.  This  right  is  conferred  by  the  Freedom  of 
Information Act 1982 (Cth) (Freedom of Information Act) and the Privacy Act. The 
right of access shall further extend to the ability to request and to obtain documents 
held by the Australian Customs and Border Protection Service as to whether or not 
data relating to him or her have been transferred or made available and information 
on the recipients or categories of recipients to whom the data have been disclosed. 

Disclosure of information pursuant to paragraph 1 may be subject to reasonable legal 
limitations  applicable  under  Australian  law  to  safeguard  the  prevention,  detection, 
investigation,  or  prosecution  of  criminal  offences,  and  to  protect  public  or  national 
security, with due regard for the legitimate interest of the individual concerned. 

Any refusal or restriction of access shall be set out in writing to the individual within 
thirty (30) days or any statutory extension of time. At the same time, the factual or 
legal reasons on which the decision is based shall also be communicated to him or 
her.  The  latter  communication  may  be  omitted  where  a  reason  under  paragraph  2 
exists.  In  all  of  these  cases,  individuals  shall  be  informed  of  their  right  to  lodge  a 
complaint  against  the  decision  of  the  Australian  Customs  and  Border  Protection 
Service.  This  complaint  will  be 
the  Australian  Information 
Commissioner.  They  shall  be  further  informed  of  the  means  available  under 
Australian law for seeking administrative and judicial redress. 

lodged  with 

individual  submits  a  complaint 

Where  an 
the  Australian  Information 
Commissioner as referred to in paragraph 3, individual shall be formally advised of 
the outcome of the investigation of the complaint. He or she shall at least receive a 
confirmation  whether  his  or  her  data  protection  rights  have  been  respected  in 
compliance with this Agreement. 

to 

EN 

14 

   EN 

 
5. 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

The Australian Customs and Border Protection Service shall not disclose PNR data 
to the public, except to the individuals whose PNR data have been processed or their 
representatives. 

Article 13  

Right of rectification and erasure 

Any individual  shall  have  the  right to seek the rectification of his or her PNR data 
processed by the Australian Customs and Border Protection Service where the data is 
inaccurate. Rectification may require erasure. 

Requests  for  the  rectification  of  PNR  data  held  by  the  Australian  Customs  and 
Border  Protection  Service  may  be  made  directly  to  the  Australian  Customs  and 
Border Protection Service pursuant to the Freedom of Information Act or the Privacy 
Act.  

The  Australian  Customs  and  Border  Protection  Service  shall  make  all  necessary 
verifications pursuant to the  request and without undue delay inform the individual 
whether his or her PNR data have been rectified or erased. Such notification shall be 
set out to the individual in writing within thirty (30) days or any statutory extension 
of time and provide information on a possibility of a complaint against the decision 
of  the  Australian  Customs  and  Border  Protection  Service  to  the  Australian 
Information  Commissioner  and  otherwise  on  the  means  available  under  Australian 
law for seeking administrative and judicial redress. 

Where an individual lodges a complaint to the Australian Information Commissioner 
as referred to in paragraph 3, the individual shall be formally advised of the outcome 
of the investigation. 

Article 14  

Right of redress 

Any individual shall have the right to effective administrative and judicial redress in 
case any of his or her rights referred to in this Agreement have been violated. 

Any  individual  who  has  suffered  damage  as  a  result  of  an  unlawful  processing 
operation or of any act incompatible with rights referred to in this Agreement shall 
have the right to apply for effective remedies, which may include compensation from 
Australia. 

The  rights  referred  to  in  paragraphs  1  and  2  shall  be  afforded  to  individuals 
regardless  of  their  nationality  or  country  of  origin,  place  of  residence  or  physical 
presence in Australia. 

Article 15  

Automated processing of PNR data 

EN 

15 

   EN 

 
1. 

2. 

1. 

The  Australian  Customs  and  Border  Protection  Service  or  other  government 
authorities listed in Annex 2 shall not take any decision which significantly affects or 
produces an adverse legal effect on a passenger solely on the basis of the automated 
processing of PNR data. 

The  Australian  Customs  and  Border  Protection  Service  shall  not  carry  out  the 
automated processing of data on the basis of sensitive data. 

