CELEX: 52011PC0281
Language: en
Date: 2011-05-19
Title: COUNCIL DECISION on the conclusion 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 conclusion 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

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		52011PC0281
		
			COUNCIL DECISION on the conclusion 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 conclusion 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/2011/0281 final - NLE 2011/0126 */
			
				
		
		
			
			   	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 resolution[2]
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. 
On 23 September 2010, the Council received
three recommendations 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 European
Parliament adopted a resolution on the Recommendation from the Commission to
the Council to authorise the opening of the negotiations.
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 …. May 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 countries[3] 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(6)(a) of the Treaty on the
Functioning of the European Union states that the Council shall conclude
international agreements.
The Commission therefore proposes to the
Council to adopt a decision approve the conclusion 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.
2011/0126 (NLE)
Proposal for a
COUNCIL DECISION
on the conclusion 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 (6)(a) thereof, 
Having regard to the proposal from the
European Commission,
Having regard to the consent of the
European Parliament[4],
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)       In accordance with Council
Decision 2010/XXX of [][5] the 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 was signed on …., subject to its conclusion at a later date.
(3)       The Agreement should be
concluded.
(4)       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.
(5)       [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.]
(6)       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,
HAS ADOPTED THIS DECISION: 
Article 1
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 concluded. 
The text of the Agreement to be concluded
is attached to this Decision.
Article 2
The President of the Council shall
designate the person empowered to proceed, on behalf of the European Union, to
the exchange of the instruments of approval provided for in Article 29 of the
Agreement, in order to express the consent of the European Union to be bound by
the Agreement.
Article 3
This Decision shall enter into force on the
day following that of its publication in the Official Journal of the
European Union.
Done at Brussels,
For the Council
The President
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; 
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:
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)                   
'Agreement' shall mean this Agreement and its
Annexes, and any amendments thereto;
(b)                   
'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; 
(c)                   
’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; 
(d)                   
‘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;
(e)                   
'reservation systems' shall mean an air
carrier's reservation system, departure control system or equivalent systems
providing the same functionalities;
(f)                     
‘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;
(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 the fundamental political, constitutional, economic, or social
structures of a country or an international organisation;
(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)         
it is committed in one country but a substantial
part of its preparation, planning, direction or control takes place in another
country;
(c)         
it is committed in one country but involves an
organised criminal group that engages in criminal activities in more than one
country; or
(d)         
it is committed in one country but has substantial
effects in another country.
4.                      
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. 
5.                      
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
1.                      
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.
2.                      
Australia shall not require air carriers to provide
PNR data elements which are not already collected or held in their reservation
systems.
3.                      
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 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.                      
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.
2.                      
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 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.
2.                      
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. 
3.                      
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
1.                      
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.
2.                      
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.
3.                      
The Australian Information Commissioner will, in
particular, hear claims lodged by an individual regardless of their nationality
or country of residence, concerning the 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.
Article 11
Transparency
1.                      
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.
2.                      
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
1.                      
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.
2.                      
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.
3.                      
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 lodged with the Australian Information Commissioner.
They shall be further informed of the means available under Australian law for
seeking administrative and judicial redress.
4.                      
Where an individual submits a complaint to 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.
5.                      
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
1.                      
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.
2.                      
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. 
3.                      
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.
4.                      
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
1.                      
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.
2.                      
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.
3.                      
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
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.
2.                      
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
1.                      
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
(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.
3.                      
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. 
4.                      
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
1.                      
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. 
2.                      
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.
3.                      
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
1.                      
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;
(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)         
any successor departments or agencies of those
which are listed in Annex 2; and
(b)         
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
(c)         
any existing departments and agencies whose
functions become directly related to preventing, detecting, investigating or
prosecuting terrorism or serious transnational crime.
3.                      
When transferring analytical information containing
PNR data obtained under this Agreement, the safeguards applying to PNR data in
this Article shall be respected.
4.                      
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;
(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.                      
When transferring analytical information containing
PNR data obtained under this Agreement, the safeguards applying to PNR data in
this Article shall be respected.
3.                      
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. 
(c)                   
Air carriers shall transfer PNR data in a secure
manner using common protocols required by the Australian Customs and Border
Protection Service.
Article 21
The
frequency of transfer
1.                      
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.
2.                      
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.
3.                      
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
1.                      
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. 
2.                      
Nothing in this Agreement shall limit rights or
safeguards contained in the laws of Australia. 
3.                      
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.
Article 23 
Dispute
resolution and suspension of the Agreement
1.                      
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. 
2.                      
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.
3.                      
Any suspension shall cease as soon as the dispute
is resolved to the satisfaction of Australia and the EU. 
4.                      
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
1.                      
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.
2.                      
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.
3.                      
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. 
4.                      
The Parties shall evaluate the Agreement, in
particular its operational effectiveness no later than four years after its
entry into force. 
5.                      
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.
6.                      
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
1.                      
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.
2.                      
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

1.                      
Subject to Article 25, this Agreement shall remain
in force for a period of seven years from the date of entry into force.
2.                      
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.
3.                      
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 of this
Agreement. However, no data shall be required to be masked out before 1 January
2015.
Article 28
Territorial
application
1.                      
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.
2.                      
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.
3.                      
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.
4.                      
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
1.                      
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.
2.                      
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
++++++++++
--------------------------------------------------
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
Annex
2
List of other government authorities of Australia
with whom the Australian Customs and Border Protection Service is authorised to
share PNR data:
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;
Office of Transport Security, Department of
Infrastructure and Transport.
[1]               OJ L 213, 8.8.2008, p.47. 
[2]               P7_TA-(2010)0144, 5.5.2010
[3]               COM(2010)492.
[4]               OJ C , , p. .
[5]               OJ L , , p. .