COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation 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: 2021-01-12
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Australia, agreement (EU), air transport, cross-frontier data flow, data collection, data protection, exchange of information, personal data, terrorism, traveller

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 12.1.2021  SWD(2021) 3 final  COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the joint evaluation 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 {COM(2021) 17 final}  
 
 
Contents 

1.  INTRODUCTION AND BACKGROUND ..................................................................... 2 

2.  METHODOLOGY ............................................................................................................ 3 

3.  THE OUTCOME OF THE JOINT EVALUATION ...................................................... 4 

3.1 THE USE AND OPERATIONAL VALUE OF PNR DATA ................................................... 5 

3.2 THREAT PROFILING .................................................................................................... 6 

3.3 PREDICTIVE MODELLING ............................................................................................ 8 

3.4 OTHER TARGETING POSSIBILITIES ............................................................................. 9 

3.5 PNR AS A FACILITATION TOOL................................................................................. 11 

4.  CONSISTENCY WITH OTHER INSTRUMENTS..................................................... 12 

4.1 OTHER INSTRUMENTS FOR THE COLLECTION OF TRAVEL RELATED DATA ............. 12 

4.2 OTHER INSTRUMENTS ON PNR ................................................................................ 12 

5.  DATA PROTECTION SAFEGUARDS AND THE COURT’S OPINION ON THE 
ENVISAGED CANADA PNR AGREEMENT ................................................................... 15 

6.  CONCLUSIONS .............................................................................................................. 18 

ANNEX A - Questionnaire and replies ................................................................................ 21 

ANNEX B - Composition of the evaluation teams .............................................................. 33 

1 

 
 
 
 
 
1.  INTRODUCTION AND BACKGROUND 

The  Agreement  between  the  European  Union  (EU)  and  Australia  on  the  processing  and 
transfer of passenger name record (PNR)1  data by air carriers to the Australian Customs and 

Border  Protection  (herein  after  “the  Agreement”)  was  concluded  in  order  to  enhance  and 

encourage cooperation to effectively prevent  and combat terrorism and serious transnational 

crime, while fully respecting fundamental rights and freedoms, in particular privacy and the 

protection of personal data. It entered into force on 1 June 2012 and allows for transfers of EU 

sourced PNR data to Australia, subject to the safeguards and controls included therein.  

Australia requires each air carrier operating passenger flights to and from Australia to provide 

access  to  Passenger  Name  Record  (PNR)  data  prior  to  the  passenger  arriving  or  leaving 

Australia.  The  legal  basis  for  such  data  collection  derives  from  the  Australian  Customs 

legislation,  in  particular  section  64AF  of  the  Customs  Act  1901  of  the  Commonwealth 

(‘Customs Act’). 

The  Australian  Border  Force  (ABF)  is  an  operationally  independent  body  within  the 

Department  of  Home  Affairs  (herein  after  “the  Department”)  of  Australia,  which  main 

mission  is  to  protect  Australia's  border  and  enable  legitimate  travel  and  trade,  operates  as  a 

frontline  border  law  enforcement  agency  and  customs  service.  The  Department  is  now  the 

competent Australian Government agency for administering PNR data in accordance with the 

provisions  of  the  Agreement.  Once  collected,  the  PNR  data  are  processed,  analysed  and 

disseminated by dedicated divisions of the Department. 

The  two  joint  reviews  of  the  Agreement  -  one  in  20132  and  one  simultaneously3  with  the 

present joint evaluation - examined the practical application of the Agreement and proposed 

recommendations to further improve it.  

Due to the sensitive nature of the PNR programme, some information was provided to the EU 

team on the condition that it would be treated as classified up to the level of EU Secret. The 

1     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,  OJ  L  186, 
14.7.2012, p. 4. 

2        Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  joint  review  of  the 
implementation  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, COM(2014)0458 final. 

3        Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  joint  review  of  the 
implementation  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, COM(2020)701final. 

2 

 
 
                                                           
present document should be read in the light of these limitations, as well as in the light of the 

fact that all members of the EU team had to sign non-disclosure agreements exposing them to 

criminal  and/or  civil  sanctions  for  breaches.  The  Department  was  be  restrained  in  regard  to 

what  case  studies  and  additional  statistics  could  be  provided  for  use  in  a  public  document, 

beyond  what  has  already  been  provided  as  considered  to  reveal  details  on  methods, 

capabilities  and/or  sensitive  operations.provide  details  on  methods,  capabilities  or  sensitive 

operations. 

These limitations have not come in the way of a thorough, open and frank exchange of views 

with  the  Australian  authorities,  who  showed  remarkable  openness  and  a  very  constructive 

spirit.  Therefore,  the  EU  would  like to  confirm  once  again  the  excellent  cooperation  on  the 

part of all the Department and other Australian personnel and express its gratitude for the way 

in which the questions of the EU team have been replied to.  In January 2019, it was jointly 

agreed  to  launch  the  joint  review  and  joint  evaluation  of  the  EU-Australia  PNR  Agreement 

exercise  as  foreseen  in  Article  24  thereof.  This  document  includes  the  result  of  the  joint 

evaluation process. Prior to its finalisation, it has been shared with the Australian authorities 

providing them with the opportunity to identify possible inaccuracies and to comment on its 

content.  

2.  METHODOLOGY  

Although  the  Agreement  at  Article  23(4)  does  not  state  the  scope  and  purpose  of  the 

evaluation,  such  exercise  is  meant  to  take  a  wider  approach  than  the  review  of  the  EU- 

Australia  PNR  Agreement,  analysing  the  operational  added  value  of  the  Agreement  and 

assessing  its  results  and  impacts,  effectiveness  and  necessity,  and  proportionality.  The 

evaluation  also  offers  an  opportunity  to  take  stock  of  the  evolution  of  the  relevant  legal 

framework and case law of both parties. The joint evaluation has taken place together with the 

regular joint review and has benefitted, from the same organisational measures and sources of 

information.  

As was the case with the joint review, the European Union was represented by the European 

Commission.  The  Commission  team  was  led  by  the  Director  for  Security  and  included 

officials  from  the  Directorate  General  for  Migration  and  Home  Affairs  and  the  Directorate 

General  for  Justice  and  Consumers,  as  well  as  data  protection  and  law  enforcement  experts 

from  EU  Member  States.  Australia  was  represented  by  the  Department  of  Home  Affairs 

3 

 
 
 
 
(herein referred to as “the Department”), with a team composed of officers from various units 

in  charge  of  the  PNR  collection  and  analysis  and  led  by  the  Assistant  Secretary  Border 

Intelligence  Fusion  Centre.  A  full  list  of  the  members  of  both  teams  appears  in  Annex  B 

(composition of the teams). 

The joint evaluation relied on the following elements: 

  The  questionnaire  sent  to  the  Department  in  advance  of  the  joint  evaluation  and  the 

replies to this questionnaire (Annex A).  

  Visits to the Department premises in Canberra and the Border Intelligence Fusion Centre 

on  14  (dedicated  day  focused  on  the  joint  review)  and  15  August  2019  (dedicated  day 

focused on the joint evaluation);  

  Exchanges  with  Department  personnel  responsible  for  the  PNR  programme,  including 

analysts who use and have access to PNR data; 

  The  information  provided  during  the  visits  to  Australia  and  discussions  with 

representatives  from  the  Department,  the  Office  of  the  Australian  Information 

Commissioner,  as  well  as  the  Office  of  the  Commonwealth  Ombudsman  and  the 

Department area responsible for privacy matters; 

  Reports  of  formal  audits  conducted  by  the  Office  of  the  Australian  Information 

Commissioner on PNR data processing by the Department; 

  The joint review reports where relevant; 

  Related  legislation  and  case  law;  notably,  the  Opinion  1  /15  of  the  European  Court  of 

Justice on the envisaged EU–Canada PNR Agreement of 26 July 2017;4 

  The evolution of the security environment in the EU, Australia and globally including the 

adoption of the United Nations Security Council Resolution 2396 (2017).5 

The  present  document  has  received  the  unanimous  agreement  of  the  members  of  the  EU 

team.It has also been shared with the Department, providing Australia with the opportunity to 

comment on inaccuracies and on information that could not be disclosed to public audiences. 

While the evaluation itself was conducted jointly, this document is not a joint report of the 

EU and Australian teams.  

4      Opinion 1/15 of the Court (Grand Chamber), ECLI:EU:C:2017:592. 
5      Resolution 2396 (2017) - Adopted by the Security Council at its 8148th meeting, on 21 December 2017. 

4 

 
 
 
 
 
                                                           
3.  THE OUTCOME OF THE JOINT EVALUATION 

This Chapter provides the main findings resulting from the joint evaluation of the EU team. 

