Dáil debates

Wednesday, 25 June 2008

3:00 pm

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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I move:

That Dáil Éireann approves the exercise by the State of the option or discretion, provided by Article 1.11 of the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption of the following proposed measure:

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

a copy of which proposed measure was laid before Dáil Éireann on 24 June 2008.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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On a point of order, given the importance of this motion and the fact that to my certain knowledge a copy of it was only available in the Oireachtas Library at about 2.30 p.m., why is the Minister for Transport not present? Is this not again disrespectful to the House? It is a rerun of what happened the other day in regard to a justice motion. Are we not being treated with disdain and in the most disgraceful manner?

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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As Deputy Broughan will be aware from what I stated last week, the Government is entitled to send any Minister or any Minister of State into the House and is in order in doing so. That is not just a ruling of the Chair. It has been the position for many decades.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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On a point of information, I understand that when a similar previous motion between Europe and the United States went through last summer, this Minister of State was not then in the Department. It is critical we have the senior Minister, Deputy Dempsey, present to discuss this.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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I cannot accede to that. I must proceed.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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It is important, a Cheann Comhairle, that you would protect the rights of the Opposition.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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It is, of course. That is being done.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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We have been treated disgracefully in this case. We received the document at 2.30 p.m. and, just over an hour later, Deputy Durkan and I are expected to invigilate it on behalf of the Irish people. That is not acceptable. It is time for you to——

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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This has been discussed on the Order of Business.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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The Ceann Comhairle must protect our privileges.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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Deputy Broughan should resume his seat.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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It is not acceptable.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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Deputy Broughan should resume his seat. This was discussed on the Order of Business this morning. A vote was taken on it and in any democratic society that vote must be respected. I must accept that vote of the Houses of the Oireachtas.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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The Opposition has very few rights anyway.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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I ask Deputy Broughan to allow the Minister of State to proceed.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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This is a very difficult piece of business. We have just seen it and the Minister who has been in office for the past year is not present. The Minister of State is a decent man but he was very recently appointed to this Department.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
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The Minister of State should proceed.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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This motion, under Article 29.4.6 of Bunreacht na hÉireann, seeks the approval of the House for Ireland to participate in the adoption of a new agreement between the EU and Australia concerning the collection, storage, use and transfer of passenger name record, PNR, data.

Following a request from the Australian authorities, the European Commission presented a recommendation to the Council in late 2007 to authorise the opening of negotiations for an agreement between the European Union and Australia on the use of PNR data to prevent and combat terrorism and serious transnational crime, including organised crime. The Justice and Home Affairs Council approved the negotiating mandate for an agreement on 28 February last and intensive negotiations then commenced between the EU side, which was led by the Slovenian EU Presidency assisted by the European Commission, and the relevant Australian authorities.

The negotiations only concluded last month and the Justice and Home Affairs Council agreed a general approach in regard to the agreement at its meeting on 5-6 June while awaiting the lifting of parliamentary reservations by member states. I regret that Members have not had as much time to consider this agreement as we all would have wished. When it arose on the Order of Business this morning, the Taoiseach spoke in similar vein. Both the Slovenian Presidency and the Australian Government are keen to conclude the agreement before the summer recess.

The Australian Government, in particular, is very keen to have this agreement signed and put into operation as a matter of urgency. Given the excellent relations which have always existed between Ireland and Australia, the Government, subject to the approval of both the Dáil and Seanad, wishes to be as helpful as possible in this regard. The Slovenian Presidency has shown great interest in the issue. Its six month terms ends on Monday, so approval from us is needed by tomorrow.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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Is this a public relations exercise on the part of the Slovenians?

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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No, it is not, but both Australia and Slovenia have shown great interest in the matter.

Irish-Australian relations go back for many generations and a sizeable number of Australians claim Irish ancestry. The descendants of the many Irish men and women who settled in Australia have played a significant role in that country's economic, social and political developments. While these links of kinship are the bedrock of the relationship between our two countries, there are also strong contemporary links which ensure that the relationship continues to prosper.