Article 16  

Retention of data 

PNR data shall be retained not longer than five and a half years from the date of the 
initial receipt of PNR data by the Australian Customs and Border Protection Service. 
During  this  period  PNR  data  shall  be  retained  in  the  PNR  system  only  for  the 
purpose of preventing, detecting, investigating and prosecuting terrorist  offences or 
serious transnational crime, and in the following manner: 

(a)  From  the  initial  receipt  to  three  years,  all  PNR  data  shall  be  accessible  to  a 
limited  number  of  the  Australian  Customs  and  Border  Protection  Service's 
officials  specifically  authorised  by  the  Chief  Executive  Officer  of  the 
Australian Customs and Border Protection Service to identify passengers who 
may be potential persons of interest;  

(b)  From  three  years  after  initial  receipt  to  the  end  of  the  five  and  a  half  year 
period,  PNR  data  shall  be  retained  in  the  PNR  system  but  all  data  elements 
which could serve to identify the passenger to whom PNR data relate shall be 
masked  out.  Such  depersonalized  PNR  data  shall  be  accessible  only  to  a 
limited number of Australian Customs and Border Protection Service officials 
specifically  authorised  by  the  Chief  Executive  Officer  of  the  Australian 
Customs and Border Protection Service to carry out analyses related to terrorist 
offences  or  serious  transnational  crime.  Full  access  to  PNR  data  shall  be 
permitted only by a member of the Senior Executive Service of the Australian 
Customs  and  Border  Protection  Service  if  it  is  necessary  to  carry  out 
investigations  for  the  purpose  of  preventing,  detecting,  investigating  and 
prosecuting terrorist offences and serious transnational crimes. 

2. 

To achieve depersonalization, the following PNR elements shall be masked out:  

(a)  name(s); 

(b)  other names on PNR, including number of travellers on PNR; 

(c) 

all available contact information (including originator information); 

(d)  general  remarks  including  other  supplementary  information  (OSI),  special 
service information (SSI) and special service request (SSR) information, to the 
extent that it contains any information capable of identifying a natural person; 
and 

EN 

16 

   EN 

 
3. 

4. 

1. 

2. 

3. 

1. 

(e) 

any  collected  advance  passenger  processing  (APP)  or  advance  passenger 
information (API) data to the extent that it contains any information capable of 
identifying a natural person. 

Notwithstanding  paragraph  1,  PNR  data  required  for  a  specific  investigation, 
prosecution or enforcement of penalties for terrorist offences or serious transnational 
crime  may  be  processed  for  the  purpose  of  that  investigation,  prosecution  or 
enforcement of penalties. PNR data may be retained until the relevant investigation 
or prosecution is concluded or the penalty enforced.  

Upon  the  expiry  of  the  data  retention  period  specified  in  paragraphs  1  and  3,  PNR 
data shall be permanently deleted.  

Article 17 

Logging and documentation of PNR data 

All processing, including accessing and consulting or transfer of PNR data as well as 
requests  for  PNR  data  by  the  authorities  of  Australia  or  third  countries,  even  if 
refused,  shall  be  logged  or  documented  by  the  Australian  Customs  and  Border 
Protection  Service  for  the  purpose  of  verification  of  lawfulness  of  the  data 
processing,  self-monitoring  and  ensuring  appropriate  data  integrity  and  security  of 
data processing.  

Logs or documentation prepared under paragraph 1 shall be used only for oversight 
and auditing purposes including investigation and resolution of matters pertaining to 
unauthorised access. 

Logs  or  documentation  prepared  under  paragraph  1  shall  be  communicated  on 
request  to  the  Australian  Information  Commissioner.  The  Australian  Information 
Commissioner shall use this information only for the oversight of data protection and 
for ensuring proper data processing as well as data integrity and security. 

Article 18 

Sharing PNR data with other government authorities of Australia 

The  Australian  Customs  and  Border  Protection  Service  may  share  PNR  data  only 
with those government authorities of Australia which are listed in Annex 2 and only 
pursuant to the following safeguards: 

(a)  Receiving  government  authorities  shall  afford  to  PNR  data  the  safeguards  as 

set out in this Agreement. 

