Data and Statistics Bill

Thank you, Madam Chair. Clause 13 of Part 2 talks about the functions of the Statistician, and the first function of the Statistician is “to collect data in accordance with this Act.” It’s a somewhat circular clause, because the purpose of the Act is in Part 1. So if we are in a somewhat cloudy area about what the purpose of the Act is, then it’s important, I think, to reconcile clause 13 with clause 3. Now, in clause 13(c), I think we get some clarity about the research, which is “access to data for research [is allowed] in accordance with section 48:”, but the collection of data is in accordance with the Act overall. And, as we have established and haven’t yet had rejected or refuted, the purpose of the Act is to collect data for research.

So I have two questions. The first is the question that I asked in Part 1—it’s still relevant here—and that is: if, as the Minister said last night, the Statistician can only make mandatory requests for data for official statistics and not for research, where in the bill is that made clear? Secondly, in respect of, I think, quite a helpful contribution around the Integrated Data Infrastructure (IDI), in that the IDI is a database for research and, I stand to be corrected, but I’m almost certain that what the Minister, basically, said is the contribution—to my comment that if it’s voluntary, it doesn’t need to be subject to a legal framework, in the response, the Minister said, “Well, it is voluntary, but it does need to be subject to the law.” So my question is this—it’s hypothetical, but it’s very relevant. Let’s say, for argument’s sake, that the Statistician goes to the Ministry of Education and says, “We’d like all your data on school attendance anonymised and put into with a unique identifier.” and the Ministry of Education says, “No thanks; we’re not going to give you that data.” Does the Statistician have the power to say to the Ministry of Education, “Too bad, you’ve got to give it to us.”? That makes it mandatory and that makes it mandatory for research because it’s going into the IDI. It wasn’t collected under the Data and Statistics Act, when it’s passed. It was collected probably under the Education Act, but it’s being pulled into the IDI under this Act, which the Minister has just said that’s not mandatory for research. So I want to know—and I know the answer; I’ve been a Minister around a table that’s discussed the IDI at some length—does the Statistician have the power to go to the Ministry of Education in that scenario and say, “Too bad, Jack. You’ve got to give us that data.”?

The answer to the member’s question is no, and he does appreciate that, in that case, the Government Statistician cannot.

Thank you, Madam Chair. The clause within Part 2 that I’m particularly interested in, apart from, of course, the one that my colleague and friend has already been interrogating—but I won’t tread on his toes to the extent of going to that same space at the moment—is clause 16, “Independence of Statistician” and the related points around delegation. It seems to me to be really interesting and at the heart of what we should concern ourselves with as a Parliament and as the committee of the whole House today, in relation to those safeguards that we would hope for and expect on behalf of the good people of New Zealand.

I turn to clause 16(1), “The Statistician has the sole responsibility for deciding on—(a) the production of statistics by the Statistician, including”—and it lists various matters—“and (b) the timing, manner, and content of the dissemination and communication of those statistics.” So these are important points to establish lines of accountability for.

So my first cluster of questions, so to speak, to the Minister is around the subject of accountability. If the Statistician has sole responsibility for deciding on these matters, how is that person accountable for the decisions? Are we to understand that “sole responsibility” means that these can’t be questioned by other authorities—and I’ll give some examples in a minute—and do we also take it that sole responsibility means that in the Statistician’s honest or reasonable belief, these things are being done in an appropriate manner? For example, I would be keen for the Minister, in conjunction with his officials, to address the question of ministerial accountability. It’s proper sometimes that there is a measure of independence in these matters, and certainly we wouldn’t want the Government of the day, of whatever stripe, to be acting in a way that eroded the independence of the Statistician. But the flip side, of course, is that if the Statistician is able to act in way that’s independent but not accountable, then we should be concerned about that.

So there’s the ministerial responsibility question. We’ve got a system of responsible Government in this country, and I use the term quite loosely and in a political sense, I suppose, to underline that point of my own. But we have a responsible Government in the sense that the Government of the day, the Cabinet and whatever other arrangements prevail in MMP, are such that the people have the right to elect those who will run the country and be accountable for their decisions. The Statistician is outside that, so the first question is on ministerial responsibility.