While Ireland has a bilateral air services agreement with Australia, no Irish or Australian carrier has yet sought to provide direct air links between Australia and Ireland under that agreement. However, I am hopeful that this will change at some stage in the future. In the meantime, Irish people continue to travel to Australia to pursue opportunities there through a variety of different routes and with a number of different carriers, including European carriers. In addition to those Irish people who have chosen to make their home in Australia and who have found work there in a wide variety of sectors, the Irish are enthusiastic participants in the working holiday visa scheme. Since its introduction in 1985, at any given time some 13,000 young Irish people are availing of the scheme to spend 12 months working and travelling in Australia. They return to Ireland richer for the experience. In recent years, approximately 3,000 Australians have visited Ireland each year on the working holiday scheme.

The agreement that is before the House today follows a similar agreement with the United States that was approved by both Houses last year. The events of 11 September 2001 and terrorist attacks in other parts of the world have made us more aware than ever that terrorism is a global problem. The events of September 11 highlighted particular vulnerabilities relating to air travel and aviation generally. Enhanced security at airports worldwide is now part and parcel of the experience of air travel. The US authorities and now the Australian authorities have identified the potential of passenger name records, PNR, data to play an important role in the fight against terrorism and other transnational crimes leading to the negotiation of agreements with the EU on the processing and transfer of PNR data.

The agreement will provide legal certainty for air carriers and EU-based reservation systems to transfer EU PNR data to the Australian customs service in full compliance with EU data protection law. It will be valid for a period of seven years, thus ensuring legal certainty for EU air carriers and reservation systems for a considerable period. The agreement only applies to EU-sourced PNR data for those passengers travelling to, from or via Australia. It contains important commitments by Australian customs service on the handling of EU PNR data in full respect of EU data protection law. Under the agreement, Australia undertakes to ensure that the Australian customs service complies with its commitments regarding the processing of EU PNR data.

The purposes for which EU PNR data may be processed by the Australian customs service is strictly limited under the agreement to preventing and combating terrorism and related crimes; serious crimes, including organised crime, that are transnational in nature; and flight from warrants or custody for these crimes. Except during an initial two year transition period, the Australian customs service will be able to access EU PNR data only on the basis of the transmission to it of that data. This is commonly referred to as a push system. In the transition period the existing Australian PNR system will be used which operates on the basis of a pull system, whereby the Australian customs service accesses data directly from reservation systems. However, this method will be used only for this strictly limited period.

The protection of personal data under the agreement and the rights of individuals seeking access to and correction of their personal data applies, irrespective of the nationality or place of residence of the data subject. The agreement ensures that commitments both in the main body of the agreement and its annex are binding upon Australia by explicitly referring to those assurances, compliance with which is necessary to ensure an adequate level of protection of EU PNR data. This precludes national data protection authorities from taking a different view on the level of data protection, thus ensuring a harmonised approach at EU level and providing legal certainty.

The agreement provides for a joint periodic review of its implementation by the European Union and Australia and may be terminated by either party at any time. In the event that a European Union PNR system is implemented, the agreement shall be reviewed. It is noteworthy that the agreement provides that the EU member state data protection authorities may suspend the flow of EU PNR data to the Australian customs service in particular circumstances where there is a substantial likelihood that the standards of protection set out in the agreement are being infringed.

The annex to the agreement forms part of the agreement and, like the agreement, is legally binding. The annex contains several key elements, including the provision that the Australian customs service will only disclose EU-sourced PNR data on a case by case basis and in response to a written request from one of the five Australian authorities listed in the schedule to the agreement. Disclosure, whether to these Australian authorities or to specified authorities of third countries, is subject to the strict purpose limitation of the agreement. The annex also provides that bulk data may be disclosed to the five Australian authorities listed in the schedule to the agreement, provided these are first rendered anonymous so that they contain no personal data. The types of data that can be collected, which comprise 19 different data elements, are set out. Any personal data included within EU PNR data which may indicate racial or ethnic origin, political opinions, religious beliefs, trade union membership and data concerning health or other sensitive data, shall be filtered out and deleted by Australian customs. The Australian customs service will ensure that its EU PNR transfer requirements are judicious and proportionate so as not to be an excessive burden on air carriers and reservation systems.

