28 January 2012, rev. 2 February 2012
|ABS's Compulsory Surveys||The Number of People Who Decline to Provide Data|
|Why So Many People are Concerned||How to Complain|
|The Legal Basis for the Surveys|
|What Concerned People Are Doing||The APF's Work in This Area|
For many decades, the Australian Bureau of Statistics (ABS) was highly trustworthy. In particular, unlike some other agencies, the ABS had a strong reputation for not allowing the personal data it collected to be used for secondary purposes. Unfortunately, a significant change has occurred, and the organisation has become highly intrusive, and arrogant in its dealings with the public.
The ABS runs a Population Census every 5 years. Participation is compulsory. Since 2006, the Census has become highly and unjustifiably intrusive. The levels of public concern about the 2011 Census were so high that the APF issued a Public Advisory Statement regarding the 2011 Census.
This document is not about the Census, but about other compulsory surveys that ABS undertakes.
In addition to the 5-yearly Census of every person in the country, the ABS conducts a number of Surveys that require information from individuals, and that the Bureau claims are compulsory. Currently, there appear to be five such Surveys:
APF has received multiple expressions of concern from members of the public about the first three of those Surveys.
The ABS is deliberately vague about whether participation is actually compulsory, preferring to initially give the impression that responses are voluntary and only later revealing its powers. Attempts by the Privacy Commissioner in the 1990s to persuade the ABS to be more 'up-front' about its powers failed, exposing a weakness in the principle that supposedly requires openness about such matters.
In respect only of Survey 1, ABS claims that the Census and Statistics Act 1905 "authorises the ABS to ask the questions in the survey " – which fails to declare which section of the Act is relied upon, and fails to make clear whether people have to provide answers! In relation to the other four Surveys, the ABS's web-site says very little about compulsion. From various reports, however, APF understands that the ABS considers all of these five Surveys to be compulsory.
The laws are anything but clear, and the ABS has abjectly failed its responsibility to communicate what they are. It appears that ABS might be able to ask any question it likes, and might be able to make it compulsory to answer every such question. We've provided below the information that we currently have about the legal basis for the Surveys.
In the case of Survey 1 (MPS – which is a rolling mini-Census), questions are asked about work, and about a range of other matters such as education, the environment, conditions of employment, child care arrangements, work related injuries, participation in sports and physical recreation, attendance at cultural venues and events, sports attendance, patient experience, family characteristics and crime and safety. The questions apply to all household-members and the answers can be provided by any adult member of the household. It is repeated every month for eight successive months. 35,000 households are involved, each year.
In the case of Survey 2 (AHS – Health), ABS provides some additional information. Many of the questions to which answers are demanded involve personal data that is highly sensitive to many people, including long-term conditions, medication, use of health services and recent visits to the doctor. The ABS tries to make people feel a moral obligation to provide the data, and avoids declaring on the web-pages that participation is legally mandatory. The ABS is also requesting blood and/or urine samples – and may pressure people to provide them. However, this part of the program is not compulsory. 50,000 adults and children are involved.
In the case of Survey 3 (SIH – Income and Housing), the demand is made for declaration of all income from PAYE and shares, whether the householder inherited or bought their house, mortgage arrangements, superannuation, loans, how much their house and its contents are insured for, and more besides. Additional personal data is demanded, including age, birthplace, cultural background, employment, education and income. Apparently householders are also told that they have to furnish a great deal of supporting documentation, specifically pay slips, income tax returns, bank and superannuation account statements, returns on investments, council rates, house contents insurance, mortgage and personal loan details. 15,000 households are involved. Here is a media article from January 2012 on one household's reaction to this extraordinarily-intrusive survey.
In relation to Survey 4 (HECS – Energy Consumption), detailed information is demanded about energy sources, expenditure and consumption and energy efficiency characteristics, actions and intention. It appears that this may be folded into Survey 3 during 2012. It involves every person in 13,000 households.
In relation to Survey 5 (PIAAC – Adult Competencies), information is demanded about age, birthplace, income, employment, education and training, literacy, numeracy, information and communication technology practices at work and in everyday life, and skills used at work. 14,400 households are involved, with additional questions applied to one person in each household.
