Bills Digest No. 132 1999-2000


Numerical Index | Alphabetical Index

Census Information Legislation Amendment Bill 2000

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Census Information Legislation Amendment Bill 2000

Date Introduced: 17 February 2000

House: House of Representatives

Portfolio: Treasury

Commencement: On Royal Assent

Purpose

To change the name of the 'Australian Archives' to the 'National Archives of Australia' and to provide for the retention of the forms created by the 2001 Census (including the names of respondents), if a respondent agrees to this retention.

Background

The Report Saving our census and preserving our history : a report on the inquiry into the treatment of name-identified census forms was produced by the House of Representatives Standing Committee on Legal and Constitutional Affairs, which was chaired by Kevin Andrews, in May 1998.(1) This Bill implements aspects of some recommendations made by the Committee, most particularly the first part of Recommendation 1:

Recommendation 1

The Committee recommends that name-identified information contained in forms from future censuses be retained.

The Committee further recommends that specific legislation be implemented to provide for the retention of name-identified information from all future censuses.(2)

As is apparent from both the legislation and the Second Reading Speech, the Government has decided to implement only aspects of this Recommendation, and will wait to see the results of this initial exercise before moving to implement longer-term legislation. Furthermore the Government has decided to introduce an element of personal choice regarding whether information is retained, a choice which the Committee did not offer, instead recommending that Census information be kept, whether or not respondents agreed with this approach. The Report was unanimous, with representatives from both the ALP and the Coalition participating as Members.

There are, however, clearly contentious issues raised by the proposal to keep name-identified Census forms. For example there may be a clash of interests between researchers in the field of genealogy and history, who are interested in the retention of such data as it is of long-term research value, and statisticians and others who rely on the accuracy of data generated by the Australian Bureau of Statistics ('the ABS' or 'the Bureau') and believe that the quality of the data collected will be compromised by any moves to modify the currently high levels of privacy protection offered to ABS data.

The threat posed to data quality would be due to the fact that, according to the ABS, who have an unparalleled experience in conducting surveys and censuses, the public do not support the retention of Census forms because of concerns about privacy and confidentiality.(3) The ABS argued before the Committee that the integrity of the data collected would be compromised if people are deterred from providing adequate or accurate data by their concerns about privacy. Data from the Census is used for a large number of purposes, including the Commonwealth Grants Commission in determining State/Federal funding and the Electoral Commission in determining electoral divisions. At the moment name-identified data collected from a Census is destroyed after being used to generate statistical data.

The Report showed an unusual degree of scepticism to the views of the ABS, both calling into question evidence given by other Commonwealth agencies and Departments on the basis that they had been unduly influenced by the ABS(4) and also suggesting that an attitudinal survey the Bureau had commissioned could be perceived as biased against the retention of such data.(5) The Report did, however, acknowledge that ACNielsen-McNair, which did a second survey which had been redesigned 'with the stated aim of removing any perceived bias', came to the same conclusion as the initial survey, i.e. that the public do not support the retention of Census forms.(6)

Clearly there are privacy implications in a decision to retain named Census data. The protections offered such data by the amending legislation, while strong (offering protection even against court orders) and long (99 years), could nevertheless be changed by subsequent amending legislation. Essentially once databases are created any promise of confidentiality is subject to future political climates which cannot be guaranteed to be as concerned with privacy as the current Parliament may be.

These concerns, however biased the ABS may or may not have been, do undoubtedly exist, but the Committee gave a clear preference to the views of historians and genealogists over that of statisticians. In part this would seem to be due to a belief that the risks to data integrity are not so great, and in part it is due to a belief that:

a properly managed and comprehensive public education program, promoting the benefits to the community of form retention for future research, would assist in eliminating any potential reduction in public cooperation with the census because of concerns about privacy.(7)

Thus the benefits or disadvantages of the changes proposed by the Committee would depend heavily on the strengths or weaknesses of this public education campaign. A public education campaign will have to address fundamental questions of trust between citizens and the state, amongst other things.

The option taken by the Government varies significantly from that recommended by the Committee. It allows for a choice to be made by respondents to the Census as to whether their named data is retained or not. This should address some of the concerns the ABS has expressed over data quality. However, depending on the response to the option of retaining named data, it could also compromise the potential value of the data retained as a result of the Census by making it a less comprehensive database.