The agreement provides for a data retention period of three and a half years for active data, followed by a further two year period during which the data will be archived and may only be accessed on a case by case basis for investigative purposes. Active data would be PNR data which could be used for identifying high-risk passengers and establishing travel patterns. Archived data will no longer be used unless needed to reply to an identifiable case, threat or risk. Data relating to ongoing prosecutions or investigations may be retained until these are concluded. The agreement provides for a separate data retention period of five and a half years for data rendered anonymous, enabling Australian customs to use the data for the purposes of establishing statistics, profile building, and so forth. The annex confirms that under Australian law administrative, civil and criminal enforcement measures are available to all data subjects irrespective of nationality or place of residence, for violations of Australian privacy laws and rules and for unauthorised disclosure of information.

I am very conscious that there is a balance to be struck between public security considerations and privacy rights of the individual citizens in this type of agreement. The European Commission, in line with the mandate it received from the member states, sought to strike the balance in the negotiations with the Australian authorities. I believe it succeeded in achieving that objective and that the agreement contains significant checks and balances.

As I said earlier in reference to Deputy Broughan's comments, it is regretted that the recent conclusion of the negotiations on the agreement combined with the scheduling of the European institutions and the Houses of the Oireachtas has not afforded Members more time to consider this issue. As I said, that was raised this morning and it has been explained that Australia is keen to get it through. It was one of the items the Slovenian Presidency was anxious to try to push through as well. With those points in mind, we are seeking the co-operation of Members. I commend the motion to the House.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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How many minutes do I have?

Photo of Johnny BradyJohnny Brady (Meath West, Fianna Fail)
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The Deputy has 15 minutes.

4:00 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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That is a long time if one had a heavy weight on one's toe.

I am glad to have the opportunity to comment on the motion. Like Deputy Broughan, I reiterate the concerns in respect of the way this has been presented to the Opposition. My colleague, Deputy Fergus O'Dowd, who is the spokesman on this area, found it impossible to rearrange his schedule to be here today. He received the same notice referred to by Deputy Broughan.

It is extremely dangerous to pursue that line of activity in matters of this nature because they could become sensitive or fundamental issues at some later stage. Given the nature of this proposal, a situation could arise in the future where, under data protection or something else, somebody may raise an issue. Alternatively, it may fail to do the job it was supposed to do and somebody may get through the net despite the fact that this measure is in place.

This type of proposal needs much more consideration by Parliament. I reiterate that it has come to pass in recent times that Parliament means less and less. This is grand for Government. Incidentally, some Departments think the committee system is an extension of Government but it is not. We should recognise once and for all that if Parliament is going to work properly and if we are to have public confidence in the institutions of the State, we must be absolutely clear about the way we treat Parliament, and that means the way Government treats Parliament. I reiterate the reservations made about the Order of Business this morning and more recently by Deputy Broughan.

In respect of the motion itself, I can understand what it proposes to do, notwithstanding the rushed way it is to be put in place. Much depends on the integrity of this system and whether it is effective at all. Much also depends on the degree of information that is retained — I know the Minister of State referred to this in his speech — and how that information is used. I happen to be one of the people who knows from my experience in this House that even though specific restrictions can be laid down as to how something might or might not be disclosed, notwithstanding the existence of the Data Protection Commissioner, it does not necessarily always reflect best practice in the way such information is treated. I would like an assurance from the Minister of State in respect of this country and the EU which also has an interest. We should remember that we are still members of the EU, notwithstanding the recent "No" vote, and, as a result, we have responsibilities to our EU colleagues. Any breach that may take place may find itself in difficulty regarding overall EU law, rules, regulations and directives.

I am very conscious of the security risk and the need for the EU and Ireland as a member of the EU to take protective measures to combat terrorism, money laundering or traffic associated with any of these activities. It is essential from all our points of view that this be done, but it is also essential that we know the information collected and retained for the period set out in the proposal is retained for that purpose only. We must remember that this information is of a sensitive nature and can be extremely beneficial to people who are money launderers, potential or working criminals, for want of a better description, or people who are involved or indulging in illegal or illicit activity.

Unfortunately, modern information technology has made it possible for people to infiltrate the system and gain information they are not supposed to get their hands on. That could have very serious consequences in a matter of this nature. I ask the Minister of State to reassure himself and the House that adequate protection exists and that our Data Protection Commissioner is satisfied with everything contained in the proposal.