3.1. The use and operational value of PNR data  

The use of PNR data is a key component of the Department’s intelligence-informed targeting 

capability, used to identify serious threats to the Australian border in the air traveller domain. 

It  allows  the  Department,  including  the  Australian  Border  Force,  to  intervene  while  further 

checking  a  very  small  percentage  of  the  travelling  public  and  by  targeting  only  the  most 

serious threats to national security, and serious transnational crimes such as child exploitation, 

illicit  drugs,  organised  crime,  identity  fraud  and  illicit  tobacco  smuggling  in  the  air  travel 

domain. 

The use of PNR data is the primary mechanism that the Department and the Australian Border 

Force  uses  to  reduce  the  volume  of  checks  at  the  border,  by  providing  the  ability  to  target 

specific  travellers  through  indicators  and  behaviours  linked  with  identified  risks.  In 

identifying  those  travellers  that  present  a  credible  and  measurable  risk  beyond  a  predefined 

threshold, the use of PNR data allows the Department to facilitate those travellers that were 

not identified as high risk to transit the border without further intervention.  

Results from PNR targeting rules in the period 2018-2019 

In accordance to the information provided, between 2018 and 2019, 7.9 per cent of instances 

of  closer  questioning  or  examination  of  travellers  identified  from  PNR-based  targeting 

resulted in detention / arrest / seizure or further action outcomes;.  

Of the total detention / arrest / seizure or further action outcomes:  

0.8 per cent of travellers were detected with a significant quantity of illicit drugs, 

0.6 per cent of travellers were detected with child exploitation material,  

32 per cent of travellers were refused entry to Australia, 

23  per  cent  of  travellers  were  detected  with  undeclared  revenue  items  (e.g.  tobacco)  and 

finally, 

43.6  per  cent  of  instances  (of  travellers  whose  entry  to  Australia  was  refused)  resulted  in 

intelligence reports/files being generated in relation to the threats covered by the Agreement 

(in addition to the above counts). 

5 

 
 
As regards the different ways in which PNR data are used, the Department staff conduct pre-

arrival  and  pre-departure  risk  assessments  of  passengers  travelling  to  (or  in  transit  through) 

and  from  Australia  using  both  EU  and  non  EU-sourced  PNR  data,  as  well  as  other 

information,    including  Advance  Passenger  Information  (API)  data.  In  addition,  the 

Department  responds  to  requests  for  PNR  data  from  other  units  within  the  Department  and 

from  other  Australian  government  agencies  or  third  country  authorities  as  per  relevant 

Memoranda of Understanding.  

At  each  Australian  international  airport,  officers  are  responsible  for  the  facilitation  of 

passenger  processing  and  the  application  of  risk  management  techniques  to  identify  and 

intercept  travellers  who  may  pose  a  risk  to  the  integrity  of  the  border.  In  the  framework  of 

these  operations,  while    the  airport  units  may  receive  alerts  about  PNR  data  from  the 

Department’s  competent  authority,  they  do  not  themselves  collect  PNR  data,  nor  are  they 

involved in the disclosure of PNR data to other agencies or organisations. 

The statistics on total air passenger movements show a total of 42,123 million passengers for 
the year which ended in June 20196. In these circumstances it is necessary to conduct the risk 

assessment  with  the  support  of  advanced  technologies.  According  to  the  Australian 

authorities,  the  value  of  PNR  programmes  consist  therefore  of  the  possibility,  in 

combination with other sources of information, of screening effectively a large volume of 

passengers reducing interference with the normal flow of persons and goods at airports. 

Additionally,  the  limited  and  carefully  selected  number  of  interventions  on  specific 

individuals, in combination with other sources of information maximises the use of available 

law enforcement resources. The procedures and controls applied before, during and after the 

creation of the models and criteria used in the pre-screening contribute to minimise the risk of 

bias and discrimination.  

As to the techniques involved, the automated processing of PNR by the authorised staff of the 

Department  implies  different  approaches  in  relation  to  whether  it  makes  use  of  available 

intelligence on past suspicious behaviour, of known selectors and other available derogatory 
information, or of machine learning7 techniques which do not rely on pre-existing information 

6       Australian Department of Infrastructure, Transport, Cities and Regional Development. Data retrieved in 

September 2019 at https://www.bitre.gov.au/statistics/aviation/international.aspx.   

7       Within the wider context of artificial intelligence, machine learning techniques refer to the use of 

algorithms and statistical models by computer systems so they can perform a specific task without using 
explicit instructions, but simply relying on patterns, associations and inference that the systems learn from 
large datasets. 

6 

 
 
                                                           
or intelligence. These approaches are defined below respectively as threat profiling, predictive 

modelling  and  intelligence-led  targeting,  but  such  terminology  should  not  be  considered 

standard or commonly used.   

3.2. Threat profiling 

The  specialised  unit  dealing  with  the  automated  processing  of  PNR  data  studies  the 

information available on a specific group of persons known to be involved in a certain type of 

criminality. For instance known foreign terrorist fighters who have returned to Australia (or 

have  not  returned)  may  use  specific  air  routes  from  certain  conflict  zones.  Such  knowledge 

based on past target behaviour is then used to build a profile, or set of criteria, which is then 

tested, validated and ultimately deployed in the pre-arrival screening in order to detect new, 

and  previously  unknown  targets.  The  resulting  matches  are  passed  to  the  Australian  Border 

Force, for additional human scrutiny, to determine any possible referral to airport operations. 

The analysis of the past criminal behaviour (based on data retained under the conditions of the 

Agreement)  requires  in  opinion  of  the  Australian  authorities,  the  retrieval  and  use  of 

historical PNR data (past travel movements) for all the known individuals. Relying solely on 

a PNR where travel has not yet occurred does not allow identification of a change in pattern 

or  behaviour  in  travel  in  the  same  way  that  is  possible  by  combining  previous  and  current 

PNR data. 

Example: Comparative analysis between travellers suspected of illicit activity and other 

travellers. 

Analysis of historic and current PNR data relating to travellers of known interest (data set A) 

compared  to  a  larger  group  of  travellers  who  are  not  of  interest  (data  set  B)  was  the  only 

mechanism  to  verify  the  highest  risk  destinations,  as  well  as  other  travel  or  booking 

behaviours. This process highlighted the general travel behaviour of high threat travellers as 

opposed  to  the  travel  behaviour  of  legitimate  travellers,  and  therefore  informed  relevant 

targeting  efforts.  Abstract  profiles  were  developed  to  identify  travellers  to  be  suspected  of 

being in possession of child exploitation material or travelling to conduct child exploitation 

offences overseas.  

With  minimal  intervention,  this  effort  led  to:  10  detections  of  child  abuse  material,  5 

detections  of  borderline  child  abuse  material,  and  12  instances  of  high-value  intelligence 

collection  for  further  investigation  into  possible  live  streaming  of  child  abuse  in  just  three 

7 

 
 
months. The development of this effort relied on historical PNR and has enabled the detection 

of this crime against otherwise unknown entities of interest. 

Furthermore,  the  Australian  authorities  noted  that  during  the  assessment  of  a  profile  match, 

the ability to compare a current travel event to past behaviour and other available intelligence 

is equally essential in determining what is of interest. Neither can be achieved without access 

to historic PNR data in view of the Australian authorities. 

3.3.  Predictive modelling  

Predictive modelling is a technique developed by data scientists which makes use of machine 

learning  classification  algorithms.  The  aim  of  this  technique  is  to  identify  “unknown” 

individuals  that  may  be  of  interest  for  law  enforcement  or  border  management  authorities 

based on their similarity to historical “known” individuals of interest. It foresees three distinct 

phases: i) learning phase ii) testing phase and iii) deployment. 

In  the  learning  phase,  the  data  scientist  builds  a  predictive  model  using  a  historical  set  of 

passenger data where the subset of records related to individuals known for their involvement 

in  a  given  type  of  criminality  is  clearly  marked.  The  machine  learning  algorithm  learns  the 

characteristics  or  features  that  differentiate  the  prior  “known”  passengers  of  interest  from 

other passengers. 

In  the  second  testing  phase,  the  machine  learning  model  is  run  on  a  different  historical 

dataset, where the markings for the known criminals are not present in the PNR records. The 

system  applies the model  built  during the first  phase and  identifies  individuals suspected of 

criminality. The tester who created this second dataset is in fact in possession of the markings 

which  identify  the  records  of  the  passengers  known  to  be  involved  in  the  targeted  criminal 

behaviour and is therefore able to measure in how many cases the system identified the right 

targets. In essence, the test data is used to see how well the machine can predict new targets 

on a dataset that it has not previously seen.  

The last phase is when the model is actually deployed in production in the course of the pre-

arrival or pre-departure screening. Each traveller is scored against the model which allows a 

threshold to be set. A traveller that scores above the agreed threshold generates a match that is 

always further assessed and possibly referred for subsequent intervention. 

