Dear Senator Xenophon,
I note your concerns with giving your identifying details to the ABS Census today. Your concerns mirror mine and I write to you to consider this approach. I’m sure you have a team of legal advisors, but they might be busy and may need to attend to other things and have not considered this.
The census is about census night. It can be completed any time after, even a month or so from the 9th August. There is no urgency. Nowhere in the Act does it say it is compulsory to fill it out on the night.
If the ABS sends their people to your home on or after census night, I would suggest you ask them for an exemption (while they have no authority to give it to you, but no harm in asking.) when they decline your request, you can not have an exemption, then I would suggest you request pursuant to the CENSUS AND STATISTICS ACT 1905 Section 14(1)(a)… to be served a direction under subsection 10(4) or 11(2) ; As stated there is no emergency, relax guys, there is no hurry.
The “The Statistician or an authorized officer (of ABS)” will need to arrange for a letter to go out in writing and be served upon you. On receipt of this, you will be given a reasonable period of time to comply. Non-compliance will result in a fine, unless ;
You Remain calm once you are served your direction, realizing there is no hurry. This is not a letter from God Almighty, it is a letter from a statistician, and employee of the ABS, a government agency. You have a legal right to appeal this direction.
There is no such law that exists that is not subject to due process of law. This “direction” (From ABS) in Administrative law, is not final and binding like a Court Judgment.
We firstly have the Agency executive David Kalisch, Australian Statistician to appeal to. If we are not satisfied with his answer, we can appeal that to the Minister responsible, Michael McCormack, Minister for Small Business.
Mr Xenophon, it would then be up to your colleagues discretion, to either accept your appeal or reject it. If your fellow Minister fails to hear your pleas, then you can appeal his decision to the Administrative Appeals Tribunal, then the Federal Court and all the way to the High Court if you wish.
Your stance is on not providing identifying information, such as your name. You are happy to provide the data, minus your identity. You would appeal potentially on the following grounds :-
INTENT OF PARLIAMENT: It was not the intent of Parliament that the CENSUS AND STATISTICS ACT of 1905, authorise it to make regulations for compulsory provision of identifying data, that would be stored and used potentially against the person completing the census. You, Mr Xenophon, were there during the debates. You know what Parliament’s intent was. It matters not what the ABS wants. The Regulations made under the act are void ab initio to the extent they conflict with the Act and the Intent of Parliament.
PRIVACY : The Privacy risks outweigh any statistical benefit. As you point out, Mr Xenophon, Privacy is a Human Right. In Victoria we have CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 – SECT 13, Privacy and reputation
A person has the right—
(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with;
The Charter is based on International Law on the Right to Privacy so the same argument can apply for you in South Australia or if you reside in another state on the night of the census. Any Legislation must be interpreted in light of the right to privacy, an internationally recognized Human Right, I put it to you, the Objective test, of the reasonable man, would not pass this. No reasonable man could possibly justify the risk, the risk of violating a fundamental human right to privacy, against whatever statistical value the linking of your identity to the data offers.
SECURITY : Despite reassurances from the ABS, we must listen to Industry experts. I would seek a declaration from the Court that these assurances are invalid.
There is sufficient expert opinion to state that they are unacceptable risks, with the level of security used in the encryption methods and storage methods of this data. The use of Statistical Linkage Key (SLK’s) increases this risk exponentially. The data would be of such high value that it is a risk to national security to have this digitised and live online in any form. Moreover, the ABS can not make the assurances they do, willfully ignoring relevant considerations, and then ipso facto giving their decisions force of law. I reiterate, this could never have been the intent of Parliament.
RELIGION : Mr Xenophon, I do not know if you are religious, but if you are, please consider:
Exodus 30:12-16 confirms that answering a census is a sin you must pay atonement for, even though god called it, and 1 Chronicles 21:1-16 confirms that it’s a sin to call a census without god commanding it, and penalties apply.
For a more detailed analysis please see (https://www.facebook.com/gypsy.rob.9/posts/218538811876454).
Freedom of Religion is another fundamental Human Right. I would once more argue that it is not the intent of Parliament to violate this fundamental Human Right in forcing people to divulge their true Identity to the ABS.
Any legislation when it is interpreted by the Courts, must consider Human Rights and interpret the legislation with consideration of those human rights. This interpretation should be put to the objective test of the Reasonable man. Would a reasonable man think the statistical value of the data outweighs the trampling of Human Rights?
This issue becomes one of National Identity. The Principles of Nationhood laws, we viewed globally as a leader in the free world, an example to the third world countries of how to interact in a civilized society. Australians take enormous pride in our Nation, Aussie Aussie Aussie Oi Oi Oi.
It is surely not the intent of Parliament to allow the ABS which is an agent of Parliaments Legislation and subject to and answerable to Parliament, to allow the improper use of the Census Act by creating Regulations that risk the National Pride, that are a National Security risk and treat Human Rights with such contempt.
For as the High Court has ruled on many occasions, if it were the Intent of Parliament to allow the ABS to use the Legislation in this way and create regulations that can affect National Security, National Pride and encroach on Human Rights, then Parliament would have explicitly said so, but absolutely can not be an assumed authority the ABS has by default.
I hope this helps you in your understanding of the legal principles at play here and welcome a response from your legal team on the issues raised.