The Acting Australian Information Commissioner recently said “Privacy is not secrecy. It is about giving individuals control over how their personal information is handled; creating customer confidence and trust. As such, good privacy practices and great innovation directly support each other.”
Unfortunately, Australian citizens will have no “control over how their personal information is handled” in the forthcoming Census of Population and Housing. The Australian Bureau of Statistics (ABS) is collecting the name and address of each Australian, will retain that information and will match the census records with various administrative records held by government. Australians will be given no say in how their information is used as the ABS has said the provision of “name and address” is compulsory.
This, without doubt, is the most significant invasion of privacy ever perpetrated on Australians by the ABS and a direct and deliberate breach of Australia’s Privacy Principles. By doing this, the ABS has put the very success and value of the 2016 census at significant risk. From as early as 1976 to the mid-1990s the ABS has found that the Australian public is very concerned about the collection of names and addresses. More recently, the ABS’ own research shows that 19% of Australians don’t trust the ABS.
The compulsory collection and retention of names and addresses is very likely to result in a significant public backlash against the 2016 census, with people either boycotting the census or providing incorrect information. For a statistical office, this approach is just not tenable. To collect accurate information the willing co-operation of the public is required; this is an old adage, but a very true one.
However, an important legal issue is also at stake: the ABS doesn’t have the legal authority to collect “name” in the 2016 census on a compulsory basis.
The ABS is using the word “compulsory” about name-collection as if its meaning is obvious. Well, it is not, and for starters, that word isn’t mentioned in the Census and Statistics Act either. The reality is that most data collected by the ABS, even in the Population Census, is done on a voluntary basis. The term compulsory is simply used to mean that the ABS has the power to direct, in writing, any respondent to provide statistical information and then to prosecute if the person does not comply.
Before prosecution can be commenced regarding the collection of the census, several legal conditions have to be met. The first of these is the enabling provision, Section 8 (3) which, among other things, provides authority for the statistician to collect statistical information in the census. Section 8 (3) says: “For the purposes of taking the Census, the Statistician shall collect statistical information in relation to the matters prescribed for the purpose of this section.”
By regulation, the ABS has prescribed “name” as a topic on which statistical information may be collected and from which statistics are to be produced. However, as far as I can determine, no statistics are planned to be produced from the census about “name”. Therefore that statistical information, that is “name”, can’t be considered as being collected “for the purposes of taking the Census”.
I say this because the statistician is required to “compile and analyse the statistical information collected under this Act and … publish and disseminate the results of any such compilation and analysis” (See section 12 Publication etc of statistics.) With respect to “name” it is obviously impossible to meet this requirement! Hence the collection of “name”, per se, is not authorised by section 8(3) of the CSA.
“Name” can still be collected on a voluntary basis, but the ABS has no power to commence prosecution action against Australians for not providing “name”.
I should point out that I explained my conclusions on this matter to the Australian Statistician and he said he disagreed with my analysis. However, he gave no indication why he disagreed with me. He did say he had some advice from the the Australian Government Solicitor (AGS) that concluded otherwise. I asked what questions he asked the AGS to address and if he would show me the AGS advice. He declined to do so. This surprised me, as I would have thought that if the ABS had sound advice that is helpful to the ABS view, then there are some obvious advantages in using it.
I was, personally, heavily involved in the process of rewriting the Census and Statistics Act in 1981. At the time, I kept good personal records of all the discussions the ABS had with the government, the parliamentary draftsmen and the Attorney-General’s Department on all important legal matters, including this specific issue.
My notes indicate that in June 1981, Dr Roy Cameron, the then-Australian Statistician, wrote to the First Parliamentary Counsel asking, among other things, if the draft bill could provide for the ABS to “collect information and then to compile and tabulate statistics”. He also suggested that a broader term, like “information”, was necessary for the collection function as it could be argued that names, addresses, industry, etc, are not statistics.
In July 1981, the Second Parliamentary Counsel replied to Cameron that he agreed with the distinction Cameron wished to make between the collection of information and the compilation of statistics. However, he suggested that the word “information” would be too broad and proposed the use of the term “statistical information”. He thought this expression was broad enough to authorise the acquisition of names and addresses, etc, of respondents, so long as it is done for statistical purposes. This proviso is making the same point I have prosecuted above.
The Second Parliamentary Counsel’s recommendations were agreed to and embedded in the enabling statements in the Census and Statistics Act in Sections 8 (3) for the census and 9 (1) for statistics.
I suggest the discussion on this issue ends here. The ABS does not have the authority to collect “name” in the 2016 census on a compulsory basis.
*Bill McLennan was the Director of the UK Central Statistical Office and Head of the UK Government Statistical Service 1992-94. He was the Australian Statistician 1995-2000
*A longer version of this article was originally published here.