The second is: can the Minister provide some assurance to the committee, and, indeed, the country as a whole, about the ability of the Ombudsman as an Officer of Parliament to be able to interrogate decisions, notwithstanding that the Statistician is solely responsible for them? The courts, too—would judicial review be available to interrogate the decisions of the executive if a person or an organisation feels as though they’ve been hard done by, just to use that colloquialism—to use that phrase? It’s a bit early in the morning for this. Anyway, just some thoughts about accountability versus independence, please.

Thank you, Madam Chair. These are important questions that the member raises and that we’re canvassing in the debate. The Minister is responsible—I alluded to this earlier, but I think it’s a point worth reinforcing also in this part of the bill because it’s actually laid out here. The Minister is responsible for the “what” of statistics, and the Government Statistician is responsible for the “how”. So clause 11 outlines very clearly that “The Minister has the following functions and powers under this Act: (a) to specify the Government’s data and statistical priorities: (b) to approve the multi-year data and statistical programme required under section 18: (c) to approve joint collection agreements under section 24: (d) to exercise the power in section 28(3) (certain requests for data require approval by Minister): (e) to exercise the power in section 44 (Minister may direct Statistician to produce or cease production of statistics on matter).”

These are carried over, essentially, from the previous Act, and, likewise, the material around the independence of the Statistician laid out in clause 16 is beautifully succinct. The Statistician is responsible for the “how”, essentially, but it’s laid out here in clause 16(1), which states, “The Statistician has the sole responsibility for deciding on—(a) the production of statistics by the Statistician, including the selection of data sources, concepts, definitions, methods, and classifications to be used;”, and in clause 16(2): “This section is subject to section 44.” So it’s right there.

In terms of the accountabilities, which the member raises as well, the Government Statistician is accountable for every decision made by a delegate. The bill hard-wires in legal obligations regarding independence and confidentiality which apply to any delegate, and it’s a criminal offence to wrongfully obtain data while acting as a delegate of the Government Statistician, which is in clause 79 of the bill. I think these things are really important to hard-wire into the legislation so that there are those accountabilities. What we’re talking about here is, in some cases, people’s sensitive personal data. In some cases, it’s kind of more economic data that no one would get upset about, but it’s still right and important to have the principles right and laid out, and the accountabilities. So I welcome the member raising these as important points to cover in the debate.

Thank you, Madam Chair. I just wanted to return to the answer that the Minister gave to my colleague the Hon Michael Woodhouse about mandatory requests for information or data. My question is: the issue, he said, was that in the case of the Statistician wanting to get data on truancy, for instance, from schools—going to the Ministry of Education and the ministry refusing that request. There’s, obviously, some data that is mandatory and some data that is not mandatory, and I suppose this comes back to the question of research that Mr Seymour and Mr Woodhouse have been talking about. So my question is: under what circumstances is a Government agency or organisation required to provide the information to the Statistician—I presume that would relate to the preparation of statistics as defined in the bill—and where is it clear that it’s not mandatory for certain other information?

The reason I’m just raising that is just in reference to clause 11 that the Minister’s just been talking about, there may be occasions where there is a change that the Government or the Minister requires the Statistician to provide new additional data or statistical priorities, as set out in 11(a), which, in that case, might mean that we do want to get the truancy information from the Ministry of Education. At what point and what would the process be that it would enable the Statistician to require the Ministry of Education to require that data? So just the clarity around when and under what process is it mandatory, and how is that power exercised; and when is it not mandatory, and discretionary?

I want to be helpful to the member. We have canvassed this debate a few times already. Properly and fully, this debate belongs in Part 3, which we’ll come to next. We’re debating the bill clause by clause, so we are doing a fairly in-depth play on each of these things. Part 3 canvasses that entirely, so I think I would prefer to respond in Part 3, where that debate can be had again and more fully.

Well, thank you very much, Madam Chair. First, I just have a bit of statistical trivia for the Minister of Statistics. The Chair told us that Part 1 was debated for two hours. Now, we started Part 1 at 9.30 last night, adjourned at 10, resumed at 9, and she said we had been debating for 40 minutes today. So I ask the Minister of Statistics: is 70 minutes more than two hours; if not, should we have had more debate on Part 1? I dare say we should have, because the excuse that we’ve got a lot to get through is not good enough. The reason we’re in extended sitting is so we do have time, as a Parliament, to scrutinise legislation.

