Zali Steggall (Warringah, Independent) Share this | Hansard source

I move the amendment circulated in my name:

(1) Schedule 1, page 9 (after line 2), at the end of the Schedule, add:

Part 7 — Minor questioning warrants

Australian Security Intelligence Organisation Act 1979

12 After section 34JE

Insert:

34JEA Minor questioning warrants

(1) The Attorney-General must not issue a minor questioning warrant after 6 March 2027.

(2) Before 7 March 2027, despite any other provision of this Division:

(a) a minor's representative must be present at all times during the questioning of a minor; and

(b) questioning of a minor must not take longer than 8 hours.

Following the division we've just had on the member for Curtin's amendments, this amendment seeks to raise a further concern—and I should say, for the record, I strongly support the sunsetting clause remaining in this legislation. These are very significant, extraordinary powers, and oversight in this place is essential to ensure the proper operation of those laws, to make sure that they continue to be applied properly but also that they are required and necessary.

I note the minister's comment earlier that, unfortunately, these powers are still needed. I don't dispute that; we are not here saying that these powers are not from time to time needed in a period where geopolitical tensions, terrorism, threats and harm are there and prevalent. But, from our community's perspective, we've also seen in recent times protests in Sydney, and many are concerned about overreach by law enforcement and the importance of having good accountability when extraordinary powers are granted to agencies, especially when they then override human rights.

The amendment I have proposed is very simple. Top of my overall concerns with these wide-ranging powers is how they apply to children, to minors. The amendment I propose demands extra safeguards in relation to children, where these powers involve children. These powers include the right for compulsory questioning. Compulsory questioning of someone under 18 can involve apprehension, and they are significant constraints on liberty and movement. Even the bill's own human rights analysis recognises these rights are engaged.

The amendment that I have proposed applies additional safeguards for minors. A minor's representative must always be present during questioning and is a person who can act in the best interests of that child, and the duration of questions should not exceed eight hours. The amendment also sunsets the powers in relation to the compulsory questioning of minors so that it can come back before this House for review if it is considered to continue to be necessary.

To put this in context, I accept that we have also received information and briefings around the concerns of greater radicalisation of young people and that these are sometimes minors, so these powers may well be needed. I note, though, that ASIO has not, to date, needed to utilise these powers. That does beg the question: why are we putting a 'set and forget' on these very broad and, I would say, extraordinary powers? These were introduced following the 9/11 terror attacks and were considered extraordinary at the time. The permanence of these powers has been controversial for years, because these powers were originally sold as a last resort and have been repeatedly renewed in terms of the sunsets.

The human rights statement for the bill states that the Attorney-General must treat a child's best interests as a primary consideration when issuing a warrant for a 14- to 17-year-old. I'll just pause here and note we don't even consider children up to the age of 16 as being mature enough to cope with accessing social media, but we are saying ASIO can compulsorily question a 14- to 17-year-old. There is so much inconsistency in what we consider are the protections we should provide children and where we strip away their rights. My amendment supports that duty by ensuring that a child is never left alone in questioning and is not exposed to prolonged interrogation. I find it quite extraordinary that this is not an amendment supported by the government, I've got to say.

The bill relies heavily on the idea that these powers are used proportionately and as a last resort, with oversight and guidelines emphasising proportionality. Time limits and continuous support for minors are exactly the kind of least-rights-restrictive design that explicitly builds proportionality in the legislation. The hard stop in relation to the legislation for minors requires ASIO and the government of the day to rejustify the need for those powers. I think that is important oversight in this day and age. This is supported by the Law Council of Australia. They have emphasised that ongoing independent review ensures the overall bill remains necessary and proportionate. The Australian Human Rights Commission recommends allowing the questioning powers for adults and children to sunset.

I would argue this is an important amendment to ensure proportionality and that the rights of children are respected in these very dramatic and drastic rights. This is not to say we are not wanting absolutely to keep Australians safe, but we have to make sure proportionality applies.

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