Example:  Predictive modelling 

8 

 
 
A model was built to identify travellers that may be importing illicit drugs to Australia. The 

model relied on all prior significant drug detections in the traveller stream where historical 

PNR was available. Once deployed, travellers that score above a set threshold on the model 

(approximately 0.05% of inbound passengers each day) generate a match prior to arrival for 

further assessment, and then possible intervention. 

During the EU team’s visit to Australia in August 2019, the Australian authorities informed 

that  up  to  that  date,  nine  drug  couriers  have  matched  the  output  of  the  model.  In  several 

cases, the couriers also matched other profiles or were identified through by other targeting 

means. However, three couriers were only identified due to the match on the model, resulting 

in the detection of a total of 4.5kg of methamphetamine and 6.5kg of ephedrine.  

Comparisons  between  the  performance  of  the  model  and  similar  coverage  rules-based 

profiles indicate the model is more efficient, resulting in a similar number of detections, but 

from less than half the number of matches. 

The  Australian  authorities  reaffirmed  that  in  order  to  build  reliable  and  accurate  predictive 

models, the training and testing datasets need to  be generated making use of historical PNR 

data. 

3.4. Other targeting possibilities  

The  EU  experts,  during  their  onsite  visit  to  Canberra,  were  briefed  in  a  secure  room  on 

operations  and  analyses  of  PNR  data  to  identify  individuals  already  known  for  their 

involvement in criminality or that can be connected to data elements which in the past were 

already associated to criminal behaviour. The experts had no access to the systems or any data 

processed. 

While  the  identification  of  individuals  would  normally  rely  on  the  use  of  complete  and 

verified biographic information, which is not present in PNR data, the Australian authorities 

noted that the use of other data such as a telephone number or an email address included in 

PNR records, can lead to the detection of suspects, either previously known or unknown. 

PNR allows risk assessment in identifying unknown criminals (linked bookings)  

A  passenger  travelling  from  the  Middle  East  was  subject  to  a  routine  inspection  which 

revealed 7kg of heroin hidden in his hand baggage. The PNR included a telephone number. A 

few  days  later  the  same  phone  number  appeared  in  the  PNR  of  another  national  flying  the 

same route. After a mandated check the individual was found in possession of 5kg of heroin. 

9 

 
 
PNR  analysis  identified  passengers  suspect  for  drug  smuggling.  Further  analysis  and 

comparison  with  historical  PNR  data  revealed  that  their  booking  was  made  by  the  same 

travel  agent.  Enquiries  then  showed  that  this  travel  agency  was  used  by  a  drug  network, 

which without the PNR data would not have been dismantled. 

The  PNR  data  have  also  been  used  to  detect,  investigate  and  prosecute  people  who  have 

attempted to get to or have been to conflict zones. For example, since 2012, information made 

publicly  available by the Australian Security  Intelligence Organisation says that around 110 
Australians had been known to be fighting or engaged with terrorist groups in Iraq and Syria.8 

Example: PNR used to prevent a terrorist attack (real time) 

In 2017, the Australian competent authority received information about a passenger who was 

travelling  to  Australia  (Sydney)  in  order  to  carry  out  a  terrorist  attack  using  explosives. 

Historical  PNR  data  was  proven  to  be  key  during  the  investigation  in  order  to  identify  the 

passenger, who was apprehended before carrying out the attack. 

Such a case proved, in view of the Australian authorities, that PNR data are especially useful 

for  running  them  against  predetermined  criteria  (abstract  profiles)  in  order  to  identify 

previously  “unknown”  suspects,  and  then,  in  a  second  step,  for  running  their  data  against 

various databases of persons and objects sought, i.e. to identify persons that might potentially 

be of interest to law enforcement authorities and who were so far unsuspected.  

Another important feature of PNR is that it allows the identification of criminal associates as 

individuals may appear together in the same travel reservation (co-travellers). 

Example:  PNR  data  use  in  investigations,  prosecutions,  unravelling  of  networks  after  a 

crime has been committed 

PNR  data  was  used  to  analyse  a  detection  of  border-controlled  drugs  ,  imported  by  an 

outlawed  motorcycle  gang  and  Asian  organised  crime  syndicate,  to  assist  with  the 

identification of persons of interest and additional travel associates, following detection of the 

border control drugs in a sea cargo container. 

8       See: 

https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/estimate/fdff59a2
-9694-43a8-bb17-3c452655dca6/0005%22 

10 

 
 
 
                                                           
Investigators submitted requests for  information to receive PNR information on a person  of 

interest  suspected  to  be  involved  in  the  importation.  PNR  data  led  to  the  identification  of 

numerous  travel  associates  who  had  previously  travelled  with  the  main  person  of  interest, 

over a number of years.  

These associates had not come to the notice of law enforcement agencies before this link was 

found  in  PNR.  Historical  PNR  linked  them  to  the  main  person  of  interest  and  subsequently 

enabled the deployment of operational resources to identify other illicit importation attempts 

by  the  syndicate.  This  case  subsequently  led  to  the  arrest  of  27  persons  of  interest  across 

multiple  states  in  Australia,  all  of  whom  were  charged  in  relation  to  the  attempted 

importation of border-controlled drugs. 

In view of the Australian authorities, without the use of current and historic PNR data in the 

initial  stages  of  the  investigation,  investigation  strategies  would  not  have  been  able  to 

effectively  capture  all  of  the  individuals  involved  in  the  main  importation.  Additionally, 

forensic  evidence  obtained  during  the  course  of  the  investigation  would  not  have  been 

obtained otherwise. Without  identification of the linkages  from PNR data, forensic evidence 

directly connecting travel companions to the importation would have been destroyed. 

3.5. PNR as a facilitation tool 

In  identifying  travellers  that  present  a  high  and  credible  risk,  the  use  of  PNR  data  by 

Australian  authorities  facilitates  travellers  that  are  not  identified  as  high  risk,  to  transit  the 

border  without  intervention.  The  limited  interference  to  the  transit  is  therefore  impacting  a 

very small percentage of the travelling public while allowing targeting only the most serious 

crimes  such  as  child  exploitation,  illicit  drugs,  organised  crime  and  identity  fraud  in  the  air 

traveller domain which match serious transnational crime and terrorist offence requirements. 

Example: The number of potential hits generated remains very low 

As an example of how the various types of processing of passenger data are effective, the use 

of PNR data to target travel behaviour consistent with international drug couriers, during a 

one  year  period,  reduced  the  number  of  potential  travellers  targeted  (through  manual 

physical  intervention  at  the  point  of  entry)  by  98.76  per  cent  of  the  total  that  could  be 

considered. Subsequent intelligence assessment, further increased this total to 99.88 per cent, 

meaning  that  only  0.12  per  cent  of  relevant  air  travellers  were  targeted  for  border 

11 

 
 
intervention through this method and therefore, 99.88 per cent of travellers that would have 

been checked without the use of PNR data have not been considered for intervention. 

The Australian authorities are of the view that  PNR  data is  critical  in the identification  and 

analysis  of  suspected  drug  couriers  and,  through  the  use  and  deployment  of  profiles  and 

analytical  models,  the  Department  is  able  to  focus  its  efforts  on  travellers  who  present  the 

highest  threat.  For  example,  PNR  data  provides  a  more  accurate  picture  of  a  traveller’s 

itinerary,  whereas  the  Advance  Passenger  Processing  (APP)  system  –  used  to  process 

Advance Passenger Information (API) - may only provide the last port of origin. If relying on 

the APP system for profiling and analytic models, a larger number of travellers would be of 

interest to the Department in the initial stages of assessment and therefore intervened with at 

the border. Through the use of PNR data elements, the Department is able filter out a larger 

number of legitimate travellers and focus analytical and operational effort on the highest risk 

travellers identified. 

4.  CONSISTENCY WITH OTHER INSTRUMENTS  

4.1. Other instruments for the collection of travel related data 

PNR  data  remains  a  critical  data  element  for  Australia  in  the  identification  of  serious 

transnational crime and terrorism. Without it, it is certain that an increase of illicit or nefarious 

goods, or individuals that seek to cause harm to Australia and the global community through 

criminal  and  terrorist  acts,  will  enter  or  leave  Australia  undetected—when  they  could  have 

been otherwise prevented through the use of PNR data. 

The necessity  and peculiarity of collecting PNR  data to  fight  terrorism  and serious crime is 

also  identified in relation to  other measures  available:  there is  information contained within 

PNR  data  that  is  not  found  in  any  other  type  of  data  collection.  This  information,  like  full 

travel  paths,  is  a  unique  and  critical  information  source  in  the  identification  of  serious 

transnational crime and potential terrorist activity. 

