Helen Haines (Indi, Independent) Share this | Hansard source

I rise to speak on the Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025. This is the second and, I would say, more controversial of the two bills introduced to this parliament to update the powers of our national intelligence agency. The first extended the operation for compulsory questioning powers. This bill goes further by making those powers permanent. The bill proposes to remove longstanding sunset provisions, establish new grounds for compulsory questioning warrants, alter who may oversee that questioning, and change the circumstances in which warrants may be issued when a person has been charged or a charge is imminent.

Once again, I'm disappointed that debate on legislation of such gravity is being relegated to the Federation Chamber, rather than being debated in the full light of the House of Representatives. Measures that shape the reach of our intelligence agencies deserve the highest level of scrutiny, not a narrow window for debate. It's a troubling pattern. Laws with profound consequence for civil liberties and the rule of law must never be met with constrained debate, limited scrutiny and the erosion of any safeguards.

ASIO plays a critical role in maintaining our national security and responding to serious threats through the collection of intelligence information. I don't underestimate the complexity of these threats, nor the responsibility of government to equip our agencies with powers that are effective and proportionate to the threat environment—powers that protect our citizens and contribute to peace throughout the world—but effective powers must never become unfettered powers.

Compulsory questioning powers were introduced in 2003 as part of Australia's response to the increased international threat of terrorism, following the horrendous September 11 attacks on the United States. They were framed then as a measure of last resort, reserved for the most extreme of circumstances. In 2020 these powers were expanded to cover warrants in matters relating to espionage, politically motivated violence and acts of foreign interference. This bill now substitutes the definition of 'adult questioning matter' to include espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system, acts of foreign interference, and the protection of Australia's borders. During the lapsed statutory review—only in the last parliament—both ASIO and the Department of Home Affairs recommended against including border security in this list of powers, yet they've changed their tune in recent times. We have little detail to properly consider the shift in this opinion, and detail is important.

Australia already has a very rigorous, multi-agency border protection framework. Evidence to the PJCIS inquiry into this bill did not suggest a historic peak in threats to border protection but instead noted global developments that can drive the displacement of people. We should remember that people seeking asylum are some of the most vulnerable people around the world; they are fleeing conflict and violence, not seeking to perpetrate it.

One justification advanced for these changes is the convenience of aligning ASIO's compulsory questioning with the rest of their warrant powers, including broadening additional heads of security through undefined or vaguely defined terms. Convenience, however, is not a sufficient test for necessity or proportionality when extraordinary powers are at stake. While this bill strengthens some eligibility and termination provisions for prescribed authorities, it gives the Attorney-General certain discretion over appointments and it does not fully resolve concerns about actual or perceived conflicts of interest. In my view, the ratification of warrants would be better safeguarded in a judicial setting, instead of by ministerial approval.

This bill also fails to strike an appropriate balance regarding access to legal advice for someone being questioned under these powers. The point has been well made that such legal representation is only meaningful if sufficient information is available about the basis and the scope of the warrant. There remain unresolved concerns about rule-of-law principles, including privilege against self-incrimination.

Less than two years ago, ASIO told the PJCIS that it no longer saw a strong case for retaining the power to question minors under warrant. This was because ASIO had at the time never used or requested a minor questioning warrant. ASIO has walked back this position and now argues it's proportionate to the potential threat to security. Again, it's difficult to understand the evidence base behind this when we know little about the threat.

Repeal of this power is not before the House, and I question why successive governments have retained these powers when they remain unused and unjustified. The prospect of extraordinary powers being held in reserve for hypothetical future use on a child does not give me assurance that any of these powers are indeed proportionate to the threat. It further concerns me that we're not seeking other alternatives within our judicial system for such circumstances.

It's so important in this House when we legislate laws of such consequence as these that we don't engage in groupthink, that we do put forward questions to really interrogate why we need these laws and the proportionality of them. A sunset clause was not part of the original bill but was negotiated in to secure its passage and provide a protective measure—in fact, by Labor in opposition. To my point, we must never groupthink. We must really interrogate these. The sunset clause has been renewed five times since 2003. That reflects the parliament's consistent recognition that these are extraordinary powers and that they should be monitored.

I acknowledge that ASIO has used these powers at a discretionary level over the past 20 years and that they have cited the complex, challenging and changing nature of the threat environment as a reason they continue. This bill, though, removes the sunset clause and replaces it with a statutory review in three years. I share the view expressed by the Law Council and others that the sunset clause signals the extraordinary nature of compulsory questioning powers. The very restraint in their use underscores the function of the sunset clause. And by requiring parliament to regularly revisit them, the sunset clause delivers the accountability and balance that were central to its original purpose. It ensures that extraordinary powers remain subject to deliberate democratic scrutiny by us—by the parliament—retaining the check and balance that was a condition of Labor's support back in 2003 and that has proven its value over decades.

It is a responsibility of us as legislators to interrogate laws of such great consequence to our citizens. Entrenching these extraordinary powers in our laws, even with the statutory review mechanism, risks normalising executive overreach. At a time when our nation is still living the shock and grief of terrorist atrocity committed against Jewish people at Bondi in December and another terrorist attempt against First Nations people on 26 January, our nation is desperate for effective responses to radicalisation and threats to public safety. Just last month this parliament strengthened laws addressing hate crimes and a longstanding need to improve information-sharing between agencies to better identify and respond to threats.

However, in pursuing security we must not lose sight of lessons from around the world of the tragic consequence of governments exercising extraordinary powers over its citizens. We see the consequence of the politicisation of state powers and its undermining of individual freedoms and the safety of citizens. We have fervently protected our democratic conventions, and we should avoid weakening the mechanisms of scrutiny that preserve the balance between executive and judicial powers. We cannot allow the creep of overreach to compromise that balance.

Of course we must be vigilant against external threats, but we must also be vigilant against the erosion of principles that define our democracy, because protecting those principles provides the ultimate safety for Australians, their rights and the rule of law.

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