Messing up the sense of the census

Government, Politics

Sep 8, 2024

Census - words from wooden blocks with letters, official count or survey of a population, census concept, white grey glossy background with reflection

It’s hard to imagine how the government could have made a bigger mess of questions about gender identity and sexual orientation for the 2026 Census.

Last year, the Australian Bureau of Statistics (ABS) expressed regret that its framing of a relevant question in the 2021 Census left some with feelings of exclusion and discrimination and said ways were being explored of making things better for the 2026 collection.

Then late last month, Acting Prime Minister Richard Marles, possibly bringing a spot of his AUKUS mindset to bear, said that the 2026 Census would use “the same set of questions in the next Census as we did in the last” because “we won’t want to open up divisive debates in the community”. He thereby opened up the very thing he wanted to avoid. It was quite an achievement.

Yet in the immediate aftermath of the Marles decision, the Statistician, Dr David Gruen said, “Given the government’s announcement yesterday that topics will remain unchanged from 2021, I have made the decision that the upcoming test [on revised questions] will not proceed. The test would have included topics that the government has now decided will not be in the 2026 Census.”

As the outrage built, up steps Prime Minister Anthony Albanese, fresh from sundry triumphs in Tonga, to help wipe the egg from various faces. With typical clarity he said, “We’ve been talking to the Australian Bureau of Statistics and they’re going to test a new question. One question about sexuality, gender preference… as long as the testing goes OK, a question can be developed… which they’ll go and test and see if that’s possible.” A couple of days later he provided further clarification on the question to be tested, saying the “government thought they weren’t clear enough” and that further work was needed “to make sure there’s a bit of common sense here.” Why not?

Yet while the prime minister has cleared up things magnificently re the 2026 questions — one is being tested in the pursuit of common sense — what is not so clear is how the government’s actions fit with the intent and letter of Commonwealth laws about the collection of statistics.

While it is wholly legitimate for the government to ask the ABS to collect certain information, the intent of the Australian Bureau of Statistics Act and the Census and Statistics Act is for the collection of information and its presentation to be done without political direction. It would be unfortunate if the public were to suspect that data, say on wage and price inflation, unemployment and the like, had been subject to direction from ministers designed to show them up in the best light. That is to say, the integrity of ABS data needs to be underpinned by a degree of independence from ministerial influence.

Therefore, the Australian Bureau of Statistics Act creates a statutorily independent Bureau, a position of Australian Statistician and a Statistics Advisory Council and specifies their functions and powers. It provides for proposals for collections of information to be “laid before both Houses of Parliament” unless the collections are voluntary. The Statistician has a high degree of tenure and can only be removed via a vote of both Houses.

Under 9(1) the Census and Statistics Act, the Statistician may “(a) from time to time collect such statistical information in relation to matters prescribed for the purposes of this section and he or she considers appropriate; and (b) shall, if the minister so directs by legislative instrument, collect such statistical information in relation to the matters so prescribed as is specified in the instrument”.

It is unclear how the government’s not allowing the ABS to test revised Census questions on sexuality and gender orientation and then changing its mind to permit one question on sexuality fits with section 9. That section appears to be relevant with the collection of categories of information, not with the detail of how such information is to be collected. That is to say, on the questions in question, section 9 seems to give ministers little ice to skate on.

For ministers to be fiddling around with Census questions devised by the Statistician to make them clearer stretches the boundaries of propriety and the law. And the insinuation of Albanese’s Delphic inclinations is unlikely to be helpful

It would be nice to know if ministers sought legal advice on the actions they have taken and now propose, or if their departments provided such advice. And have ministers issued, or do they intend to issue, a “legislative instrument” on what they have in mind so the details of what they are doing can be made public and transparent?

Perhaps the last word on this shemozzle should be left to the online satirical publication The Shovel. It has suggested a new Census question: “Are you indecisive?” with the options for reply being “Yes, actually no”, “No. Wait…yes”, “Yes. No. OK fine, yes”, “Uncertain” and “I need to consult with Peter Dutton.”