Turning to clause 17, there’s this question of delegation. It’s very clear: “The Statistician may delegate in accordance with clauses 2 to 4 of Schedule 6 of the Public Service Act 2020 any of the Statistician’s functions or powers under this Act or any other Act”. Now, the Minister has been very cautious to say, “Yes, the Statistician can delegate, but, of course, the responsibility will be entirely with the Statistician.” So it’s almost as though we’re eating our cake and having it too here. Anybody can carry out the chief statistician’s role. Anybody within the Public Service, so long as the process of notification and so on is gone through with, can have all of the powers of the chief statistician, but there will be no diffusion of responsibility in line with that diffusion of power. This seems to be almost too good to be true. So I wonder if the Minister could explain how it’s possible that the chief statistician can delegate to a whole range of people and not lose any accountability whatsoever.

And if he’s not certain that that’s possible, perhaps what he’d like to say is that, actually, yes, there’s a diffusion of responsibility, because, actually, at some point, if an agent, a delegate does something, and it’s not quite what the chief statistician wanted, or perhaps the chief statistician couldn’t reasonably have monitored the behaviour or activity of the delegate, then, of course, that cast-iron guarantee that all of the accountability will be in place is lost. So that’s the first question—you know, is it really possible that a delegate can have all the accountability of the delegator? It would seem logically impossible if they’re different people. There’s got to be some diffusion of responsibility.

But, second of all, and perhaps more importantly, if we accept there might be some dilution of accountability, maybe it’s worth it because there’s a benefit. The real question I have, apart from whether he really thinks that there’s no loss of accountability, is: what could be the possible benefit? Why does he want to take the powers of the chief statistician—which are very powerful powers; they’re there for good reason, so the Statistician can get really good, representative data sets, so we can understand what’s going on in our society. Why would he want to diffuse that? What possible benefit could there be from some other agency having those powers?

And final and third question, because you never know if you’ll get another chance here: who does he think might be an example? Can he give us three examples of the kinds of people that might, within the Public Service, have those powers from the chief statistician delegated to them?

So just to wrap up: does he really believe you can delegate with no loss of accountability whatsoever, that the person with the delegated power will really be perfectly controlled by the chief statistician, and therefore perfectly accountable? Second of all, whether or not he does, what is the benefit of this delegation? And thirdly, what are three examples of people who might be delegated to?

This power mirrors, effectively, a similar power under the Public Service Act. It is not anticipated to be used often, so I cannot give the member three examples, and I think, you know, it’s there should it be required. It’s appropriate to have those measures there in the law should they be required. But I will repeat for the member, I think for about the fourth time now, that there is no diffusion of responsibility. There is a clear line of accountability here, as is good management practice. The Government Statistician is accountable for every decision made by a delegate. The bill hard-wires in legal obligations regarding independence and confidentiality which apply to any delegate, and it is a criminal offence to wrongly obtain data while acting as a delegate of the Government Statistician. Now, the member may argue that it’s a bit odd to have this in here or he doesn’t much like having delegation in here if we don’t think it’s going to be used. I think it’s worth exploring theoretical possibilities, having the right framework in place to protect against any harms which might be done should those clauses be required, and acknowledge that this is mirroring the Public Service Act practice and mirroring best practice around accountability for responsibilities.

Thank you, Mr Chair. It’s a relief to see you there. Look, I just wondered if we could just get the Minister to be totally clear about what he just said. So he’s putting in place a new power for the chief statistician to delegate the considerable powers of the chief statistician to anybody, but he doesn’t think it’ll be used very often, and he’s not able to give the committee a single example of, hypothetically, how it might be used. Now, I want the Minister to put on record that he’s been involved in drafting and designing this legislation, putting together this policy, and at no time can he tell the committee, at no time can he tell Parliament, at no time has he ever had suggested to him, ever had any advice about what sort of example there might be for delegating a power under this Act. Is he really telling us he decided he’d put it in there just for, in his words, “a theoretical possibility”? If he has had advice, and it has included examples of somebody that power might be delegated to, then I want him to tell us (a) has he had any advice, and, (b) if he has, what were the examples? On the other hand, if he’s never had any advice about how this new power might hypothetically be used, then why is it in there, and will he take it out?

