Australia: Is Bernard Keane going to jail for telling you to boycott the census?

Crikey's editor asked if I could write about the legal controversies surrounding the imminent census, "including whether Bernard — and I — are headed for jail?" Suitably intrigued, I've delved into the world of laws, damned lies and statistics that has been consuming Bernard Keane.

The census will happen next week, and attendance is compulsory. That obliges you to care a bit. The rational basis for collecting statistical information about the population is obvious: it enables the government to make evidence-based laws. Politics often dictates that that doesn't happen, but much of the less sexy work of law-making and administration (particularly at state level, where the real grunt work of service delivery occurs) relies heavily on accurate demographic data.

The census has become controversial this time for two reasons: it's gone online, and the Australian Bureau of Statistics is going to be storing our names and addresses. Bernard and others are angry about the invasion of privacy and risk to security this entails.

So: legal questions. I have three.

Can the ABS demand my name?

Former Australian Statistician Bill McClennan has written that the ABS doesn't have the legal authority to compulsorily collect our names in the census. Section 8(3) of the Census and Statistics Act says "For the purposes of the taking of the Census, the Statistician shall collect statistical information in relation to the matters prescribed for the purpose of this section."

[The census cannot force you to give your name]

The "prescribed" word takes us to the regulations that specifically include "name" and "address" among the information prescribed for the purpose of section 8(3).

McClennan's argument is that, because the ABS isn't planning to produce statistics from the census about names (for example, the geographical spread of Jaydens, or the rate of development of variant spellings of Kiera/Kyra/Keira/K'yrah etc), it can't be said that the names are being collected "for the purposes of the taking of the Census". Therefore, it isn't authorised by section 8(3).

I can't agree. What is "for the purposes of the Census" is a very broad proposition; I have no doubt that a court would interpret it to include the collection of identifying information, even if just for verification purposes.

The real legal question is whether a name is "statistical information", because that term is the limiting factor on what section 8(3) authorises. The reality is that any piece of information can meet that definition in the right context; in the context of taking a census, names comfortably fit.

I wouldn't be bothering to challenge the ABS' authority to compulsorily collect names. It's a loser.

Can I lawfully resist?

Given my first conclusion, no. It's a strict liability offence to fail to comply with a lawful direction from the ABS to fill in the Census form. That includes giving your name and address.

Will Bernard (and the editor) be going to prison?

Bernard's crime, if he's committed one, is that of incitement. Under section 11.4 of the Commonwealth Criminal Code, a person who urges the commission of an offence commits an offence themselves. The penalty is the same as for the underlying offence.

Nobody's going to prison. You can only be fined ($180 per day of non-compliance) for not filling out your census form or for including misleading statements in it, so the worst case for Bernard is the same fine.

As to whether even that's a possibility, we have to look at the elements of the offence of incitement. There are two: the act of "urging", which the courts have defined as "seeking to encourage"; and the intention that the underlying offence be actually committed. Intention means intention; recklessness won't suffice.

It would have to be proved therefore that Bernard, by what he has written, has sought to encourage people to not fill in the Census form at all, or to do so incompletely or incorrectly, with the intention that they actually do it.

[Why you should boycott the census]

Let's examine the evidence. Bernard has written two articles of interest, under the incendiary titles "The 2016 census is a huge threat to your privacy — boycott it" and "You've decided to boycott the census. Now what?" They include these statements:

"...it's clear that the only sensible response to the threat is to refuse to participate in the census."

"The only alternative for anyone interested in protecting their privacy is to refuse to cooperate with what is called a census, but which is now lifelong surveillance."

"... anyone who wants to protect their privacy has to accept that the ABS's intransigence leaves them with little option but civil disobedience."

"In this case, simply doing nothing has been criminalised — by doing nothing except minding your own business, you become liable to prosecution for not filling out the census. Nonetheless, electing to refuse to obey the law means you have to accept the legal consequences. You don't get to pick the laws you obey..."

"... if you object to the census, don't participate..."

"... just because you ethically accept the legal consequences of an act of civil disobedience doesn't mean you have to make it easy for those who wish to legally pursue you ... The best protection in this context is to encourage widespread civil disobedience: the more Australians who assert their right to be left in peace next Tuesday night, the more resource-intensive it will be for the bureaucrats to pursue and prosecute us. This seems the least worst option ..."

"... in the case of a census that has transformed into a tool of lifelong surveillance, we can do something about it. The government is demanding we co-operate in the destruction of our own privacy. Merely be doing nothing, we can resist. Refusing to co-operate in the destruction of our privacy is a valid ethical choice. And for anyone concerned about their privacy, doing nothing next Tuesday is the only real choice."

Yep, well, he isn't pulling his punches. At least he hasn't incited anyone to include misleading information on their census form. He's very clear that that would be stupid.

He's also clear that, if you choose to not participate in the census, you will be committing an offence and that, therefore, doing so is an ethical choice, an act of civil disobedience. It is conscious non-compliance with a law that is, in your opinion, bad. Bernard says that, like Rosa Parks did, accepting the legal consequences is part of the deal.

The essence of the call to arms here is for civil disobedience on a mass scale. The only hope for calling attention to the evil underlying the expanded census is for large numbers of citizens to stand up and say "enough". Simply put, people power.

All good, but ethics aren't relevant to the offence. Is Bernard urging non-compliance? Yes. Does he really want it to happen? So it seems. I couldn't detect any irony in his call to action.

For the record, while I don't quite buy the theory that the plan here is to put us all under lifelong surveillance, I do agree that there is plenty of reason to fear what this or a future government might be tempted to do with this massive pile of personally identified data, or what, through normal governmental incompetence, might happen to it.

I enjoy a clarion call for civil disobedience in the face of over-reaching authority as much as the next citizen, but yeah, I think there's a pretty good case for saying Bernard might have been a bit incite-ish. The editor, on the other hand, is in the clear. Props to the editor if this gets published. Still, she asked.

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