The battle over the census is likely to continue well beyond census night

Nick Xenophon is a populist politician with a knack of identifying issues likely to trouble people. When he said this week he wouldn’t put his name on his form, he immediately elevated the debate around the privacy of the census.

He’s also presented a challenge for the embattled Australian Bureau of Statistics (ABS): should it pursue him legally over his defiant non-compliance, making his stand a test case as he wishes?

Xenophon has now been joined by several Greens senators, so if the ABS chooses to press the matter it will presumably have to go after all of them. It’s not a stoush it would relish. Australian Statistician David Kalisch was non-committal on Tuesday when asked what the ABS would do, although he was obviously irritated about the bolshie stand by “public figures”.

It could be a tricky decision, and not just for political reasons. The ABS says providing one’s name and address has always been compulsory. But Bill McLennan, who was statistician from 1995 to 2000, strongly disputes this, and asserts that the ABS does not have the legal authority to collect names on a compulsory basis.

If the McLennan view was validated in a test case it would not only be embarrassing for the ABS, but it could undermine people’s inclination to give names voluntarily.

For the moment, however, the ABS will be more concerned about whether Xenophon’s action is influencing any significant number of people to follow his lead, either by leaving off their names and addresses or going further and declining to fill in the form at all (which he is not advocating). Laggards still have several weeks to complete the census and doubters are likely to be in the slow lane.

The big changes in this census from the last one are that names and addresses will be kept for four years rather than 18 months, and there will be “statistical linkage keys” (SLKs) given to individuals that will be used to bring together sets of data. According to the ABS this is an “anonymous key” that “cannot be reversed back to a name”; the safeguards include that it “never leaves the ABS environment and is not available internally to staff with access to the census data set”.

The ABS says “using linkage keys rather than names provides the opportunity to deliver valuable statistical information to inform health, education and economic decisions whilst ensuring the preservation of confidentially and privacy”.

“There is a great public expectation that governments and government departments make evidence-based decisions” and this means the ABS is expected to provide statistics for this purpose, it says. The ABS “will bring together data sets that are anonymous, to create new anonymous data sets, to meet these statistical needs”.

But Anna Johnston, a former NSW deputy privacy commissioner, argues SLKs “don’t offer privacy because their whole objective is to link data”.

Notably, Labor has not prosecuted the privacy argument. Bill Shorten said he would give his name and address. Labor has confined its attack to the government’s poor job in explaining and defending the census changes.

In evaluating the ABS action and the adverse reaction from critics, it is important to note that the ABS has a good record of keeping census data secure and that the aim of the changes is to produce improved information for policymaking.

The strong reaction is part of a backlash against what’s seen generally as increasing intrusion into people’s privacy, from both government and the commercial sector.

When government is involved people are particularly inclined to be aggro – because they are aggro about government itself.

The notable decline in the public’s trust in government over recent decades fuels doubts. Those feeling alienated from government will be more likely to be suspicious about what information collected might be used for, and less receptive to the argument that better data should make for better policy.

Small Business Minister Michael McCormack, with responsibility for the census, this week portrayed the row as “much ado about nothing”. On one level that is right. But if the controversy undermined confidence in the ABS and the census that would be very unfortunate.

Both the ABS and the government have contributed to the “much ado”.

The ABS has not resourced the effort well enough. With the population now divided between using online and paper to fill in forms, people have experienced long delays with help lines to get information or a paper version. On Tuesday night, the due and peak time for submitting forms, the website spectacularly crashed.

The government didn’t anticipate and address the questioning of the changes early enough.

It is always easier to get out a negative line than it is to promote a positive one, and once Xenophon got into the play, reassuring people would inevitably become more difficult. What fallout there will be from his stand we’ll only know down the track.