This  is  also  evident  when  comparing  PNR  to  other  systems  created  to  collect  travel  related 

data.  For  instance,  Advance  Passenger  Information  (API)  mostly  include  biographic 

information which is rather ‘static’ (it does not change substantially over time) and does not 

express  a  behaviour  of  the  passenger  (differently  from  PNR  where  one  can  detect  choices 

made by the passenger, such as travelling only with hand baggage, paying in cash, make the 

12 

 
 
 
reservation  in  the  last  24  hours  from  departure  etc).  Similarly,  also  the  systems  created  to 

grant  authorisation  to  travel  mainly  refer  to  biographic  information  and  occasionally  some 

additional ‘status’ data such as level of education or occupation. 

In  addition,  PNR  can  be  made  available  much  earlier  than  API  data,  and  hence  provide  an 

advantage  to  law  enforcement  authorities  in  allowing  more  time  for  its  processing,  analysis 

and any follow-up action.  

4.2. Other instruments on PNR 

Since  the  entry  into  force  of  the  Agreement,  new  trends  and  new  security  threats  have 

emerged. There is a growing interest in the use of PNR worldwide for anti-terrorism and law 

enforcement purposes, but also newly created international obligations..  

At  global  level,  the  United  Nations  Security  Council  Resolution  (UNSCR)  2396,  adopted 

unanimously on 21 December 2017, requires UN Member States to ‘develop the capability to 

collect,  process  and  analyse,  in  furtherance  of  ICAO  (the  International  Civil  Aviation 

Organisation) standards and recommended practices, passenger name record (PNR) data and 

to ensure PNR data are used by and shared with all their competent national authorities, with 

full  respect  for  human  rights  and  fundamental  freedoms’9.  This  Resolution  has  therefore 

placed a legal incentive on all UN States to develop effective PNR programmes. The scope of 

the  Resolution,  focused  primarily  on  terrorism,  being  extended  to  organised  crime  by 

Resolution 2482 (2019).10  

In those instruments, the UN Security Council decided that UN member states must collect, 

process and analyse PNR for effective border controls to prevent terrorist travel as well as to 

help  security  officials  make  connections  between  individuals  associated  to  organised  crime, 

whether  domestic  or  transnational,  and  terrorists,  to  stop  terrorist  travel  and  prosecute 

terrorism and organised crime. This obligation is binding on all UN Member States and as a 

result, more countries are expected to soon begin establishing PNR programs. 

The  UNSCR  2396  (2017)  also  urges  ICAO  ‘to  work  with  its  Member  States  to  establish  a 

standard  for  the  collection,  use,  processing  and  protection  of  PNR  data’.    Against  this 

backdrop,  ICAO  started  working  on  the  development  of  a  standard  for  the  collection,  use, 

processing and protection of PNR data.  In March 2019, the ICAO Air Transport Committee 

9       Resolution 2396 (2017) - Adopted by the Security Council at its 8148th meeting, on 21 December 2017. 
10      Resolution 2482 (2019) - Adopted by the Security Council at its 8582nd meeting, on 19 July 2019. 

13 

 
 
                                                           
(ATC)  set  up  a  Facilitation  Panel  Task  Force  to  consider  proposals  for  Standards  and 

Recommended  Practices  (SARPs)  on  the  collection,  use,  processing  and  protection  of  PNR 

data  in  line  with  UNSCR  2396.  Australia  participated  in  this  Task  Force,  alongside  several 

EU Member States, with the Commission representing the EU in an observer capacity.  

The  position  to  be  taken  by  the  EU  Member  States  when  participating  in  these  discussions 
was agreed by means of a Council Decision (EU) 2019/2107 of 28 November 201911 with a 

view to ensuring compliance with the applicable Union legal framework including the Charter 

of Fundamental Rights as interpreted in the Court of Justice’s Opinion 1/15.  

This required the EU Member States to act jointly in the interest of the Union in accordance 

with the objectives pursued within the framework of PNR policy and promote the inclusion in 

the  ICAO  SARPs  of  a  number  of  principles  on  the  modalities  of  PNR  processing,  the 

protection  of  personal  data  and  information  sharing  among  law  enforcement  authorities. 

Participating  Member  States  and  the  Commission  worked  closely  with  Australia,  as  well  as 

other nations, to achieve these goals.   

A  draft  version  of  the  PNR  standards  was  approved  by  the  ICAO  Facilitation  Panel  in 

February 2020 and sent to the ICAO Contracting States for consultation. After a final review 

by the ICAO Air Transport Committee in May 2020, the SARPs were adopted by the ICAO 

Council in June 2020. At the moment of drafting this document the SARP is not yet into force 

and the Union has not taken a formal position in its regard. However, the entry into force of 

the SARPs create another, more detailed obligation on all States to establish PNR programs 

and will help ensure both that their programs are effective and that they meet a high standard 

of data protection. 

These  developments  at  international  level  demonstrate  that  there  is  now  a  global  consensus 

and that it is necessary and appropriate for States to collect and process PNR routinely as part 

of  a  modern  border  management  process.  This  is  a  significant  change  in  the  global 

environment and international law and, in the near future, the collection and use of PNR by 

governments  to  detect  crime  and  terrorism  at  their  borders  will  be  the  global  norm,  not  the 

exception as it was when the EU began negotiating PNR agreements in 2003. 

11      Council Decision (EU) 2019/2107 of 28 November 2019, OJ L 318, 10.12.2019, p. 117. The position of the 
Union and its Member States has also been set out in an information paper on ‘Standards and principles on 
the collection, use, processing and protection of Passenger Name Record data’ that was submitted to the 
40th Session of the International Civil Aviation Organisation Assembly. 

14 

 
 
                                                           
The EU PNR Directive12 
Within  the  EU,  processing  of  PNR  data  constitutes  an  essential  instrument  in  the  common 

response  to  terrorism  and  serious  crime  and  a  building  block  of  the  Security  Union. 

Identifying and tracing suspicious travel patterns by processing PNR to gather evidence and, 

where  relevant,  find  perpetrators  of  serious  crime  and  their  associates  and  unravel  criminal 

networks is proving essential to prevent, detect, investigate and prosecute terrorist and serious 

crime offences.  

On 27 April 2016, the European Parliament and the Council adopted Directive (EU) 2016/681 

on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist 

offences  and  serious  crime.  This  Directive  enables  EU  national  authorities  to  gain  direct 

access  to  crucial  information  held  by  airlines,  in  full  respect  of  fundamental  rights,  in 

particular,  data  protection  rights.  It  provides  all  Member  States  with  an  important  tool  for 

preventing,  detecting  and  investigating  terrorism  and  serious  crimes,  including  drugs  and 

human  trafficking  and  child  sexual  exploitation.  The  deadline  for  the  Member  States  to 

transpose the PNR Directive into national law expired on 25 May 2018.  

Article 24(6) of the EU-PNR Australia Agreement envisages the Parties’ consultation if and 

when an EU PNR system is adopted to determine whether this Agreement would need to be 

adjusted accordingly to  ensure full reciprocity. During the joint evaluation the EU team had 

the  possibility  to  illustrate  to  the  Department  the  key  features  of  the  EU  PNR  architecture. 

The  Department  recalled  the  good,  although  occasional,  cooperation  with  EU  authorities. 

Both  parties  agreed  that  the  new  EU  PNR  framework  adds  clarity  to  the  relations  between 

Australia and the EU as it now identifies specific counterparts in each Member States, i.e. the 

Passenger Information Unit (PIU) as the dedicated entity entitled to collect and process PNR 

data. In addition, the EU PNR Directive also foresees that each Member State designates its 

authorities  entitled  to  request  or  receive  PNR  form  the  PIU.  Such  list  is  published  and 

regularly  updated  by  the  European  Commission.  The  Department  is  therefore  able  to  verify 

whether  requests  submitted  under  Article  6  (2)  of  the  Agreement  come  from  authorities 

competent to process PNR. In this respect, the new EU framework on PNR complements and 

aligns with the Agreement. Nevertheless, the EU team as stated in the conclusions of the Joint 

12      Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of 

passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist 
offences and serious crime, OJ L 119, 4.5.2016, p. 132. 

15 

 
 
                                                           
review  report,13  notes  that  the  procedures  concerning  law  enforcement  cooperation  with  the 

EU Member States and the EU agencies (Europol and Eurojust) shall be further improved to 

ensure the provision of relevant and appropriate analytical information.   

5.  DATA PROTECTION SAFEGUARDS AND THE COURT’S OPINION ON 

THE ENVISAGED CANADA PNR AGREEMENT 

In  the  course  of  the  joint  evaluation,  the  teams  discussed  the  most  important  legal 

development since the entry into force of the Agreement, including the Court's Opinion 1/15 

on  the  envisaged  PNR  Agreement  with  Canada  as  well  as  other  recent  developments 

concerning the negotiations with Canada and the EU PNR Directive. This Opinion lays down 

the  following  requirements  (summarised)  in  order  to  ensure  compliance  of  this  Agreement 

with the EU Charter of Fundamental Rights:  

  The purposes for which PNR data may be processed should be spelled out clearly and 

precisely. 