Many people consider it to be a good idea to collect data that will assist in planning government services. On the other hand, some people are sceptical about government data collection, and in particular about secondary uses unrelated to the original purpose of collection; some people are concerned about being expected to provide particular kinds of information; and some people are directly opposed to such surveys.
Many people consider it to be unreasonable for personal data to be forcibly collected. The concern increases if the data is sensitive, and if the data is identifiable, and if data from one survey is linked with data from other surveys, or from other sources entirely.
All of these compulsory Surveys:
The APF is aware of a range of actions that are being taken by people who want to avoid their personal data being captured or their private life intruded upon. The APF neither encourages nor discourages any of these approaches. But the APF believes that the information should be widely published, so that people are informed about the situation. Here are examples that the APF is aware of:
The APF neither encourages nor discourages any of these approaches. And it would be unwise for anyone else to actively encourage their use, because that might be interpreted as an incitement to break the law.
Here are samples of the kinds of letters that ABS sends to people who refuse, called in sequence a 'passive refusal letter', an 'active refusal letter', a 'pre-NOD (Notice of Direction) letter' and a 'NOD (Notice of Direction)' letter, mirrored here.
The APF is aware that:
The ABS has the power to seek fines that the magistrate could choose to apply once, or ( in principle at least) for every day that the data is not provided. The magistrate can also award the costs of court, and even the costs of the ABS.
In practice, it does not appear that the ABS carries through with its threats very often. The APF is aware of few cases in which people have actually been taken to court, and does not know what fines and costs have been applied. (However, it is a matter for magistrate's courts, and most cases in magistrate's courts go unreported. In addition, the APF is a voluntary association that works to achieve privacy protections and combat privacy-invasive practices. It does not have the resources to handle complaints. So it has only limited exposure to information about prosecutions).
In a celebrated instance of resistance against the Monthly Population Survey in 1987-88, Shirley Stott Despoja (mother of Natasha, later Senator, Stott Despoja) fought and won a case against ABS. Here is a 2008 article by her daughter, Natasha.
Shirley's refusal was based on the following:
At that time, the C&S Act s.10(4) included a statutory defence of 'reasonable excuse'. A defendant could establish, on the balance of the probabilities, that a reasonable excuse existed. Remarkably, the magistrate did not accept that the above factors constituted reasonable excuse.
The magistrate did, however, find that the form of the ABS's demands contained a procedural defect, and that, in view of the criminal nature of the charge, that defect was material. He accordingly found Stott Despoja not guilty.
The case was David Geoffrey Steel (Deputy Statistician) v. Shirley Despoja, Adelaide Magistrate's Court File No. 88/2577, judgement delivered on 26 August 1988. The matter was reported in The Advertiser and The Age of Saturday 27 August 1988. Stott Despoja is a journalist, and she wrote on the matter in her column 'Saturday Serve' in The Advertiser on several occasions during 1987, and again, at length, at the end of August 1988.
Despite the magistrate's failure to accept a 'reasonable excuse', ABS has since arranged for the Parliament to remove that defence, with the result that there appears to be no defence whatsoever available against the charge. All ABS has to do is to present the facts, and, if challenged, prove them.
Most defendants will be likely to agree with the ABS's Statement of Facts, although they may insist on adding in some relevant facts that the ABS might prefer to be omitted. So, if ABS's lawyers dig their heels in, the defendant may be well-advised to agree wth the ABS's Statement of Facts, but also provide a Supplementary Statement . A guilty plea submitted in advance of the hearing greatly simplifies matters for the magistrate. It also has the benefit that the ABS has no justification for hiring expensive lawyers in an endeavour to impose undue cost on the defendant.
It does not appear that the ABS publishes any clear data about refusals. Some information is available about the large numbers of active objectors to, and non-participation in, the Census. That is contained in the APF's companion Public Advisory Statement about the 2011 Census. The APF has the distinct impression that the numbers of people who are very concerned about these surveys, and who take actions to deal with them, has greatly increased in recent years.
The APF has received a considerable number of enquiries from
the public about this topic.
