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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31 responses to “Do I have to provide my name on my Census form?”
[…] is illegal to discourage people from doing the Census. What I did see in 2016 was people questioning the ABS’s legal right to demand name and address data; the Act only actually empowers them to require “statistical” data, so unless they […]
[…] offence) actually extend to the name and address part of the form. Part of the argument was that names are not ‘statistical information’; for example, the ABS does not produce statistics about how many people in Australia have the name […]
[…] offence) actually extend to the name and address part of the form. Part of the argument was that names are not ‘statistical information’; for example, the ABS does not produce statistics about how many people in Australia have the name […]
[…] Caroline Henckels previously posted on this blog, we consider that the ABS does not have the legal authority to require people to provide their name […]
Is this not an offer.?
Does not equity prevail?
Can you be forced to contract?.No consent no contract.
If it is compulsory does that not make you a slave?
Is this not a contrevention of the Criminal Code Act 1995 section 270.1 and 268.1 Enticement to slavery?
Do you not have a common law right not to incriminate yourself. (Who knows what this signed information will be used for in years to come.)
If you sign it All Rights Reserved would that not protect you?.
I think forcing people to put their name on it will result in totally false and counter productive information.
I could personally care less about filling in the census as a pensioner. I just find free men and women being forced to compulsorily fill in any thing for corporate government being treated as a slave.
Interested in your opinions folks.
Reblogged this on dianedraytonbuckland.
[…] people at risk of discrimination, violence, and more. Many people online have been asking if they have to place their name on the form, with some legal experts trying to give unbiased and informative guidelines on what is and […]
I have been stalked by a health care worker and have changed my name and address.I can’t risk this violent person finding me.I am silent on the electoral rolei will put my name as the householder.
So if a person was divorced can they choose to use that name or are they obliged to use their maiden name. …what if they use one name for work related or professional purposes and another name for other reasons …such as the same one as the childrens.
What then as both are accepted are they not?
Hi. Can I sue the ABS for breach of privacy?
Unfortunately there is no cause of action for breach of privacy in Australia – you might be interested in previous Castan Centre blog posts on the issue:
Reblogged this on Josephine-Anne Writes and commented:
Interesting read …
I’m not a law student, so can someone please explain to me how the ABS would even know if we put our names down or not? Given that the census pin/form is addressed to the Resident – not individuals
I’m guessing our addresses are encoded in the scannable bar coding on each envelope … otherwise how are they to know whether or not we’ve omitted our names?
As they already have existing data showing who lives where, it could be suggested they will easily work out who did omit names, however given the amount of public sentiment against providing names, I think it unlikely they’d be willing to process that amount of data to single out the omitters for prosecution of an alleged offence based on very dubious legal ground.
My form was addressed to “The resident ” and the form contained a 12 digit number , which is exclusive to me . I As they do not have the decency to address this 2016 Census form to me personally , then I will not enter my name on the form online tomorrow . They obviously know who that 12 digit number refers to and that as far as I am concerned is enough .
I think the number is supposed to be unique to the household, not necessarily the resident? I could be wrong, but it makes more sense to me that each property gets a unique number so they can check off which have submitted their forms. So they probably don’t specifically tailor the letter to individuals. We got just the one letter to our rental with three residents. Anyway no biggy, proceed as you would like!
[…] The legal implications of not complying with Census instructions are set out here. […]
An interesting related question is just what name you could be required to use. As I understand it in common law jurisdictions like Australia it is quite possible and permissible to go by a number of names, based primarily on usage. There is no requirement that you use the name that appears on your birth certificate on the census form (and a substantial number of people have not had their births registered anyway.) in many spheres of life, as long as you don’t do so for “fraudulent” purposes. Would such freedom extend to a “census name”, or, at least, to the use of a name/nickname which you have already acquired by usage but which does not appear in “official” documentation of your existence?
What I meant to say was:
An interesting related question is just what name you should be required to use. As I understand it in common law jurisdictions like Australia it is quite possible and permissible to go by number of names, based primarily on usage, as long as you don’t do so for fraudulent purposes.
There is no requirement that you use the name that appears on your birth certificate on the census (and a substantial number of people have not had their first registered anyway.)
Would such freedom extend to a “census name”, or, at least, to the use of a nickname which you have already acquired by usage that which does not appear in the “official” documentation of your existence?
[…] Caroline Henckels on the Castan Centre Blog. […]
Badblood, if Name is indeed not ‘statistical information’, as the former chief statistician argues, it is not clear how providing your name becomes “necessary” to obtain the other “statistical information” in the actual context of how the census is carried out this round.
Typically if you have a form (which some of us have been sent) or a PIN for the online form (which the rest have been sent) your address is known to ABS, this is confirmed already by the receipt of the form or PIN, and the form is pre-coded and ready for your input about the occupants on the night. Name is not obviously “necessary to obtain” the answers you then put in the form.
The only administrative, rather than statistical, addition is to distinguish between multiple entries on a particular form. While Name can of course be used for this, it is not “necessary”; an entry number, or pseudonym, will also do the job of separating the entries for people on a form, alone or in combination with a DOB.
The later random spot checks can be also similarly be enabled, to the extent that they were necessary to “obtain” statistical information already obtained, by the occupant providing the address and their entry number/pseudonym of the form on which their details appeared, which uniquely identify the form and their entry.
For ABS to then assert that they prefer your name, even though another response would be sufficient, does not prove the “necessity” of your name for obtaining the statistical information in 2016..
