The #censusfail anniversary cake. © Anna Johnston.

What is it about August 9th? Last year it was that evening of national beating-your-head-against-your-laptop as the Census website went down, and stayed down. This year, the government decided the mark the anniversary of #censusfail by handing the architects of that omnishambles, the ABS, the hospital pass of 2017: responsibility for a national same-sex marriage poll. (Me, I marked the date by baking the ABS this special anniversary cake. No, there’s none left, sorry.)

So, here we are, facing a ridiculous, waste-of-$122M, hurtful, divisive vote-that’s-not-even-a-proper-vote, just because some politicians are too lily-livered to do the job that we elected them to do, and want them to do, which is to make and amend laws for our nation.

Marriage equality is squarely a human rights issue, but an ABS survey about marriage equality raises some additional and important privacy issues.

This article is by Anna Johnston from Salinger Privacy and was originally published on Salinger Privacy's website. The article is the copyright of Salinger Consulting Pty Ltd and the image is the copyright of Anna Johnston. Both are republished here with permission. See the original article. You can follow Anna on Twitter @SalingerPrivacy or sign-up for their newsletter.

First, there’s the obvious privacy argument in relation to sexuality, which is that what happens between the sheets between consenting people over the age of consent is none of anybody else’s business.

But privacy is not just about protecting what is private. It is about allowing people the freedom to choose when, and to whom, they wish to disclose things about themselves. So when two people want to publicly declare their love for each other, and to publicly make a commitment to each other, and they want our laws to recognise that commitment and offer protections and benefits arising from that commitment on the same basis as anyone else, that is a privacy issue. Marriage equality is about the same values which privacy aims to protect: self-determination and autonomy, freedom of speech, and freedom of association.

If the freedom to say ‘I do’ is not freedom of speech, I don’t know what is.

The next privacy issue is whether the ABS even has the power – or should be allowed – to run a national survey about marriage equality. My questions here, some of which may get a run in the High Court challenge next month:

Is opinion on same-sex marriage ‘statistical information’?
The ABS says that they are under direction “to request statistical information from all Australians on the Commonwealth Electoral Roll, as to their views on whether or not the law should be changed to allow same sex couples to marry”.

This phrase ‘statistical information’ is critical, because the ABS’s ability to be directed by the government, and its power to collect data, is limited under the Census & Statistics Act to ‘statistical information’. The meaning of that phrase is not defined, but for surveys other than the Census, the ABS can only collect statistical information on a list of topics prescribed in the regulations, which include “births, deaths, marriages and divorces”.

But some legal experts have questioned whether opinions can ever be ‘statistical information’, in the way that facts are. Constitutional lawyer Anne Twomey for example has described ‘statistical information’ as “numerical data concerning facts”. So it would be one thing for the ABS to collect data about the numbers of people who are in same-sex relationships, or the number of married versus unmarried couples – but another thing entirely to ask about people’s opinions about marriage.

A similar concern was raised last year in relation to the Census. In response to the ABS’s plans to begin using our names and addresses to create linkages between our Census responses and other data supplied to the ABS from government agencies, some commentators queried whether the ABS’s powers to direct people to complete the Census form (the defiance of which is a criminal offence) actually extend to the name and address part of the form. Part of the argument was that names are not ‘statistical information’; for example, the ABS does not produce statistics about how many people in Australia have the name Jane Citizen. However since the ABS has apparently not sought to have prosecuted anybody who either left off their names, or did not complete the Census at all, there has been no criminal case brought through which we could test out that theory before the courts.

So the issue that needs testing is whether or not asking for people’s opinions on marriage equality is ‘statistical information’ about marriage. If it is not, then there are some fatal problems. Senior law lecturer at UNSW Paul Kildea has pointed out that the Australian Electoral Commission could not disclose the electoral roll to the ABS; and the ABS could not collect the opinion data under the Census & Statistics Act. So end of story.

Can it still be described as ‘statistical information’ if the survey is not conducted using proper statistical techniques?
But even if the High Court is persuaded that opinions on marriage equality is ‘statistical information’ about marriage, will the conditions under which those opinions are to be collected render the resulting data so unscientific that it could not honestly be described as ‘statistical’ anyway?

Articles in recent days have featured various pollsters pointing out that a national postal poll is such a poor methodology that it will be next to useless. The main criticism here is that to be ‘statistical’, a poll needs to be weighted to ensure accurate representation of people across different demographic groups, whereas a voluntary postal poll is likely to be skewed in favour of older Australians.

Numerous commentators have mentioned the difficulties of postal voting for various groups, including the young who move home often, the homeless, rural indigenous populations, people who are overseas including serving members of the defence forces, etc; but there’s another group facing an inability to vote (sorry – be surveyed) too: silent electors.

There are something like 113,00 or so of us: people who are ‘silent’ on the electoral roll because for some safety-related reason, we do not want our home address publicly knowable. (In my case, it is because on a few occasions I have been subject to death threats, just because I have spoken publicly in favour of protecting the privacy rights of individuals against the government. The irony that the people who have threatened me chose to remain anonymous is not lost on me.)

But being a silent elector does not mean I want to be silenced. I want my privacy, and my right to be heard.

We’re in a catch-22 here. If the AEC discloses silent electors’ details to the ABS, they would likely be in breach of the electoral law. The whole point of being silent is that the AEC is not supposed to tell anyone. (Not even the people who have those big paper books on election days know! I have to go through a little extra paperwork each time I vote, and everyone else stares at me as I get pulled out of the queue to do the special silent-voter process, but for me, it’s worth it.)

