Nick Sherry (Tasmania, Australian Labor Party, Shadow Minister for Banking and Financial Services) Share this | Link to this | Hansard source

The Census Information Legislation Amendment Bill 2005 extends measures which were implemented on a trial basis for the 2001 census. This followed a report of the Standing Committee on Legal and Constitutional Affairs—yet another very impressive committee report, I might say, which reflects the important role of parliamentary committees, which is much underestimated by the current government.

Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I remember what Mr Keating said about them.

Nick Sherry (Tasmania, Australian Labor Party, Shadow Minister for Banking and Financial Services) Share this | Link to this | Hansard source

We remember what you used to say about them and how little regard you have for them after 10 long years in office, Senator. The report, entitled Saving our census and preserving our history, recommended retaining name-identified census information for future research with appropriate safeguards. The amendments increase penalties for breeches of secrecy in relation to information entrusted to the Australian Bureau of Statistics. The maximum two-year penalty comes into line with compatible offences in other Commonwealth legislation and reinforces the seriousness of the unauthorised disclosure of personal information gathered under the act.

The main purpose of the bill is to codify the circumstances in which name-identified information collected in the 2006 census and all subsequent censuses may be obtained by the ABS and stored by the National Archives of Australia. The bill sets out that name-identified information will only be retained for those households which provide explicit consent. I want to emphasise that. It will only be retained for those households which provide explicit consent, and the information will only be released after a closed-access period of 99 years. Again, I want to emphasise that: information will only be released after a closed-access period of 99 years and where the household has provided explicit consent. Prior to the 2001 census, all name-identified information from past censuses has been destroyed once processing was complete.

For privacy reasons and to encourage households to consent, the name-identified information should not be available for any purpose within a 99-year closed-access period, including access by a court, tribunal or other government agency. The closed-access period of 99 years contained in this bill is much longer than the usual 30 years for most archived material, as specified in the Archives Act 1983. I can think of one example. We have the release of cabinet information after, I think, a 30-year period—the 30-year rule. You could argue that that is certainly much more sensitive in terms of name identification and the information that is released on a specific name basis. Here we are dealing with persons in the community and the release of information with their explicit consent after 99 years.

The bill makes some consequential amendments to the Census and Statistics Act 1905 which arise from the Legislative Instruments Act 2003 and some amendments to the criminal provisions of the Census and Statistics Act which harmonise the criminal provisions of the CSA with the Criminal Code in accordance with recommendations received from the Director of Public Prosecutions. Amendments are made to existing provisions in the Census and Statistics Act to make a refusal or failure to fill out a form or answer a question when directed to do so by notice in writing a strict liability offence. The office of the DPP has indicated that, prior to the commencement of chapter 2 of the Criminal Code, the offence outlined in section 14 of the Census and Statistics Act was understood and accepted to be a strict liability offence. The intent of the amendment is to restore strict liability to the offence and bring it into line with the general principles of criminal responsibility in chapter 2 of the Criminal Code.

The penalty for a breach is one penalty unit, and strict liability is considered to be appropriate in this instance to encourage compliance. Amendments are also made along similar lines in respect of existing provisions that make it an offence to provide false or misleading statements in relation to a request or direction for statistical information in accordance with the act. However, the existing penalty, which is lower than the equivalent provided by the Criminal Code, will be retained.

Further amendments are to be made to the secrecy provisions of the Census and Statistics Act to harmonise with the offences under the Criminal Code. Amendments are also made to the applicable penalties. The current sanction is equivalent to 50 penalty units or two years imprisonment. However, this is inconsistent with the fine/penalty ratio of five penalty units to one month imprisonment in section 4B(2) of the Crimes Act 1914. The bill proposes an increase in the penalty to 120 penalty units, which would be consistent with the application of the ratio to the two-year term of imprisonment. This would also bring the penalty into line with compatible offences in other Commonwealth legislation and reinforce the seriousness of the issue in relation to the protection of information entrusted to the Australian Statistician and the officers of the Australia Bureau of Statistics.

Speaking on behalf of the Labor Party, we believe that census data is very important. It is very important that this material is collected. It is very important to the long-term economic and social planning of the country, amongst other things. I understand the Democrats are to move an amendment to prevent the Australian Statistician or ABS officers from disclosing census information to any government agency under any circumstances. We believe that that is an inappropriate amendment, for the reasons I have outlined. We do not see good reason to support the Democrat amendment. It is true that the secrecy of census information is important to encourage people to provide truthful answers without fear, but there is no reason why people cannot consent to make that information available to researchers via the National Archives after 99 years. We see the safeguards and the balances presented in this piece of legislation as appropriate. We will be supporting the bill and we will not be supporting the Democrat amendment.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I speak on behalf of the Australian Democrats to the Census Information Legislation Amendment Bill 2005. This bill amends the Census and Statistics Act 1905 and the Archives Act 1983 with the purpose of ensuring the preservation of name-identified information collected from those households that provide explicit consent at the coming census this year and in all subsequent censuses. The information is intended to be used for future genealogical and other research following its retention for a closed-access period of 99 years.