What I would note is that while the current Act doesn’t contain this delegation in it, the Public Service Act applies anyway. So this is making it explicit that that power applies. It’s also true that that has then enabled a clear explanation about the publishing of information of any delegations, to have transparency, and that was something that the Privacy Commissioner sought so that there would be transparency around any powers that were being delegated in this respect.

Thank you, Mr Chair. Statistics is very important, and the way we actually collect and the way we make sure that the people’s data stays safe is something that people feel very passionate about.

I think some of the questions that I have are going to be in Part 3, so I’ll save it for that. But something that popped up is in Part 2, clause 13, “Functions of Statistician”, which says, “to guide and direct best practice in the production and communication of official statistics”. Considering the fact that the Minister, basically, has the power to direct us to Statistics New Zealand and specify the Government’s data and statistical priorities, and looking at the function of trying to communicate official statistics with New Zealand’s population, I’m wondering if the Minister could actually answer how he is going to improve the practice of this to the communities who are digitally excluded, when we have a census that is actually carried out online. There are plenty of people who can’t actually participate when they don’t have connectivity. How are the communications going to be extended to people who speak a language that is other than English as a first language? For people who are blind, is there a Braille option in terms of the statistics information? Are we improving our dissemination of statistics information?

Thank you, Mr Chair. The member refers, of course, to clause 13(d), and, at one level, this is a question for the Government Statistician, but here we are debating the bill, so it’s appropriate to address it, I think, at least in passing and to acknowledge that this is the independent function of the Statistician. They have to look to best practice in this regard. I think my observation and reflection is that Statistics New Zealand is very focused on how it can do this better and how it can collect data more effectively for official statistics through the census process, and very focused on how to do that more effectively to reach communities that simply weren’t well reached in the previous census. This is something that there is layers of governance across. A lot of it is focused on collecting good census information from people who are digitally excluded.

So I appreciate there’s going to be a good, fulsome debate—and here’s a good time to advertise it—this afternoon on this matter, and I know the member’s bringing the debate to the House this afternoon. So it’s a good time to begin rehearsing some of the conversations that will happen there. But, ultimately, it’s the responsibility of the Government Statistician to discern what best practice is and to guide the production and communication of official statistics in that respect.

Thank you very much, Mr Chair. Minister, I want to just dig in a little bit more to clause 17 and just ask the Minister to comment on some of the concerns raised by a number of commentators, including the New Zealand Council for Civil Liberties. So clause 17 in the bill enables the Government Statistician to delegate any of the Statistician’s functions or powers under this Act, with the exception of needing approval from either the Minister or the Public Service Commissioner. Those powers or functions may be sub-delegated to any public servant, including contractors, with prior written approval of the Government Statistician. Now, a former Government Statistician—Len Cook—pointed out that such a wide-ranging power of delegation is enormously risky and unheard of elsewhere, and the New Zealand Council for Civil Liberties has included his concerns at length, and I’ll just invite the Minister to respond to those.

💬 So: “The Minister of Statistics David Clark has managed to avoid the public scrutiny”, he says, “of the constitutional implications of the Data and Statistics Bill despite transparency being a proper expectation [of] such change by citizens in a democratic society. The bill presented to Parliament by the minister waters down the role of the government statistician through the simple means of enabling the role to be delegated to unspecified persons or organisations without any further legislative oversight or qualification. Nowhere else in the world have changes of this sort been made. … Regardless of the political predisposition of ministers of the day, we need trustworthy official statistics to have confidence in how we measure progress or lack of on economic, environmental and social concerns. It is the independence of the government statistician in the use of the confidential information provided to government only for statistical use that underpins trust in official statistics. No policy, service or compliance organisation that I am aware of has maintained without question a consistent reputation for being as responsible, scientific and transparent, for as long as the government statistician [of New Zealand] has. [This] bill makes the government statistician a close partner of the policy, enforcement, surveillance and operational agencies of government through overseeing data sharing on an unspecified scale. It reverses the long-standing constitutional checks that distance the government statistician from policy advocacy or justifying the operational delivery of policies. In providing such agencies with the powers of the government statistician, as statistical clones, concerns of the public legitimacy of statistical functions critical to trust in government may lead to a loss of the trust we need to have in [this] role.”

So I would invite the Minister to respond to those concerns.

