New legislation would put a greater focus on administrative data and the statistics agency's ability to provide information to other agencies for policy development, Marc Daalder reports
Statistics Minister David Clark says a controversial bill to overhaul Statistics New Zealand could be tweaked in response to concerns but stands by the bulk of the changes.
Clark's comments come after the New Zealand Council for Civil Liberties (NZCCL) and former UK and New Zealand Government Statistician Len Cook called for the legislation to be withdrawn. Independent governments offices like the Ombudsman, the Auditor-General and the Privacy Commissioner have also weighed in with critiques of the Data and Statistics Bill, with Chief Ombudsman Peter Boshier calling it "constitutionally inappropriate".
"The old Statistics Act doesn't mention the word 'data'. The old Statistics Act well precedes things like email and the internet. It's just not fit for purpose," Clark said. "You've got to take into account the modern world."
Administrative data
The debate over the new bill deals in part with technical issues that Clark says can be worked out and in part with fundamental disagreements over how the statistics agency should do its job.
Everyone does agree that the old legislation could use an update. It dates back to 1975 and wasn't built with the digital world in mind.
"There is little doubt that the context which official statistics are prepared in 2021 differs from 1975," Cook wrote in his submission on the bill.
"The world is much more knocking on the door, as we have been reminded not only by Covid-19, global financial crises and terrorism, but by the very dynamism in employment, education and the demands on infrastructure from population change and the changing nature of migration. In understanding on such changes, it is statistical surveys that generally adapt more rapidly than the legislation which underpins administrative practices and the content of records, while these records provide a granularity that statistical surveys rarely can."
The past four and a half decades have involved embedding Māori rights and Te Tiriti into legislation, which justifies an update to the current Statistics Act as well.
The big disagreement comes about with the bill's focus on administrative data over statistical surveys. While there's a need for both, critics of the legislation say using too much administrative data which was collected for other purposes - such as tax or welfare figures - could lead to agencies making poorly-informed decisions.
"The bill’s misunderstanding the importance of statistical surveys ignores the range of information about family structure and dynamics and other complex units in society such as whānau that is poorly estimated from administrative records, if at all," Cook argued. Data collected for one purpose might be subject to biases which make it unfit to be reapplied to understanding a separate issue.
Administrative data also has gaps when people don't interact with the government. The 2018 Census had to be reconstructed from administrative data and iwi affiliation figures suffered for it, because that information was less likely to be held by government agencies than to be collected in a census survey.
"We want our citizens to be healthier, happier, better supported and so on and administrative data can help facilitate that," Clark responded. "Surveys will still be used. But actually, around the world, it's getting harder and harder to collect survey data. People are more and more resistant to participating in surveys."
He said the legislation doesn't require a shift to administrative data - that's a trend happening independently of any new laws being passed. Instead, it puts a new framework around administrative data.
"That's a global trend. Given that's happening, I think it's incredibly important that we have appropriate ethical oversight and clear rules and transparency around how any data will be used. And clear responsibilities placed upon those who would use that data for appropriate purposes."
That argument doesn't wash for those opposed to the bill, who say statistical surveys should remain at the heart of New Zealand's statistics regime. They also see the bill moving Stats NZ away from its purpose as a gatherer of official statistics and towards a repository for research which must meet a murky public interest test. That could see other agencies or private companies accessing Stats NZ's vast data troves for policy development and research.
In its submission, the NZCCL said the legislation "finalises the journey of a once-respected government department into a disreputable data laundry". A supplementary submission added, "the bill seeks to entrench a culture of gathering and sharing administrative data for undefined ‘research’ purposes".
Privacy requirements
Clark isn't budging on the move towards collecting more administrative data, which he says is a global trend that's out of his hands anyways. He also insisted in his interview with Newsroom that the legislation incorporates sufficient safeguards for privacy.
Submitters, including the NZCCL, Cook and the acting Privacy Commissioner Liz MacPherson (herself a former government statistician) raised issues with the privacy protections in the bill.
A general privacy rule is that personal information should not be collected unless it needs to be and that information should only be used for the purpose for which it was collected. The embrace of administrative data implicitly overrides this principle, by encouraging agencies to release (de-identified) data to Stats NZ even though it was collected for a different purpose, the NZCCL argued.
"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."
Former Privacy Commissioner John Edwards consulted on the bill with Stats NZ and MacPherson said she had no "significant concerns". However, she proposed a range of new safeguards for the legislation.
"I assume that the Privacy Act will continue to apply except to the extent that the bill clearly authorises personal information to be collected, held, used or disclosed. However, to avoid doubt, it could be helpful for the bill to expressly set out the relationship between the bill and the Privacy Act," she wrote.
"In my view, the bill’s provisions, taken as a whole, do protect against use of information collected under the bill for purposes other than the production of statistics and the undertaking of research. However, there is no single provision that clearly states this purpose limitation, in contrast to the 1975 Act, which states that ‘Information furnished to the statistician under this act shall only be used for statistical purposes’."
Submitters also took issue with a part of the bill which would allow the government statistician to delegate their immense data-gathering powers to other agency chief executives.
"It totally dilutes the role and significance of the official statistician. I can't understand why this is wanted - it's a high-risk activity," Cook said. "Do we want other departments - police, inland revenue - collecting data which does not relate to their core activities? This is an important constitutional element."
MacPherson said that, while there were safeguards in the bill to prevent the agency heads who received the powers, "there is a risk, however small, that a person acting under delegation would perform the statistician’s functions in ways that do not sufficiently protect the privacy and confidentiality of data".
Clark said Stats NZ's current "Five Safes" privacy policy for disclosing data for research purposes was sufficient. "I'm certainly not aware of any systemic problem with that currently."
'Constitutionally inappropriate'
One technical point that raised the ire of the Ombudsman and the Auditor-General was a proposal that the government statistician be empowered to seek data from independent Officers of Parliament.
"The flow-on effect of these clauses is that the Ombudsmen would, in essence, be made subject to the powers of the Executive. This is constitutionally inappropriate," Boshier wrote in his submission.
"Officers of Parliament like the Ombudsman require a high degree of independence from the Executive if they are to provide Parliament will an impartial check on Executive power," he added in comments to Newsroom.
Auditor-General John Ryan echoed the same points in his submission on the bill, also labelling it "constitutionally inappropriate". That submission came after the deadline for new submissions because Stats NZ had not consulted with Ryan on the bill and he only found out about it when notified by Boshier's office.
Clark said this provision could be changed without too much issue. "I don't see the Officers of Parliament as needing to meet mandatory requirements here. If the select committee doesn't sort that out, I will."
Boshier also took issue with a part of the bill which would replace the ability to request information from Stats NZ under the Official Information Act (OIA) with a new regime which would provide data for "research purposes".
"The aim is to allow researchers to access data from across government and the private sector. But I am concerned this new regime would complicate things too much and confuse would-be researchers about which regime to use. The OIA already provides ways for agencies to release information to legitimate researchers with appropriate safeguards," he told Newsroom.
Clark said the new regime would protect privacy by limiting what information could be released. "The advice that I have is that the OIA provides protection from personal and commercially sensitive information, but it doesn't provide enough assurance to people and organisations that their data will be protected," he said. "There's actually an attempt to have a higher standard."
In his submission, Boshier argued the OIA can already balance personal privacy, commercial sensitivity and the public interest in accessing the information. The NZCCL said these provisions "attack the mana and the powers of the Ombudsman. 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 judgment".
"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). However, by giving the conditions statutory backing, the Ombudsman would be precluded from reviewing whether the conditions are in fact appropriate."