The bill follows the House of Representatives Standing Committee on Legal and Constitutional Affairs report called Saving our census and preserving our history. That report and that inquiry came out of, if you like, a lot of lobbying and agitation in various sections of the community for something along these lines. I should note the work of former Democrat senator Vicki Bourne from New South Wales in highlighting the views about the desirability of this bill. It is also worth noting the concerns directed at this bill by the Australian Bureau of Statistics, who are concerned that the retention of name-identified information may negatively affect the primary purpose of the census. Whilst the preservation of information for a century down the track for genealogical and other sorts of historical research is valuable, that is not of course the core purpose of the census. This is, if you like, an attempt to get a positive by-product out of the census for people 100 years down the track.

The core purpose of the census is the collection of accurate statistical data for today through the encouragement of completely full and open responses from the public. One of the concerns expressed by the ABS has been that, despite the giving of consent by individuals in relation to this information, answers provided may be less than comprehensive and totally complete if there is that seed in the backs of their minds—that is, that it is less than 100 per cent confidential—because in the past the identifying information was destroyed once the statistical data had been extracted. As consent will presumably not be limited to certain questions, there is the possibility that, while individuals will have no problem honestly answering some questions, they may object to, or even subconsciously resist, supplying complete information for others.

Another issue that may arise from an arrangement such as that provided for in this bill is consent. It has been suggested that the environment in which the census data is collected reduces concern about consent, as you must proactively tick the box to opt in. The Democrats recognise the government’s commitment to the requirement for explicit consent in relation to this bill, but we do call on the government, as part of this legislation and this debate, to ensure that the process for acquiring this consent be strictly controlled. Issues of voluntariness and coercion are always important where the provision of consent is required and the collection of data is not monitored.

At the very least, it is vital that individuals are fully informed of the consequences of providing their consent. The government has a responsibility to ensure that this information is provided and understood, not just because of some nice adherence to principles underlying this issue but because, as we believe, it is central to maximising the chances of getting the highest degree of accuracy and completeness in the information that people provide in the census. So extensive public education should be undertaken prior to the census to ensure fully informed consent is given. This is especially important for participants for whom English is not their first language.

The Democrats also think it is important to note concerns relating to the collection of information on those under the age of consent. We do recognise that it is difficult to legislate for future rights; however, the rights of children whose parents are providing the information on their behalf should not be dismissed as being of no consequence. Australians also need to always consider the ability of future legislation to override any commitment that the current government or parliament gives to protecting the relevant information for the 99-year closed-access period.

The Democrats have done work over a long time in the areas of privacy and the protection of personal information, and Senator Stott Despoja in particular has been heavily involved. To a large extent, I am presenting remarks also on her behalf today, as she is not able to be here, to ensure that some of the views she has about this legislation are put on the record as well.

The bill itself currently provides that future amendments to the act may allow for the release of this information. The proposed non-disclosure provision of the bill, section 19A, substitutes the previous section 19A, which restricts statisticians and officers from divulging, communicating or voluntarily providing such information to an agency during the closed-access period—that is, during that 99-year period—‘other than in accordance with this act’. The concern with those words is that they could potentially be used as a loophole for future use of the relevant information if the act itself is amended down the track. The wider issue about the sharing and exchanging of information between different government agencies for different purposes is of concern, of course, and always has been, but I think it is particularly relevant these days. I think any suggestion that this sort of information may end up being released for purposes other than what is specified in the legislation we are debating today is serious.

In saying that, I am not suggesting that there is a hidden agenda somewhere—next week or next month, or under the next government—to sneak through an amendment to this act that will allow all this information to be put in the back pocket of ASIO or anything like that. I am talking again about the importance of preserving the integrity of the core purpose of the census. If there is any perception of a lack of protection of this information for any purpose other than what is outlined here—the National Archives and the 99-year release period—then that could affect the completeness and accuracy of the information people provide. So I just wanted to clarify that the underlying rationale behind the concerns expressed is that, if there is any feeling amongst the community that this information is going to be preserved but there is no guarantee that it will not be passed on other than after the 99-year release period through the National Archives, people may be less inclined to give consent, which undermines the purpose of the census. Indeed, they may give consent but not give full information, which is even more of a concern because it undermines the overall accuracy of the census.

