Kate Chaney (Curtin, Independent) Share this | Hansard source

The Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025 engages some of the most intrusive powers available to the Commonwealth, coercive questioning powers that allow ASIO to compel answers from individuals, including people who are not accused of any offence and minors over the age of 14. They engage multiple fundamental rights, including the right to silence, freedom of movement, access to legal representation and the privilege against self-incrimination. Powers like these demand a careful, evidence based approach and a legislative framework that's proportionate to the threat environment and our democratic values.

ASIO'S coercive questioning powers have always been considered extraordinary, even by the standards of national security legislation. That's not just my assessment; it's the consistent language of our human rights institutions and legal profession. Their concerns about proportionality, necessity and safeguards should inform this House in charting a sensible path forward.

This bill makes several significant changes to ASIO'S coercive questioning powers under division 3 of part III of the ASIO Act 1979. In short, it proposes to remove the longstanding sunset clause and, at the same time, expand the grounds for which an adult can be subject to compulsory questioning. The bill makes relatively minor adjustments to oversight and reporting in relation to the exercise of these powers.

The government argues that the security environment is degrading and that certainty is needed for ASIO'S collection powers. I accept this, but the challenge for us is to ensure that, in meeting today's risks, we do not erode the trust that underpins our democracy. Oversight mechanisms must match the gravity of the powers involved. Since 2003, parliament has attached a sunset clause to these questioning powers, extended on six occasions, precisely because they are exceptional and require regular justification. The bill would remove that safeguard entirely, even as it broadens the matters for which questioning can occur. That combination—more scope with less review and scrutiny—sharpens the need for parliament to consider proportionate amendments.

The additional safeguards proposed in the bill, while welcome, are marginal, especially given the extraordinary powers are now proposed to be expanded and made permanent. They are no substitute for the safeguard provided by periodic review and public scrutiny. We know the powers are rarely used but potentially far-reaching. Only a small number of questioning warrants have been issued since their introduction in the wake of September 11, two decades ago, as limited and temporary measures. Yet the powers remain coercive by design. They compel individuals to appear, produce items and answer questions, and noncompliance is a serious offence punishable by up to five years imprisonment. Rarity does not make these powers ordinary. It underscores why their continued necessity should be tested periodically and transparently.

The sunset clause has functioned as an accountability measure that prompts detailed review and parliamentary debate before continuation. Removing it would end that automatic cycle of scrutiny. The Parliamentary Joint Committee on Intelligence and Security is currently empowered to review these extraordinary powers, but only at the committee's discretion. That is, without the sunset clause, there's no automatic cycle of periodic review and public scrutiny. I note that, in a 2024 submission to the PJCIS, ASIO's preference was to not abolish sunsetting but extend it by five years, to 2030. Even though ASIO's position had changed in its 2025 submission to favour making the powers permanent, the organisation specifically recognised that, to fulfil its mission, ASIO must maintain the confidence and trust of the Australian people, parliament and government.

The Law Council has consistently characterised these as extraordinary coercive powers and opposed making them permanent without stronger justification and safeguards, calling for measures such as judicial ratification and enhanced lawyer access. Their central argument is that if scope is broadened then oversight must be strengthened, not relaxed. Across multiple reports in 2025, the Parliamentary Joint Committee on Human Rights questioned the necessity of repealing the sunset clause, warning that remaining safeguards may be insufficient given the extent of rights interference.

The common theme is consistency. Powerful tools should be balanced by predictable, structured scrutiny. That's not anti-security; it's the formula for durable legitimacy, which in turn strengthens compliance, cooperation and public trust. The test we should apply is not whether ASIO needs tools to protect Australians. I agree that it does. Rather, the test should be whether the combination of permanently entrenching coercive questioning powers and expanding their scope is necessary and proportionate and whether the oversight architecture is strong enough to command enduring public confidence.

Compulsory questioning affects the rights of people who may never be charged with an offence. It intrudes on the right of silence and can limit access to counsel in ways that are unusual in our system. These features explain why, for 20-plus years, parliament has insisted on sunsetting to force a recalibration if the security context or operational experience changes. Removing that discipline risks normalising exceptionality.

I will be introducing two amendments which would ensure that the bill functions effectively and responsibly. They reflect alternative routes to improving oversight and accountability. Firstly, I will propose that the sunset clause is retained, extended to March 2030, in order to preserve the discipline of periodic parliamentary review. This approach gives immediate operational certainty to ASIO while reaffirming that extraordinary powers must be regularly justified. As a second safeguard, which could operate with or without my first amendment, I'll introduce an amendment to ensure the mandatory statutory review of these powers by the PJCIS. Currently that review is discretionary, even though the PJCIS itself said in its inquiry report tabled last week:

With the entrenchment of the compulsory questioning powers, regular review, including parliamentary oversight by the committee is more important than ever.

I want to address some possible objections to these amendments. Some will ask, 'Won't stronger oversight slow ASIO down?' Well, my proposed amendments to retain the sunset clause and mandate the committee's periodic review of the powers will not burden ASIO's daily operations. They provide legitimate legislative oversight without impeding ASIO's ability to seek or execute questioning warrants.

Another objection could be, 'If the powers are rarely used, why do we need strong safeguards?' We need these safeguards because they are coercive and exceptional powers. Severe but rarely used powers require predictable, independent scrutiny to ensure that they remain necessary and proportionate and are not just permanent and beyond review.

Another objection could be, 'Isn't permanent standard for other ASIO powers?' It's true that many of ASIO's special powers, like those concerning surveillance devices and computer access, do not sunset. But compulsory questioning sits in a different category. It compels information from people who may not be suspects, limits rights normally seen as fundamental, and historically was justified as temporary and exceptional. Treating it differently is consistent with its exceptional character.

Trust grows when powers are used proportionately and overseen credibly. That's why this bill should balance operational need with visible accountability. We cannot afford a false choice between security and rights. Our task is to hold both in view, recognising that the legitimacy of our security laws is itself a national security asset, a measured framework which embeds periodic review and oversight, helps protect against overreach, and sustains the social licence that ASIO needs to do its job effectively. I think there is a credible, constructive middle course: retain the sunset clause consistent with two decades of practice and continue to ensure these powers remain proportionate and appropriate; and/or legislate mandatory periodic reviews by the PJCIS to ensure that parliament periodically tests whether the powers remain necessary and proportionate in light of contemporary risks and practice. Either path respects both the complexity of our security environment and the integrity of our democracy. Either path acknowledges that extraordinary powers deserve extraordinary oversight.

I urge the government to consider amending the legislation in this way—to choose measured safeguards today in order to preserve the legitimacy we will rely on tomorrow. This is how we keep Australians safe while strengthening the trust that keeps us together.

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