(b)  Data shall be shared strictly for the purposes stated in Article 3; 

(c)  Data  shall  be  shared  only  on  a  case-by-case  basis  unless  the  data  has  been 

depersonalized; 

EN 

17 

   EN 

 
(d)  Prior  to  the  sharing,  the  Australian  Customs  and  Border  Protection  Service 
shall carefully assess the relevance of data to be shared. Only those particular 
PNR  data  elements  which  are  clearly  demonstrated  as  necessary  in  particular 
circumstances  shall  be  shared.  In  any  case,  the  minimum  amount  of  data 
possible shall be shared.  

(e)  Receiving  government  authorities  shall  ensure  that  the  data  is  not  further 
disclosed  without  the  permission  of  the  Australian  Customs  and  Border 
Protection  Service,  which  permission  shall  not  be  granted  by  the  Australian 
Customs  and  Border  Protection  Service  except  for  the  purposes  stated  in 
Article 3 of the Agreement. 

2. 

The  list  of  authorities  set  forth  in  Annex  2  may  be  amended  by  exchange  of 
diplomatic notes between the Parties, to include: 

(a) 

(b) 

(c) 

any  successor  departments  or  agencies  of  those  which  are  listed  in  Annex  2; 
and 

any new departments and agencies established after the entry into force of this 
Agreement  whose  functions  are  directly  related  to  preventing,  detecting, 
investigating or prosecuting terrorism or serious transnational crime; and 

any existing departments and agencies whose functions become directly related 
to  preventing,  detecting,  investigating  or  prosecuting  terrorism  or  serious 
transnational crime. 

3. 

4. 

When  transferring  analytical  information  containing  PNR  data  obtained  under  this 
Agreement, the safeguards applying to PNR data in this Article shall be respected. 

Nothing in this article prevents the disclosure of PNR data where necessary for the 
purposes of Article 3 (4) and (5) and Article 10. 

Article 19 

Transfers to authorities of third countries 

1. 

The Australian Customs and Border Protection Service may transfer PNR data only 
to specific third country authorities pursuant to the following safeguards: 

(a)  The  Australian  Customs  and  Border  Protection  Service  is  satisfied  that  the 
receiving third country authority has agreed to afford to the data transferred the 
same safeguards as set out in this Agreement; 

(b)  Only  a  third  country  authority  whose  functions  are  directly  related  to 
preventing,  detecting,  investigating  and  prosecuting  terrorist  offences  or 
serious transnational crime may receive PNR data; 

(c)  Data  shall  be  transferred  for  the  exclusive  purpose  of  preventing,  detecting, 
investigating  and  prosecuting  terrorist  offences  or  serious  transnational  crime 
as defined in Article 3; 

EN 

18 

   EN 

 
 
(d)  Data shall be transferred only on a case-by-case basis;  

(e)  Prior  to  the  transfer,  the  Australian  Customs  and  Border  Protection  Service 
shall  carefully  assess  the  relevance  of  data  to  be  transferred.  Only  those 
particular  PNR  data  elements  which  are  clearly  demonstrated  as  necessary  in 
particular circumstances shall be transferred. In any case, the minimum amount 
of data possible shall be transferred;  

(f)  Where the Australian Customs and Border Protection Service is aware that data 
of  a  citizen  or  a  resident  of  a  Member  State  is  transferred,  the  competent 
authorities  of  the  concerned  Member  State  shall  be  informed  of  the  matter  at 
the earliest appropriate opportunity; 

(g) 

the  Australian  Customs  and  Border  Protection  Service  is  satisfied  that  the 
receiving third country authority has agreed to retain PNR data only until the 
relevant  investigation  or  prosecution  is  concluded  or  the  penalty  enforced  or 
are no longer required for the purposes set out in Article 3(4), and in any case 
no longer than necessary; 

(h) 

the  Australian  Customs  and  Border  Protection  Service  is  satisfied  that  the 
receiving third country authority has agreed not to further transfer PNR data; 

(i)  The  Australian  Customs  and  Border  Protection  Service  shall  ensure,  where 
appropriate, that the passenger is informed of a transfer of his or her PNR data. 

2. 

3. 