Thank you, Mr Chair. I think—and this is an important debate to have; I’ll put that in front of my comments—that some of those claims from the Council for Civil Liberties are a bit of an overreach; to say there’s been no public scrutiny of this. I have a great deal of faith in the members of the select committee that considered this, and the—

💬 David Seymour: Too much!

I think I hear members opposite arguing there’s been too much consideration or publicity. But, you know, the chair of this committee, wearing another hat, and the member the Hon Michael Woodhouse, I’m aware, and other members of this House on this side, were part of a committee that fairly thoroughly considered this, received submissions from the likes of the folks the member’s referencing, and reported this bill back with various amendments and protections to ensure that we can have confidence in the way any powers are exercised—or they allowed it to go through in the form that it was if they were confident.

Now, here we’ve got a whole set of expectations around any delegation. As I’ve said, in some ways it’s a mirroring of the Public Service Act, and, in fact, it explicitly labels that here in clause 17, but it’s also clear—and we’ve gone over the accountabilities thing a few times, and I’m happy to go over that again—and I think members have probably heard clearly the message that the Government Statistician is accountable for every decision that’s made, so there’s a clear sheet back to the Government Statistician, and that will mean that the Government Statistician will think very clearly and carefully, I would have thought, before delegating any powers. But then: “the delegation of functions or powers delegated to the Statistician by a Minister requires the prior written approval of that Minister”. So there’s a check there. And clause 17(1)(b) states, “the delegation of functions or powers delegated to the Statistician by the Public Service Commissioner requires the prior written approval of the Public Service Commissioner.”

So we’ve got those. We’ve also got the expectation canvassed previously, where powers and functions are delegated, that that is transparently communicated and recorded, and that is part of the request and the expectation of the Privacy Commissioner. We have amended the bill to take account of that requirement, to make sure that we are providing transparency around these matters, and I think all of this is entirely appropriate. And it is the right debate to be having: have we got the balance right here? I think, you know, the official statistics that are produced are incredibly valuable for decision making and incredibly valuable for holding decision makers to account, and we need to have a robust ethical framework that surrounds it.

Thank you, Mr Chair. Look, I just comment briefly, the excellently chaired Governance and Administration Committee was the committee that examined the bill, and the Minister says that he’s got great confidence in the scrutiny by the committee. But what people watching at home may not know, and what he forgot to say, is that three out of the five members—i.e., a majority of the committee—are Labour members. And that’s the problem with select committees, particularly in the current Parliament. When the majority of members are from the same party as the Government, who’s putting forwards the legislation that the committee’s supposed to be scrutinising, you’ve got a problem—even with an excellent chair, even with the best chair, you’ve got a problem with that majority. The people at home may not realise the gentleman Ian McKelvie sitting in the Chair also chairs that committee, but he’s a hostage to several Labour members—now he wants to talk about the bill.

But I just go back—Mr Chair, I hope you’ll keep this debate going until the Minister answers certain questions—I asked him, “Has he had any advice about what sort of delegations might occur?” And I said, “Why don’t you tell the Parliament?”, did he have advice about how section 17 might be used, to whom the Statistician’s power might they be delegated to? They’re pretty significant powers. If you were a Minister designing legislation to bring it to Parliament, wouldn’t you want to know? So has he had any advice about that, and, if he has had advice about what some examples of delegations might be, then can he tell the committee what those are?

Now, if he hasn’t had the advice and he can’t tell us, why doesn’t he just take section 17 out and not have the delegation, or, better still, prohibit the delegation under the Public Service Act that all chief executives can make. What he’s tried to tell us is “No, no, no, you’ve got it wrong, section 17 is a safeguard against delegation, this will be safer than other delegations under the Public Service Act.” Well, what he could do is simply say the powers of the Chief Statistician will not be delegated. That would be a sensible change. If he was to do that, we’d avoid any loss of responsibility. The Minister has said multiple times, “Oh, no, no, it’s watertight; there’s criminal charges, you’ve got all the responsibilities of the Chief Statistician if you’re delegated the Chief Statistician’s powers.” But the problem is, you only need criminal charges after there’s been a failing.

