Submission: Data & Statistics Bill

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission to the Committee.

Summary of Recommendations

  1. The New Zealand Council for Civil Liberties opposes the Data and Statistics Bill and recommends that it not be passed. If it is to be fit for purpose, major amendments are necessary to Parts 3 and 5 of the Bill. The Council further recommends:
    • adding a new clause stating “Data collected or supplied to Statistics New Zealand under this Act shall be used only for statistical purposes.” (paragraph 26)
    • clause 33 be amended to include a provision stating that no conditions specified under this section affect the Official Information Act. (paragraph 33)
    • that clauses 101 and 102 be removed from the Bill. (paragraph 40)
    • that if Part 5 of the Bill is retained, clause 49 be amended to include all the words from section 4(a) of the Official Information Act 1982 and the principle of availability articulated in section 5 of that Act. (paragraph 48)
    • that Part 5 of the Bill is substantially overhauled. The Bill needs to:
      • Strengthen the statutory independence of decision-making on requests to access data (possibly by creating a duty to consult the Privacy Commissioner and a duty on that Commissioner to provide written advice); and
      • to reflect the longstanding role of the OIA in governing access to information held by public sector organisations and the imposition of conditions on use, communication or publication of both the data and resulting research, by making clear that any refusal of access under clause 48 can be appealed to the Ombudsman under the OIA as well as the Ombudsmen Act. (paragraph 55)
    • that Schedule 2 and all references to it be removed from the Bill. (paragraph 57)
    • clause 20 be amended to require the Government Statistician to consult the public on (a) the proposals for inclusion in the multi-year data and statistical programme, and (b) the penultimate draft of the programme, before it is submitted to the Minister for approval under clause 18(3). (paragraph 63)
    • a new clause be inserted after clause 91 requiring the Government Statistician to consult the public on (a) proposals for all written standards, and (b) on the final draft of each standard. (paragraph 64)
    • a new clause following clause 21, to provide for public participation in data investment decision-making through membership of the relevant decision-making body, and a new clause requiring publication of the agenda, minutes and papers of this decision-making body. (paragraph 69)
    • the deletion from the Bill of sub-clauses 46(4), 53(2), 54(3), and 56(6). (paragraph 72)
    • clause 53 be amended to require monthly online publication of the data it presently describes, and to add after paragraph (e) a new paragraph specifying that the timeframe for accessing the data must be published and a further new paragraph specifying that the manner in which the research is to be used must also be published. (paragraph 72)
    • the addition to the Bill of a new part, containing provisions that place a duty on the Government Statistician to create, deliver and substantially subsidise the costs for participating in a training programme that will provide people with the skills needed to safely access and use statistical data held by Statistics New Zealand and other public sector agencies. (paragraph 76)
    • the creation of a duty on the Statistician to ensure that all requests for information are made in formats and methods that people with different communications needs can meet. (paragraph 83)
    • that while the failure to provide a census return remain an offence, that it should be a defence that the Statistician did not deliver to the person either a hard copy schedule to be filled out by hand, or another piece of printed material explaining where on the internet the census form can be found, and locally specific information about places where those without internet access may complete the census return for free. Such communications should be provided in multiple languages, and in appropriate forms for people with different communication requirements. (paragraph 84)
    • amending clause 29 to insert a provision at the end making clear that refusal of a request under clause 29(3) must be communicated to the Statistician in a manner equivalent to that found in section 19 of the OIA. (paragraph 87)

Introduction

  1. Governments like making people ‘legible’ to the state. They do not like making the state legible to people. This Bill continues that long tradition, and takes New Zealanders further down the path of governments collecting, using and sharing amongst itself more information about them, while weakening their rights both to privacy and to access information held by government agencies. In doing so, the Bill gives more power to the state, and takes it from the public.
  1. It is notable that in none of the Cabinet papers on the Bill[1]April 2020, May 2021, November 2021 released by the Ministers of Statistics is there a single reference to how the Public Service Principles set out in the Public Service Act 2020, especially the principle of ‘fostering a culture of open government’, are to be given effect by the Bill.[2]Public Service Act 2020, section 12 The Bill also removes data held by Statistics New Zealand from the scope of the Official Information Act 1982.
  1. The Council supports the goal of statistics legislation that enables informed public policy making and service design, and the allocation of resources and services where they are most needed.
  1. However, this is a bad and unbalanced Bill that will result in Statistics New Zealand becoming what might be described as a ‘data laundry’: 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, so that this information can be re-used for unspecified ‘research’ purposes at a later date, or that data gathered for research purposes can be turned into official statistics.
  1. This will result in the undermining of public trust in government, and in particular in Statistics New Zealand. Trust is a precious commodity in a democracy, that takes time to build, can be damaged quickly, and will take even longer – if ever – to rebuild.
  1. In this submission, the Council highlights aspects of the Bill that need amendment to correct its flaws, and others needed to require openness in the operations of Statistics New Zealand. Unless significant changes are made, the Bill should not be passed.

