Census Information Legislation Amendment Bill 2005 – Senate 2nd Reading

Senate Second Reading

Senator SHERRY (5:19 PM) —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.

Senator Patterson —I remember what Mr Keating said about them.

Senator SHERRY —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.

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