  The PNR data elements to be transferred should be determined in a clear and precise 

manner. 

  As long as passengers are in the country or are due to leave, the systematic retention 

and  use  of  their  PNR  data  (in  the  case  of  Canada  for  5  years)  is  allowed.  However, 

PNR  data  should  be  deleted  after  passengers’  departures  unless  a  risk  assessment 

based  on  objective  evidence  indicates  that  certain  passengers  present,  or  specific 

categories  of  PNR  data  indicate,  the  existence  of  a  risk  in  terms  of  the  fight  against 

terrorism and serious transnational crime. The use of PNR data for other purposes than 

security  and  border  control  checks  should  be  subject  to  prior  independent  review 

carried out either by a court or by an independent administrative body, the decision of 

that  court  or  body  authorising  the  use  being  made  following  a  reasoned  request  by 

those  authorities,  inter  alia,  within  the  framework  of  procedures  for  the  prevention, 

detection or prosecution of crime. 

 

Individuals should be notified of the use of their PNR and informed about their right to 

seek administrative or judicial redress. 

13      Report from the Commission to the European Parliament and the Council on the joint review of the implementation 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, COM(2020)701final. 

16 

 
 
 
                                                           
  The processing of sensitive data shall be prohibited. 

  Automated processing of PNR data may only take place based on non-discriminatory, 

specific  and  reliable  models  and  criteria.  The  databases  used  for  matching  purposes 

must  be  limited  to  those  used  in  relation  to  the  fight  against  terrorism  and  serious 

transnational crime.  

  The onward transfer of PNR data to other government authorities should be subject to 

appropriate  safeguards  and,  in  case  of  disclosure  to  another  third  country,  limited  to 

countries which have concluded an equivalent Agreement with the EU or are subject 

to a decision of the Commission finding that the country ensures and adequate level of 

protection within the meaning of EU law (adequacy decision). 

  Oversight of compliance with the Agreement shall be exercised by independent public 

authorities/an  independent  supervisory  authority  with  effective  investigative  and 

enforcement powers. 

The EU team remarked that it is important to evaluate the EU-Australia PNR Agreement also 

against the Court’s Opinion. 

In  the  discussions  on  the  Court's  Opinion,  the  joint  evaluation  teams  assessed  the  relevant 

safeguards that the Agreement already contains for the use of PNR, in particular: 

  A  strict  purpose  limitation,  the  use  of  PNR  data  being  limited  to  the  prevention, 

detection,  investigation  and  prosecution  of  terrorist  offences  or  serious  transnational 

crime;  

  The  obligation  for  Australia  to  provide  to  competent  authorities  of  the  EU  Member 

States or Europol or Eurojust analytical information obtained from PNR data; 

  Safeguards applicable to the use of PNR, including, strong data security and integrity 

requirements; 

  Rights of access, rectification and erasure and the possibility for EU citizens to obtain 

administrative and judicial redress under the terms of the Agreement; 

 

Independent oversight by the Office of the Australian Information Commissioner who 

has effective powers to investigate compliance with effective powers of investigation 

and enforcement; 

  A PNR data retention limit of five years and a half; after the first three and a half years 

all  elements  of  PNR  data  which  could  lead  to  the  identification  of  passengers  are 

already deleted. 

17 

 
 
In addition, the Australian authorities explained that:  

  procedures  to  use  PNR  data  in  targeting  activities  (profiling)  are  part  of  the 

Department’s  governance  processes.  Each  activity  request  is  assessed  individually, 

and where the attributes provided are considered to be too broad, or discriminatory as 

to  capture  an  entire  group  of  like  travellers,  the  request  is  rejected  and  additional 

criteria are required. This ensures that travellers are not profiled purely based on race, 

ethnicity, stereotype or other sensitive attributes. Requests of this  nature are rejected 

totally.  

  There is no automated processing of ‘sensitive data’ and these attributes are removed 

from Automated Processing systems. 

  PNR  data  is  not  compared  to  other  databases  and  is  stored  in  a  separate  database 

within the PNR System, which is partitioned from other Departmental sources.  

  All  processing  of  PNR  data  is  performed  for  the  purposes  outlined  within  the 

Agreement. 

  As  regards  onwards  transfers  to  third  countries,  a  formal  Memorandum  of 

Understanding  must  be 

in  place  between 

the  Department  and 

the 

third 

country/international  agency  in  which  consideration  of  the  third  country  policies  is 

included. 

  All  requests  for  PNR  data  from  other  Government  authorities  are  logged  and 

auditable,  with  assurance  activities  undertaken  on  a  regular  basis  by  internal 

Departmental work areas. 

  As  regards  the  retention  of  data,  Australian  authorities  provided  information  that  in 

their  view  constitutes  an  additional  justification  of  the  necessity  to  keep  historical 

PNR  data  of  passengers  that  have  left  their  country  to  create  and  preserve  the 

knowledge of the criminal phenomena with the dual objective of (i) learning the travel 

pattern of past criminals in order to detect new criminals and (ii) identify anomalies in 

current travel patterns when compared to previous typical and expected behaviour of 

regular passengers and (iii) retrieve flight details for criminal investigations. 

 

It  is  also  worth  noting  that  the  Department  confirmed  that  it  applies  the  rules  and 

safeguards  laid  down  in  the  Agreement  to  all  PNR  data  provided  by  airlines  that 

operate air transportation to, from and through Australia and that process PNR data in 

the territory of an EU Member State (i.e. not only from EU sourced PNR data). 

18 

 
 
Despite  meeting  a  number  of  the  Court’s  requirements,  the  EU  team  notes  that  despite  the 

numerous safeguards contained therein, several aspects of the Agreement are not fully in line 

with the  Opinion 1/15 of the Court of Justice on the envisaged EU-Canada PNR Agreement 

as  the  Australia  Agreement  was  concluded  before  the  Court  delivered  its  Opinion.  These 

concern the respect of information to passengers, retention of PNR data, onward transfers and 

the need for a prior independent review of the use of PNR data.  

6.  CONCLUSIONS 

The information gathered in the context of the joint evaluation confirms the added value and 

operational  effectiveness  of  the  Agreement  in  the  fight  against  terrorism  and  serious 

transnational crime. Clear examples have shown that PNR, including historical PNR, has been 

critical  to  detect  foreign  terrorist  fighters  and  to  combat  in  particular  drug  crimes  and  child 

exploitation. 

Its  value  lies  first  of  all  with  the  possibility  of  screening  effectively  a  large  volume  of 

passengers while at the same time avoiding disruption or simple interference with the normal 

flow of passengers at airports. For such screening to be timely, in relation to the very limited 

timeframe  available  to  the  Australian  authorities  between  the  collection  of  the  data  and  the 

arrival  of  the  passengers,  and  effective,  i.e.  resulting  in  a  very  limited  number  of  relevant 

passengers  to  be  subject  to  further  examination.  Such  a  combination,  also  keeps  to  the 

minimum,  the  amount  of  data  accessed  by  Australian  officers.  A  number  of  safeguards 

operating  before,  during  and  after  the  screening  process,  including  internal  and  external 

oversight,  contribute  to  the  aim  that  it  remains  objective  and  free  from  any  form  of 

discrimination. 

The  effectiveness  and  timeliness  of  the  PNR  screening  also  allows  the  vast  majority  of 

passengers  to  enjoy  a  seamless  travel  experience  by  transiting  the  Australian  border  faster 

and without interference. 

In  order  for  the  PNR  programme  to  preserve  its  value  there  is  a  constant  need  for  the 

Australian authorities to build their knowledge of the criminal phenomena they aim to prevent 

and  constantly  refine  and  adapt  such  knowledge  to  new  trends,  threats  and  modi  operandi 

deployed by criminals and terrorists to avoid detection.  

19 

 
 
 
In this regard, the Australian authorities consider that there is sufficient proof of the necessity 

of historical PNR data to create and preserve the knowledge of the criminal phenomena with 

the  dual  objective  of  (i)  learning  the  travel  pattern  of  past  criminals  in  order  to  detect  new 

criminals  and  (ii)  identify  anomalies  in  current  travel  patterns  when  compared  to  previous 

typical and expected behaviour of regular passengers.  

Another  important  feature  of  the  Australian  PNR  programme  (and  of  similar  programmes 

adopted  elsewhere)  is  the  uniqueness  of  the  specific  data  collected.  No  other  travel  related 

data  provide  this  kind  of  information,  which  can  be  used  to  identify  and  target  specific 

behaviours. Elements such as complete air route, means of payment used, and time of booking 

or baggage information remain crucial in the overall risk assessment and cannot be found in 

any other dataset used by the Australian competent authorities.  

Besides  having  demonstrated  its  operational  value  and  effectiveness,  the  Agreement’s 

objectives  are  consistent  with    the  international  obligations  to  collect,  process  and  analyse 

PNR  data  for  effective  border  controls  to  prevent  terrorist  travel  as  well  as  to  help  making 

connections  between  individuals  associated  to  organised  crime,  and  prosecute  terrorism  and 

organised crime.   

The EU team recognised the efforts made by Australia to comply with the requirements of the 
Agreement as proven by the joint review14. As a result of the comparison of the Agreement 

and Opinion 1/15 of the Court of Justice on the envisaged PNR Agreement with Canada, the 

EU team noted that despite the numerous safeguards contained therein, several aspects of the 

Agreement are not  fully  in line with Opinion 1/15 of the Court of Justice, as the Australian 

Agreement  was  concluded  before  the  Court  delivered  its  Opinion.  These  concern  the 

notification to passengers, the retention of PNR data, onward transfers and the need for a prior 

independent review of the use of PNR data.  

14      Report from the Commission to the European Parliament and the Council on the joint review of the 
implementation 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, COM(2020)701final. 

20 

 
 
 
 
                                                           
ANNEX A  

Questionnaire15 for the Australian Authority responsible for the processing of PNR 

data and replies 

Questions of general nature 

Q1:  What  has  the wider  impact  of  the  Agreement  been on the travelling public? Have  less 

people been physically stopped as a result of the use and processing of PNR? 

The  use  of  PNR  data  is  a  key  component  of  the  Department  of  Home  Affairs’  (the 

Department) intelligence-informed targeting capability, used to identify serious threats to the 

Australian  border  in  the  air  traveller  domain.  It  allows  the  Department,  including  the 

Australian  Border  Force,  to  intervene  with  a  very  small  percentage  of  the  travelling  public 

while  targeting  only  the  most  serious  national  security,  child  exploitation,  illicit  drug, 

organised crime, identity fraud and illicit tobacco threats in the air traveller domain—that fit 

the serious transnational crime and terrorist offence requirements.  

The  use  of  PNR  data  to  target  travel  behaviour  consistent  with  international  drug  couriers, 

during a one year period, reduced the number of potential travellers targeted (through manual 

physical  intervention  at  the  point  of  entry)  by  98.76  percent.  Subsequent  intelligence 

assessment further reduced this total by 99.88 percent, so that only 0.12 percent of relevant 

air travellers were targeted for border intervention – removing 99.88 percent of travellers that 

may have been considered for intervention. 

The use of PNR data is the only mechanism that the Department and the Australian Border 

Force  has  to  reduce  the  size  of  this  cohort,  by  providing  the  ability  to  target  specific 

indicators and behaviours that present likely risks. 

In  identifying  those  travellers  that  present  a  high  and  credible  risk,  the  use  of  PNR  data 

allows the Department and Australian Border Force to facilitate those travellers that were not 

identified as high risk to transit the border without intervention. 

Q2:  What  proportion  of  people  subject  to  closer  questioning  or  examination  have  led  to  a 

detention / arrest / seizure or further action? 

15      The European Commission sent a questionnaire to Australia on. 28 June 2019. Australia provided written 

replies to the questionnaire on 19 September 2019. 

21 

 
 
 
                                                           
Between  2018  and  2019,  7.9  percent  of  instances  of  closer  questioning  or  examination  of 

travellers  identified  from  PNR-based  targeting  resulted  in  detention  /  arrest  /  seizure  or 

further action outcomes. (intelligence reports/files are excluded). 

Category 

Outcome measure 

Detention and/or arrest 

significant  drug  detection;  detection  of 

Seizure 

child exploitation material 

significant  drug  detection;  detection  of 

child  exploitation  material;  seizure  of 

undeclared revenue items 

Further action 

Traveller 

refused  entry 

to  Australia, 

generation of an intelligence report/file 

Of the total detention / arrest / seizure or further action outcomes: 

  0.8 percent of travellers were detected with a significant quantity of illicit drugs 

  0.6 percent of travellers were detected with child exploitation material 

  32 percent of travellers were refused entry to Australia 
  23 percent of travellers were detected with undeclared revenue items (e.g. tobacco)16 

  43.6 percent of instances resulted in intelligence reports being generated (in addition 

to the above counts) 

Q3:  In  order  to  assess  the  necessity  and  proportionality  of  PNR  processing  under  the 

Agreement, can you please indicate to what extent is the EU-Australia agreement still relevant 

for the fight against terrorism and serious transnational crime?  

The Department is charged with border-related functions to keep Australia safe and maintain 

our sovereignty. The PNR Agreement facilitates the transfer of PNR data, which is critical to 

the  Department’s  ability  to  discharge  these  responsibilities,  including  the  fight  against 

terrorism and serious transnational crime. The Agreement remains necessary and relevant to 

16      From 1 July 2019, the Australian Government introduced a set of measures to combat the illicit tobacco 

trade. Part of these measures introduced changes to the Customs Act 1901, which makes the import of most 
tobacco products a prohibited import into Australia, without a permit. 

22 

 
 
 
 
 
                                                           
ensure the provision of PNR data to the Department, and to ensure that Australia continues to 

receive, store, access and use the data appropriately.  

Section 64AF of the Customs Act is the Australian legislative basis for airlines to send PNR 

data to the Department, and the Agreement for PNR data addresses and resolves the conflict 

for airlines between European with Australian data protection laws. The proposed Agreement 

resolves this conflict  by  providing an appropriate legal  framework and assurances that  EU-

sourced  PNR  data  transferred  to  Australia  will  be  processed  in  accordance  with  existing 

Australian data protection laws, striking an appropriate balance between national security and 

privacy protection considerations. 

PNR  data  remains  a  critical  data  element  for  Australia  in  the  identification  of  serious 

transitional crime and terrorism. Without it, it is certain that an increase of illicit or nefarious 

goods, or individuals that seek to cause harm to Australia and the global community through 

criminal  and  terrorist  acts,  will  enter  or  leave  Australia  undetected—when  they  could  have 

been otherwise prevented through the use of PNR data. 

In addition, Qantas (Australia’s largest national airline by number of international flights and 

passengers  carried)  uses  a  service  provider  with  data  warehouses  within  the  EU.  Qantas 

makes up approximately 15% of all seats to and from Australia. A further 25% of seats to and 

from Australia are operated by air carriers that also use service providers within the EU. This 

means approximately 40% of seats to and from Australia are operated by air service carriers 

that  have  their  PNR  data  stored  in  the  EU.  This  makes  the  PNR  Agreement  necessary  to 

enable the Department to effectively identify the serious threats to the Australian border, in 

the air traveller domain. 

Q4:  What  is  the  specific  added  value  obtained  through  the  PNR  collection  which  is  not 

available through other type of data collections?  

There is information contained within PNR data that is not able to be found in any other type 

of data collection. This information, like full travel paths, is a unique and critical information 

source in the identification of serious transnational crime and potential terrorist activity. 

Q5: In order to assess the necessity and proportionality of the retention of PNR data, can you 

please illustrate by means of examples how PNR has been the key piece of intelligence in a 

law enforcement investigation? 

These will be demonstrated through the relevant presentations during the Joint Evaluation, by 

the Department, the Australian Border Force and a partner security agency.  

23 

 
 
A written summary for disclosure, of these case studies, can be discussed during the sessions.   

Q6: Does the Agreement sufficiently define mechanisms to ensure transparency, access and 

redress?  

Yes, the Agreement provides sufficient information for the Department to ensure the Articles 

that address transparency, access and redress are fulfilled. The mechanisms remain aligned to 

the requirements that the Department is obligated to fulfil by law, under the Privacy Act and 

the Freedom of Information Act. 

Purpose and scope 

Q1: The purpose of the agreement is defined as being "to ensure security and to protect the 

life  and  safety  of  the  public".    Does  this  cover  all  reasons  for  which  PNR  is  currently 

required/used and processed?  

The  Department  is  responsible  for  centrally  coordinated  strategy  and  policy  leadership  in 

relation  to  domestic  and  national  security  arrangements,  law  enforcement,  emergency 

management,  counter-terrorism,  social  cohesion,  the  protection  of  our  sovereignty  and  the 

integrity of our border, and the resilience of our national infrastructure.  

The  Australian  Border  Force,  an  operationally  independent  body  within  the  Department  of 

Home  Affairs,  is  Australia’s  frontline  border  law  enforcement  agency  and  Australia’s 

customs service. The Australian Border Force delivers critical border protection and national 

security  outcomes  while  facilitating  the  movement  of  people  and  goods  across  the  border. 

The Australian Border Force’s mission is to protect Australia’s border and enable legitimate 

travel and trade. 

