Do we have to include our name on the Census?

Do we have to include our name on the Census?

sensus

Many people are raising concerns about how the ABS will now be retaining peoples’ names, whereas previously it destroyed identifying information before analyzing the data.

Retaining identifying information that can be linked to Census records has potentially significant privacy implications. Data provided to the ABS is purported to be protected by robust secrecy provisions in the Census and Statistics Act 1905 (the Act), But what about the security of the storage of data and the potential for its misuse.

The ABS now prefers on line collection of data, this also raises a host of new privacy issues.

It may be difficult to call into question the value of the Census, as the government tell is, it provides essential information for all levels of government, to facilitate the planning of services from hospitals, transport and infrastructure and schools to homelessness services, libraries and services for migrants and refugees.

I doubt many people will see the value of the data for its intended purpose when we consider how poorly the data has been used in the past, but does the ABS even have the power to ask the public to provide their name on the Census form?

An argument can be made that the ABS has no legal authority to do so, because the Act only permits the collection of ‘statistical information’ for the purpose of the Census, and names are not, or until have not been considered ‘statistical information’.

A lawyer and law teacher recently said, “I would never suggest that anyone refuse to fill in their name on their Census form or refuse to provide it to the ABS if directed to do so”. But the question of the scope of the legal authority of the ABS is a perfect example of a statutory interpretation problem that a legal mind might like to consider.

Section 8(3) of the Act provides that for the purposes of taking the Census, the Statistician shall collect statistical information in relation to the matters prescribed [by regulations] for the purpose of this section.’

In other words, the Statistician must collect statistical information for the purposes of taking the Census.

So what does “statistical information” actually mean?

“Statistical information” is not defined in the Act, but section 12 of the Act provides that the Statistician shall compile and analyse the statistical information collected under this Act and shall publish and disseminate the results of any such compilation and analysis, or abstracts of this result.

Does this suggest that information that is “statistical information” is information that will be compiled, assembled in order to be analysed, examined in the aggregate, for the purpose of publishing and disseminating the results.

It is a unique thought that the ABS intends to compile and analyse “names” as a category of information.

Instead, names are collected to undertake a matching process between Census records and other administrative records held by government, likely to include tax, social security and education records.

According to the ABS, this is a separate statistical exercise performed after the Census has been taken, and is not part of the Census itself. Therefore, is it arguable that “names” are not “statistical information”, meaning that the Act does not authorise the collection of names.

Offences under the Act also lack definition, and what happens if your paper census goes missing, is not received or there are debates relating to a persons snswers?

It is being suggested that failing to provide your name on the Census form is an offence, so is it?

Section 14 of the Act states that a person only commits an offence if they fail to comply with a direction by an authorised officer, either orally or in writing, to fill out the Census form or to complete a specified question that is necessary to obtain any statistical information in the Census.

In other words, failing to comply with a ‘direction’ is not just the act of not filling in your name, but failing to provide the information following a direction made to you individually.

Of course, refusing to provide your name following a demand from an authorised officer carries the prospect of a penalty, because we cannot predict how a court would deal with the question.

The fact is the threat of a heavy penalty will result in some panic, with people wanting to avoid that fine, something that may become an issue, with many reports of Australians yet to receive their census and many feeling uncertain of completing it on line.

Someone who decides to challenge the demands to include their names, may have a case, because if a name is not ‘”information”, no offence would be committed by not providing it.

Reading of the legislation shows the Census is only permitted to collect statistical information. In other words, the ABS may not have the power to commence prosecution of people who do not provide their name.

Some people might even argue that the Regulations, which prescribe “name” as a category of statistical information, are ultra vires – beyond the power of the lawmaker to enact.

This argument would be that as subordinate legislation, they must be made for the purpose of the lawmaking power, and cannot be inconsistent with the Act or other legislation.

In simple, the changes to include a person’s name are inconsistent with the intent of the legislation.

It is important to note that section 15 of the Act provides that a person commits an offence if they are ‘required, requested or directed’ to fill in a census form and then knowingly make a statement or provide a reply/document that contains false or misleading information.

This provision is different from section 14, because it relates to the information you actually provide on the Census form. Giving a false or misleading name is clearly an offence, where not providing your name, may at least have a legal defence.

So to a strong degree from my amateur interpretation of the act, to offend the legislation, one must provide false and miss leading information, or ignore a request/direction to do a certain thing, by an authorised officer. Whether or not a request or demand can include your name, is open to legal debate.

So in summary, people who do not provide their name on the Census form would not face the prospect of a penalty unless they subsequently refused to follow a direction made to them by an authorised officer.

It would be up to the ABS to determine whether to refer a case for prosecution and for the Director of Public Prosecutions to consider whether to pursue a prosecution.

There are very few cases one can research to see how many people have failed to follow the direction of an authorised officer have been prosecuted, so one can imagine the issues that face the ABS in 2016, if hundreds of thousands refuse to say “Include their names”.

Ultimately, it will be up to the courts to determine the proper construction of the Act and regulations. But people who object to providing their name on the Census form have an arguable legal basis for so doing.

 

Mark Aldridge “community advocate”

PS; do not take this as legal advice, please see a lawyer.

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One Response to “Do we have to include our name on the Census?”

  1. Tracey Says:

    I also didn’t receive the letter with code or hard copy of Census. I’m not going out of my way to obtain any of this either. Of the people that did get a letter, it is addressed to the ‘Householder’. If no name, who do they intend to prosecute…the ‘Householder’? If the ‘householder’ could be one of two or more people, do they toss a coin as to who the onus of responsibility sits with?
    This whole Census thing is garb & the ABS have lost credibility with this one.
    The govt makes decisions regarding policy, education, health ect despite population health & the needs of any given community.
    We’ve just experienced a massive cutback to SA Health. That was before census & had sweet f.a to do with community needs. It’s about $$. Our self-serving government does what it wants & doesn’t give a toss what Australians need.

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