Given the point-blank refusal of the Australian Bureau of Statistics to address the now-widespread concerns about its transformation of the census into an ongoing surveillance mechanism and serious issues relating to the security of the website it wants millions of Australians to use to submit their most personal data, what does a person who values privacy do?

ABS bureaucrats, alas, have quite draconian data collection powers. They have the power to randomly select any person and compel them to furnish whatever “statistical information” they want. Failure to answer any question by an ABS bureaucrat asked under s.10 of the Census and Statistics Act 1905 for the purposes of “collection of statistical information” is an offence, and it applies to each day that a person refuses to answer, meaning the penalty of $180 applies daily. Under s.18, the ABS can enter your workplace, your apartment building or anywhere else other than your home for the purpose of “making inquiries”, without a warrant.

As former ABS head Bill McLennan has argued, there’s a major legal issue around whether failing to provide your name would fall under the penalties in the act, given a name is not “statistical information”, but the ABS insists it is, in defiance of common sense (names can easily be changed, and many people don’t use their full names). And you also face an $1800 fine if you provide “false or misleading” information, in case you were thinking of using a pseudonym as a name.

Perversely, what that means is that if your objection is merely to providing your name, but you’re otherwise happy to fill out the census, the ABS seemingly won’t differentiate between you and someone outright boycotting the whole thing — although failing to provide your name but filling in the rest of the form might be looked upon by a magistrate less negatively than outright refusing to fill it in at all.

There are rumours floating around the internet that the ABS has said it won’t pursue people who fail to provide their names, but disregard them — the official word from the ABS is that it will pursue people who fail to provide all requested information, or who provide false or misleading information.

[The 2016 census is a huge threat to your privacy — boycott it]

There are some things you can do legally. If you’re out of the country on census night, you don’t have to fill out the form — some people are going to New Zealand to avoid filling it out. But contrary to what people claim, going camping or sleeping in your car for the night isn’t an excuse not to fill out the census — you still have to do it later.

Then there’s filling out the form. Firstly, do not fill it out online — the ABS’s website security is reliant on encryption that is about to be abandoned by major online service providers like Google due to the possibility of information being intercepted. Order a paper form — although there are widespread reports of the ABS’ phone lines being overwhelmed, so expect a wait of up to four hours, or being told repeatedly to call back later. Long-time privacy activist and Australian Privacy Foundation board member Roger Clarke has assembled a long list of tips for protecting your privacy, including using a pen that is not machine-readable but still compliant with ABS instructions — although as Clarke notes, if not too many people use such pens, the ABS can manually load your data. Other people are filling it out online and swapping login keys to make it more difficult for the ABS to link data — although that may also count as providing false or misleading information.

There’s also the problem that, even if you somehow legally fill out the census but don’t provide your name, the ABS is still looking to construct a permanent dataset about you, beginning with this census and expanding with each subsequent census and with any other information the ABS can obtain. This dataset, this life story of an ostensibly unidentified individual, will be trivially easy to link to you. The retention of names is only the tool to accomplish this transformation of the census into ongoing surveillance.

[Govt to store a trove of highly personal data, putting you at risk]

But given the far-reaching nature of the enabling legislation and the ABS’ powers, anyone who wants to protect their privacy has to accept that the ABS’s intransigence leaves them with little option but civil disobedience. Most people engaging in some form of civil disobedience — say, at protest blockades — are doing so through some deliberate act. In this case, simply doing nothing has been criminalised — by doing nothing except minding your own business, you become liable to prosecution for not filling out the census.

Nonetheless, electing to refuse to obey the law means you have to accept the legal consequences. You don’t get to pick and choose which laws you obey — or, at least, you can’t complain when others take exactly the same approach to laws that you think are good ones. You have to accept the results, even if you’ve actually done nothing but refuse to divulge personal information to the government. Some people unhappy with the census have spoken of sabotaging it by providing wrong information. Not only is that breaking the law as well, it has no ethical basis — if you object to the census, don’t participate; trying to sabotage it through providing wrong information is active malice.

[The census cannot force you to give your name]

That said, just because you ethically accept the legal consequences of an act of civil disobedience doesn’t mean you have to make it easy for those who wish to legally pursue you. It’s up to the ABS to track you down, identify your failure to comply with the law and prosecute you. It has the power to try to find you, “make inquiries” or collect “statistical information”, but you don’t have to answer their inquiries or make yourself available to them. The best protection in this context is to encourage widespread civil disobedience: the more Australians who assert their right to be left in peace next Tuesday night, the more resource-intensive it will be for the bureaucrats to pursue us and prosecute us.

This seems the least worst option for those of us who are sick and tired of governments bit by bit taking away our basic rights, including but not only to privacy, while all the while insisting it’s for our own good. Usually there’s nothing we can do about it. But in the case of a census that has transformed into a tool of lifelong surveillance, we can do something about it. The government is demanding we co-operate in the destruction of our own privacy. Merely by doing nothing, we can resist. Refusing to co-operate in the destruction of our privacy is a valid ethical choice. And for anyone concerned about their privacy, doing nothing next Tuesday night is the only real choice.

Correction: This article originally stated that under s.18 of the Census and Statistics Act 1905, the ABS had the power to enter homes. In fact, the ABS does not have this power — the power of entry merely applies to non-residential or non-sleeping locations such as apartment buildings, businesses and workplaces.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey