Census and Statistics Regulation 2016

The regulation introduces and relies on several key concepts that structure the collection of statistical information. ‘Census night’ is defined as the night of the Census day for a Census, anchoring all Census information to a fixed temporal point. ‘Private dwelling’ is defined by exclusion: it means a dwelling other than a hotel, motel, hostel, boarding house, a dwelling used principally as shared sleeping accommodation with common amenities, a religious institution, a residential institution (including hospitals, nursing homes, schools, prisons), or a vessel (other than a houseboat) used in navigation. This definition is critical because different statistical information is prescribed for private dwellings (section 11) and for dwellings other than private dwellings (section 12), and because households accommodated in private dwellings on Census night are the subject of additional household-level information (section 10). ‘Prescribed premises’ means premises in a class prescribed by section 14. Those classes include the public areas of hotels and motels, boarding houses, hostels, common areas in flat or home unit buildings, caravan parks, camping grounds, construction and mining camps, agricultural premises, business premises, common areas in housing developments, and the surrounding land of those premises (provided it is not separately occupied or used for residence or sleeping). Critically, the note to section 14 emphasises that the prescribed premises do not include a dwelling-house (including a flat or home unit) or any part of other premises that is separately occupied or used for residence or sleeping accommodation. This exclusion respects the residential privacy protections in subsection 18(2) of the Act. The regulation also adopts the Act’s definitions of ‘authorised officer’, ‘Bureau’, ‘Census day’ and ‘Statistician’. The 24 items of personal Census information range from name and sex through to sexual orientation and gender for persons aged 16 years or over. Household information includes address, details of absent household members, tenure, rent or loan repayments, number of bedrooms, and number of registered motor vehicles. Dwelling information includes structure, location and status of a person in the dwelling. The 52 publication topics under section 13 are broad categories such as ‘Population and the social, economic and demographic characteristics of the population’ and ‘Health, health services and quarantine’. The fidelity and secrecy form is prescribed in Schedule 1. The engagement of persons under section 7 includes members of the Bureau staff and others, and those engaged must carry out duties that the Statistician considers will assist in the Statistician’s functions.

The regulation affects a wide range of persons and entities. Every individual present in Australia on Census night is required to provide the prescribed statistical information about themselves (section 9). This includes name, sex, date of birth, marital status, address of usual residence, citizenship, Aboriginal or Torres Strait Islander origin, ancestry, languages spoken, education, employment details, health conditions, and for those aged 16 and over, sexual orientation and gender. The regulation also affects households accommodated in private dwellings (section 10): the person completing the Census form for the household must provide information about absent household members, tenure, rent or loan repayments, number of bedrooms, and number of motor vehicles. Owners and occupiers of private dwellings are required to provide information about the dwelling’s structure and location (section 11). For dwellings that are not private dwellings (such as hotels, hostels, residential institutions, prisons, and vessels), the person in charge must provide information about the dwelling’s classification, purpose, address, name and number of residents (section 12). Persons who are in charge of premises in a prescribed class, who control access to such premises, or who are residents of those premises are directly affected by the entry provisions of section 15. This includes hotel and motel managers, boarding house operators, hostel wardens, managers of caravan parks, camping grounds, construction and mining camps, farmers on agricultural premises, business owners, and body corporate managers of flat or home unit buildings. They must comply with notices from the Statistician or an authorised officer to allow entry for supplying or collecting forms or making inquiries. The Statistician and authorised officers are affected as they exercise powers under the regulation. Persons engaged by the Statistician under section 7 are bound to carry out assigned duties. The regulation extends the Act to external Territories, so residents of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands are also subject to its provisions. Finally, any person who may be prosecuted for an offence under the Act may be affected by evidentiary certificates issued under section 16, which constitute prima facie evidence of the facts stated.

