EXPLANATORY STATEMENT
Statutory Rules 1985 No. 191
Issued by Authority of the Treasurer
CENSUS AND STATISTICS ACT 1905
DETERMINATION MADE UNDER SECTION 13
Introduction
This Determination is being made under Section 13 of the Census and Statistics Act 1905 (the Act).
2 The objective of the Determination is to enable information to be disclosed to assist the Statistician to perform statistical processing functions. It is anticipated that circumstances will exist from time to time in which the Australian Bureau of Statistics (ABS) will need to contract out work which it cannot undertake with its own resources, be they specialist equipment or skills, or other human resources. This could involve passing to the contractor information furnished in pursuance of the Act. In the absence of an appropriate Determination such passage of information would be a breach of sub-section 19 (1) of the Act.
Background
3 Section 19 of the Act provides for the confidentiality of information supplied to the ABS. Sub-section 1 of that Section provides that information may be disclosed in accordance with a Determination.
4 Authority for the Minister to make Determinations is contained in Section 13 of the Act.
5 Sub-section 13 (1) enables the Minister to authorise the Statistician to release information included in a specified class of information furnished in pursuance of the Act. It is then the responsibility of the Statistician to decide whether or not to approve the disclosure of particular information. In doing so, he will be guided by an overriding concern to maintain the confidence and trust of the persons, businesses and organisations supplying information to the ABS.
6 Sub-section 13 (2) provides that a Ministerial Determination can specify terms and conditions subject to which such information may be disclosed. Such terms and conditions may include a requirement that a person to whom the information
is being given shall undertake not to disclose any of this information to any person. The information which is released under these conditions would be protected by Section 19, the secrecy provision of the Act, and a breach of such an undertaking would therefore be an indictable offence.
7 Sub-section 13 (3) provides that a Determination may not authorise the release of identifiable information of a personal or domestic nature.
8 Sub-section 13 (4) has the effect that the provisions of the Acts Interpretation Act 1901 relating to passage of regulations in the Parliament apply to each Determination. Thus each Determination is to be notified in the Gazette, tabled in Parliament and be subject to disallowance.
9 Sub-section 13 (5) has the effect that Determinations will be published, and copies made available to the public, in the same manner as for all statutory rules.
10 The first Determination made under Section 13 of the Act was Statutory Rules 1983 No. 19.
Notes on the Clauses of this Determination
11 Clause 1 specifies the relationship between this Determination and Statutory Rules 1983 No. 19.
12 Clause 2 provides a convenient citation for the Statutory Rules 1983 No. 19 when amended by this Determination.
13 Clause 3 will enable the ABS to contract out work which it cannot undertake with its own resources, be they specialist equipment or skills, or other human resources. This may involve passing to a contractor information which would otherwise be prohibited from disclosure by Section 19 of the Act. The contractor could be another Government Department or a private person or organisation.
14 Sub-clause 7A (1) of the amended Determination sets out the terms and conditions under which information may be disclosed under this clause. It emphasises the provision of Sub-section 13 (3) of the Census and Statistics Act 1905 by not authorising the release of information of a personal or domestic nature which is likely to enable the identification of that person.
15 Sub-clause 7A (2) of the amended Determination in conjunction with Section 19 of the Act, ensures that any information disclosed under this clause is protected from improper use.
Overview
The Determination made under Section 13 of the Census and Statistics Act 1905 aims to enable the disclosure of information to assist the Statistician in performing statistical processing functions. The Act was enacted to ensure the confidentiality of information provided to the Australian Bureau of Statistics (ABS) while allowing for the necessary disclosure of information to carry out its functions. The determination addresses the problem of the ABS needing to contract out work that it cannot undertake with its own resources, which may involve passing on information that would otherwise be prohibited from disclosure under Section 19 of the Act. This Determination was issued by authority of the Treasurer and aims to balance the need for confidentiality with the operational requirements of the ABS. The provisions of the Determination are subject to parliamentary disallowance and are published in the same manner as statutory rules.
Scope and Application
The Determination made under Section 13 of the Census and Statistics Act 1905 aims to facilitate the disclosure of information to assist the Statistician in performing statistical processing functions, particularly when the Australian Bureau of Statistics (ABS) needs to outsource work that it cannot undertake with its own resources. This includes passing information to contractors, who could be government departments or private entities, to ensure the ABS can effectively gather and process data. The confidentiality of information supplied to the ABS is safeguarded by Section 19 of the Act, and the Minister has the authority to make Determinations that specify the terms and conditions under which such information may be disclosed. These terms and conditions may include requiring the recipient to undertake not to disclose the information further, thereby protecting it under the secrecy provisions of the Act, which make any breach an indictable offence. The Determination explicitly prohibits the release of identifiable personal or domestic information, ensuring that the confidentiality and trust of data suppliers are maintained. Furthermore, each Determination must be notified in the Gazette, tabled in Parliament, and be subject to disallowance, aligning with the requirements of the Acts Interpretation Act 1901. This process ensures transparency and public availability of the Determinations, which are published and made available to the public in the same manner as statutory rules.
Key Provisions
The operative sections of this Determination are primarily concerned with the disclosure of information under specific conditions. Section 13 of the Census and Statistics Act 1905 empowers the Minister to authorise the Statistician to release certain information, subject to the terms and conditions outlined in the Determination. Clause 3 of the Determination specifies that the Australian Bureau of Statistics (ABS) can contract out work and disclose information to contractors, provided it adheres to the conditions set forth in Clause 7A. This clause ensures that only non-identifiable information can be disclosed, thereby maintaining the confidentiality of personal or domestic information that could lead to identification.
The Act imposes several obligations on the ABS and any contractors they engage. Firstly, they must ensure that the disclosure of information complies with the terms and conditions specified in the Determination, particularly those in Clause 7A. This includes refraining from releasing any information that could identify an individual. Secondly, any contractor receiving information must undertake not to disclose it further, as stipulated in Clause 7A(2). Failure to comply with these obligations could result in a breach of the secrecy provision in Section 19 of the Act, leading to severe consequences.
For breaches of the confidentiality provisions, the Act provides for both civil and criminal penalties. Under Section 19, any unauthorised disclosure of information is considered an indictable offence. If convicted, an individual could face substantial penalties, including fines and imprisonment. The exact penalties would depend on the severity of the breach and the discretion of the court. Additionally, any contractual breaches outlined in Clause 7A(2) could result in legal action from the ABS or the aggrieved party, leading to potential civil liabilities for the contractor.