Why the Bill should not proceed

  1. This Bill entrenches an approach that Statistics New Zealand has been following under successive governments in the last decade, which is a shift from collecting data via surveys that it administers, to relying on ‘administrative data’, which is data that other agencies and departments collect in the course of performing their duties and interacting with people, organisations and businesses. In doing so, the Bill not only departs from the UN’s Fundamental Principles of Official Statistics, it finalises the journey of a once-respected government department into a disreputable data laundry.
  1. The Cabinet papers published by the Ministers for Statistics explain that the motivation for the change is to reduce costs and duplication of effort by respondents. What they do not explain is that, in relation to people, the Bill will trample over the first of the fundamental principles of the Privacy Act 2020, namely that data collected from people must be for “a lawful purpose connected with a function or an activity of the agency” and that “the collection of the information is necessary for that purpose.”[3]Privacy Act 2020, section 22, Information privacy principle 1.
  1. Under the Statistics Act 1975 (the 1975 Act), the information for official statistics are either collected directly by Statistics New Zealand, or jointly with another government department. In relation to joint collection, the person (or organisation) from whom the information is sought must be notified and informed of the purposes to which the information will be put, and can opt out.[4]Statistics Act 1975, section 9(1)(a) and (b).
  1. Throughout this Bill there is the use of the term ‘research’, which is not defined in the interpretation clause. It is important to understand the distinction between data gathered for ‘research’ and data gathered for the production of ‘official statistics’. In relation to ‘official statistics’, the combination of clauses 22(c)(i) and 47(2) continue the approach in the 1975 Act. But the same protections do not apply for data collected by Statistics New Zealand from people, public sector agencies or private organisations for ‘research’. Clause 22(c)(i) means Statistics New Zealand can demand information from them, and – in the case of public sector agencies – they can provide it regardless of the purposes for which it was collected, unless they are expressly prevented from doing so by other legislation.[5]Clauses 29(2)(a), 30(2)(a) and 32(2)(a). Many existing statutory provisions against sharing data with others are repealed or amended in Schedule 2 of the Bill.
  1. Overall, the effect is to override the Privacy Act, and allow information to be shared, or used for purposes other than those for which it was originally collected. The Bill completely sidesteps the information sharing arrangements already facilitated under the Privacy Act. The Council assumes that Statistics New Zealand finds that Act’s protections too restrictive for the services it would like to provide or has been pressured to provide.
  1. The Bill’s Explanatory Note and the Cabinet papers on the policy development of the Bill make clear that the intention is to facilitate information being brought together and integrated – in tools like the Integrated Data Infrastructure – to allow ‘greater value’ to be extracted through ‘research’. Committee members should ask themselves how this is to be reconciled with the privacy principles in the Privacy Act that Parliament passed in 2020, and their counterparts in the previous Privacy Act 1993. Those laws were passed to ensure the public could trust the handling of their personal information. Now the government wants to undermine that trust by breaking Parliament’s promise to the public. This Bill undermines public trust in privacy across the whole of government, and will increase the risk that information provided to government agencies will be incomplete or incorrect due to passive or active resistance.
  1. The regime for data collection created by part 3 of the Bill for ‘research’ purposes is so broad that, frankly, it parallels the ‘gather it all’ approach of US intelligence agencies that was exposed in 2013 by Edward Snowden. The Committee may feel such a comparison is overblown, but the Council notes too that clause 48 of the Bill authorises the Government Statistician to let not just the Police, but also the NZ Defence Force, the Security Intelligence Service and the Government Communications Security Bureau have access to the data held by Statistics New Zealand.
  1. Members of the Committee may blithely consider that New Zealand’s administrative and legal culture will protect people and our society from these enormous powers being abused. But they should consider the lessons of the last several years in the USA, Hungary, China and historically the German Democratic Republic and the Soviet Union. When government agencies are collecting personal data, “How should we protect this?” is actually the third question. “Should we collect this?” is only the second question. The first question is “What would the worst people do if they got hold of this?” Because those worst people might be in charge one day.
  1. The Bill contains other objectionable provisions which are considered below. It is possible that these might be corrected through amendments. But part 3 of the Bill is so dangerous to personal privacy that the Council does not believe the Bill should proceed unless it is completely redrafted. We therefore recommend that the Bill not proceed.

