Guest post by Dr Caroline Henckels

Last week one of my Public Law students asked me whether it was true that the Australian Bureau of Statistics (ABS) could demand a person’s name on the Census form. The issue has been all over social media in recent days.

Collecting names on Census night isn’t new – but people are concerned that the ABS will now be retaining peoples’ names, whereas previously it destroyed identifying information before analysing the data. Retaining identifying information that can be linked to Census records has potentially significant privacy implications. Although the data provided to the ABS is protected by robust secrecy provisions in the Census and Statistics Act 1905 (the Act), questions have been asked about the security of the storage of data and the potential for its misuse.

It’s difficult to call into question the value of the Census – 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. But does the ABS in fact have the power to require people 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 ‘statistical information’.

As a lawyer and law teacher, 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 law student might face in an exam, and I’m writing this blog to clarify the legal basis upon which such an argument might be made.

Statutory obligations

Section 8(3) of the Act provides that ‘[f]or 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.’ Regulations promulgated pursuant to this section prescribe ‘name’ as ‘statistical information’ for this purpose.

But 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.’

This suggests 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 seems highly unlikely that the ABS intends to compile and analyse ‘names’ as a category of information: for example, how many people named ‘Caroline’ were in Melbourne on Census night. Instead, names are collected to undertake a matching process between Census records and other administrative records held by government—like tax, social security and education records. According to former ABS Statistician Bill McLennan, this is a separate statistical exercise performed after the Census has been taken, and is not part of the Census itself. Therefore, it is arguable that ‘names’ are not ‘statistical information’ – meaning that the Act does not authorise the collection of names.

Offences

It has been suggested that failing to provide your name on the Census form is an offence. This is not the case: section 14 of the Act states that a person only commits an offence if they fail to comply with a written direction by the Statistician or an authorised officer to fill out the Census form or a written direction by the Statistician to answer ‘a specified question that is necessary to obtain any statistical information’ in the Census.*

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. Someone who wanted to challenge the law could elect to challenge the charge brought against them and have the matter heard by a Magistrate. But if a name is not ‘statistical information’, no offence would be committed by not providing it, because the Census is only permitted to collect statistical information. Moreover, an argument can be made that providing your name is not ‘necessary’ to obtain statistical information.*

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, and liable to be quashed by a court for invalidity. 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. And there is also an interpretive rule that laws imposing penalties or creating criminal offences ought to be narrowly construed, which anyone facing a prosecution would likely argue.

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 document containing 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.

So to sum up, 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. Even then, 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. It has been reported here and here that only a small proportion of the people who have failed to follow the direction of an authorised officer have been prosecuted– but we don’t know what information these people refused to provide, or the penalty that the courts imposed in the event of a guilty plea or finding of guilt.

Ultimately, it is for 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.

Dr Caroline Henckels is a Senior Lecturer in the Faculty of Law at Monash University. Caroline researches at the intersection of public international law and public law, and is currently teaching Constitutional Law and Public Law. Listen to Dr Henckels discussing this issue on Law Radio here.

This blog does not provide legal advice and does not create a lawyer-client relationship. If you need legal advice, please contact a lawyer directly.

* Amended on 9 August 2016 to clarify that a ‘direction’ referred to in section 14 may only be in writing, that the power to direct a person to answer a specified question ‘necessary to obtain any statistical information’ may only be exercised by the Statistician, and that this power arguably does not include the power to direct the provision of one’s name.

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