Labor’s law to make ASIO’s compulsory questioning powers permanent is now before the Senate, after passing the House of Representatives in mid-February.
Introduced on 23 July last year, the Australian Security Intelligence Organisation Amendment Bill (No. 2) aims to give the spy agency the right to question non-suspects for up to 24 hours.
It seeks to make permanent a set of laws, enacted in 2003, that were considered so controversial they were subject to a sunset clause, meaning they had to be debated and renewed every three to five years.
Home Affairs minister Tony Burke has further extended the ASIO questioning regime’s life to March 7, 2027, with a separate bill.
ASIO’s interrogation ability is one of the most controversial laws ever passed; it was subject to 15 months of debate. After further amendments, the law today permits the ASIO Director General to obtain a warrant to haul in non-suspects as young as 14, for questioning for up to a cumulative 24 hours in relation to espionage, politically motivated violence and foreign interference.
These laws are part of the more than 100 pieces of national security and counterterrorism legislation that successive Australian governments have passed, with bipartisan support, since the 9/11 New York terror attacks. A September 2001 UN Security Council resolution called for such laws.
These laws erode the rights of all in this country, regardless of whether individuals have a desire to commit an act of terrorism.
Labor initially resisted these laws for 15 months back in 2003 because spy agencies have invasive powers to gather intelligence, which are not supposed to be used for policing. Labor is now attempting to turn measures it had once described as “police state” powers into a permanent law.
Expanding a draconian regime
Burke said the framework has undergone five parliamentary reviews and two independent reviews “causing the parliament to extend the sunset date five times”. He said removing the sunset provision “reflects the government’s view that these powers now form an essential part of ASIO’s collection powers, particularly in light of the threat environment”.
He said he is seeking to expand the regime, which sits under part 3 division 3 of the Australian Security Intelligence Agency Act 1979 (the ASIO Act) in a number of ways, as well as to make it permanent.
The initial regime, in 2003, permitted people as young as 16, to be brought in for questioning on matters related to terrorism offences. In 2020, then Coalition Home Affairs minister Peter Dutton dropped the age to 14 years of age; minors can only be questioned in relation to politically-motivated violence, which includes terrorism, to this day.
Dutton’s 2020 overhaul also led to the 2003 ASIO detention regime being dropped, but he expanded the questioning regime for adults to include politically-motivated violence, along with espionage and acts of foreign interference.
Under the current law, both minors and adults can be questioned for up to a cumulative 24 hours, although adults can be questioned for up to eight hours at a time before a break is required, whereas for minors, it can only be for 2 hours.
Burke is seeking to extend the scope of matters that can compulsory questioning can cover. He wants the regime extended to include sabotage, promotion of communal violence and attacks on Australia’s defence system, as well as a further category relating to “the protection of Australia’s territorial and border integrity from serious threats”.
The minister made it clear that the new measures have been predicated on the 2025 Annual Threat Assessment, delivered by ASIO Director General Mike Burgess, which anticipated that threats against the country will likely intensify over the next five years, as the nation’s security environment becomes “more dynamic, more diverse and more degraded”.
Threat of prison
The controversial compulsory questioning regime permits the ASIO boss to request an adult questioning warrant or a minor questioning warrant from the Attorney General for a person, as young as 14, who may not be suspected of any crime.
Australian federal police officers are able to apprehend such people, who are then compelled to answer questions put to them.
Subsection 34GD(3) of the ASIO Act makes it an offence for the subject of a questioning warrant to refuse to “give any information” or “produce a record or a thing”. It carries up to five year’s jail.
The same section applies the same penalty to other offences — failing to appear in relation to a warrant or providing false statements during questioning, as well as for providing illegible records.
People hauled in for extended questioning on national security matters by ASIO also face five year’s jail if they do not surrender all travel documents if requested or leave the country without permission.
The 2020 explanatory memorandum relating to Dutton’s amendments to the regime said the law would be further “strengthening the right to legal representation during questioning while retaining the ability to prevent contact with specific lawyers due to security concerns, and to remove a lawyer who is unduly disruptive during questioning”.
This resulted in section 34F of the ASIO Act, which provides that an adult’s lawyer may be contacted at any time during the process.
A minor must have a representative present during questioning, which can be a lawyer, a parent or a guardian. But if an adult questioning warrant includes an immediate appearance requirement, then a Home Affairs appointed lawyer will be appointed.
ASIO can also deny the person their chosen lawyer if it deems that they could be a threat to national security and a lawyer can be removed during the questioning process, if they’re considered to be disruptive.
When ASIO’s compulsory questions law was tabled in 2003, then Labor MP Anthony Albanese told parliament: “This latest assault provides ASIO with the power to arrest, detain and use coercion against people … without legal representation and without access or information provided to family members”.
He described it as a “draconian measure” because it “even applies to those not even suspected of any offence. In other words, a person may be detained and questioned by ASIO simply because of the activities of a family friend or a university group of which they were once a member.”
Back then, Albanese warned that the laws brought in by the Howard government could be used to mistreat minorities, silence dissent and allow for the detainment of innocent people. He said that while combating terrorism is a priority, it could not be done by riding roughshod over civil liberties.
Over the last two decades, just 20 compulsory questioning warrants have been issued and ASIO’s accompanying detention regime has never been used.
Indeed, ASIO informed the government in May 2024 that it no longer needed to require 14- to 17-year-olds to undergo compulsory questioning.
However, nothing was done.
Last year, Burke said his bill “acknowledges that ASIO’s compulsory questioning powers remain a valuable intelligence collection tool” and that amendments were needed “to ensure that ASIO has the powers it needs to operate effectively in an increasingly complex and challenging security environment”.
[Paul Gregoire writes for Sydney Criminal Lawyers where this was first published.]