Public Advisory Statement re ABS Compulsory Surveys

28 January 2012, rev. 2 February 2012

Background

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.

ABS's Compulsory Surveys

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:

1. Monthly Population Surveys (MPS)
2. The Australian Health Survey 2011-13 (AHS)
3. Survey of Income and Housing 2011-2012 (SIH)
4. Household Energy Consumption Survey (HECS) 2012
5. Programme for the International Assessment of Adult Competencies (PIAAC)

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.

Why So Many People are Concerned

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:

1. demand personal information that is highly sensitive to some people
2. in some cases make the demands in an aggressive and even downright bullying manner
3. demand that the information be disclosed directly to the ABS employee or contractor
4. demand that the information be disclosed in a context that may expose it to other householders who don't know it, and who shouldn't know it
5. appear to make no allowances for people who are especially sensitive about particular items of personal information
6. appear to make no allowance for individuals in particularly sensitive circumstances, such as
• being under physical threat from other people
• being a vulnerable household (e.g. all-female, with young children or with handicapped householders)
• having assets on the premises that are attractive to criminals (such as artworks or coin-collections)
• having secrets that they want to hide from other householders (e.g. relations, or just flatmates)
7. create the risk of criminals gaining access to people's homes by masquerading as ABS collectors
8. impose a considerable burden of time and effort on the households and individuals affected
9. are not anonymous, because both the collector and the ABS know where the household is, and who is in it
10. produce rich data that may not be feasible to anonymise
11. produce rich data that make it even more attractive for hackers to break into the ABS's databases, as they have done with many other organisations
12. produce data that may at some stage be combined with data from other sources, such as the Census, and data compulsorily given to other government agencies

What Concerned People Are Doing

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:

1. Not being resident on the date(s) that the ABS schedules the Survey.
   It appears that most of these Surveys are based on the premises, not the person, and hence their correct procedure should be to record an empty dwelling if you aren't resident at the right time or times. (It appears that 'grey nomads' have had success with this approach)
2. Being absent or too busy.
   Whenever the ABS's contractor calls or arrives, some people make themselves absent or say that they're too busy, and avoid appointments. (This requires great persistence, because collectors and their supervisors are paid to chase, chase, and chase again. Eventually they may run out of time, although they have the option to argue to the magistrate that your continual busyness constitutes refusal to answer)
3. Asking lots of questions.
   These may be about the process, the privacy protections or the security of the data. This may be accompanied by saying or implying that you may be prepared to provide the data once you have satisfactory answers. (Based on experience, the ABS is likely to reply slowly, and with carefully-composed and vague text that does not answer your questions. It's commonly necessary to ask the questions again, and address letters further up the organisation. It's necessary to sustain your patience over many months until one side or the other gives up)
4. Making a video-recording of the interview.
   It's completely justifiable to do so, in order to have a record of the interviewer (in case they're an imposter) and of what happened and what was said. (This may cause the interviewer considerable discomfort, and they might choose to abandon the interview)
5. Refusing to permit the ABS's contractor to enter their home.
   It appears that the collector may then demand a table and chairs outside – but it's unclear how the ABS could possibly enforce such a demand, or prosecute you for failure to comply. (This may cause enough confusion and delay that the ABS might give up)
6. Offering to go to the contractor's home instead.
   This can be coupled with a promise to bring your video-camera along. If they were to offer a venue other than your home, but tried to deny permission to be filmed, this could be used as justification for not participating. (This may cause the interviewer even more discomfort, make the ABS uncertain, and muddy the case if it ever got to the magistrate's court)
7. Instructing other people in the household to provide no information.
   If some people in the household are prepared to comply with the ABS's demands, an objector may instruct the others to provide no information about themselves. (This may cause ructions within a family, but may be more appropriate in a shared house or flat. The wording of the Act leaves open whether the ABS may still have the power to prosecute the objector)
8. Refusing to have an interview.
   (This is an invitation to prosecution. However, some people prefer to explain to the magistrate why they are so concerned, and others simply are not prepared to yield up the data)
9. Refusing to provide answers to particular questions that are of greatest concern.
   (This appears less likely to lead to prosecution, and it seems likely that the magistrate would be both less likely to convict, and less likely to levy a significant fine)
10. Providing made-up answers in response to the questions that are of greatest concern.
    (This is not appropriate for people who do not like to be forced to lie in order to protect their privacy. Moreover, if the intention is to avoid prosecution, the lies need to be subtle enough that the ABS believes them, or considers them too difficult to prove to be lies)
11. Refusing to provide particular documentation that the ABS collector demands.
    (This appears even less likely to lead to prosecution, and such prosecutions appear even less likely to succeed. There are very few obligations to keep documents – although there are a few, such as the documents that substantiate taxable income or tax deductions)
12. Demanding a form to fill in.
    Some people may be prepared to provide the information to the ABS, but object strongly to having to disclose sensitive information to an interviewer. (It's unclear whether ABS have any forms available as substitutes for the interview).
    If people get a form, they might continue the fight, by:
• sending a form in that contains no data. (A completely blank form would very likely result in successive re-visits from the collector, followed by threatening letters from the ABS. But if enough people were to do it, the volume would be such that the ABS might not be able to follow everyone up)
• sending a form that contains no answers to particular questions that the person objects to. (It's unclear what ABS would do about missing items. It might still result in successive re-visits from the collector, followed by threatening letters from the ABS. But it would seem far less likely that the ABS would prosecute)
• providing made-up answers, at least in response to the questions the person objects to. (This is not appropriate for people who do not like to be forced to lie in order to protect their privacy. Moreover, if the intention is to avoid prosecution, the lies need to be subtle enough for the ABS to believe them, or consider them to difficult to prove to be lies)
13. Writing to local MPs and Senators.
    Amendments have been previously tabled in Parliament to make these Surveys voluntary. They did not succeed last time. They might next time.
14. Alerting the media.
    A lot of media word involves merely re-publishing press releases that were issued by the government. But some reporters are much more active and will pursue a story