Restricting data use, not just disclosure

  1. Because of the importance of official statistics to public administration and accountability in every country, the United Nations has worked over many years to develop Fundamental Principles of Official Statistics (the Principles). Pages 16-17 of the Regulatory Impact Assessment for the Bill explains that the Principles were adopted in 1994, and reaffirmed in 2013, including by New Zealand.
  1. Principle 6 states that

Individual data collected by statistical agencies for statistical compilation, whether they refer to natural or legal persons, are to be strictly confidential and used exclusively for statistical purposes.[6]Resolution adopted by the Economic and Social Council on 24 July 2013. 2013/21. Fundamental Principles of Official Statistics. https://unstats.un.org/unsd/dnss/gp/FP-Rev2013-E.pdf

  1. Section 37(1) of the 1975 Act respects this Principle, stating

Information furnished to the Statistician under this Act shall only be used for statistical purposes.

  1. Clause 39(1) of the Bill does not respect or comply with Principle 6:

The Statistician must take all reasonable steps to ensure that the Statistician does not publish or otherwise disclose data in a form that could reasonably be expected to identify any individual or organisation.

  1. The 1975 Act restricts use of data to ‘statistical purposes.’ The Bill only restricts ‘disclosure’. There is a wide gulf between the two, and this looser wording is a deliberate part of the Bill’s muddying of the waters between data gathered for ‘research’ and for ‘official statistics’. (Through clauses 22(c)(i) and 47(2)(a) they essentially become fungible.)
  1. Given the long history of statutory restrictions on the use of data (section 17 of the Census Act 1877, section 18(1) of the Statistics Act 1955) it is vital that the Bill not undermine the function of this restriction. This is to ensure that people feel safe – and are – in divulging sensitive and private information accurately in the census and other surveys conducted by the department. The government recognises this issue because the Bill re-enacts sections 37(6) and 38 of the 1975 Act, which respectively provide that statistical secrecy overrides the Customs and Tax Administration Acts, and that no census or other statistical return can be used as evidence in court. The Council is already aware of people not completing the census in 2018 because they knew Statistics New Zealand would be putting all the data into the Integrated Data Infrastructure that is available to departments, academics, private sector consultancies and journalists.
  1. The ability of the government – and especially Statistics New Zealand – to collect accurate and complete data depends on people trusting it. This Bill undermines this trust, so as to enable broad and unspecified ‘research’ by all those to whom Statistics New Zealand grants access. The Committee needs to ask itself if the benefits of this ‘research’ outweigh not only the risk of people providing inaccurate or incomplete data, but also the international opprobrium that such a departure from the UN’s Fundamental Principles will inevitably lead to.
  1. The Council recommends adding a new clause stating “Data collected or supplied to Statistics New Zealand under this Act shall be used only for statistical purposes.” This clause should be inserted at the start of Part 2 subpart 5, prior to what is currently clause 39.