The regulation imposes distinct duties and confers certain rights. The central duty is on every person and household to provide the prescribed statistical information. Under the Act, the Statistician may direct a person to fill up and supply a form (subsection 10(4)) or to answer questions (subsection 11(2)); the regulation specifies the matters about which information can be required, so a direction will be lawful only if it falls within the prescribed matters. For persons in charge of prescribed premises (or those responsible for controlling access, or residents), there is a duty to make arrangements to allow an authorised officer to enter the premises after reasonable notice specifying a reasonable time or period (section 15(2)). If an authorised officer identifies themselves and asks for entry for a permitted purpose, the person must allow that entry (section 15(3)). Failure to do either constitutes an offence. These duties are linked to the rights of authorised officers. The Statistician and authorised officers have the right to enter prescribed premises (as defined in section 14) after giving reasonable notice, provided the entry is for the purpose of supplying forms, collecting forms, or making inquiries for the Act. However, that right does not extend to dwelling-houses or parts of premises used for residence or sleeping accommodation (subsection 18(2) of the Act, as noted in section 14). The Statistician has the right to engage persons to assist in carrying out the Statistician’s functions (section 7). The regulation also confers a right on the Statistician to give evidentiary certificates under section 16. A certificate may attest that a document is a true copy of a notice directing a person to fill up and supply a form or answer questions, or that a document is a true copy of an undertaking of fidelity and secrecy. Such certificates are admissible in proceedings as prima facie evidence of the facts stated, shifting the evidentiary burden to the person challenging them. Persons who are directed to provide information have no explicit right to refuse under the regulation, but the regulation itself limits the scope of what can be demanded by specifying the prescribed matters. The transitional provisions in section 17 ensure that rights and duties arising under the former Statistics Regulations 1983 continue seamlessly.

The regulation creates two specific criminal offences, both set out in section 15. The first offence is a failure to arrange for entry. It applies where the Statistician or an authorised officer has given a person reasonable notice that an authorised officer will attempt to enter prescribed premises at a reasonable time (or during a reasonable period) for the purpose of supplying forms, collecting forms, or making inquiries for the Act, and the person does not make arrangements that would allow entry at that time or during that period. The second offence is a refusal of entry after a request. It applies where the same notice has been given, an authorised officer identifies themselves at the specified time or period and asks the person to allow entry for one of the permitted purposes, and the person does not allow entry. Both offences carry a maximum penalty of 5 penalty units. As at the time of the regulation, a penalty unit is defined by the Crimes Act 1914 (Cth) (currently $313 for offences committed after 1 July 2023), so the maximum fine for each offence is $1,565. The offences are strict liability? The regulation does not explicitly state strict liability, but the language of the provision suggests no mental element is required beyond the physical acts and knowledge of the notice. Enforcement is through prosecution in a court of summary jurisdiction. The Act would also contain its own offence provisions, but the regulation adds these specific entry-related offences. Section 16 provides an evidentiary tool for enforcement: the Statistician may give a certificate that a document attached is a true copy of a notice directing a person to fill up a form or answer questions, or that a document is a true copy of an undertaking of secrecy. In proceedings for an offence against the Act, such a certificate is prima facie evidence of the facts specified. Subsection 16(4) provides that a document purporting to be such a certificate is taken to be one unless the contrary is proved, effectively creating a rebuttable presumption. This lowers the evidentiary burden on the prosecution by allowing documentary proof without calling the original signatory. The regulation does not itself create penalties for failing to provide Census information (those are in the Act), but by specifying the matters that may be collected, it defines the lawful scope of the Act’s penalty provisions.