We don't have the resources to help. But here are some channels for complaints.
The ABS has not made it easy for people to find out how to complain about these Surveys.
There is a general feedback page. There is also a general list of ABS office contact-points.
For Survey 2 (AHS – Health), there is a Health Survey contacts page, which is vague and unhelpful.
If you search hard across the entire site, it's possible to find (at the end of the ABS's Charter), a contact-point for resolving complaints. This appears to be the most appropriate starting-point:
Survey Participant Liaison Officer
Australian Bureau of Statistics
PO Box 10
Belconnen ACT 2616
No phone-number provided. See the general contacts page.
The same page offers a first line of review if (and most likely, when) you are dissatisfied with the response:
Complaints Review Officer
Policy & Legislation Section
Australian Bureau of Statistics
PO Box 10
Belconnen ACT 2616
No email provided!?
No phone-number provided!?
If you encounter vague, unhelpful or obstructive behaviour, it may be more useful to send the complaint directly to the agency's CEO:
Mr Brian Pink
45 Benjamin Way
Belconnen ACT 2617
See the Ombudsman's
Phone Enquiries 9am - 5pm (AEST) Monday to Friday - 1300 362 072.
The online form option requires a (very?) recent Adobe Reader.
The Privacy Commissioner has, in APF's view, a poor track record of helping either individuals or non-government organisations resolve either specific privacy complaints or systemic issues; but you can try at the Privacy Commissioner's Complaints page.
This is a channel that's always open to you. You can find your local MP here.
Unfortunately, most of the media are hard-pressed, and just regurgitate the 'good news' stories about the ABS that are fed to them by the ABS's Public Relations machine. But if your story is interesting, some media outlets may pick it up. Here is one media article from January 2012.
Finding the legal authority under which the ABS makes these Surveys compulsory is not easy. This section summarises our current understanding of the relevant law.
The Census and Statistics Act provides for the Census in s.8. The same Act includes the following provisions about other surveys:
In addition, under the Australian Bureau of Statistics Act s.6(3), the ABS appears to have a responsibility to lay proposals for compulsory surveys before the Parliament: "each new proposal for the collection of information for statistical purposes by the Bureau shall be laid before both Houses of the Parliament before its implementation, unless the proposal is for the collection of information on a voluntary basis".
Under both the C&S Act s.9 and the ABS Act s.6(3), surveys require the authority of the Parliament. Transparency demands that the Bureau make readily available, i.e. on its web-site, the documents that satisfy its obligations under those sections. Yet no such documents have come to light, even when searching with the Parliamentary site itself.
The Australian Privacy Foundation (APF) is the country's primary advocacy organisation dedicated to protecting the privacy rights of Australians. It has operated continuously since 1987, and makes scores of submissions each year to government, government agencies, industry associations and corporations, supporting privacy-protective approaches to business and government, and opposing unjustifiable privacy intrusions.
The APF has made many attempts over many years to hold back the ABS's slide from a trustworthy agency to a highly privacy-invasive agency.
The APF had some limited success in relation to the 2006 Census; but it still became far more privacy-intrusive than previous Censuses had been. The APF was then completely ignored in relation to the 2011 Census. The levels of public concern about the 2011 Census were so high that the APF issued a Public Advisory Statement.
Despite being the country's sole specialist public advocacy organisation in the privacy area, APF was not approached by ABS on any aspect of any of the five compulsory Surveys discussed in this document.
In relation to the Health Survey, it appears that a Privacy Impact Assessment (PIA) was undertaken, and the PIA Report was published in February 2011. APF discovered this recently, while preparing this Public Advisory Statement. The ABS ran focus groups, but appears to have studiously avoided any consultation with healthcare consumer and privacy advocacy groups, and ignored the APF.
It appears that the ABS published a 'Surveys Charter' in March 2010. APF discovered it recently, again while preparing this Public Advisory Statement. It can be read in sections on the ABS website, commencing here, or the set of pages can be downloaded in PDF form. It is not clear what consultation processes led up to the publication of the Charter. If there were any, they did not include the APF. For people concerned about privacy, the Charter is of almost no value at all.