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.

The Possible Consequences of Not Providing Data

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:

• many people have received successive follow-ups and letters
• many of them have been threatened with prosecution
• the unluckier among them have actually been prosecuted
• the unluckiest few have been subjected to further abuse by the ABS, in that expensive barristers were brought to the magistrate's court, in order to increase the costs that the person has to pay

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).

A Case Study (added 2 February 2012)

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:

• the ABS was deceitful, or at least behaved in bad faith, in that it adopted the pretence that participation was voluntary and only later communicated that it was compulsory
• at the time, the household was vulnerable, in particular because it comprised two females, and one had a serious hearing impairment, and the concern about this was sufficient that their phone-number was unlisted
• the survey procedure involved:
  • having to permit a stranger in the house
  • having to expose personal data to that stranger, some of which was sensitive, including health data and personal opinions

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.

The Number of People Who Decline to Provide Data

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.

How To Complain

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.

1. To the ABS

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
surveys@abs.gov.au
No phone-number provided. See the general contacts page.

2. Escalating the Complaint Within the ABS

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
Australian Statistician
ABS House
45 Benjamin Way
Belconnen ACT 2617
Brian.Pink@abs.gov.au
(02) 6252553

3. Next to The Ombdusman or the Privacy Commissioner

See the Ombudsman's Complaints page.
No email.
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.

4. And/or to Your Local MP

This is a channel that's always open to you. You can find your local MP here.

5. And/or to the Media

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.

The Legal Basis for the Surveys

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:

• under s.9, the ABS "may ... collect such statistical information in relation to the matters prescribed for the purposes of this section as he or she considers appropriate"
• under s.10, ABS is granted the power to "require persons included in a specified class of persons to fill up and supply ... the particulars specified in [a] form and to cause the form ... to be furnished to the Statistician"
• under s.11, ABS appears to have the power to demand verbal answers to questions
• under s.14, failure to comply with those requirements constitutes an offence, and no defences appear to be permitted
• under s.15, providing information that is "false or misleading in a material particular" is also an offence
• under s.18, it seems clear that the ABS does not have the power to enter a dwelling

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 APF's Work in This Area

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.