To  enact  these  responsibilities,  the  purpose  of  the  agreement  adequately  describes  the 

purposes for which PNR data is used by the Department.   

Q2: Have all the reasons for which PNR can be used and processed under the terms of the 

Agreement been utilised since the agreement came into force? 

PNR  data is  utilised  for the  Department  in  line with  our  responsibilities as  outlined  in  Q1. 

PNR data is utilised daily to “ensure security and to protect the life and safety of the public".   

Q3: Does the agreement capture all of the data necessary to achieve its objectives? 

Yes. The PNR data elements have not changed since prior to 2010. 

Q4: Are the PNR data types listed in the Annex to the agreement still correct and up to date? 

24 

 
 
Yes, the PNR data elements are still correct and up to date. The Department’s PNR program 

aligns  the  data  elements  it  collects  with  International  Civil  Aviation  Organization  (ICAO) 

DOC 9944 (Guidelines on Passenger Name Record (PNR) Data). These 19 data elements are 

included in the ICAO DOC 9944. 

Q5: Are you aware of any type of PNR information that is no longer required for the same 

purposes and if so, which? 

No. 

Q6:  Can  you  briefly  explain  what  mechanism  existed,  before  the  EU-Australia  PNR 

Agreements  entered  into  force,  which  allowed  for  the  collection  of  PNR?  Are  there  any 

comparative data illustrating the effectiveness achieved after the adoption of the Agreement?  

Section  64AF  of  the  Customs  Act  1901  (“Obligation  to  provide  access  to  passenger 

information”) provides for the provision of PNR data to the Department in a particular manner 

and form.  

Prior  to  the  current  ‘PNR  Push’  method  to  receive  data,  airline  operators  would  provide 

access  via  the  ‘PNR  Pull’  method,  which  is  where  access  was  provided  into  each  airlines 

operating system. Authorised officers would have direct access into the operator’s system and 

pull out the required data. 

Prior  to  the  PNR  Agreement  entering  into  force,  PNR  data  was  processed  in  line  with  the 

applicable  legislative framework,  including  section 64AF of the  Customs  Act  1901, section 

16  of  the  Customs  Administration  Act  1985,  the  Privacy  Act  1988  and  the  Freedom  of 

Information  Act  1982.  These  Acts  remain  in  force,  except  for the  Australian  Border  Force 

Act 2015, which repealed the Customs Administration Act.  

Safeguards 

Q1: Are the data security safeguards in the Agreement sufficient to ensure the security and 

integrity of the PNR data stored? 

Yes.  

The Australian Signals Directorate’s Information Security Manual (ISM) provides the whole-

of-Australian Government benchmark for security of equipment and data, and the Attorney-

General’s  Department’s  Protective  Security  Policy  Framework  (PSPF)  provides  relevant 

policy.  PNR  data  security  as  implemented  in  the  Department’s  Data  Warehouse  complies 

25 

 
 
 
with the ISM and PSPF. Many of the safeguards within the PNR agreement align with ISM 

controls and PSPF policies.  

The Department also maintains an Integrity Framework for all staff. The Integrity Framework 

is  an  integrity  model  designed  to  protect  the  Department’s  people,  property,  systems  and 

information from infiltration and corruption. The Integrity Framework is a component of the 

Professional Standards Framework. 

Q2: Are any additional data safeguarding and integrity measures or approaches in place?  

The Department encrypts data at rest via Full Disk Encryption. 

Q3:  Have  there  been  any  security  breaches  which  could  have  been  prevented  had  the 

Agreement required additional safeguards?  

There have been no security breaches in relation to PNR data. 

Q4: How many privacy incidents taken place since this agreement entered into force? What 

effective  administrative,  civil  and  criminal  enforcement  measures  are  been  implemented 

under Australian law for privacy incidents? 

There have been no privacy incidents since the Agreement came into force. 

There have been  several  reforms  of the  Australian  privacy  laws  since  the  Agreement  came 

into  force.  Further  detail  will  be  provided  as  part  of  the  ‘General  discussion  of  Australian 

privacy  law’  session  presented  by  the  Office  of  the  Australian  Information  Commissioner 

(OAIC) on day 1 of the Joint Review. 

Q5: Do the mechanisms in place to inform passengers in relation to the processing of their 

PNR data afford passengers the possibility of knowing whether their data has been used by 

the Australian competent authority?  

Yes,  the  Department  of  Home  Affairs  via  the  Australian  Border  Force  website  provides 

information  of  the  purposes  for  which  the  Department  collects  and  uses  personal  data, 

including  PNR  data.  The  statement  also  outlines  the  purpose,  authority,  use  and  disclosure 

provisions relating to PNR data. The advice is publicly available at:  

https://www.abf.gov.au/entering-and-leaving-australia/crossing-the-border/passenger-

movement/collection-of-passenger-name-records  

More  generally,  the  Privacy  Act  1988  requires  the  Department  to  notify  an  individual  of 

certain matters when it collects personal information about them. This is delivered through a 

26 

 
 
Privacy  Notice.  The  Privacy  Notice  form  (Form  1422i) is  the  notification  method  for these 

matters, and is available on the Department’s internet site. 

The audit reports from the Office of the Australian Information Commissioners (OAIC) audits 

are also publicly available on the OAIC’s website. 

Q6: Has there been any increase in the number of information requests from the public since 

the information regarding how PNR is processed and used has been published? 

No.  Since  2014,  the  Department  has  averaged  three  (3)  requests  per  year  for  PNR  data 

through the Freedom of Information (FOI) request process. 

Q7:  Article  12  ensures  individuals  rights  of  access  and  provides  in  paragraph  3  that  all 

restrictions to such access shall be set out in writing within 30 days. Can you please indicate 

the reasons for which the right of access of individuals to their own data can be restricted 

under Australian law? 

The  Freedom  of  Information  Act  1982  provides  that  the  Department  must  provide  an  FOI 

applicant with a decision on access to the documents requested within 30 days of receipt of 

their  request.  There  are  a  number  of  provisions  to  extend  that  timeframe  under  the  Act, 

including  extensions  of  time  agreed  by  the  FOI  applicant  or  the  OAIC,  and  formal 

consultation processes with affected third parties. 

In regard to the reasons for which the right of access to an individual’s own data is covered 

under  Article  12  (2),  certain  information  is  exempt  from  disclosure  under  the  FOI  Act. 

Information  may  be  exempt  from  disclosure  under  the  FOI  Act  in  accordance  with  the 

exemption provisions of Part IV of the FOI Act. These exemptions may include, but are not 

limited  to,  “the  prevention,  detection,  investigation,  or  prosecution  of  criminal  offences,  to 

protect public or national security”. 

Q8: Has the requirement to store PNR data separately from any other data and to allow only 

data  flow  to  the  PNR  system,  but  not  from  the  PNR  system  to  other  databases,  created 

problems for the processing of PNR data for the purposes outlined in the Agreement?  

It has not created any issues with the separate storage of PNR data in the data warehouse. For 

new capabilities it has created some latency issues with constantly requesting data from the 

database. However, these issues affect other systems, and not with the processing of PNR data 

for the purposes outlined in the Agreement. 

Q9: Have any challenges or concerns regarding the destruction, loss, disclosure, alteration, 

27 

 
 
access, processing or use of PNR been received? If so, please provide details. 

It has been recently identified that some PNR data held prior to the Agreement coming into force 

(2012) has not been subject to the deletion / depersonalisation process. At the time of introducing 

the  Airline  Arrangement  data,  the  receipt  date  does  not  align  with  the  actual  dates  when  the 

Department received the data. This matter is currently being addressed at a data warehouse level.  

Q10: How many individuals sought administrative or judicial redress under the Agreement? 

What was the outcome of this procedure? 

Nil. 

Automated processing 

Q1: What  is the procedure to develop, test and validate the criteria used for the automated 

processing of PNR data? 

The Data Warehouse section uses approved change control and testing processes that facilitate 

the development, testing and validation of criteria used for the testing of PNR data.  

Procedures to use PNR data in profiling activity form part of the Department’s Air Traveller 

Targeting  Governance  processes.  An  assessment  is  made  on  each  profile  request,  which 

utilises  PNR  data,  to  ensure  that  the  use  of  the  PNR  data  is  necessary,  proportionate  and 

compliant with the purpose limitations of the Agreement, prior to any development or testing.  

Q2:  How  does  the  Australian  Competent  Authority  ensure  that  such  criteria  are  non-

discriminatory and specific? 

Prescribed procedures and test cases are used in the data warehouse environment. 

Procedures to use PNR data in profiling activity form part of the Department’s Air Traveller 

Targeting Governance processes. To remove the risk that profiling may be discriminatory or 

specific, each profile must use at least five (5) attributes so as to not be specific to individuals. 