We should remember that only a short time ago the Data Protection Commissioner mused aloud that information of a personal nature might not be made available to Members of the House despite the fact that they are elected by the public to represent them and their views. Fortunately, it has not been pursued but if it is pursued, I reiterate that the running of the House and the information available to Members in pursuit of their duties as public representatives shall not be interfered with under any circumstances. Any attempt to intervene in that area undermines the entire democratic system, notwithstanding all recent events.

I have already referred to the EU. The Justice and Home Affairs Council approved the negotiating mandate for the agreement on 28 February last. Again, it is a bit rushed. Given our experience in the Oireachtas Committee on European Affairs and other places, things do not happen that quickly here. We do not adopt these proposals as quickly as we should in most circumstances. Let us presume there is an urgent reason for this proposal. I note that our Slovenian colleagues are anxious to have this provision in place before they leave the Presidency.

The information retained is not supposed to be of a personal nature. Perhaps we need to spell out more precisely what kind of information can be retained and how it is likely to be used. We know it can be retained for five years. To whom will it be released? Will it be released to the Australian and Irish authorities? Will it be released simultaneously or another way? Will it be released to any other authority or institution? Will it be released to anybody else who may not be an authority in the true sense of the word?

This agreement is supposed to prevent and combat terrorism and serious crimes, including organised crime, that are transnational in nature. We have raised that issue in the House until we are blue in the face but we have not received much response, despite the fact that there is a massive amount of international or transnational crime which seems to be taking place outside but not beyond our reach. However, it seems to be taking place outside our reach in so far as legislation is concerned.

The raft of legislation that exists, particularly in the justice area, in respect of this matter can only be marvelled at because it has been threatened for a long time and has not been brought before the House to the greatest extent possible. The fact that this proposal is coming before us now suggests that there is a recognition of a need that has not been filled or addressed in a particular way and this is the attempt to do it. It is an emergency fire brigade action to get ahead of the posse before it goes over the cliff.

It also refers to flight from warrants or custody for various crimes. We are well aware of that issue. From the knowledge I possess and have gleaned from parliamentary questions, there is large-scale international freedom of movement for people who have illicit intentions. It appears their businesses are thriving, be they money laundering or extortion. If this provision addresses that in full, I am in favour of it provided it does not reflect heavily on some poor unfortunate who travels to Australia or from Australia to Ireland to visit their sick relative, for example. Incidentally, some years ago I dealt with the case of a constituent who happened to have the same name and date of birth as a well-known and successful criminal who was alive and well and working at his underworld activities at the time. This reflected badly on my unfortunate constituent, who happened to have the same data. I hope that with regard to this agreement we will not have a similar case, as it would bring the whole scheme into disrepute.

The Minister of State referred to a pull and push system. What he said put in my mind the image of a fellow trying to push a kangaroo up a ladder. It is difficult to envisage how it will work, although I can envisage circumstances in which the system could be used. The pull system will allow the Australian customs service to access data directly from the reservation systems, although only for a limited period. I presume the reverse will apply also, or will it just be one-way traffic? Could we have further clarification on this?

The Minister of State referred to the protection of personal data under the agreement and the rights of individuals to seek access to and correction of their personal data, irrespective of their nationality or the place of residence of the subject. The Data Protection Commissioner here comes into play in this regard. Incidentally, he will have to be more vigilant when dealing with issues under this heading than with issues that might arise with regard to whether Members of the Oireachtas have access to information on behalf of their constituents by way of parliamentary question, freedom of information or any other method. I make no apologies for reiterating this. When Members are elected to public office, they have a mission on behalf of their constituents. Anything that interferes with that, in this particular provision or anywhere else, is out of order. The sooner we recognise that in this House, the better. If we do not, we will shortly be relegated to the status of a regional assembly, which we are not.

The Minister of State said that the Australian customs service would only disclose the EU-sourced PNR data on a case by case basis, in response to a written request from one of the five Australian authorities listed in the Schedule of the agreement. Disclosure, whether to these Australian authorities or to specified authorities of third countries, is subject to the strict purpose limitation of the agreement. How can this be guaranteed?