The regulation is made under the Census and Statistics Act 1905 (Cth) and must be read in conjunction with that Act. It is an instrument of delegated legislation, and the provisions of the Act govern its operation, including the powers of the Statistician, the offence provisions for refusing to answer questions or supplying false information, and the secrecy obligations on officers. The regulation expressly references the Australian Bureau of Statistics Act 1975 in section 7, which allows the Statistician to engage members of the staff of the Bureau referred to in subsection 16(1) of that Act to assist in carrying out the Statistician’s functions. This creates a cross-appointment and work allocation mechanism between the two pieces of legislation. The regulation replaces the Statistics Regulations 1983, which were the earlier instrument governing the same subject matter. Section 17 provides transitional continuity: anything done under the old regulations that could be done under the new regulation continues to have effect as if done under the new regulation. This includes engagements, certificates, and other instruments. The regulation also interacts with the Crimes Act 1914 (Cth) because penalty units are defined in that Act, and the penalty for the offences in section 15 is expressed in penalty units, the value of which is set by the Crimes Act. The secrecy and fidelity undertaking prescribed by section 8 and Schedule 1 interacts with section 7 of the Act, which imposes secrecy obligations on officers. The undertaking formalises the obligations. The regulation’s definition of ‘private dwelling’ may interact with state and territory residential tenancy laws, but that is indirect. The powers of entry under Part 4 interact with common law and possibly state criminal laws regarding trespass, but the regulation creates a statutory authorisation for entry to prescribed premises in compliance with notice requirements. The note in section 14 specifically references subsection 18(2) of the Act, which excludes dwelling-houses and residential parts from entry powers, thus protecting the privacy rights that exist under other laws. The evidentiary certificate regime (section 16) interacts with the Evidence Act 1995 (Cth) by providing a specific form of documentary evidence that is prima facie proof, overriding the general rules about hearsay or original documents. Finally, the regulation operates alongside any other Commonwealth laws that authorise the collection of information, but its scope is limited to statistical collections under the Census and Statistics Act.

The regulation as provided does not contain a formal amendment history section. It is titled the Census and Statistics Regulation 2016, indicating it was made in 2016. The transitional provisions in section 17 state that things done under the Statistics Regulations 1983 (the predecessor instrument) continue to have effect under the new regulation. This confirms that the 2016 regulation replaced the 1983 regulations. The text provided does not include any subsequent amending instruments or a list of amendments. In standard Commonwealth legislative drafting, amendment history is often recorded in endnotes or an explanatory statement, but those are not included in the source. Therefore, based solely on the source, the regulation has been in force since 2016 and no amendments are explicitly recorded in its body. It is possible that minor technical amendments have been made to the tables or definitions, but the reader cannot assume any such changes from the provided text. The regulation is a legislative instrument and may have been amended by later regulations or by Acts, but none are referenced. The presence of items 23 and 24 in the table in section 9 (health conditions and sexual orientation and gender) suggests that these were added at some point, but the regulation as drafted includes them; they are not marked as additions. Without a committal date or a list of amendments, the safest statement is that the regulation as reproduced reflects the version provided to the user, which is the current authorised version at the time of extraction. Practitioners should check the Federal Register of Legislation for any amending instruments.

The regulation itself does not record any litigation history. As a subordinate legislative instrument, it is not typically the subject of direct judicial consideration unless its validity is challenged in proceedings concerning the Act. The provided text contains no references to court cases, judgments, or legal interpretations. The regulation’s evidentiary certificate provisions (section 16) could be expected to have been tested in prosecutions for offences under the Act, but no such cases are mentioned. The definition of ‘private dwelling’ and the scope of ‘prescribed premises’ might have been litigated in the context of entry powers or the obligation to provide information, but again, the source is silent. The regulation is a relatively straightforward prescription of statistical matters and administrative procedures, so it is less likely to generate appellate litigation than the parent Act. Matters concerning the constitutional validity of the Census or the collection of particular information (such as the religious question) have been raised historically under the Act, but not under this specific regulation. Since the regulation came into force in 2016, there is no widely reported case that directly interprets its provisions. In the absence of source material, any statement about litigation would be speculative. Accordingly, the user should conduct their own legal research using case law databases to identify any decisions that mention the Census and Statistics Regulation 2016.