Automated Processing activity that would be seen as discriminatory is rejected.  

There is no automated processing on attributes that could be deemed ‘sensitive data’ and these 

attributes are removed from Automated Processing systems. 

Q3: Are all databases against which PNR data are compared limited to those used in relation 

to countering terrorism and serious crime?  

PNR data is not compared to other databases. PNR data is stored in a separate database within 

the PNR System, which is partitioned from other Departmental sources. All of the activities 
28 

 
 
undertaken with PNR data are performed for the purposes outlined within the Agreement. 

Data retention 

Q1:  What  was  the  contribution  to  activities  of  prevention,  investigation  or  prosecution  of 

terrorism  or  other  serious  crimes  of  PNR  data  retained  for  more  than  six  months?  Please 

provide examples.  

See ‘Data Retention’ attachment.  

Q2:  Can  you  illustrate  to  what  extent  the  retention  of  PNR  data  of  passengers  who  have 

already left Australia has been essential in this context? Please provide examples. 

See ‘Data Retention’ attachment.  

Information sharing  

Q1: In what instances has PNR data been shared with other Government authorities listed in 

Annex 2 and in what proportion with each domestic authority has PNR data been shared?  

PNR  data  has  been  shared  with  domestic  government  authorities  listed  in  Annex  2  for  the 

investigation of serious transnational crime and terrorist offences. 

From  2015,  disclosures,  as  part  of  the  Request  for  Information  process,  to  partner  agencies 

listed in Annex 2 make up nearly 50% of disclosures of PNR data. The average proportion of 

PNR disclosures for each agency are as follows (as a percentage of total PNR disclosures): 

  Australian Crime Commission/Australian Criminal Intelligence Commission: 3% 

  Australian Federal Police: 32.9% 

  Australian Security Intelligence Organisation/Attorney General's Department: 8.8% 
  Department of Immigration and Citizenship: 0.7%* 

  Commonwealth Director of Public Prosecutions: Nil disclosures recorded.  

  Office  of  Transport  Security,  Department  of  Infrastructure  and  Transport:  Nil 

disclosures recorded.  

 * The Department of Immigration and Citizenship integrated with Customs and Border Protection in 2015, 

and therefore disclosures from that time are considered and recorded as internal disclosures. 

All  requests  for  PNR  data,  through  the  Request  for  Information  process,  are  assessed  on  a 

case-by-case  basis.  PNR  data  elements  are  not  disclosed  if  the  request  does  not  satisfy  the 

request, use or disclosure requirements for PNR data.  

From  2015  to  date,  the  Department  processed  7970  requests  for  PNR  data  from  domestic 

29 

 
 
partner agencies and made 5208 disclosures - a disclosure percentage of 65.3%.  

Q2:  How  is  it  being  ensured  that  receiving  authorities  afford  to  PNR  equivalent  or 

comparable safeguards as set out in the agreement? 

The  Department  cannot  provide  an  absolute  guarantee  on  other  government  authorities’ 

actions; however, these government authorities provide a written and formal undertaking that 

they will only use information given to them by the Department for the purposes for which it 

was given and will not pass the information to a third party unless required to do so by law. 

The undertaking is a requirement before a receiving authority can be approved for an ongoing 

authorisation. Ongoing authorisations outline specific circumstances where specific classes of 

information may be released for a specific purpose. 

All  PNR  data  is  disclosed  in  accordance  with  the  Agreement  and  a  caveat  is  provided 

outlining the conditions under which it is disclosed at each occasion of disclosure. 

Q3:  Are  the  requests  for  PNR  data  made  by  other  Government  authorities  validated  or 

approved by a judicial or other independent authority?  

No. There is no requirement for requests for PNR data to be approved by a judicial or other 

independent authority. 

All  requests  for  PNR  data  from  other  Government  authorities  are  all  logged  and  auditable, 

with assurance activities undertaken on a regular basis by internal Departmental work areas. 

Q4: Is there a need to add or remove departments or agencies - whose functions are directly 

related  (or  not  anymore)  to  preventing,  detecting,  investigating  or  prosecuting  terrorist 

offences or serious transnational crime - to this list in Annex 2? 

Annex 2 reflects Departments that have functions that relate to the scope of the Agreement. 

Due  to  the  extensive  time  elapsed  since  the  agreement  came  into  force,  there  are  other 

Government authorities who also have a remit to protect the Australian community from acts 

of terrorism and serious transnational crime. These authorities work in collaboration with the 

Department  in  other  ways,  and  there  is  no  current  requirement  to  add  or  remove  other 

departments or agencies. 

Since  the  Agreement  was  signed,  Departments  have  changed  names  or  have  been 

administratively amalgamated: 

  The  Australian  Crime  Commission  is  now  the  Australian  Criminal  Intelligence 

Commission. 

30 

 
 
  The  Department  of  Immigration  and  Border  Protection,  and  the  Office  of  Transport 

Security were amalgamated into the Department of Home Affairs. 

Q5: With which countries has PNR of EU Member State citizens or residents been shared?  

From 2015 to the current date, the Department has made 21 international disclosures of PNR 

data.  The citizenship of the subject of the PNR data is not a mandatory field to capture in our 

record keeping systems.  

We  can  advise  that,  in  2018,  PNR  data  for  one  EU  citizen  (UK)  was  disclosed  to  the 

Australian Federal Police.    

A  request  via  the  Australian  Federal  Police  Operations  Coordination  Centre  (AOCC),  who 

stated  that  they  'may  release  the  passenger  information  to  a  Foreign  Law  Enforcement 

Agency  through  INTERPOL  or  the  AFP  Liaison  Network  of  the  country  or  countries  to 

which the passenger is travelling'.  

The Department cannot confirm if the on-disclosure occurred. 

Q6: What procedures are in place to assess and validate or refuse the sharing of PNR data 

with such countries? 

All requests for PNR data come through the Tactical Intelligence (centralised operating work 

area) for determination as to whether PNR data will be disclosed to a third country authority.  

A formal Memorandum of Understanding must be in place between the Department and the 

third country/international agency. Consideration of the third country policies and safeguards 

are  a  consideration  for  the  development  of  the  Memorandum  of  Understanding.  Further, 

Tactical  Intelligence  may  engage  with  the  Department’s  International  Policy  areas,  or  our 

international  diplomatic representatives (Counsellors/First Secretaries at  international  posts), 

on  the  Department’s  bilateral  agreements  and  working  arrangements  with  the  requesting 

country/authority. 

Furthermore,  the  request  and  disclosure  for  PNR  data  is  assessed  against  the  Department’s 

secrecy and disclosure framework, which sets  out the legislative and policy permissions for 

disclosure of information, including PNR data. 

Q7:  How  is  it  being  ensured  that  receiving  authorities  afford  to  PNR  equivalent  or 

comparable safeguards as set out in the agreement? 

31 

 
 
 
The  Department  cannot  provide  an  absolute  guarantee  on  other  government  authorities’ 

actions; however, these government authorities provide a written and formal undertaking that 

they will only use information given to them by the Department for the purposes for which it 

was given and will not pass the information to a third party unless required to do so by law. 

The undertaking is a requirement before a receiving authority can be approved for an ongoing 

authorisation. Ongoing authorisations outline specific circumstances where specific classes of 

information may be released for a specific purpose. 

All  PNR  data  is  disclosed  in  accordance  with  the  Agreement  and  a  caveat  is  provided 

outlining the conditions under which it is disclosed at each occasion of disclosure. 

Q8:  What  are  the  mechanisms  by  which  the  Australian  competent  authority  communicates 

with relevant EU Member States authorities, Europol or Eurojust?   

Communication  with 

international  partner  agencies  may  occur 

through  different 

PROTECTED channels. This may include encrypted email, regular email (protected enclave) 

or appropriate cable terminals (eg. SATIN). 

The Department may also utilise the Australian Federal Police (AFP) to disclose information 

through INTERPOL or the AFP Liaison Network of the requesting country, if appropriate. 

32 

 
 
 
 
 
 
 
 
 
 
ANNEX B 

Composition of the evaluation teams  

The members of the EU team were: 

Laurent Muschel, Director, European Commission, DG Migration and Home Affairs – Head 

of the EU delegation 

Igor Angelini, European Commission, DG Migration and Home Affairs 

Manuel Garcia Sanchez, European Commission, DG Justice and Consumers 

Sebastian Hummeler, expert on data protection in the law enforcement area from the German 

data protection authority 

Laszlo Tarr, expert on law enforcement, Head of Passenger Information Unit, Hungary 

The members of the Australian team were: 

Richard Gray, First Assistant Secretary Intelligence Division  

Michael Thomas, Assistant Secretary Border Intelligence Fusion Centre  

David Vosnakes, Director Tactical Intelligence  

Megan White, Assistant Director Tactical Intelligence (PNR Policy)  

33