About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
   
2. The Council has been invited to quarterly meetings with leaders within Stats NZ for the past several years. The Council takes this opportunity to thank Stats NZ for this ongoing commitment to transparency.
   
3. This consultation has been noticeably better run than the last consultation we responded to, the 2024 consultation “Modernising our approach to the 2028 Census”.  Given the Council’s harsh criticism about that 2024 consultation, we are pleased to note that we do not have similar concerns about this consultation.

Questions

1. Do you agree that the most appropriate use of infringement offences is when there is an ongoing issue with non-compliance and other tools have been used? Why? Why not?

4. The Council is dubious that there are any appropriate uses of infringement offences.  Certainly, they ought to be a tool of last resort.

2. Do you agree that infringement offences should apply to respondents who deliberately avoid their obligation to provide information? Why? Why not?

5. The Council would like to start by saying that we believe that forcing people to respond to Stats is a limitation which can be justified in a free and democratic society, in that it passes the four part Hansen test:

Does the provision serve an objective sufficiently important to justify some limitation of the right or freedom?

If so, then:

• is the limit rationally connected with the objective?
• does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
• is the limit in due proportion to the importance of the objective?

6. Unusually, the Council will now argue that passing the Hansen test is not sufficient to make infringement offences a good idea.
   
7. What we should all care about is the accuracy of the information collected. If even a small minority of people respond to the threat of infringement offences by filling in random, misleading, or unverified guesses then we all would have been better with far fewer but higher quality responses.  The infringement offences motivate these sources of bad data.
   
8. We further note that infringement offenses will make Stats NZ less popular.  Which will motivate more inaccurate “information” to be supplied.
   
9. Finally, we should note that this consultation is about infringements under section 76 of the act. That section is followed by section 77, which creates infringement offenses for false or misleading statements.  The total absence of references to “false” or “misleading” information in the consultation document begs the question of whether Stats understands this concern and is trying to hide it. 

3. Do you have other suggestions about how we can make sure infringement offences are used consistently across collections and cases of non-compliance?

10. There are better tools to ensure consistency.  Well designed processes and training should come first.
    
11. Establishing a dedicated infringement offence team could lead to quotas for infringement offenses being issued.  There are precedents for teams being told to collect enough fees to cover the cost of running the team. This threat is too severe to be justified.
    
12. Both consistency and proper moderation can be accomplished by requiring senior officials to sign off on every case of non-compliance.  Obviously the Government Statistician (the Statistician) is the best choice for internal arbitrator, but the regulation could specify another person, such as the chief legal counsel.

4. Do you have other suggestions about how we can make sure infringement offences are used fairly and equitably?

13. The Council was critical of the 2022 Act, with the justice of the infringement offences being one of our focuses.
    
14. The Council starts by noting that the primary legislation enables but does not require the problems we criticised in Parliament. The regulations resulting from this consultation can and should close these loopholes.
    
15. There was a significant change in the strict liability offence between the 1975 and 2022 acts. 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]

16. This implies that Stats NZ was responsible – if not subject to an actual duty – for ensuring people receive a census schedule that they must complete and return to Stats NZ.
    
17. The current act does not reproduce this responsibility either explicitly or implicitly. Instead, there is a much vaguer obligation in section 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.” There is no obligation in the act for Stats NZ to deliver a census or other survey form to the people who are obliged to provide information. 
    
18. The regulations resulting from this consultation should make explicit an obligation on the Statistician to provide the form, and allow adequate time to complete the form, before any infringement proceedings begin.
    
19. Following on, there is no general duty in the act for the Statistician to ensure that requests for information are made in ways that people can understand. Many people in Aotearoa do not read English.  Others have disabilities. Still others do not have access to the internet.  It should be an obligation on the Statistician to prove that the request for information was made in languages and formats to which the respondent was readily able to reply.
    
20. Finally, there are some people who through injury, illness, or disability will not be able to provide information regardless of how the request is communicated. Comatose people are an obvious example. Whilst sections 76 and 77 carefully specify that a person must “knowingly” commit the offence, that qualification does not automatically transfer to infringement offences under new regulations.  There must be provision to avoid proceedings against people who are incapable of providing the information requested.

5. Given the offence involved, do you think the proposed fee and fine amounts are reasonable? Why? Why not?

6. In your view, do the proposed fee and fine amounts provide a credible deterrent? Why? Why not?

21. Fines in Aotearoa New Zealand are levied poorly.  They are typically far too large for the average person, yet so small as to not draw the attention of the wealthy. The proposed amounts replicate this problem.
    
22. Section 76 of the act allows for fines of up to $12,000.  The Council recommends that the fine for bodies corporate of 10% of revenue to a maximum of $12,000.
    
23. The Council thanks the staff of Stats NZ for their time and consideration of our submission.

__________________