When  transferring  analytical  information  containing  PNR  data  obtained  under  this 
Agreement, the safeguards applying to PNR data in this Article shall be respected. 

Nothing in this article prevents the disclosure of PNR data where necessary for the 
purposes of Article 3 (4). 

CHAPTER III 

MODALITIES OF TRANSFERS 

Article 20 

The method of transfer 

For  the  purpose  of  this  Agreement,  the  Parties  shall  ensure  that  air  carriers  transfer  to  the 
Australian Customs and Border Protection Service PNR data exclusively on the basis of the 
push method and in accordance with the following procedures:  

(a) 

Air carriers shall transfer PNR data by electronic means in compliance with technical 
requirements of the Australian Customs and Border Protection Service or, in case of 
technical  failure,  by  any  other  appropriate  means  ensuring  an  appropriate  level  of 
data security. 

(b) 

Air carriers shall transfer PNR data using an agreed messaging format.  

EN 

19 

   EN 

 
(c) 

Air  carriers  shall  transfer  PNR  data  in  a  secure  manner  using  common  protocols 
required by the Australian Customs and Border Protection Service. 

1. 

2. 

3. 

1. 

2. 

3. 

Article 21 

The frequency of transfer 

The  Parties  shall  ensure  air  carriers  transfer  to  the  Australian  Customs  and  Border 
Protection Service all requested PNR data of passengers as described in Article 20 at 
a maximum of five scheduled points in time per flight, with the first point being up to 
72 hours before scheduled departure. The Australian Customs and Border Protection 
Service shall communicate to air carriers the specified times for the transfers. 

In specific cases where there is an indication that early access is necessary to respond 
to  a  specific  threat  related  to  terrorist  offences  or  serious  transnational  crime,  the 
Australian  Customs  and  Border  Protection  Service  may  require  an  air  carrier  to 
provide PNR data prior to the first scheduled transfer. In exercising this discretion, 
the  Australian  Customs  and  Border  Protection  Service  shall  act  judiciously  and 
proportionately and use exclusively the push method. 

In specific cases where there is an indication that access is necessary to respond to a 
specific  threat  related  to  terrorist  offences  or  serious  transnational  crime,  the 
Australian  Customs  and  Border  Protection  Service  may  require  an  air  carrier  to 
transfer PNR data in between or after regular transfers referred to in paragraph 1. In 
exercising  this  discretion,  the  Australian  Customs  and  Border  Protection  Service 
shall act judiciously and proportionately and use exclusively the push method. 

CHAPTER IV 

IMPLEMENTING AND FINAL PROVISIONS 

Article 22 

Non-derogation/Relationship to other instruments 

This  Agreement  shall  not  create  or  confer  any  right  or  benefit  on  any  person  or 
entity,  private  or  public. Each  Party  shall  ensure  that  the  provisions  of  this 
Agreement are properly implemented.  

Nothing  in  this  Agreement  shall  limit  rights  or  safeguards  contained  in  the  laws  of 
Australia.  

Nothing  in  this  Agreement  shall  derogate  from  existing  obligations  under  any 
bilateral mutual legal assistance instruments between Australia and Member States of 
the European Union to assist with a request to obtain data for evidence in criminal 
proceedings concerning terrorism or serious transnational crime. 

EN 

Article 23  

20 

   EN 

 
1. 

2. 

3. 

4. 

1. 

2. 

3. 

Dispute resolution and suspension of the Agreement 

Any  dispute  arising  from  the  interpretation,  application  or  implementation  of  this 
Agreement and any matters related thereto shall give rise to consultation between the 
Parties with a view to reaching a mutually agreeable resolution, including providing 
an opportunity for either Party to comply within a reasonable time.  

In the event that consultations do not result in a resolution of the dispute, either Party 
may  suspend  the  application  of  this  Agreement  by  written  notification  through 
diplomatic channels, with any such suspension to take effect 120 days from the date 
of such notification, unless otherwise agreed. 

Any  suspension  shall  cease  as  soon  as  the  dispute  is  resolved  to  the  satisfaction  of 
Australia and the EU.  

Notwithstanding  any  suspension  of  this  Agreement,  all  data  obtained  by  the 
Australian Customs and Border Protection Service under the terms of this Agreement 
shall continue to be processed in accordance with the safeguards of this Agreement, 
including the provisions on retention and deletion of data. 