But if they don’t disclose silent electors’ details to the ABS, will we silent electors be disenfranchised? I would like to think there is a solution (like maybe: silent electors can rock up to their local AEC office to be ticked off and get a special ballot paper), but the fact that the government had not already thought this issue through is yet further evidence of the ridiculous decision-making-on-the-fly that ends in a shameful waste of taxpayers’ money on bad process design.

Will the ABS know who voted and who didn’t?
Another catch-22 here. If the ABS issues voting papers with personal identifiers, then the concept of voter privacy flies out the window. But if there is no way to link voters to votes, then ensuring the integrity of the voting process is extremely difficult. This is an inherent flaw in postal voting systems; yeah, I know you can do the whole envelope-inside-an-envelope thing, but you still have to trust the person opening the envelopes.

Do we trust the ABS? They don’t even seem to know what is going on. The information on the ABS website about voter privacy changed quickly, as an early promise about ‘no identifiers’ was quietly withdrawn.

On August 10, the ABS website promised: “The ABS assures Australians that there will be no personal identifiers on the survey form and all materials will be destroyed by the ABS at the end of processing.” By the next day, the statement had been amended to say only that “The ABS assures Australians that all materials will be destroyed by the ABS at the end of processing.”

Weaselling out of privacy promises after only one day – not a good look.

Could the survey data be combined with other data?
Broken privacy promises brings us to the next point. What are the “materials” that will be destroyed by the ABS? Does that include the resulting data, or just the ballot papers?

And what does “at the end of processing” mean? Only once they’ve sucked up all the personal information they can?

In other words: will, or could, the ABS use the marriage equality poll data for other purposes? Could they link it to other data that the ABS holds about us?

That might sound ridiculous, but consider this: if the High Court accepts that the marriage equality poll is a survey, and the data to be collected is ‘statistical information’, then that puts our ‘votes’ in the same bucket as our Census answers. And as we all know, last year the ABS decided that it had the power to use our names and addresses to generate statistical linkage keys, to enable it to link our Census answers with other data about each of us, from datasets given to it by other arms of government.

So if the ABS can link our Census answers, at an individual level, to our educational records, criminal records, tax records and whatever else it is hoovering up, why not also our opinions on marriage equality? The ABS has released a statement saying that it won’t do that, but then again, they used to promise that about our Census data too.

By now hopefully you are starting to see the scope of the ultimate privacy issue at stake here. If the High Court finds that a survey of people’s opinions about marriage equality is not ‘statistical information’, then the ABS has no power to conduct this poll, and hopefully the national stupidity will end there.

But if the High Court says that it is ‘statistical information’, then effectively the ABS will be seen to have the power to collect any data so long as they call it ‘statistical information’ with some tenuous link to one of the long list of prescribed topics, and the power to then use that data for data-matching at an individual level so long as they don’t disclose it in identifiable form. (Reminders about their secrecy obligation to not disclose is the standard ABS line whenever anyone raises privacy concerns, ignoring whether they have the power or social licence to collect or use the data in the first place).

In that scenario, there is nothing to stop the ABS compiling dossiers on every single one of us – and using their compulsion powers to do so. They could do so off their own bat, or they could be directed to do so by the Government of the day.

Why stop with our views on same-sex marriage? Why not also ask where everyone stands on abortion (births), euthanasia (deaths), or who should win The Bachelor (marriage)?

The ABS could just as easily ask how we feel about whether Barnaby Joyce should be sent home to New Zealand (migration), or whether peanut butter should be crunchy or smooth (food preparation and food consumption).

As long-time privacy advocate Graham Greenleaf has said, “If ABS can now collect opinions on anything, what limits its collection methods? One more step toward the Australian Bureau of Surveillance”.

I don’t want this wasteful, hurtful, unnecessary and unlawful survey to go ahead. I desperately hope that the legal challenge in the High Court succeeds. Affording equal legal rights and protections to a minority should not be subject to the opinions of the majority, and the powers of the ABS to collect and use our data need to clarified and curtailed.

But if the legal challenge fails, what next? Boycott “this irregular and unscientific polling”, as former High Court judge Michael Kirby first suggested? Or do as the marriage equality advocates request, and Kirby himself then said he would also do, which is grudgingly accept this awful situation, and then rainbow glitter-bomb the electorate with messages of love, encouraging everyone you know to #voteYes? (But FYI don’t put glitter on your actual survey form, it might render it unreadable by the ABS.)

Either way, I say bring it on. By which I mean: bring on marriage equality. Not this stupid poll. We don’t need some ridiculous, divisive, non-binding, unscientific, undemocratic, wasteful excuse for a privacy invasion to get us there.

 
 
 
 
 

4 comments

  1. lol, so if compelled to vote on the issue, and names dates and opinions are to be retained for posterity, one could put a little glitter in the envelope and both fulfill the legal requirement to vote /and/ deny the vote ?

    Comment by Peter on 19 August 2017 at 17:24
  2. The ABS have already said that including glitter with your survey form is likely to harm the machines they will use to count the survey. It will also only be seen by the poorly-paid casual worker that will be opening your envelope.

    A better idea might be to send a copy of your survey form (with glitter) to Tony Abbott's office, or to the Australian Christian Lobby.

    Comment by Jon on 21 August 2017 at 12:31
  3. So what happens if I destroy the 'personal identifier' on the form ?
    Will the ballot then be considered 'informal' or will it simply be ignored ?

    Comment by Harry on 23 August 2017 at 11:42
  4. Good question. Presumably, such a form would not be counted.

    Comment by Jon Lawrence on 23 August 2017 at 11:43

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