Your suggestion that the novel and intrusive (when coupled with long-term retained names and persistent ‘Statistical Linkage Key’ identifiers, as now proposed) function of enabling external data-matching with other sources is a sort of statistical activity and generates statistical information appears to stray outside the scope of the Act – the Act does not appear to be set up to authorise a sort of general-purpose universal data-matching repository on the back of the claim that Name Is necessary for form processing. The legislative history materials I have looked at for assisting interpretation of the relevant provisions give no hint of such an earlier legislative intent (though I have not gone back to 1905). And there is probably some implied limit to the scope of what “statistical information” the Act covers – your interpretation would spread the net so wide as to cover any information from any source that could be matched, rather than that derived form the Census.
The existence of the criminal sanctions, which are remarkable, may also trouble a court asked to extend the scope of the dragnet by implication in this way.
Recent ABS moves, with the expected inadequate public consultation, to proceed as if setting up persistent name-derived identifiers for mass data-matching were intended may or may not be supported by the Act; on McLennan’s view, not.
“The later random spot checks can be also similarly be enabled, to the extent that they were necessary to “obtain” statistical information already obtained, by the occupant providing the address and their entry number/pseudonym of the form on which their details appeared, which uniquely identify the form and their entry. ”
It sounds nice on paper, but people just can’t give that sort of information as reliably as you’d need. People get recorded on Census forms without their knowledge, or they get forgetful and record themselves more than once. They may not even know they’ve been recorded twice, let alone be able to tell you entry numbers or pseudonyms for both those forms. Others may believe they’ve been recorded when they haven’t – their housemate forgot or didn’t think they were home that night, etc. etc.
With names and usual residence, it’s a lot easier to figure out whether two similar-looking records are the same person double-counted, and whether Ms. Emmelina Harbottle got counted at all.
The Act predates the possibility of doing this kind of data linkage, so it’s kind of hard to argue that it was framed to exclude it. But the name was already used to obtain statistical information, e.g. by excluding multiple answers, etc. I come from the perspective of someone trained in both law and epidemiology. None of the answers are, in their ‘raw’ form, statistical information; that is only obtained by performing statistical analysis on them. As technology has developed, many new different modes of analysis were applied to the same data. If the end result of linkage is still statistical, i.e. a summary description of the population in aggregate, then there is no departure from what’s authorised under the Act.
“then there is no departure from what’s authorised under the Act”
I believe the main argument is that it is a future departure that is the worry. e.g. One Nation votes for ABCC legislation in return for a public register for Muslims in Australia (completely random example, obviously).
Not being a lawyer, is it possible for someone to go to court in the next few days and get and ask for an injunction on the basis that demanding names may not be legal?
Obscurebug, I understand there is some contemplation of this option. But it’s unlikely.
Courts are typically reluctant to make declarations about what the law is in general, particularly as to what would be a defence in a whole class of possible criminal matters. Their usual role is dealing with actual disputes, not hypotheticals, using actual facts and evidence, not speculative invented scenarios.
An injunction is also designed to stop something – if you tried to stop Name being requested, it may well be that it is legal for them to ask you for it but just not compulsory for you to provide it. A court would be unlikely to grant an injunction to stop the question in this sort of case, since the question may be permissible and you might choose to answer it.
“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. ”
As far as I know the ABS doesn’t publish stats on names in themselves, but names and addresses ARE used in the compilation of published Census output. Shortly after Census night ABS runs a Post-Enumeration Survey where they go to a randomly selected sample of households, ask about people’s whereabouts on Census night, and then match them against Census responses by name, address, DOB etc.
This is used to correct for undercount (people who got missed on Census night) and overcount (those who were counted more than once – e.g. somebody fills out their form in advance expecting to be at home, then ends up somewhere else on Census night and gets counted there).
More information here: http://www.abs.gov.au/websitedbs/censushome.nsf/home/factsheetspes?opendocument&navpos=450 Note that names and addresses are part of the process used to match PES to Census.
Census and Statistics Act 1905, section 11, states: “For the purposes of section 8 or 9, the Statistician or an authorized officer may, either orally or in writing, request a person to answer a question that is necessary to obtain any statistical information in relation to any matter referred to in section 8 or 9.”
Section 9: “The Statistician shall collect such statistical information as is necessary for the purposes of the compilation and analysis, under section 12, of statistics of the number of the people of each State as on the last day of March, June, September and December in each year.”
I presume the ABS would argue that names and addresses (plus some other data e.g. DOB) are required as part of the undercount/overcount adjustment process, hence they are necessary to obtain those quarterly population estimates.
But I am not a lawyer. I’d be interested to hear Dr. Henckels’ take on whether that context changes the analysis posted above.
“I presume the ABS would argue that names and addresses (plus some other data e.g. DOB) are required as part of the undercount/overcount adjustment process, hence they are necessary to obtain those quarterly population estimates.”
And that would all be fine. If that was the reasoning for having and needing the names, then once that process is completed they should be thrown away.
I’m not sure it’s correct to say that a name is not statistical information therefore it cannot be collected. The sections referring to statistical information apply to the Statistician. Section 11, applying to members of the public is worded slightly differently: “For the purposes of section 8 or 9, the Statistician or an authorized officer may, either orally or in writing, request a person to answer a question that is necessary to obtain any statistical information in relation to any matter referred to in section 8 or 9.” A question that is necessary to obtain statistical information clearly anticipates asking questions that can be analysed to produce statistical information. Data linkage of the sort that name collection enables is clearly a statistical procedure; it’s just a shift from repeat cross-sectional to cohort study design.
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