2016 Census – Exposure to Fines – APF Statement

Government statements have fostered a misunderstanding about the consequences if you do not fill in the 2016 Census form either online (which is currently impossible due to site failure) or on paper (difficult due repeated call centre fails); or if do not include your name and address and those of your loved ones.

Despite the apprehension and misunderstanding induced by government statements, you are NOT at any risk of a fine for simply not completing a 2016 Census form, or leaving off your name.

To address the fear and anxiety, and counter this misunderstanding, it is important to know something about the relevant offence in the Census and Statistics Act 1905 (Cth), as we understand it:

• There is no such offence as just ‘not filling in a census’ (in whole or in part), nor of not obeying a ‘request’ or ‘requirement’ under s 10(2), 10(3) or 11(1) to fill it in. Simply doing nothing does not expose you to any offence.
• The only offence of omission is s 14, failing to comply with a formal written ‘Direction’ under s10(4) or 11(2) which has been served on you, in person or by post, giving you at least 14 days to do a specified thing that you have to do, like fill and submit a form. (The Direction cannot cover religion, but that is the only clear exclusion.)
• Unless and until:
  (a) you have been served with such a written Direction, and
  (b) at least 14 days has passed,
  no offence can be committed, since these are the core elements of the s 14 offence.
• It appears that in the past there have been very few Directions ever issued, and very few of those have led to s 14 prosecutions or convictions for not complying with it.
• If you do get such a Direction, and you comply within 14 days, again, there is no basis for a charge, since not complying after at least 14 days notice is an essential element of the charge.
• Note that former Statistician 1995-2000 Bill McLennan says that the Act does not require or force you to give your name; and the WA Census director is reported as promising not to issue fines over this. If McLennan is correct (it is disputed by government, without explanation) then even if you get a Direction to give your name or those of others in the list, failure to comply with this Name aspect would not be an offence (though failing to fill in the rest of the form might be, if you get a Direction and fail to comply in 14 days). The WA official’s comment may suggest the risk of prosecution for name is low, at least in some states.
• NB: There is also an offence in s 15 of knowingly making a ‘false or misleading statement or information’. This is not dependent on a Determination having been served. So you can be exposed to this offence without warning if you provide false information. Again, there have been few prosecutions, although the penalty is an order higher.

Contacts:

See David Vaile, Kat Lane, Graham Greenleaf.
Contact details are available here.

If you need legal advice, see a lawyer.