Official Information Act issues

  1. The Bill contains several provisions affecting the Official Information Act 1982 (the OIA).
  1. Most directly, clauses 33, 101 and 102 of the Bill attack both the OIA, and the right to seek, receive and impart information affirmed in section 14 of the New Zealand Bill of Rights Act 1990. Clause 102 removes from the definition of ‘official information’ in the OIA “information provided to the Government Statistician solely for research by or on behalf of an organisation (as defined in section 6 of the Data and Statistics Act 2021).”
  1. Again, the distinction between data held by Statistics New Zealand for the purpose of producing official statistics and data held for ‘research’ arises: data provided for official statistics is not removed from the scope of the OIA.
  1. The purpose of clause 102 is ostensibly to reduce barriers to data sharing by non-government organisations and individuals.[7]Cabinet paper Data and Statistics Legislation: Paper 3 – Research and Analysis, undated, but considered at the Cabinet Economic Development Committee on 4 March 2020 (DEV-20-MIN-0023), paragraphs … Continue reading It is a ‘belt and braces’ provision, because clauses 101 and 102 need to be read in conjunction with clause 33 of the Bill.
  1. Clause 33 of the Bill allows individuals or non-government organisations who are voluntarily providing data to Statistics New Zealand for ‘research’ to specify access conditions in relation to the use of the data for research. While the general principle of such conditions is appropriate, the problem with clause 33 is that it creates a situation where conditions may be attached that limit the release of the information under the OIA. Because such conditions would have the statutory backing of clause 33, Statistics New Zealand would be able to refuse OIA requests for any of this data under section 18(c)(i) of the OIA as “contrary to the provisions of a specified enactment.”
  1. Effectively, agreeing to conditions on access that required refusal of OIA requests for the data would be Statistics New Zealand ‘contracting out’ of the OIA. It is well-established in New Zealand law that agencies subject to the OIA cannot contract out of the OIA (and the Ombudsman has consistently reminded agencies of this).[8]Wyatt Co (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180 at 191. “There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute. … Continue reading However, by giving the conditions statutory backing, the Ombudsman would be precluded from reviewing whether the conditions are in fact appropriate.
  1. The Council recommends that clause 33 be amended to include a provision stating that no conditions specified under this section affect the Official Information Act.
  1. As noted above, clauses 101 and 102 are ‘belt and braces’ provisions. The effect of clause 102 is that even where a non-government organisation has not wanted to specify conditions limiting access under clause 33, Statistics New Zealand will be able to refuse all OIA requests it receives for information provided to it by a non-government organisation ‘solely for research’.
  1. These provisions don’t just attack the OIA – which is remarkable enough from a government that has enacted a duty on public service Chief Executives to ‘foster a culture of open government’ and proclaims its support for open government through membership of the Open Government Partnership – they attack the mana and powers of the Ombudsmen. By removing the information wholly from the scope of the OIA, and by giving statutory ‘contracting out’ backing to conditions on access, the government is effectively saying to the Ombudsmen ‘we don’t trust your judgement’. (It is remarkable that in spite of being a Bill that crafts an entire access to information regime in parallel to the OIA, that not a single one of the Cabinet papers released by the Ministers of Statistics shows that the Ombudsman was consulted during the development of the Bill.)
  1. The clauses may make life more convenient for Statistics New Zealand, but they won’t remove all the work of responding to OIA requests and complaints, as the Ombudsmen will have the power to check whether the data has been provided directly to the Government Statistician (and not via another government agency) and whether it has been provided ‘solely’ for research.
  1. This convenience for Statistics New Zealand, and apparent assurance for potential non-government suppliers of data for ‘research’, comes at far too high a cost. It undermines what the Court of Appeal has described as “a constitutional measure”, by assaulting the ‘Principle of availability’ set out in section 5 of the OIA. This requires that official information be made available in accordance with the OIA’s purposes of public participation and accountability “unless there is good reason for withholding it.” The OIA sets out what those ‘good reasons’ are, in sections 6, 7 and 9.
  1. The withholding provisions in those sections are perfectly adequate to address the concerns of non-government data suppliers. Aside from the obvious protection against disclosing information which would harm a person’s privacy under section 9(2)(a) of the Act, information could be withheld under section 9(2)(b)(ii) if disclosure “would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information”, or under section 9(2)(ba) if it is “subject to an obligation of confidence” and disclosure would either prejudice the future supply of information or “would be likely otherwise to damage the public interest.” While all three of these protections are subject to the public interest test in section 9(1) of the OIA, it would be clear to an Ombudsman investigating any complaint that Parliament had decided it was in the public interest for Statistics New Zealand to have the function of gathering and sharing data for ‘research’, as well as for production of official statistics.
  1. The principle that all information held by public sector agencies is subject to the right to information under the OIA is key to our democracy. Parliament should be vigorous in defending it. While, as noted above, the Council does not object to the restriction on disclosure in clause 39 (for which there is an extremely strong public interest and backing in the form of the UN Principles), it is deeply concerned by the continuing pattern of Bills being introduced over the last four years that remove information from the scope of the OIA or create secrecy clauses that trigger section 18(c)(i) of the Act, or in other ways attack this key principle. We have counted 22 such clauses, which given there are approximately 70 such provisions overall, indicates the growth of departments’ addiction to claiming they are ‘special cases’ deserving of secrecy. This is unacceptable, and the Council has written to the Minister for Public Services about the matter.
  1. The Council recommends clauses 101 and 102 be removed from the Bill.
  1. The government’s assault on the OIA and the Ombudsmen continues in Part 5 of the Bill, which regulates access to data for ‘research’.
  1. This part essentially modernises and makes more explicit the regime that has been cobbled together under the Privacy Act and the 1975 Act to allow people to access data held by Statistics New Zealand. Once again departing from the principle that the OIA should be the law that determines how access to information is governed, including – per section 28(1)(c) – the conditions on use, communication or publication of information, this Bill creates an entirely separate regime for access to information. It does so in order that the decisions on access remain far more tightly under the control of the Government Statistician, rather than an independent Officer of Parliament or the Privacy Commissioner. The Council is concerned that giving the Government Statistician this role, together with this Bill’s muddying of the waters about data held for ‘research’ and for ‘official statistics’ will further undermine public trust and confidence in the official statistics regime.
  1. Clause 48 empowers the Government Statistician to “authorise an individual, public sector agency, or organisation to access, for research, data that is held by Statistics New Zealand if the Statistician is satisfied that” a number of conditions are met.
  1. First amongst the conditions is that the proposed research must be in the public interest. Clause 49 of the Bill then provides some guidance to the Government Statistician on factors to consider when assessing the public interest. While, under the OIA, public service chief executives are obliged under section 9 to consider the public interest in disclosure of information, their assessments are subject to review under that Act by the Ombudsmen. In the case of the regime set out in the Bill, the Ombudsmen would not have meaningful jurisdiction under the OIA to consider a refusal under clause 48 by the Statistician to provide access to the data. This is because clause 39 is a secrecy provision that would trigger a section 18(c)(i) refusal, and – as described above – clauses 33, 101 and 102, restrict or remove access.
  1. Instead, the Ombudsmen would only be able to provide someone with any kind of redress under the Ombudsmen Act 1975. This empowers the Ombudsmen to review the reasonableness of a chief executive’s decisions. But under this Act, an Ombudsman could not do as they do under the OIA, and effectively substitute their view on the public interest in disclosure for that of the chief executive; instead they would be restricted to assessing whether the conclusion of the Government Statistician’s consideration of the public interest in the proposed research was ‘reasonable’. While this is slightly broader than the tests performed by the courts when undertaking a judicial review, the Council does not believe it is sufficient.
  1. Clause 49 is also deficient in that, while it contains a ‘failsafe’ in paragraph (f) of “any other matters that the Statistician considers relevant”, it does not reflect or replicate the public interest factors defined in the section 4 purposes of the OIA. These include the purpose of:

(a) to increase progressively the availability of official information to the people of New Zealand in order –

(i) to enable their more effective participation in the making and administration of laws and policies; and

(ii) to promote the accountability of Ministers of the Crown and officials, –

and thereby to enhance respect for the law and promote the good government of New Zealand.

  1. These well-defined factors, that have been on the statute book unamended since 1982, are apparently swallowed up by paragraph (a) of clause 49:

(a) the nature and extent of any likely benefit to the public from the proposed research

  1. This is insufficient and the Council recommends that if Part 5 of the Bill is retained, clause 49 be amended to include all the words from section 4(a) of the Official Information Act 1982 and the principle of availability articulated in section 5 of that Act.
  1. Clause 48(2) of the Bill enables the Government Statistician to impose conditions on the “publication or disclosure of the results of the research”. This censorship provision is again subject to the Ombudsmen’s review under the Ombudsmen Act. But the Ombudsmen would not, as they have done under section 28(1)(c) of the OIA, be able to tell the Statistician that the imposition of any conditions on use, publication and communication is only acceptable if good reason exists for withholding the information under sections 6, 7 or 9 of the OIA. The Ombudsmen could suggest those tests are reasonable, but could not issue the kind of recommendation that, under the OIA, would be de facto binding on Statistics New Zealand.
  1. Worse still, if the person seeking access to the data under clause 48 is a public sector agency, the clause 54(1)(b) obligation on the researcher to comply with the conditions imposed by the Government Statistician under clause 48(2) means that effectively the Statistician can create grounds for a section 18(c)(i) refusal of requests under the OIA for the research results.
  1. However, it is not just the Government Statistician who can do this, as Subpart 2 of Part 5 permits the Statistician to authorise the chief executives of other government departments to also authorise access to the data their agencies hold for ‘research’, further extending the removal of data from the scope of the OIA, and moving it into this new regime.[9]Clause 55(2).
  1. The Council also notes that the clause 54(1)(d) obligation on researchers to publish or otherwise disclose the results of their research and their methodologies can be circumvented “if a request for that data could be refused under section 18 of the Official Information Act 1982 (other than for the reason set out in section 18(d) of that Act)”. This is confusing as clause 54(1)(d) is about publishing results and methodologies, but the restriction applies to “data”. It looks like the government wants to shut down the possibility of people obtaining access to the government research on which policy recommendations are based if the research results contain the data obtained from Statistics New Zealand by the researchers. Effectively Statistics New Zealand are signalling to public sector agencies a new way to withhold information dealing with policy formulation or evaluation.
  1. Overall, however, the Council is concerned both by the continuing (and strengthened) enablement of access to data held in trust for the public by Statistics New Zealand, and by the control that can be exercised by a government official on access to information. While the 2018 consultation paper and subsequent Cabinet papers talk about Iwi, Māori, community groups and individuals accessing data to be able to ‘inform thinking and decisions’, the Council notes paragraph 20.2 of the Research and Analysis Cabinet paper from March 2020, which states that one of the “potential harms” to be avoided when assessing the public interest in granting access to data is “from research that takes a deficit view of the issue at hand”.[10]Cabinet paper Data and Statistics Legislation: Paper 3 – Research and Analysis, undated, but considered at the Cabinet Economic Development Committee on 4 March 2020 (DEV-20-MIN-0023), paragraphs … Continue reading
  1. The Council is therefore sceptical that a government official will decide it is in the public interest to grant access to NGOs, community groups, Iwi or Māori whose research may highlight significant failings. As we noted in the introduction, this is a Bill about rendering people legible to the state, and making it hard for people to make the state legible to the public.
  1. The Council recommends that Part 5 of the Bill is substantially overhauled. The Bill needs to:
    • Strengthen the statutory independence of decision-making on requests to access data (possibly by creating a duty to consult the Privacy Commissioner and a duty on that Commissioner to provide written advice); and
    • to reflect the longstanding role of the OIA in governing access to information held by public sector organisations and the imposition of conditions on use, communication or publication of both the data and resulting research, by making clear that any refusal of access under clause 48 can be appealed to the Ombudsman under the OIA as well as the Ombudsmen Act.

