Is the independence of Stats NZ under threat?

Without notice by all but a scarce few, the independence of the government statistician (that is, the head of Statistics NZ) and the transparency of government data sharing and use in New Zealand could change after this year. 

Statistics minister David Clark has managed to avoid public scrutiny of the constitutional implications of his Data and Statistics Bill, despite transparency of this kind of change being a proper expectation of citizens in a democratic society.

The bill Clark presented to parliament waters down the role of the government statistician by the simple means of enabling the role to be delegated to unspecified persons or organisations without any further legislative oversight or qualification. 

That there are serious risks from giving to others the special powers of this statutory role is obscured by weak and generally irrelevant arguments given for the bill by the minister.

In effect, the bill uses the role and authority of the government statistician to provide an umbrella for extended data sharing across the entire range of government agencies, and unspecified non-government entities. 

Longstanding obligations to protect confidentiality appear to have been watered down. 

The bill has been presented to parliament by the minister as a modernising, "future-proofing" change which will improve all aspects of trust. 

There are improvements needed now in research access and responsiveness to Māori, but these do not need the authority and powers of the government statistician to be opened up in this way.

Nowhere else in the world have changes of this sort been made, or in this manner – and to do so without a specific consultative process with Māori is surprising, in 2022.

Lack of oversight

The arguments for the bill do not acknowledge that administrative records have limits in their use for informing those policy areas that have been found to be weak. 

This is because the administrative records of government departments supply data about policies and practices, from the perspective of government administration. 

Those countries that have the most reliance on administrative records for official statistics generally have wide-ranging administrative registers for addresses and personal details. These registers require citizens to comply with registration processes that are rarely seen or accepted in Westminster systems.

The data and statistics bill is to be put in place without the strong legislative oversight and regulation of data sharing and data linkage across government that's in place in other countries, such as the Australian Data Availability and Transparency Act 2022, or the United Kingdom Digital Economy Act 2017.

Frivolous arguments

The arguments presented by the minister in speeches are hardly compelling, and I regard their selection as insulting to the public by their frivolousness and general nature:

• “The 1975 Act makes no reference to data at all”. 

• “It lacks the flexibility to respond to the changes in data and digital that we are seeing.” 

• “… but this Act was written before personal computers were widespread, before social media, before the cultural changes that technology continues to drive.” 

• “It does not provide the kinds of tools we need to boost the supply and quality of administrative data – so, this is data that's collected for other purposes, often: for registrations, service delivery, transactions, record-keeping.” 

• “… it modernises the framework for accessing data and research.” 

• “... and supports Stats New Zealand to become a data-first agency, an administrative data-first agency.”

Constitutional implications

It is the independence of the government statistician as a guardian of confidential information provided to the government only for statistical use that underpins our trust in official statistics. 

Official statistics give us confidence in how we measure progress – or lack of it – on economic, environmental and social concerns, reporting regardless of the political predisposition of ministers of the day. 

Citizens, businesses, international organisations and ratings agencies are all stakeholders who depend on this trust.

After it is enacted, the bill will bring the government statistician into the fold of the policy, enforcement and operational agencies of government by permitting data sharing on an unspecified scale. 

This would make unavoidable a reversal in the long-standing constitutional checks on involvement by the government statistician in policy advocacy or justifying the operational delivery of policies. These are only briefly referred to in the report of the select committee.

In providing others with the powers of the government statistician, as statistical "clones", concerns about the public legitimacy of statistical functions critical to trust in government may lead to a loss of trust we need to have in the role.

The bill permits the delegation to other persons and agencies of the powers that have been unique to Statistics New Zealand and the government statistician for some 110 years. 

No policy, service or compliance organisation that I am aware of has maintained without question a consistent reputation for being responsible, scientific and transparent, for as long as the government statistician has. 

Bodies that could receive such a delegation exist because of purposes that must at some time conflict with the statistician’s impartiality, protection of confidentiality and privacy whenever their role involves policy, service delivery, advocacy, enforcement or surveillance. 

It is near impossible for any organisation with other functions to either meet or be perceived to meet obligations of impartiality.

Propagating clones

To apply properly the legislative authority for legitimising clones that could publish trustworthy statistics with the duty of care required of the government statistician would mean that having expertise is not an essential requirement or condition of appointment to other positions, and which would be rarely met. 

The bill will also water down the obligations on the government statistician to guarantee to protect the confidentiality of statistical responses, a reduced duty of care – and the minister has not yet drawn attention to it.

The bill risks weakening public trust generally, by ignoring the separation of roles of agencies involved in service delivery, enforcement or statistics. This gives agencies an opportunity to get confidential personal information beyond that needed for the functioning of their statutory roles.

Only last week the prime minister wisely commented about trust in government being “something that can be built up over decades but torn down in mere years”.

The minister of statistics might take heed of his own leader.