As referred to by Senator Sherry, there is an amendment circulated in the name of Senator Stott Despoja that seeks to address this issue. Given the numbers in the chamber and, indeed, given the issues that have been raised about technical aspects of this act and the status of the National Archives under the Archives Act, I might just signal to the minister that the intent behind the Democrat amendment, as I hope I have made clear, is to try to get absolute clarity for the general public that there is no loophole for any future government to exploit that would allow this information to be released for other purposes. I realise no government or parliament can guarantee 100 per cent the actions of any future government or parliament, but what I might do is put a question along these lines to the minister, in the committee stage of the debate, to see if we can get a clearer commitment and statement from the government that any use or release of this information down the track under the provisions of the act would not be for anything other than the general intention outlined in the explanatory memorandum and the government’s statements surrounding this legislation.

It is also relevant to mention the relationship between this bill and privacy concerns surrounding a proposal by the Australian Bureau of Statistics to create a statistical longitudinal census data set or SLCD. That proposal aims to link future census data in one database. In one sense, that is separate and it is still being developed but if you link the sorts of privacy issues that the Democrats have raised today with regard to this legislation with the proposal of the longitudinal census data set and you combine those two potential concerns then it multiplies as well. I think it is important to emphasise the overall thrust and intent of what is being done here. As I said, it is something which many have called for—indeed, Senator Vicki Bourne called for it—in the past and which will be of significant value to historians many years hence.

Ninety-nine years does seem a fair way away. It is perhaps something that all of us here do not have to worry about, although, as I think I heard Senator Sherry say in a totally different debate once upon a time, for children born these days, such as his daughter, there is a fair prospect that they will live to 100. So it is quite possible that this legislation will be relevant for our children if not for ourselves, even if 99 years does seem a long time away. It is in that context that we should recognise that there is a potential for the valuable intent of this legislation and of course the crucial importance of the census to be undermined if there is any perception that the information, now that it is going to be preserved, could somehow or other be authorised to be accessed for purposes that people would be less comfortable with. Hopefully I have made that reasonably clear in outlining some of the issues that this legislation brings up. I flag again that, rather than proceed with the amendment, I would rather ask a question or two and get a clarification or commitment from the minister during the committee stage of the debate about the concerns that we have raised.

Judith Adams (WA, Liberal Party) Share this | Link to this | Hansard source

The purpose of the Census Information Legislation Amendment Bill 2005 is to amend the Census and Statistics Act 1905 and the Archives Act 1983 to ensure that name-identified information collected at the 2006 census and all subsequent censuses will be preserved for future genealogical and other research and released after 99 years. This information can only be stored if the occupants of the household give their explicit consent.

By way of background explanation: in 1998 the House of Representatives Standing Committee on Legal and Constitutional Affairs brought down a report, Saving our census and preserving our history. This report recommended that name-identified information contained in forms from future censuses be retained, that the records be closed for a period of 99 years and that census information continue to be processed and handled only by officers of the National Archives of Australia and the Australian Bureau of Statistics.

This bill is of special interest to me as in a former life I was an area coordinator for the Australian Bureau of Statistics for the 2001 census. This was the first time that people were given the option of agreeing to the retention of their census form with a minimum closed-access period of 99 years. The previous Australian practice had been that all name-identified information collected in the census was destroyed once the ABS had extracted statistical data from the forms and they were no longer needed for processing.

The 2001 census experience showed that people were delighted to be part of this trial, with some 52 per cent of responses choosing to have their information retained. The percentage in the area I covered was far greater than this. The option of preserving family information for future generations of family history researchers and genealogists added momentum to the whole census experience. I come from a rural area, and we have a large number of farming families who have been in the area since the 1890s. Now, with internet access, they are very keen on their genealogy. When you go to most people with a census form they are not very keen about it, but these families really were delighted to be able to take part in it. I think this is a huge breakthrough, and I commend the committee for their perseverance in being able to bring the bill up. This bill includes explicit protection from disclosure under compulsion to any Commonwealth agency, and the public can be confident that their privacy will be respected, whilst future historians and genealogists will still be allowed a unique and comprehensive glimpse of Australian life for our descendants.

The census is carried out by the Australian Bureau of Statistics in accordance with the Census and Statistics Act 1905. Its main purposes are to measure accurately the number of people in Australia on census night in order to provide a reliable basis to estimate the population of each state and territory and to provide information for small geographic areas and for small population groups. The next census is due to be held on the night of 8 August 2006.