Data gathering by amendment or repeal of other legislation

  1. Clause 105 and Schedule 2 of the Bill make amendments to other Acts to permit the provision of data to Statistics New Zealand. Some of these amendments overturn long-standing provisions preventing the sharing of government information and its use for purposes other than those for which it is collected. Again, the Council is deeply concerned by this laundering of the purposes people and organisations were told restricted the uses to which the data they were being asked or made to provide would be put. Examples of the problems in Schedule 2 include:
    • The Citizenship Act 1977 protects information collected for the purposes of that Act. Section 26 prevents its use in court. Section 26A limits its disclosure to other government agencies to specific, scheduled agencies for specific purposes (and under information matching or information sharing agreements under the Privacy Act).
    • The Education and Training Act 2020 (following the Education Act 1989) restricts the use of national Student Numbers to education providers for educational purposes. The data is considered so sensitive that intelligence agencies cannot access it without a warrant approved by the Minister and the Commissioner of Security Warrants.[11]Intelligence and Security Act 2017, sections 134-142.
    • The Electoral Act 1993 forbids the use of electoral roll data, though section 112 allows part of it to be shared for limited, specified research purposes.
  1. This is both a colossal data-grab by Statistics New Zealand to enable more data to be entered into the Integrated Data Infrastructure, and a breaking of multiple promises that Parliament has made to the public that information would only be used for limited purposes. This breach of trust will have a negative impact on multiple public sector agencies and should not be permitted. The Council recommends that Schedule 2 and all references to it be removed from the Bill.