Article 24 

Consultation and review 

The  Parties  shall  notify  each  other,  where  appropriate  before  adoption,  of  any 
legislative or regulatory changes which may materially affect the implementation of 
this  Agreement.  References  in  this  Agreement  to  Australian  legislation  shall  be 
deemed to include any successor legislation. 

The  Parties  shall  jointly  review  the  implementation  of  this  Agreement  and  any 
matters  related  thereto  one  year  after  the  entry  into  force  of  this  Agreement  and 
regularly  thereafter  within  the  duration  of  this  Agreement  and  additionally  as 
requested by either Party. The Parties agree that the review should in particular look 
into  the  mechanism  of  masking  out  data  according  to  Article  16(1)(b),  any 
difficulties  related  to  the  operational  efficiency  or  cost  effectiveness  of  the 
mechanism, and experience acquired with similar mechanisms in other mature PNR 
schemes,  including  the  EU  scheme.  In  the  event  that  an  operationally  efficient  and 
cost effective mechanism is not available, access to the data will instead be restricted 
by  archiving,  and  may  be  accessed  only  in  the  way  that  depersonalized  data  is 
accessed under Article 16. 

The  Parties  shall  agree  in  advance  of  the  joint  review  its  modalities  and  shall 
communicate  to  each  other  the  composition  of  their  respective  teams.  For  the 
purpose  of  the  joint  review,  the  European  Union  shall  be  represented  by  the 
European Commission and Australia shall be represented by the Australian Customs 
and Border Protection Service. The teams may include experts on data protection and 
law enforcement. Subject to applicable laws, any participants to the joint review shall 
be required to respect confidentiality of the discussions and have appropriate security 
clearances. For the purpose of the joint review, the Australian Customs and Border 
Protection  Service  shall  ensure  access  to  relevant  documentation,  systems  and 
personnel.  

EN 

21 

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4. 

5. 

6. 

1. 

2. 

1. 

2. 

3. 

The  Parties  shall  evaluate  the  Agreement,  in  particular  its  operational  effectiveness 
no later than four years after its entry into force.  

Following  the  joint  review,  the  European  Commission  shall  present  a  report  to  the 
European  Parliament  and  to  the  Council  of  the  European  Union.  Australia  shall  be 
given  an  opportunity  to  provide  written  comments  which  shall  be  attached  to  the 
report. 

Since  the  establishment  of  an  EU  PNR  system  could  change  the  context  of  this 
Agreement, if and when an EU PNR system is adopted, the Parties shall consult to 
determine whether this Agreement would need to be adjusted accordingly. 

Article 25 

Termination 

Either  Party  may  terminate  this  Agreement  at  any  time  by  written  notification 
through diplomatic channels. Termination shall take effect 120 days from the date of 
receipt of such notification, or as otherwise agreed. 

Notwithstanding  any  termination  of  this  Agreement,  all  data  obtained  by  the 
Australian Customs and Border Protection Service under the terms of this Agreement 
shall continue to be processed in accordance with the safeguards of this Agreement, 
including the provisions on retention and deletion of data. 

Article 26 

Duration  

Subject  to  Article  25,  this  Agreement  shall  remain  in  force  for  a  period  of  seven 
years from the date of entry into force. 

Upon  the  expiry  of  the  period  set  forth  in  paragraph  1,  as  well  as  any  subsequent 
period  of  renewal  under  this  paragraph,  the  Agreement  shall  be  renewed  for  a 
subsequent  period  of  seven  years  unless  one  of  the  Parties  notifies  the  other  in 
writing  through  diplomatic  channels,  at  least  twelve  months  in  advance,  of  its 
intention not to renew the Agreement. 

Notwithstanding the expiration of this Agreement, all data obtained by the Australian 
Customs  and  Border  Protection  Service  under  the  terms  of  this  Agreement  shall 
continue  to  be  processed  in  accordance  with  the  safeguards  of  this  Agreement, 
including the provisions on retention and deletion of data. 