Several details in the regulation may catch practitioners or regulated persons off guard. First, the definition of ‘private dwelling’ is exhaustive by exclusion: it specifically excludes hotels, motels, hostels, boarding houses, religious institutions, residential institutions (including hospitals, prisons, schools), and vessels used in navigation. This means that people living in those excluded settings are not part of a ‘household’ for the purposes of section 10, and the dwelling information collected under section 11 (private dwelling) does not apply to them. Instead, they fall under section 12 (dwelling other than a private dwelling), which collects different information such as classification and number of residents. Second, the powers of entry to prescribed premises under section 15 are not powers to enter a dwelling-house or any part of other premises used for residence or sleeping accommodation, as emphasised in the note to section 14 (referencing subsection 18(2) of the Act). An authorised officer cannot, for example, enter a guest’s hotel room or a resident’s flat under these provisions. The entry is limited to common areas and areas generally open to the public or residents. Third, the offences in section 15 apply not only to the person ‘in charge’ of prescribed premises but also to a person ‘otherwise responsible for controlling the access of persons to prescribed premises’ and to ‘a resident’ of such premises. This potentially imposes obligations on receptionists, security guards, or even long-term residents of hostels, not just the manager. Fourth, the notice requirement is crucial: an offence only arises if the Statistician or authorised officer has given the person reasonable notice that an authorised officer will attempt to enter at a reasonable time or during a reasonable period. The person who receives such notice must make arrangements to allow entry at the specified time or period. If the notice is not given, or the time is not reasonable, no offence is committed. Fifth, the penalty of 5 penalty units is relatively low, but the cost of non-compliance can multiply if multiple notices are served. Sixth, the evidentiary certificate provisions are powerful: a certificate that a document is a true copy of a notice is prima facie evidence of that fact, and a document purporting to be such a certificate is taken to be one unless the contrary is proved. This shifts the burden to the defendant to disprove the authenticity of the notice. Seventh, the tables in sections 9 to 12 use unusual item numbering (e.g., items 21, 23, 24 in the person table, with item 22 missing). This is not explained but may be due to historical removal. Eighth, the information required includes sensitive categories such as religion, health conditions diagnosed by a doctor or nurse, and sexual orientation and gender (for persons aged 16 and over). These may engage privacy concerns, but the regulation authorises their collection. Finally, the transitional provisions in section 17 mean that forms, engagements, and certificates issued under the old 1983 regulations continue to be valid, so practitioners should not assume that pre-2016 documents are automatically invalid.

Compliance with the regulation depends on the role of the person or entity. For an individual, compliance is straightforward: upon receiving a Census form or a direction from the Statistician, the person must complete the form accurately and supply it within the required time. The regulation does not prescribe the form itself (Schedule 1 is only for the fidelity undertaking); the form will be issued under the Act. The person must answer all questions that relate to the prescribed matters in sections 9 (personal information), 10 (household information), and 11 or 12 (dwelling information) as applicable. Failure to do so may result in prosecution under the Act, although the regulation itself does not create that offence. For a person in charge of prescribed premises (e.g., a hotel manager, hostel operator, building manager), compliance involves cooperating with authorised officers. When the Statistician or an authorised officer gives reasonable notice of an intended entry at a reasonable time for the purpose of supplying forms, collecting forms, or making inquiries, the person must make arrangements to allow that entry. This may involve providing access to the foyer, reception area, corridors, or other common areas (as listed in section 14, item 1 for hotels and motels). If the person fails to make such arrangements, they commit an offence. Similarly, if an authorised officer identifies themselves at the specified time and asks to enter, the person must allow entry. Refusal is an offence. The person should keep a record of any notices received and confirm that the authorised officer provides proper identification. For a person responsible for controlling access (such as a security guard), the same obligations apply; they should be trained to recognise authorised officer credentials and to facilitate access. For a resident of prescribed premises (e.g., a hostel resident), the obligations also apply, though in practice the resident may not be the primary contact. The Statistician and authorised officers must ensure they give reasonable notice (which should be in writing, though the regulation does not prescribe the form) and that the time or period specified is reasonable. They should carry identification and present it when requested. They must only enter the parts of premises that are prescribed (common areas, etc.) and must not enter private dwelling-houses or separately occupied residential parts. They may use the evidentiary certificate provisions to simplify proof of notices. For anyone engaging in litigation concerning the regulation, the evidentiary certificate provisions under section 16 are key: a certificate from the Statistician that a document is a true copy of a notice or undertaking is prima facie evidence. To challenge it, one must prove the contrary. Practitioners should obtain copies of any such certificates early and consider issuing subpoenas for original documents if authenticity is in doubt.