Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison, MP)Schedule 7 - Access to airline passenger information
Customs Act 1901
All airlines maintain computer reservation systems detailing their passengers flight bookings and other information (including information on how the passenger has paid for the ticket and where the ticket was booked). Access to this information would assist Customs to identify persons who may be involved in the importing or exporting of prohibited goods or who may otherwise be involved in offences against Commonwealth law (including terrorist activities).
The requirement to provide access will apply to airlines operating scheduled passenger flights into and out of Australia.
The access will be preferably be provided on a read only basis. That is, Customs officers will not be able to remove, add to or vary any of the information contained on an airlines computerised reservation systems.
New subsection 64AF(7) defines a number of terms for the purposes of new section 64AF. The requirement to permit Customs access to the passenger information (as defined) applies to the operators of commercial airlines who fly into and out of Australia. In this section these airlines are called operators of international passenger air services. An international passenger air service is defined as a service which provides air transportation of people:
- (a)
- by means of Australian international flights (whether or not the operator also operates domestic flights or other international flights); and
- (b)
- for a fee payable by people using this service; and
- (c)
- in accordance with fixed schedules to and from fixed terminals over specific routes; and
- (d)
- that is available to the general public on a regular basis.
This definition limits who may be requested to provide access so that charter aircraft operators or private aircraft are not covered by the obligation nor operators of air cargo services (which may also incidentally carry a small number of passengers).
Operators must provide access to the operators passenger information which it keeps electronically. This term is defined in subsection 64AF(7) as any information the operator of the service keeps electronically about its flights and passengers including for example, payments, passenger details (such as name, gender and nationality), number of passengers, check-in details, seat allocation, baggage and passenger itineraries.
The CEO may request an operator to allow authorised officers ongoing access to the operators passenger information in a particular manner and form. For example, the CEO may request access from certain locations. Ongoing access will be provided by a computer link between Customs and the operators system. Customs will be responsible for any costs incurred in establishing this link. New subsection 64AF(1) makes it an offence for an operator to refuse to provide access in that manner and form.
The term authorised officer is defined in subsection 4(1) and means, in relation to a section of the Customs Act, an officer authorised in writing by the CEO to exercise the powers of perform the functions of an authorised officer under that section. So, the CEO must authorise specific officers of Customs for the purposes of new subsection 64AF(1) in order for those officers to be able to access an operators passenger information.
The maximum penalty for an offence against new subsection 64AF(1) is 50 penalty units.
The second note to subsection 64AF(1) makes it clear that an operator must comply with the CEOs request even if the passenger information is personal information (as defined in the Privacy Act 1988 ). The Australian Customs Service is obliged to handle personal information in accordance with the Privacy Act. In addition, section 16 of the Customs Administration Act 1985 imposes further limitations on the disclosure of personal information by officers of Customs.
New subsection 64AF(3) creates a defence for an operator where the operator has failed to provide access to the operators passenger information as required by subsection 64AF(1). An operator does not commit an offence, if at the time the operator fails to provide access to an authorised officer, the operator does not itself have access to the system. Such situations would include where the operators computer system is not working or there is a general power failure.
Subsection 64AF(4) requires an operator to provide an authorised officer (to whom access must be granted) with all reasonable facilities and assistance necessary to obtain information and understand the information. Subsection 64AF(4) makes it an offence not to provide the facilities and assistance. This provision is to ensure that an operator is required to provide authorised officers with the necessary passwords and operating manuals which explain how the operators system works and where an operator uses particular codes or abbreviations, that these can be understood by the officer. The maximum penalty for an offence against subsection 64AF(4) is 50 penalty units.
Subsection 64AF(5) makes it a defence where an operator fails to provide the reasonable assistance and necessary facilities if the operator has a reasonable excuse.
Subsection 64AF(6) places limits on the purposes for which an authorised officer may access an operators passenger information. An authorised officer may only access passenger information for the purpose of performing his or her function in accordance with the Customs Act or a law of the Commonwealth which is prescribed in the regulations. Examples of the laws of the Commonwealth which may be prescribed are the Migration Act 1958 and the Financial Transactions Reports Act 1988.