On the various types of data that may be gathered, the agreement refers to racial or ethnic origin, political opinions, religious beliefs and trade union membership. Data concerning health or other sensitive data shall be filtered out and deleted by the Australian customs. It is essential that both parties to the agreement honour this element in full in order to protect the integrity of the proposal. As we know from past performance in this House and elsewhere, the integrity of a particular proposal is determined by the degree to which its conditions are respected and implemented and by the degree to which those conditions respect the individual entitlements and rights of the citizenry of the respective countries that are party to the agreement.

I deplore the short advance warning provided to the Opposition of the tabling of this issue. I know the Minister did not intend this to happen, but somebody is responsible for it. Somebody cynically imposed this on the Order Paper at the last minute.

Photo of Johnny BradyJohnny Brady (Meath West, Fianna Fail)
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The Deputy has one minute remaining.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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One minute is sufficient to do a lot of damage. Somebody realised this would discommode the Opposition which would have already made its plans for this part of the week. As the Minister of State knows well, the Opposition must plan its work for the week a week ahead and do its job on that basis. It is different for the Government. When one is in government and bringing a Bill into the House — this information may assist those who could not understand the recent Lisbon treaty — all a Minister has to do is reach behind him for the aide-mémoire that comes from the dutiful civil servant who is on hand at all times to illuminate, update, reassure and encourage Ministers. That facility is not available to unfortunate Members of the Opposition. I am not crying for its introduction. We are well able to look after ourselves and our own interests, but this means we must work harder, read more and be forever vigilant.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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I propose to share time with Deputy Aengus Ó Snodaigh. In the increasingly global security conscious environment we are in currently and given the particularly vulnerable nature of air travel, measures to enhance the safety and security of air travel for airline passengers are welcome.

However, I agree with my colleagues that the manner of presentation of this proposal is unacceptable, undemocratic and completely disgraceful. Thanks to our diligent librarian, I got a copy of the agreement at approximately 2.30 p.m. It is a 40-page document and is quite an intricate piece of legislation which refers to Australian legislation. I and Deputy Durkan, therefore, had approximately one hour to prepare for this debate. This is shameful treatment of the Opposition. I admit the Minister of State informed me last night at approximately 6.30 p.m. that the matter was arising today. However, the late announcement of the agenda seems a churlish way to treat the Opposition.

What is even more astonishing is that last year when the original EU-US agreement on PNR was also being rushed through the House, with no proper time allocated for its thorough invigilation, our colleagues, including Deputy Shortall from the Labour Party, protested at the short notice given for that debate. The Minister at the time, Deputy Noel Dempsey, apologised and said he regretted that people did not have enough time to examine the agreement, but that it would not happen again. However, here we are a few months later and it has happened again.

The main document in question is dated Brussels, 10 June. Therefore, it has been available for the past couple of weeks and there was no need for this breakneck last minute performance by the Minister. The briefing note we got appears to say that the Slovenians, who currently hold the EU Presidency, are responsible for getting us to rush this forward before 30 June. I hope no simple public relations mechanism was the reason for us having to go ahead with this rushed debate.

It is amazing, as my colleague mentioned, that given the concerns we had last week about EU legislation and making this House responsible for invigilating it and given what the people decided in the referendum, that the Government comes forward in a cavalier way and again treats the people's representatives on this side of the House with disdain on this issue and refuses to allow us proper study and debate on it.

The agreement states in Article 5 that the purpose of the EU-Australian agreement is to prevent and combat terrorism and related crimes, transnational organised crime and flight from warrants or custody with regard to these crimes. The increased transnational and global nature of organised crime and terrorism has, understandably, given rise to the need for much greater co-operation. I notice, for example, that in recent months the Australian Government has been diligently seeking the return of an alleged drug lord, Mr. Tony Mokbel who fled to Greece and was fighting extradition back to Australia. Close co-operation between Greece and Australia has resulted in this alleged criminal being returned to Australia. Terrorist crimes, particularly since 11 September 2001 and attempted terrorist attacks on European airports, also highlight the need for legislation in this area. A key concern of mine and of all Members of this House is the provision of the highest level of protection for all of our citizens when travelling by air. We must be conscious of the sensitive issues of personal privacy and individual freedom that are involved when developing a system such as the passenger name records system. During the few minutes I had to read the document I noted the reference to the Australian Acts, the Privacy Act 1988 and the Freedom of Information Act 1982, in section 17 of the annexe. How does that complement our rights under our freedom of information and personal rights legislation? There is a reference in section 5 of the annexe to transmission of information to third countries. How can we be referring, given this is an agreement with Australia, to third countries receiving information on European and Irish citizens?