Actually, what we’re interested in is getting the right result the first time. So if there’s no reason to take the risk, if someone’s going to have to be criminally charged for abusing delegated powers, then let’s not take the risk. Let’s outlaw delegation of the Chief Statistician’s powers unless the Minister can stand up now and say, “I’ve had some advice and here’s some good examples why it might be useful to delegate.” So far, all he’s told us is that he wants the Chief Statistician to be able to delegate some of the strongest powers in Government because he’s interested in the “theoretical possibilities”—I mean this is Mickey Mouse lawmaking. So either we rule out delegating, or give some examples why it’s useful. And it won’t wash to say, “I’ve already said four times that there won’t be any loss of responsibility”, the fact he needs criminal charges in case something goes wrong shows there could be a loss of accountability. Thank you, Mr Chair.

I think it would be helpful to give the member an example because—I mean, I do think it’s a good question. As I’ve said, it’s a power that’s unlikely to be used often—I have been clear on that. Now, here’s a theoretical example: another agency may be better placed to develop standards on particular issues using powers under the Act. And a good example might be standards relating to the collection of environmental, another department might be best placed to do that. Now, again, I don’t think the member, with his highfalutin rhetoric—it’s not enough for the member to say that there’s clear lines of accountability and consequences; it’s an unusual thing, perhaps, for a party that hits the table on law and order to say. But I don’t buy into that rhetoric, I do think it’s important to have clear accountability, and I do think it’s important to have consequences if it’s ever misused or abused. I think that should be laid out in the law, and I don’t dismiss it as lightly as the member does.

Thank you very much, Mr Chair. I couldn’t help but notice last night the Minister said how pleased he was to see you in the Chair—you were promptly replaced by a colleague and he hastily covered himself there, of course. And Mr Seymour has praised your role, albeit saying you only have, to a certain extent, as your chairmanship role with Governance and Admin. Flattery will get you everywhere, Mr Chair, so all I can say is you look particularly well today, sir. And thank you for the call, and thank you for any subsequent calls you may give me.

Just a brief point in my final contribution for this part, I’m just drilling down a little bit into that point, that very serious conversation, actually, that’s been had across the House regarding delegation, and more particularly clause 17(4), whereby the Statistician must publish information about the delegation that that person makes. Presumably, the point of that is to provide a level of justification for the delegation, but it seems to me strange that the publication of that information only needs to be made when the Statistician is making a delegation, other than to an employee of, or an individual working as, a contractor or a secondi from elsewhere in the State services of Stats New Zealand. So, within Stats New Zealand, to be able to make a delegation that doesn’t actually require any justification in terms of published information about that seems to me actually quite amiss. Now, I do accept that this was a point made by the select committee, so the Minister, to that extent, wasn’t responsible for its drafting. Others have commented on whether the Minister has placed perhaps too much faith in the majority Government - controlled select committee, but I’ll leave that for others. Suffice to say, though, it is important because this is in the Minister’s name, ultimately, this legislation. I do want to hear why we shouldn’t have a written justification available to all in the name of accountability where a delegation happens within Stats New Zealand.

I think, just to put it on record, it’s very normal for accountability within a department to rest very clearly with the chief executive for all decisions and work done within that department. Having said that, I also want to place on record my observation that the chair of the Governance and Administration Committee is hostage to no one—having appeared in front of that committee. But I also wish to place on record, because since that process question has been raised, the member David Seymour challenged that the chair of that committee with the particular membership was somehow held hostage; I just don’t buy that. There is an opportunity for minority views if members strongly disagree. There’s all kinds of mechanisms in our democracy for making sure those voices are aired and heard. I think the committee did a really robust and solid job, worked through it, reached agreement about what the best way forward was. It doesn’t mean we shouldn’t have the debate now—doesn’t mean we shouldn’t have the debate now. But I express stronger faith in the members on that committee than perhaps the member does, and I do think it’s worth putting on record.

The question is that Debbie Ngarewa-Packer’s tabled amendments to Part 2 be agreed to.

Point of order, Mr Chairperson. I may be a bit new to this, relative to you, but don’t we have to have a motion that the question be put?

No, we don’t.

Mr Chair, you’re absolutely right. However, I would also add that a motion on the part is usually put without a closure motion when there are no competing bids for the call—and there were at least four people on their feet seeking to continue to discuss Part 2. Therefore, a closure motion would have been appropriate.

So my ruling was simply based on the fact that the last three speakers spent more time talking about the speaker than they had about the motion.

The question is that Part 2 stand part.

Part 2 agreed to.

Part 3 Collection of data and statistical confidentiality