This bill amends the Census and Statistics Act and the Archives Act 1983 to ensure that name-identified information collected at the 2006 census and all subsequent censuses, for those households that provide explicit consent on the form, will be preserved for future genealogical and other research. There will be a closed-access period of 99 years rather than the usual Archives Act closed-access period of 30 years. The bill contains provisions to ensure that, during the 99-year period, the name-identified census information will not be released under any circumstances, not even to a court or a tribunal. Under this legislation, upon the expiry of the closed-access period, the name-identified information of those households which have explicitly consented to this happening will be released so that it can be used for research purposes. I commend the bill to the Senate.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

In August this year, the Australian Bureau of Statistics will conduct the 15th census of population and housing, which will provide invaluable information about our country to be used in research and decision-making by governments and the community and will also provide the opportunity to preserve a picture of our society for future generations. In the 2001 census over 50 per cent of respondents elected to have their census forms preserved, and this information will be retained by the National Archives of Australia for a closed-access period of 99 years before being released for genealogical and other research purposes. The Census Information Legislation Amendment Bill 2005 seeks to extend this practice of retaining census information where consent is provided to the 2006 census and subsequent censuses. Consequently, for persons who give consent, their 2006 census information will be retained by the National Archives with access provided in the year 2105.

In censuses prior to 2001, all name-identified information was destroyed by the ABS; in 2001, where a person did not provide consent, their information was also destroyed. This process will continue for the 2006 census of population and housing and all subsequent censuses. The origin of this bill—as has been stated by other senators here today—lies with a recommendation by the Standing Committee on Legislation and Constitutional Affairs, in its report Saving our census and preserving our history. The standing committee’s recommendation was that keeping name-identified census information for future research, with appropriate safeguards, will make a valuable contribution to preserving Australia’s history for future generations. The bill includes provisions to ensure that Australians can trust the Australian Bureau of Statistics and the National Archives of Australia to protect the information provided and not release any name-identified information in the 99-year closed-access period. During processing, the confidentiality of the information is protected under the Census and Statistics Act 1905, as is all information provided to the ABS. There are also provisions to protect the information once it is passed to the National Archives, and it will not be available to other bodies—including courts, tribunals and Commonwealth agencies—for any purpose.

At this point, I will deal with some issues that Senator Bartlett raised in the Democrats’ proposed amendment. The amendment proposed by the Australian Democrats will have the effect of precluding the transfer of census information to the Archives for those Australians who have elected to have their census records kept. The phrase ‘other than in accordance with this act’ is included specifically to allow the transfer of census information to archives, as legislated in section 8A of the Census and Statistics Act, to take place. This is the only instance of the Census and Statistics Act allowing the transfer of census information to an agency. No other transfers of census information to agencies are allowed for or included under the Census and Statistics Act or these proposed amendments.

The Australian government will also not be supporting the amendments to this bill proposed by the Australian Greens. The content of the census is determined every five years on the basis of community consultation, followed by thorough testing. The content of Australia’s census is not set in legislation; rather, it is contained in a determination that was tabled before parliament on 29 November last year. With the content finalised, the forms have been printed, so any changes now would require the forms to be redesigned and reprinted, delaying the census by up to one year and costing around $20 million. In addition, it is unlikely that the topic proposed by the Greens could be included in the census, as great care has been taken in choosing the topics, assessing the importance of the issue, the need for data, the quality of the responses and the reaction of the public. Consultation on the content of the 2011 census will take place in 2008, and the Greens, along with all members of the Australian community, will be welcome to make suggestions for census topics at that time. If sexuality were suggested as a topic in this process, whether or not it could be included in the census would be assessed then, using the criteria I have already described.

To return to the present: the 2006 census of population and housing will be held on Tuesday, 8 August. For this undertaking, the ABS will be employing approximately 30,000 census collectors to deliver and collect census questionnaires, and the Australian public will also have the option of completing their 2006 questionnaire online. The recruitment of field supervisors has commenced. My colleague the Parliamentary Secretary to the Treasurer, Chris Pearce, launched the recruitment campaign two weeks ago. Already there are more than 15,000 applications for the 3,500 supervisor vacancies. This augurs very well for a successful census. The 2006 census requires the participation of all Australians, and I thank the Australian community for their support of the work of the ABS in its ongoing activities, and I look forward to their cooperation in the project.

As a result of the census, Australians will have accurate information on the number and key characteristics of people in Australia on census night and the dwellings in which they live. The census will provide a snapshot of our society, who we are, how we live and what we do. As before, topics will include ancestry, education, occupation and transport to work. Additional insights will come from new questions about people with a disability and unpaid work done. All this information will be valuable for research and planning activities of governments and other users. I think senators for their contributions and commend the bill to the Senate.

Question agreed to.

Bill read a second time.