As originally published on Stuff.

Why does Aotearoa New Zealand want to replace our Statistics Act with a new law that greatly extends the power of the Government Statistician to collect, aggregate, and share data, all the while reducing oversight and ignoring any possible downsides? 

The Data and Statistics Bill purports to be a simple modernisation of the old law because of advances in computerisation, but it’s really a ‘land grab’ for New Zealanders’ data. In particular, the Bill enables greatly increased data collection from multiple sources, while then freeing up the sharing of that data for the ill-defined purpose of ‘research’.

The Bill takes away more than it gives. While it recognises the digitisation of our society as an opportunity to be seized, it fails to recognise this is also a threat to be protected against. We believe the Bill must be sent back to the drawing board.

Why do we care about it?

The Council supports the goal of statistics legislation to enable informed public policy development and service design,along with the allocation of resources and services where they are most needed.

But we also recognise that a major concern since at least the 1970s has been the increase in collection, storage and analysis of data about us by both governments and other organisations. The ‘surveillance society’ interferes with our privacy and our freedoms, changing the balance of power between government and people.

The collection of statistics interferes with people’s rights – not only the right to privacy but also in the way that we are coerced to answer censuses and official surveys. This power comes with the responsibility for government to minimise any imposition and ensure it is used fairly. Misuse will only lead to a failure of public trust and a subsequent drop in the collected information.

The problems with the Data and Statistics Bill

The switch to ‘administrative data’

The Bill continues a shift that has been underway for some time, from census and survey data to ‘administrative’ data. This is the collection of data captured in other ways by the government, e.g. when a hospital provides health care to a person a number of data records are created. The result is that any interaction someone has with a government agency will result in the associated data being harvested by Statistics. 

While this has problems for accuracy in that data collected to provide a service has been shown not to be reliable when used for data analysis, it also has problems for statistical coverage as some people interact more with government than others. When the distribution of these interactions is influenced by racism or other forms of prejudice, it risks embedding these prejudices into the statistical data that is used to make government decisions. 

There are also instances where administrative data is collected in situations where people cannot be assured of confidentiality and will be unable to be honest for their own safety or due to their own lack of trust. 

Overrides the Privacy Act and the Official Information Act

Aotearoa New Zealand recently replaced the Privacy Act, the main law concerning the collection and use of personal information. The changes were widely consulted on and the resulting compromises are an important part of New Zealand’s unwritten constitution. The new Data and Statistics Bill shows no regard for the Privacy Act and its principles, sucking in data from multiple sources even where it was explicitly collected for another purpose.

The Bill also implements a new data sharing regime as a replacement for the Official Information Act, even though the OIA already has the required features. Unfortunately, the Bill’s provisions are also weaker than the OIA, reducing the public good considerations that must be used when making determinations under that law. To quote the Chief Ombudsman’s submission: “Consequently, I suggest the removal of Part 5 of the Bill. It will further complicate and confuse would-be researchers about which regime to use, in circumstances where the OIA already strikes an appropriate balance between access and protection.”

Power but little oversight for the Government Statistician

The Bill increases the powers of the Government Statistician while reducing oversight. They will be the sole arbiter about decisions about what data will be collected, and who that data will be made available to, and under what conditions. Ministerial oversight has been reduced, and public consultation when preparing data collection programmes is missing. For example, in combination with the supplanting of the OIA, it won’t be possible to take refusals for access to data to the Ombudsman for a decision granting access. Rather the Ombudsman will be limited to determining if the Government Statistician’s decision is ‘reasonable’.

The Government Statistician can then delegate these data collection and other powers to the heads of other public agencies, allowing them to use the threat of penalties defined in the Data and Statistics Bill to demand more information from people. As former Government Statistician Len Cook describes it in his submission “This a very loose and inappropriate proposal and dilutes the responsibility for protecting the integrity of the New Zealand Statistical system.“

Further concerns

While we have picked out three items above we have many other concerns. These include:

• The penalty for an organisation misusing statistical data, e.g. by re-identifying anonymised data, is set at a maximum of $15,000. At a time when data is seen by many businesses as increasingly valuable, this is obviously too low.
• The Bill quadruples the fine for failing to provide a census return to $2000, but removes the duty on Statistics to provide you with a census form. This risks people being penalised for obligations that they didn’t even know they had, or for failing to answer electronic censuses that they can’t access for technical or accessibility reasons. In particular, disabled people may be penalised for failure to complete a census form they are mentally or physically unable to understand or complete.
• The Integrated Data Infrastructure (IDI) continues to grow in importance as a tool for aggregating and analysing data, but its basis and scope in law is not defined. If we’re going to revamp the old Statistics Act, shouldn’t we be including clauses that help define the use and limits of this important tool?
• Why is there no Privacy Impact Assessment for a Bill that is so intimately associated with private data and personal information? And where is the input from the Privacy Commissioner?

Recommendations – Can it be saved?

This is a bad and unbalanced Bill that will result in Statistics New Zealand becoming what might be described as a ‘data laundry’. By that we mean: a place where the limited and specific purposes for data collection that government departments must have for collecting personal information from the public can be scrubbed away under this Bill. This Bill would enable the re-use of information gathered for one purpose to be re-used for unspecified ‘research’ purposes at a later date.

The Bill has raced down this path with little check on its ambition and it has embedded assumptions and methods that have gone too far to be brought back. We don’t believe the Bill can be fixed by minor tweaking by the select committee (currently underway as of March 2022).

Rather the Bill needs to be sent back for a new approach, one that takes into account our civil liberties, our right to privacy, and the realities of the threats to these that the digitisation of society presents.  Working with civil society and privacy and information experts would produce a Bill that would be more fit for purpose while protecting people’s rights.

Further reading and sources

• Our submission with a detailed analysis and specific recommendations for improvements in the event that the Bill is not sent back. 
• Our second supplementary submission requested by the Select Committee after we introduced new material about the lack of privacy consultation and the attempts by those in government agencies to ‘warm people up’ to further data sharing.
• Submission by Len Cook, ex Government Statistician of New Zealand and the United Kingdom where he points out the issues with the use of administrative data and lack of oversight, and recommends that the Bill not be passed in its current form.
• Submission by the Chief Ombudsman recommending that data access section 5 be removed in favour of the OIA.
• Submission by Stephen Judd worth reading for placing the Bill in the wider context of data collection.
• The text of the Data and Statistics Bill. 
• Professor Shoshana Zuboff discussion with Professor David Runciman about the issues raised by government access to so much data.
• Businessdesk Op-Ed by Paul McBeth pointing out the problems in the Bill. 
• Speech from David Clark introducing the Bill in Parliament. 
• UN Fundamental Principles of Official National Statistics.
• Speech “Power Not Privacy” by NZCCL Chair Thomas Beagle talking about how government collection of data changes the balance of power between people and the state.