Most citizens will support measures that increase their safety and security when travelling by air but it is critical the Minister provides a clear and detailed account of the operation of this system and that citizens are reassured. What system is in place at present with the Australian authorities for passenger name records?

The impetus for this agreement came from Australia. The impetus for the previous agreement came from the US when the US was threatening to cut air connections between the two continents. Where are we at in respect of European passenger name records security? Will there be a European directive on passenger name records across the EU?

In the previous debate a colleague mentioned that in a briefing session on the operation of passenger name records systems airline operators had been asked how many times an airplane had been diverted or turned back because a passenger had been flagged through the passenger name records system. The Minister, Deputy Dempsey, stated this had occurred approximately ten times at that stage, and in each case there was no reason to bring the aircraft back.

Article 7 refers to the correction of records. How could that happen for a European or Irish citizen? We have long, deep and profound family associations with Australia. They follow our cultural, economic and political developments as we follow theirs. How can the record be corrected by Australian authorities? The document refers to the five authorities of the Australian Crime Commission, the Australian Federal Police, the Australian Security and Intelligence Organisation, the Commonwealth Director of Public Prosecution and the Department of Immigration and Citizenship. There seems to be much overlap. Will the records of EU citizens be dispersed through a variety of Australian bodies? Why is there a two-year transition period when the Australian customs service will be able to use the so-called pull system, as referred to by Deputy Durkan and the Minister, to access data from reservation systems? Why will it take two years to introduce the new system? Does the Minister of State have any updated information on the use of passenger name records information over the past year and whether it has been successfully used in apprehending any terror or criminal suspects?

The briefing document received last night mentions that the protection for personal data under the agreement applies yet we were given no indication in the briefing document as to how this will operate. Given recent breaches in data security, particularly the spectacular breaches in the UK when the social security records of half the British population were lost, it is critical we have more information on that. We are also told in the briefing document that 19 different data elements can be collected. Some seem quite obscure. What does the reference to split or divided information in section 9 of the annexe refer to?

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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It is a boomerang.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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Another issue highlighted by my colleagues in last year's debate on the EU-US agreement is the time period of data retention which is three and a half years for active data and then a further two year period where the data will be archived and may be accessed. What is the basis for retaining personal data for up to five and a half years? The agreement also mentions a joint periodic review, provided for under article 9, and amendments to the agreement under article 11. What is the timeframe for this review? Reference is made to four years in the main document.

It is clear that the Minister should have insisted on a clear and strong role for the Oireachtas in monitoring and invigilating the operation of this and the previous US-EU passenger name records agreement. Last year during the debate on the EU-US agreement, my colleague Deputy Róisín Shortall highlighted a very important report that was prepared by a committee in the House of Lords in the UK on passenger name records agreements. This Westminster report flagged a number of concerns including the need for airlines to inform passengers about what happens to their personal information, the need to maintain public confidence by maintaining individual liberty in the context of the introduction of any new counter-terrorism measures and the inclusion of a full list of data that is permitted to be collected so there should be no vague and open ended statements that will allow for further measures to be undertaken that were not specifically outlined in the original agreement. Does the Minister of State agree the theme of the report is a useful template for this type of agreement with another country? Will all passengers be informed of what is happening to their personal data under this agreement? I referred to the Australian legislation. How come Irish, EU or Slovenian legislation is not referred to?

Deputy Shortall also highlighted the views of the European Data Protection Supervisor on 27 June 2007 when the supervisor warned that European data protection rights were at risk under the EU-US agreement. I will support the agreement on behalf of the Labour Party and the objectives of enhancing air travel security and co-operation between the EU and our friends and colleagues in Australia in the area of crime and justice, particularly given the deep and historic ties between our two nations.