Open government

  1. As noted previously, there is no evidence that those developing this Bill have paid any regard to the Public Service Principles in general, and the duty to ‘foster a culture of open government’ in particular.
  1. Open government is not simply about proactive publication of information or disclosure of information in response to a request. It is also about public participation in policy development, government decision making and evaluations, to name a few areas.
  1. The Council welcomes clause 35 of the Bill which obliges the Government Statistician to “consult the public generally” about “the manner of taking, and the data to be collected in” each census. It is disappointed however that a similar duty is missing from clause 20. That provision concerns the preparation of “a draft multi-year data and statistical programme”, but the Government Statistician only has to consult public sector agencies. The Statistician can also consult “any other person that the Statistician thinks appropriate”, but while clause 19 requires them to “engage with Māori in ways the Statistician is satisfied will promote the fulfilment of the Statistician’s duty in section 14(a)”, they are not required to consult the rest of the public.
  1. The Council notes that the April 2019 Summary of submissions on 2018 consultation published by Statistics New Zealand describes the results of an opinion poll conducted on “what people thought were the most important outcomes for the new legislation”.[12]Towards new data and statistics legislation: Summary of submissions on 2018 consultation, Statistics New Zealand, April 2019, page 29 The poll found that 65.3% of people supported the outcome of “The public can have a say on important changes to the data collected for official statistics.”
  1. Schedule 6 of the Public Service Act 2020 already requires government departments to provide a “long-term insights briefing” to their Minister at least once every three years. Crucially, chief executives are also required to consult the public on the subject matter to be included in the briefing, and on a draft of the briefing. In other words, the provision of a long-term insights briefing requires two stages of consultation by a department. Such a provision not only highlights how a duty on the Statistician to consult the public under clause 20 could be drafted, but also how ridiculous the absence of such a duty is.
  1. The Council recommends that clause 20 be amended to require the Government Statistician to consult the public on (a) the proposals for inclusion in the multi-year data and statistical programme, and (b) the penultimate draft of the programme, before it is submitted to the Minister for approval under clause 18(3).
  1. Similarly, the Council notes that clause 90 of the Bill empowers the Statistician to provide written standards on several aspects of official statistics, collecting and managing data, and access to data under Part 5 of the Bill. While clause 91 requires the Statistician to “engage with Māori in ways the Statistician is satisfied will promote the fulfilment of the Statistician’s duty in section 14(a)”, they are not required to consult the rest of the public. The Council recommends that a new clause be inserted after clause 91 requiring the Government Statistician to consult the public on (a) proposals for all written standards, and (b) on the final draft of each standard.
  1. Members of the Council’s committee have participated in workshops organised by Statistics New Zealand to review the government’s Data Strategy. In the course of one of these workshops, an official from a government department explained that information on child poverty affecting a particular ethnic group could not be provided to DPMC officials assisting the Prime Minister with that portfolio because insufficient data was collected to permit provision of the kind of granular data gathered by Statistics New Zealand through its surveys. The consequence of this is that policies that are appropriate for that ethnic group are much harder to successfully develop.
  1. A solution to this problem is to increase the number of people surveyed, so that all population-weighted cohorts are of a sufficient size that granular data can be safely provided to policy analysts without risk of re-identification.
  1. In another example of policy and service delivery being compromised through the absence of data being collected, the Council notes that parents of children with disabilities have found it impossible to obtain data from the Ministry of Education on ORS funding because the Ministry does not collect the data.
  1. In both instances, serious problems regarding data collection have arisen because affected people have not been included in the decision-making process on where money is spent to collect data.
  1. The Council understands that Statistics New Zealand administers an interdepartmental data investment committee which makes decisions on what data to collect. We believe that conformance to the spirit of the OIA’s public participation purpose, and New Zealand’s commitment to the Open Government Partnership’s Declaration requires a means of public and community participation in the data investment committee, as well as a duty on Statistics New Zealand to proactively publish the agenda, minutes and papers of the committee. The Council recommends a new clause following clause 21, to provide for public participation in data investment decision-making through membership of the relevant decision-making body, and a new clause requiring publication of the agenda, minutes and papers of this decision-making body.
  1. The Council notes that several clauses in the Bill make provision for publication of information that is apparently intended to facilitate transparency and accountability for the use of data for ‘research’ and official statistics. These are in clauses 46(3), 53(1), 54(1)(d), and 56(5). Sadly, in each case their effectiveness is undermined by the Bill permitting the carefully specified detailed data to be published “in summary form”. Provisions that are meant to provide not just accountability but assurance of the benign use of the wide data-sharing powers, are thereby fundamentally weakened.
  1. This seems to run counter to the results of the poll reported by Statistics New Zealand in April 2019, which found that 80.6% of the public supported the proposition that “Information is available about what data is being shared for research and analysis, who is doing the research, and the purpose of that research.”[13]Towards new data and statistics legislation: Summary of submissions on 2018 consultation, Statistics New Zealand, April 2019, page 29
  1. The Council recommends the deletion from the Bill of sub-clauses 46(4), 53(2), 54(3), and 56(6). If access to granular data is good enough for the public sector, disclosure of granular information about that access and what has been done with it is an entirely justifiable quid pro quo. The Council further recommends that clause 53 be amended to require monthly online publication of the data it presently describes, and to add after paragraph (e) a new paragraph specifying that the timeframe for accessing the data must be published and a further new paragraph specifying that the manner in which the research is to be used must also be published.
  1. Page 10 of Statistics New Zealand’s 2018 consultation paper on creating a new legislative regime for data and statistics stated on page 10:

Iwi and Māori, businesses, community groups, academics, researchers, and individuals should all be able to use data held by government – alongside their own data sources – to inform thinking and decisions.

  1. If Part 5 of the Bill is retained in anything like its current form, the Council finds it difficult to see how the aspiration expressed in the consultation paper stands much chance of being fulfilled, particularly with regard to individual members of the public or small community groups. Without training in statistical techniques, they are unlikely to meet the test in clause 48(1)(a). Without training they’re unlikely to qualify for the ‘certificate of confidentiality’ required by clause 48(1)(d).
  1. The Council believes that if members of the public and small NGOs or community groups are to stand any chance of being approved by the Statistician under clause 48 to be provided access to data and statistics for their own research, a training programme aimed at them will be required. The Council also notes that historically New Zealand has lost marks in international assessments of its open data programme because of a lack of impact. One cause of this are the failures of successive governments to build demand-side capability to access and use the data that is being published.
  1. The Council therefore recommends the addition to the Bill of a new part, containing provisions that place a duty on the Government Statistician to create, deliver and substantially subsidise the costs for participating in a training programme that will provide people with the skills needed to safely access and use statistical data held by Statistics New Zealand and other public sector agencies.

Census offence

  1. The Bill continues from the 1975 Act the approach that failing to provide a census return is an offence. The Bill provides for this in clause 76, subclause (2) of which also continues the section 25(3) prohibition of claiming as a defence that neither a copy of, nor details of how to access and respond to, a request from the Statistician to provide a census return. The penalty upon conviction has quadrupled though, from $500 to $2,000.
  1. However, while the fact that this is a strict liability offence has not changed, there has been a significant change in the wording. Section 25(1) of the 1975 Act expresses the duty on the member of the public thus:

A person who for any reason has not received either a schedule relating to a census of population and dwellings, or a means to access an electronic schedule, must obtain either a schedule, or a means to access an electronic schedule, in accordance with the details published by the Statistician of how to obtain a schedule.
[emphasis added]