Admittedly those who are so worried about inroads to their privacy by the state as to refuse to provide accurate data, or who fail to return their form at the moment, have not been reassured by the proposition that confidentiality is currently respected. Since the distrust of state authorities may already lead to data quality being compromised, it is unclear whether the prospect of such data being retained in a non-anonymous form will lead to a significant deterioration of data quality, particularly when the choice is given as to whether that data is kept. In fact, arguably, offering the choice of whether someone accepts data being retained in a 'named format' may increase people's levels of comfort and promote a belief that the state will not retain that information unless authorised to do so.

In a sense many of these issues are imponderable. They depend on predictions as to community behaviour that are not necessarily susceptible to qualitative surveys (or so the Report would seem to have concluded in response to ABS concerns)(8) and it may be that only practical experience will demonstrate whether such moves compromise data quality. Certainly the fact that data will only be retained when an individual has consented to the Census form's retention should alleviate some privacy concerns.

Main Provisions

Schedule 1 of the Bill makes changes to the Archives Act 1983 ('the Archives Act') and the Census and Statistics Act 1905 ('the Census and Statistics Act'). The changes to the Archives Act introduce a new category of information held by the Archives, i.e. '2001 Census information' and create certain exceptions to the general operations of the Archives Act regarding this information. By changes proposed in item 2 of Schedule 1 2001 Census information is not subject to the general rules of the Archives regarding the open access period (which generally starts 30 years after the year in which the information was deposited) but instead has a period of closed access of 99 years. Item 2 also exempts 2001 Census information from provisions in the Archives Act which would usually allow a Commonwealth Minister to provide for access to records before the open access period begins after 30 years (section 56 of the Archives Act 'Arrangements for accelerated or special access').

Item 3 inserts new and comprehensive provisions to prevent the release of 2001 Census information by Archives officers, including preventing the information from being released under a court or tribunal order and preventing the application of catch-all section of the Archives Act which provides for access to information held by the Archives under the law (Archives Act section 58 'Access to records apart from Act').

The Census and Statistics Act is amended by item 5 to provide for Census forms in 2001, which are name identified, to be transferred from the ABS to Archives if a person has given consent to this transfer. 2001 Census information (i.e. name-identified forms) is also given protection from disclosure by the Statistician or an officer(9) before the 99 year period has expired (item 6).

Schedule 2 proposes amendments to the Archives Act which would change the name of the Australian Archives to the National Archives of Australia. This includes changing the titles of the Advisory Council on Australian Archives and the Director-General of Australian Archives to reflect the new nomenclature.

Concluding Comments

The wording of item 5 of Schedule 1 ensures that the Statistician can transfer 2001 Census information to the custody of the Archives 'in a form and manner agreed by the Statistician and the Director-General of the Archives.' This leaves an issue raised by the Report, as to what form the 2001 Census information should be kept in, to be resolved by administrative decisions. There had been evidence given to the Committee that the cost of retaining the original paper forms was significant. In fact the Committee concluded that the cost rendered such an option not 'feasible'.(10) Alternatives were microfilm or electronic data. Electronic data was the cheapest option and the one recommended by the Committee. However it was also the format which could result in the greatest privacy and confidentiality concerns. The Committee did, however, recommend that only government personnel should be used to 'film, process or otherwise handle census records'.(11)

Interestingly a further recommendation of the Committee was not agreed to. This recommendation was that certain medical researchers undertaking epidemiological research should be given indirect access to name-identified data by requesting the ABS to do certain research into the data which would require name-identification (although, according to the Committee's recommendations, the researchers were not to have been given data which could have led to identification of individuals, only aggregated information).(12) By removing the possibility for this research to take place the proposed legislation could remove some of the incentives for pursuing the option of retaining Census data.

Endnotes

  1. Saving our census and preserving our history: a report on the inquiry into the treatment of name-identified census forms, Andrews, Kevin. Parliament of Australia. House of Representatives Standing Committee on Legal and Constitutional Affairs, Canberra, 1998.

  2. Ibid., p. 136.

  3. Ibid., p. 41.

  4. Ibid., p. 65.

  5. Ibid., p. 63.

  6. Ibid., p. 64.

  7. Ibid., p. 129.

  8. Ibid, p. 129. See also the evidence presented by Professor Sless at p. 64.

  9. Terms defined by the Census and Statistics Act 1905 by reference to definitions in the Australian Bureau of Statistics Act 1975.

  10. Saving our census and preserving our history: a report on the inquiry into the treatment of name-identified census forms, op cit., p. 115.

  11. Ibid., pp. 141-142.

  12. Ibid., p. 139.

Contact Officer and Copyright Details

Kirsty Magarey
7 March 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.

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