I wish to register the strongest protest possible at the manner in which the business was brought before the House. It is ridiculous and unacceptable. Some day the Opposition will walk out. The Government can have the House to itself if it is not prepared to do business in a democratic manner.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Gabhaim buíochas don Teachta as am a roinnt liom. Níl ach trí noiméad agam, agus tá sé deacair morán a rá maidir leis an mbealach a chuireadh é seo os ár gcomhair. Tá sé scannallach nár tugadh eolas dúinn mar gheall ar seo go dtí oíche aréir. Cad is fiú domsa nó éinne eile freastal ar chruinnithe gach seachtain chun iarrachta a déanamh ghnó an Teach a eagrú nuair a chuirtear rudaí os ár gcomhair sa Teach cosúil leis na trí píosaí páipéar a fuaireamar ón Rialtas mar gheall ar seo chun plé a dhéanamh an lá dár gcion? Ní leor sin, agus is scannall é go bhfuil orainn díospóireacht a bheith againn ar rud nach raibh feicthe againn go dtí aréir, in anneoin go raibh fhois ag an Rialtas go raibh sé le teacht ó mí Feabhra nuair a chríochniagh an idir-phlé ar seo. Bhí fhois acu ó deireadh mí Bealtaine go raibh sé chun teacht níos tapúla, agus bhí fhois ag an Rialtas coicís ó shin go mbeadh sé os comhair an Teach. Fós, níor dhúirt an Rialtas le héinne ar an dtaobh seo den Teach go raibh sé ar an mbealach chun seans a thabhairt dúinn ár jab a dhéanamh agus cinnte a dhéanamh nach rachaidh an reachtaíocht seo tríd an Teach gan cíoradh cheart a dhéanamh air.

It is a disgrace that we have so little time to analyse this. It is hugely important and, once we have passed it, there is no going back unless the Minister can persuade the other 26 countries to stop it at this stage or include a review clause so we can return to this and examine the protections for the data we are transferring to another jurisdiction. Under the existing passenger name records regime between the EU and the US, those in the EU can have access to the material provided. If one asks a United States airline to provide one with the data it will supply to the regime in the United States, it will not supply it for security reasons. This is the type of regime in existence with regard to data protection and access to our records.

We must be careful when agreeing to pass data to other countries which do not have the same standards of data protection as us. Data can be incorrect and a protection does exist whereby one can correct it, but if one does not know it is wrong there is no point in having this. One will end up like Mr. McBrearty, who was refused entry into the United States because the information in this country was wrong. How are we to guarantee the information in the United States, even at this stage, has been corrected in his case? Many other Irish and European citizens will find out their information is stored wrongly only when they end up being sent back from an airport.

This is rushed legislation and it is not accountable. We cannot stand over the fact that we have not had the opportunity to scrutinise it. At the very least it should be referred to committee. The committees of this House have a little expertise because they dealt with the previous PNR data agreements. Tá mé i gcoinne é seo a rith ag an am seo toisc nach bhfuil go leor ama againn don cheist seo ná go leor eolais againn faoi ach oiread.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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I thank Deputies for their comments and contributions. I accept it is an important issue and I understand and appreciate the frustrations and concerns expressed about the way it came forward so late and the limited time Deputies were given to consider it. It was put in the Oireachtas Library yesterday——

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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An appropriate day to put it in the library.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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——which is only one day earlier than today. It might be wrong to state it is only available since lunchtime. It was put in yesterday. I do not suggest——

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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It was faxed to my office at 15:53 yesterday.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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I do not suggest that one day earlier makes it okay and I regret it. It was due to a combination of factors outside our direct control. Negotiations concluded in May and the justice and home affairs Ministers agreed a general approach at their meeting on 5 and 6 June, pending the lifting of parliamentary reserves by member states. The final text became available on 10 June. I am not sure what happened day by day since 10 June but it went to Cabinet for decision yesterday.

The Slovenian Presidency and the Australians are keen to have it up and running as soon as possible. This is the first occasion on which Slovenia has held the Presidency of the EU and it listed this matter as one of the transport items it wanted to achieve during the Presidency. We are trying to help it as a small nation holding the Presidency for the first time.