Article 27 

PNR data received prior to the entry into force of this Agreement  

Australia  shall  treat  any  PNR  data  held  by  the  Australian  Customs  and  Border  Protection 
Service at the time of the entry into force of this Agreement in accordance with the provisions 

EN 

22 

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of  this  Agreement.  However,  no  data  shall  be  required  to  be  masked  out  before  1  January 
2015. 

1. 

2. 

3. 

4. 

1. 

2. 

Article 28 

Territorial application 

Subject to paragraphs 2 to 4, this Agreement shall apply to the territory in which the 
Treaty on European Union and the Treaty on the Functioning of the European Union 
are applicable and to the territory of Australia. 

This Agreement will only apply to Denmark, the United Kingdom or Ireland, if the 
European  Commission  notifies  Australia  in  writing  that  Denmark,  the  United 
Kingdom, or Ireland has chosen to be bound by this Agreement. 

If  the  European  Commission  notifies  Australia  before  the  entry  into  force  of  this 
Agreement  that  it  will  apply  to  Denmark,  the  United  Kingdom  or  Ireland,  this 
Agreement shall apply to the territory of such State on the same day as for the other 
EU Member States bound by this Agreement. 

If  the  European  Commission  notifies  Australia  after  the  entry  into  force  of  this 
Agreement  that  it  applies  to  Denmark,  the  United  Kingdom,  or  Ireland,  this 
Agreement shall apply to the territory of such State on the first day following receipt 
of the notification by Australia.  

Article 29  

Final Provisions 

This Agreement shall enter into force on the first day of the month after the date on 
which the Parties have exchanged notifications indicating that they have completed 
their internal procedures for this purpose. 

This Agreement replaces the Agreement between the European Union and Australia 
on  the  Processing  and  Transfer  of  European  Union  –  Sourced  Passenger  Name 
Record  (PNR)  Data  by  Air  Carriers  to  the  Australian  Customs  Service  done  at 
Brussels on 30 June 2008, which will cease to apply upon the entry into force of this 
Agreement. 

Done  at…,  on…;  in  two  originals,  in  the  English  language.  This  Agreement  shall  be  also 
drawn up in the Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, 
Hungarian,  Italian,  Latvian,  Lithuanian,  Maltese,  Polish,  Portuguese,  Romanian,  Slovak, 
Slovenian, Spanish and Swedish languages, each version being equally authentic. In case of 
divergence between the language versions, the English version shall prevail.  

FOR THE EUROPEAN UNION 

++++++++++ 

FOR AUSTRALIA 

EN 

23 

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++++++++++ 

-------------------------------------------------- 

EN 

24 

   EN 

 
Annex 1 

PNR data elements referred to in Article 2 f) which air carriers are required to provide to the 
Australian Customs and Border Protection Service but only to the extent they already collect 
them: 

1.  PNR record locator code 

2.  Date of reservation/issue of ticket 

3.  Date(s) of intended travel 

4.  Name(s) 

5.  Available frequent flier and benefit information (i.e. free tickets, upgrades, etc.) 

6.  Other names on PNR, including number of travellers on PNR 

7.  All available contact information (including originator information) 

8.  All available payment/billing information (not including other transaction details linked to 

a credit card or account and not connected to the travel transaction) 

9.  Travel itinerary for specific PNR 

10. Travel agency/travel agent 

11. Code share information 

12. Split/divided information 

13. Travel status of passenger (including confirmations and check-in status) 

14. Ticketing  information,  including  ticket  number,  one-way  tickets  and  Automated  Ticket 

Fare Quote 

15. All baggage information 

16. Seat information, including seat number 

17. General remarks including OSI, SSI and SSR information 

18. Any collected APIS information 

19. All historical changes to the PNR listed in numbers 1 to 18 

EN 

25 

   EN 

 
List  of  other  government  authorities  of  Australia  with  whom  the  Australian  Customs  and 
Border Protection Service is authorised to share PNR data: 

Annex 2 

1.  Australian Crime Commission; 

2.  Australian Federal Police; 

3.  Australian Security Intelligence Organisation; 

4.  Commonwealth Director of Public Prosecutions;  

5.  Department of Immigration and Citizenship; 

6.  Office of Transport Security, Department of Infrastructure and Transport. 

EN 

26 

   EN