Top IA story of 2016 #9: Census name and address collection — is it legal?

By | | comments |

Even before its website collapsed, #Census2016 was controversial. This story from August by Bill McLennan appealled to a concerned populace.—

"The ABS has always been in the business of invading people’s privacy, as it must do whenever it asks any questions of Australians." ~ Bill McLennan, Former ABS Australian Statistician.

THE AUSTRALIAN BUREAU of Statistics (ABS) seems to be surprised that privacy has become a major issue for the 2016 Census.

They must be the only people in Australia who hold that view!

It is now obvious that they did not appreciate that changing the practice of all previous censuses of destroying names and addresses after processing was completed, would raise serious concerns for many people.

They seem to have thought that capturing and then retaining names for up to four years and then matching them with other administrative systems of government over time (tax, health, social security, immigration, to name a few) would present a low privacy risk.

The ABS has made a significant mistake and it indicates how naive, in the art of collecting data from Australians, the current designers of the census must be.

Perhaps things might have been different if the ABS had actually consulted widely with the public but we will never know as the decision to retain names was hatched and implemented “on the quiet”. The Privacy Impact Assessment was inadequate, as has been pointed out in some detail by the Australian Privacy Foundation (APF) — and they also found that the privacy impact statement would have been more believable if it had been conducted by an independent party. It was also snuck out to the public in the week before Christmas — this was indeed a bad look.

How does the general public find out what is going on? From the experience of a good personal friend of mine, who had his census form delivered to his house on the weekend, they won’t. He searched in vain for some statement telling him that his name and address would be kept and that his census information would be matched against various other administrative data bases over time. He found no relevant information. There was a small reference on the form to a privacy statement on the ABS website and it seemed to relate only to the release of census forms with consent in 99 years’ time.

One can only say this is not best privacy practice. Are the people who fill in an online form provided with the relevant information in any better fashion? One can only wonder but the smart money would be placed in one direction only!

Talking of online statements, surprisingly the ABS very recently updated its policy on 'Privacy, Confidentiality and Security, Are names and address compulsory in the census?' Why would anyone want to change their policies on privacy, confidentiality and security so close to the conduct of the census? In the days gone by, something very serious indeed would had to have happened to justify changes of such an important policy so close to the commencement of the taking of the census, when the odds of anyone reading it was only slightly above zero!

In fact, I could not identify any changes that would warrant such drastic action so close to the starter’s gun going off, or perhaps more accurately, after it had gone off. So I was left wondering if something was being hidden. I’m probably wrong but I can’t just ignore my instincts.

However, I have some grave concerns with this policy statement. It is, at best, disingenuous in places and is remarkable more for what it omits than what it includes. Much of it doesn’t make sense to me. 

I have made some annotated comments (in bold) on the following online statement released by the ABS:

‘Are names and addresses compulsory in the census?'

'Names and addresses have been collected in every census.'

But names and address information has NEVER before been collected on a compulsory basis.

'Names and addresses are specified in the Census Regulations as Statistical Information, like all other census topics. This requires the ABS to collect this information as part of the census.'

But the Act doesn’t require the Statistician to collect the information on a compulsory basis.

'That is a decision the Statistician took.'

However, collecting statistical information puts a legal obligation on the Statistician. Section 12 (1) of the Census and Statistics Act states:

'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.'

Is the Statistician going to attempt to fulfil this legal obligation to publish statistics about "name"? The mind boggles! The Statistician is in a better position here than other Australian citizens, as there is no penalty prescribed. However, I’d expect that if the Statistician doesn’t fulfil his obligation to compile and publish – and I don’t think he can in any satisfactory way – then he is in the horns of a serious dilemma. He is, in effect, saying I’ll prosecute citizens but I’ll ignore my own, but different, breach. It’s certainly not a good look.

'The requirement for all topics, including names and address, on the census forms to be filled completely and accurately.'

These terms don’t exist in the Census and Statistics Act. The only reference in the Act to any words like this is in Section 15 and it relates to ‘information (which )is false or misleading in a material particular’.

'... is consistent with 105 years of Australian census practice, the Census and Statistics Act 1905.'

This last statement is obviously false. This is the first time that name and address has been collected on a compulsory basis.

'… and legal advice to the ABS from the Australian Government Solicitor.'

Who knows what this advice says or even if it exists? Did it comment on the obligation placed on the Statistician by Section 12 (1)? For information, the Office of the Parliamentary Counsel, in the 1980s when the Act was being revised, told the ABS that if statistical information was collected, then statistics had to be produced (in this case from the census). The Office of the Parliamentary Counsel then wrote the new legislation to achieve this end. For example, see the comment above about the requirement Section 12 (1) puts on the Statistician.

'The only exception is religion, which the legislation specifies is optional.'

For once, I agree with this statement

The ABS census program manager Duncan Young misled Australians when he was interviewed on The Project (video below). 

Duncan Young is incorrect in saying names and addresses have been collected in all previous censuses AND on a compulsory basis. What is correct is that 2016 is the FIRST TIME it hasn't been collected on a voluntary basis.

I conclude from all the above that the ABS is in a mess concerning the legal aspects of what it is proposing. The solution though is rather evident. Leaving legal arguments aside, the essence of the Census and Statistics Act, since the first version of the Act in 1905, has always been about collecting information, compiling statistics from that information and then publishing the resultant statistics.

There is one other very relevant issue. The census cited in the Census and Statistics Act is the one mentioned in the Constitution. It represents a separate head of power for the Commonwealth and it is considered to be an anchor on which many issues hang, including determining the number or seats in the House of Representatives to be allocated to each State in each election. A well conducted census is vital if these important obligations are to be met yet this new policy of retaining names and addresses puts a quality census at risk.

Also, the census cited in the Census and Statistics Act does not include the matching of census records with administrative records. That is a separate statistical exercise performed after the census has been taken. What follows is that "name" information in this census, is not collected to produce census statistics but to undertake the matching process.

A final point is that the ABS has always been in the business of invading people’s privacy, as it must do whenever it asks any questions of Australians. The offset, at least until now, has been that the ABS has not retained names and addresses and has thus guaranteed the information collected will only be used to collect statistical information, compile statistics and then publish them. Also, the data provided is protected by the strong secrecy provision of the Census and Statistics Act.

This compact between the ABS and citizens is one that should never be broken, nor should such an impression ever be given. I wonder, when considering this current census proposal, if the ABS still appreciates the importance of this unwritten compact, which goes a long way towards achieving respondent cooperation.

Bill McLennan was the ABS Australian Statistician and Director of the UK Central Statistical Office.

Creative Commons Licence
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

Monthly Donation


Single Donation


Support democratic freedom. Subscribe to IA for just $5.

Recent articles by Bill McLennan
Census Panel Report whitewash lets ABS off the hook for 2016 #CensusFail

Former Australian Statistician Bill McLennan says the Independent Assurance Panel's ...  
IA #7 top story of 2016: Privacy and the 2016 Census

The shambolic census was one of the biggest stories of 2016, as shown by Bill ...  
Top IA story of 2016 #9: Census name and address collection — is it legal?

Even before its website collapsed, #Census2016 was controversial. This story from ...  
Join the conversation
comments powered by Disqus

Support Fearless Journalism

If you got something from this article, please consider making a one-off donation to support fearless journalism.

Single Donation


Support IAIndependent Australia

Subscribe to IA and investigate Australia today.

Close Subscribe Donate