Deputy Durkan mentioned Parliament having less and less importance and respect. Many other countries are not running into the same problem because this will not be approved by the parliaments in those other countries. In a way our system, due to the Constitution, provides us with a role to be involved. One might thank God it is due to the Constitution and not me or the Government. This was not deliberate and to my knowledge nobody blackguarded the Deputies, held back or delayed anything. From 10 June to yesterday is probably reasonably fast in the context of how long these matters can take.

In recent years, attacks have brought home to people the dangers of terrorism. It appears that even if the US was first in line, followed by Australia, the danger of terrorism will mean that over the coming years various countries or blocs of countries will introduce such a form of advance notice of people travelling. Accepting the dangers and matters which can go wrong, it will be part and parcel of air travel.

Deputy Broughan asked about an EU scheme. The EU draft framework decision on PNR, which is under negotiation, provides for the sharing of PNR data with law enforcement authorities in the EU. When the EU PNR system is in place, the transfer of PNR data will be reciprocal.

This is a complex and sensitive subject. We all recognise the need to strike a balance between public security considerations and the need to protect the rights of all our respective citizens. The agreement tries to achieve this objective. It provides important protections for EU PNR data and avenues of redress for persons seeking information on or correction to PNR data and this is a welcome development.

The agreement will be subject to periodic review by both parties and can be terminated by either side. If data protection authorities in the member states have substantial concerns that the standards of protection set out in the agreement are being infringed, they many suspend the flow of EU PNR data to Australia.

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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What about the 72 hours?

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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All in all, there are——

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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The Australians want 72 hours notice.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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Yes. All in all there are sufficient checks and balances——

Photo of Tommy BroughanTommy Broughan (Dublin North East, Labour)
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No late deals to Australia.

Photo of Noel AhernNoel Ahern (Minister of State with special responsibility for Road Safety, Department of Transport; Dublin North West, Fianna Fail)
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——in the agreement to ensure the highest possible protections for EU PNR data.

Deputy Durkan raised a number of issues, including the purpose for which the data will be used. The agreement has strict limitations on the purposes for which the data can be used which are combatting crime, terrorism, including organised crime, and flights from warrants or custody for these particular types of crimes.

Deputy Durkan also asked with what other authorities the data might be shared. It can only be shared with the five Australian authorities which are listed in the schedule. It may be shared with third country governments but only where the functions of these authorities relate to the purposes of the agreement, which is preventing or combatting crime. Australian customs must keep a log of all such disclosures and it can be reviewed as part of a joint review by the EU and Australia.

All Deputies raised data protection issues. Australia would be considered a country with a sophisticated data protection system. Customs will treat EU PNR data as confidential in accordance with Australian law. At its discretion it will share PNR data with those authorities listed in the schedule with law enforcement, public security or counter-terrorism functions only for the same purpose for which it may use the data itself.

It is important to note that although these other Australian authorities will have the right to obtain PNR information under the agreement, they will not have access to the customs database. Data will be shared only in response to specific written requests on a case by case basis to the authorities listed in the schedule and the Australian customs service will release EU sourced PNR data information only after assessing the relevance of each request. Such access will be strictly and carefully limited in proportion to the nature of the individual case. Data disclosed to the authorities in question will be "anonymised" in such a way that a data subject is no longer identifiable. Such data will be processed only for the purposes of establishing in depth statistics, trend analysis and profile building relating to preventing and combatting the offences set out in article 5.

Australian data protection legislation, namely the Privacy Act, governs the collection, use, storage, disclosure and alteration of, and security access to, personal information. PNR data furnished must be disclosed to the individual in accordance with the Act and the Freedom of Information Act. Australia will provide a system whereby individuals, regardless of nationality or country of residence, can have access to and correct their own personal information. Complaints can be made to customs and then to the Australian data protection commissioner and the Commonwealth Ombudsman. Administrative, civil and criminal enforcement measures are available under Australian law for violation of Australian privacy rule and unauthorised disclosure of Australian records.

I thank the Deputies for their contributions. I apologise again for the way the motion has been brought forward but we are trying to facilitate the wishes of the Australians and the Slovenian Presidency. I thank Members for their support and understanding of the situation.

Question put and declared carried.