Border Security Legislation Amendment Act 2002 (64 of 2002)

Schedule 7   Access to airline passenger information

Customs Act 1901

1   After section 64AE

Insert:

64AF Obligation to provide access to passenger information

(1) An operator of an international passenger air service commits an offence if:

(a) the operator receives a request from the CEO to allow authorised officers ongoing access to the operator’s passenger information in a particular manner and form; and

(b) the operator fails to provide that access in that manner and form.

Note 1: For operator , international passenger air service and passenger information , see subsection (6).

Note 2: The obligation to provide access must be complied with even if the information concerned is personal information (as defined in the Privacy Act 1988).

Penalty: 50 penalty units.

(2) An operator of an international passenger air service does not commit an offence against subsection (1) at a particular time if, at that time, the operator cannot itself access the operator’s passenger information.

Note 1: For example, the operator cannot access the operator’s passenger information if the operator’s computer system is not working.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) An operator of an international passenger air service commits an offence if the operator fails to provide an authorised officer to whom the operator is required to allow access in accordance with subsection (1) with all reasonable facilities, and assistance, necessary to obtain information by means of that access and to understand information obtained.

Penalty: 50 penalty units.

(4) An operator of an international passenger air service does not commit an offence against subsection (3) if the operator had a reasonable excuse for failing to provide the facilities and assistance in accordance with that subsection.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) An authorised officer must only access an operator’s passenger information for the purposes of performing his or her functions in accordance with:

(a) this Act; or

(b) a law of the Commonwealth prescribed by regulations for the purposes of this paragraph.

(6) In this section:

Australian international flight means a flight:

(a) from a place within Australia to a place outside Australia; or

(b) from a place outside Australia to a place within Australia.

international passenger air service means a service of providing 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 the service; and

(c) in accordance with fixed schedules to or from fixed terminals over specific routes; and

(d) that is available to the general public on a regular basis.

operator , in relation to an international passenger air service, means a person who conducts, or offers to conduct, the service.

passenger information , in relation to an operator of an international passenger air service, means any information the operator of the service keeps electronically relating to:

(a) flights scheduled by the operator (including information about schedules, departure and arrival terminals, and routes); and

(b) payments by people of fees relating to flights scheduled by the operator; and

(c) people taking, or proposing to take, flights scheduled by the operator; and

(d) passenger check-in, and seating, relating to flights scheduled by the operator; and

(e) numbers of passengers taking, or proposing to take, flights scheduled by the operator; and

(f) baggage, cargo or anything else carried, or proposed to be carried, on flights scheduled by the operator and the tracking and handling of those things; and

(g) itineraries (including any information about things other than flights scheduled by the operator) for people taking, or proposing to take, flights scheduled by the operator.

Note: The flights referred to are any flights scheduled by the operator (not just Australian international flights).