  1. This implies that Statistics New Zealand is responsible – if not subject to an actual duty – for ensuring people receive a census schedule that they must complete and return to Statistics New Zealand.
  1. Clause 34 of the Bill does not reproduce this responsibility either explicitly or implicitly. This is likely to be because Statistics New Zealand would like to shift everyone to filling out the census form online. Instead, there is a much vaguer obligation in clause 34(4)(b) to publish the information about how to obtain and respond to the census request “by any other additional means the Statistician considers sufficient for notifying the public of New Zealand.”
  1. The Council notes that the Ministry of Justice assessment of the Bill’s compliance with the New Zealand Bill of Rights Act reflects the fact that section 25(c) of that Act affirms the right to be presumed innocent until proven guilty. The assessment also notes that

“Strict liability offences prima facie limit s 25(c) of the Bill of Rights Act because the accused is required to prove a defence (on the balance of probabilities), or disprove a presumption, to avoid liability. This means that where the accused is unable to prove a defence, they could be convicted even where reasonable doubt about their guilt exists.”

  1. The assessment concludes that “we consider the strict liability offences to be justified in terms of s 25(c) of the Bill of Rights Act”.[14]Consistency with the New Zealand Bill of Rights Act 1990: Data and Statistics Bill, Ministry of Justice, 16 September 2021, paragraphs 31-42.
  1. The Council is not reassured that this clause 34(4)(b) is comparable to the expectation people can have under the 1975 Act that Statistics New Zealand will deliver a census schedule to them, or that it is a sufficient obligation on the Statistician. In particular, it is concerned that there is no general duty in the Bill on the Statistician and Statistics New Zealand to ensure that requests for information are made in formats and methods that people with different communication needs can meet. The Council recommends the creation of such a duty on the Statistician.
  1. The Council recommends that while the failure to provide a census return remain an offence, that it should be a defence that the Statistician did not deliver to the person either a hard copy schedule to be filled out by hand, or another piece of printed material explaining where on the internet the census form can be found, and locally specific information about places where those without internet access may complete the census return for free. Such communications should be provided in multiple languages, and in appropriate forms for people with different communication requirements.

Technical amendment

  1. Clause 23 of the Bill enables the Statistician to request that individuals, organisations or public sector agencies provide data. Clause 29 creates a legal obligation to comply with such requirements. However, clause 29(3) permits public sector agencies to refuse to provide data for reasons that mirror the withholding grounds in section 6(a)-6(c) of the OIA.
  1. The Statistician’s request under clause 23 is technically an OIA request too, and as such if an agency does refuse such a request by relying on clause 29(3), the Statistician could make a complaint to the Ombudsman. Unfortunately, the Bill does not make this explicit, which means that if the Statistician did make a complaint to the Ombudsman, any investigation would likely come as a surprise to the public sector agency concerned.
  1. The Council recommends that this situation be avoided by amending clause 29 to insert a provision at the end making clear that refusal of a request under clause 29(3) must be communicated to the Statistician in a manner equivalent to that found in section 19 of the OIA.

References

References
1 April 2020, May 2021, November 2021
2 Public Service Act 2020, section 12
3 Privacy Act 2020, section 22, Information privacy principle 1.
4 Statistics Act 1975, section 9(1)(a) and (b).
5 Clauses 29(2)(a), 30(2)(a) and 32(2)(a).
6 Resolution adopted by the Economic and Social Council on 24 July 2013. 2013/21. Fundamental Principles of Official Statistics. https://unstats.un.org/unsd/dnss/gp/FP-Rev2013-E.pdf
7 Cabinet paper Data and Statistics Legislation: Paper 3 – Research and Analysis, undated, but considered at the Cabinet Economic Development Committee on 4 March 2020 (DEV-20-MIN-0023), paragraphs 39-41.
8 Wyatt Co (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180 at 191. “There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute. Confidentiality is not an absolute concept admitting of no exceptions… It is an implied term of any contract between individuals that the promises of their contract will be subject to statutory obligations”
9 Clause 55(2).
10 Cabinet paper Data and Statistics Legislation: Paper 3 – Research and Analysis, undated, but considered at the Cabinet Economic Development Committee on 4 March 2020 (DEV-20-MIN-0023), paragraphs 18-23.
11 Intelligence and Security Act 2017, sections 134-142.
12 Towards new data and statistics legislation: Summary of submissions on 2018 consultation, Statistics New Zealand, April 2019, page 29
13 Towards new data and statistics legislation: Summary of submissions on 2018 consultation, Statistics New Zealand, April 2019, page 29
14 Consistency with the New Zealand Bill of Rights Act 1990: Data and Statistics Bill, Ministry of Justice, 16 September 2021, paragraphs 31-42.