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

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1 Section 34JF

Omit "2027", substitute "2030".

(2) Schedule 1, page 3 (before line 7), before item 2, insert:

1A Paragraph 29(1)(ce)

Omit "if the Committee resolves to do so—".

These amendments introduce important safeguards, and they do so in different ways by amending different parts of the bill. They could work together or separately to achieve the same policy objective, and, for the convenience of the House, I'll speak to both amendments together. The first amendment would retain the sunsetting clause of division 3 of part 3, the compulsory questioning powers, for an additional five years, until 7 March 2030. The second amendment provides for the mandatory review of these powers by the Parliamentary Joint Committee on Intelligence and Security.

This bill engages some of the most extraordinary powers in our law—compulsory questioning by ASIO. These powers are intrusive and profoundly interfere with multiple rights, including the right to silence, freedom of movement, access to legal representation and the privilege against self-incrimination. They must be paired with robust routine oversight. Since 2003, parliament has applied a sunset clause to ensure periodic rigorous review of these extraordinary powers. On six occasions, parliament has extended the sunset date, because successive parliaments have judged that renewal should be earned and not assumed. Removing this safeguard whilst simultaneously broadening the grounds on which an adult can be subject to compulsory questioning shifts the balance too far from accountability towards permanence.

We all accept that the security environment is challenging and that ASIO must have the effective tools it needs at its disposal, but the legitimacy of those tools depends on proportionality and transparency. The bill proposes to expand adult questioning matters to additional heads of security yet makes the questioning framework permanent by repealing the sunset clause. That combination warrants a more careful approach from us.

My amendments are straightforward—keep the sunset in place and/or mandate a periodic review. This is about maintaining trust in the way we exercise extraordinary powers, not about tying ASIO's hands. The first amendment would retain the sunset clause in section 34JF of the ASIO Act so compulsory questioning powers remain subject to regular renewal by parliament. This is the safeguard we've applied since these powers were first introduced, and it's functioned as intended, prompting scrutiny and public justification before each extension. The second amendment requires a mandatory statutory review of division 3 of part 3. At present, the PJCIS may choose to review these powers. My amendment would require it to do so, ensuring the parliament periodically tests whether the powers remain necessary and proportionate in light of contemporary risks and practice. This directly answers concerns that current safeguards are marginal, given the breadth of the regime and the proposed expansion.

These amendments do not alter warrant thresholds. They do not add operational friction to ASIO, and they no not dilute protections for investigations. They simply ensure that, as powers grow, oversight keeps pace. There's a clear signal from stakeholders that ongoing scrutiny strengthens rather than weakens our security framework. In a 2024 submission to the PJCIS, ASIO's preference was not to abolish sunsetting but to extend it by five years to 2030. While ASIO's 2025 submission favoured making the powers permanent, the organisation specifically recognised that for ASIO to fulfil its mission it must maintain the confidence and trust of the Australian people, parliament and government. Legal and civil society stakeholders, including the Law Council of Australia and state civil liberties councils, opposed making the powers permanent, especially alongside broader adult questioning matters. Their concerns focus on proportionality, human rights impact and the risk of normalising exceptional powers. Making the PJCIS review mandatory speaks directly to these concerns.

Parliamentary scrutiny committees have flagged issues that my amendments would help address. The Parliamentary Joint Committee on Human Rights also questioned, among a number of things, the necessity of repealing the sunset and the breadth of the expanded questioning matters, and suggested stronger safeguards, including clearer necessity and proportionality assessments. A regular mandated review is the practical way to ensure those questions are answered with evidence over time.

We want ASIO to succeed in keeping Australians safe. We also want Australians to have confidence that when parliament grants exceptional powers, we renew them deliberately, with eyes open, and only when they remain necessary and proportionate. These amendments would do that. I commend these amendments. (Time expired)

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

I thank the honourable member for putting the amendments to the House and for the arguments that have been put forward. The government won't be supporting the amendments. They would have the impact of doing two things: extending the existing sunset clause and forcing the PJCIS to conduct a review. In the government's view, the PJCIS is a powerful and deeply respected committee of this parliament. It already can inquire into the full range of national security legislation. Keeping discretion for the PJCIS in terms of where inquiries go is viewed by the government as being as being appropriate.

In terms of the sunset provision, the government is very deliberately removing the sunset. The sunset provision, when it was brought in, was brought in in the hope that these powers would be temporary. I wish the need for these powers were temporary, but history has shown us that it isn't. One of the key elements of the bill would in fact be undone by reintroducing and extending the existing sunset clause in the act. The sunset clause was put there not simply in the terms in which the member described, as being ongoing accountability; sunsets are put there in the hope that one day they won't be required. Since that time, the need for these powers has only become stronger. That's the reason why the government has decided to put to the parliament that the sunset be removed.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Zali Steggall (Warringah, Independent) Share this | Link to 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.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

In responding to the amendment, I thank the member for Warringah for both the content and the tone of the debate as well. I respect absolutely that everybody is coming to this place wanting to make sure that we get the right balance in terms of respecting everybody's rights and vulnerabilities while also making sure that we keep Australians safe. I don't for a minute think that that there's anything in this amendment where there is an intention to do otherwise than keep that balance. We just have different views on where that balance lies.

The government won't be supporting the amendment that's been moved by the member for Warringah. It's a deliberate decision of the government to remove the sunset provision. It's been reviewed multiple times. The member is right in saying that, when it was introduced, it was believed that it would be a last resort. It was not believed that we would be in the situation that we're in some 20 years later, where we are again in a situation of the threat-alert level being at probable and where we're in a situation where the pace of radicalisation can now happen online, can happen really fast and is increasingly targeting people who are young. The threat environment now is quite different. When you've gone through a situation of doing sunset after sunset, you do get to a point—which the government has arrived at—where there's a genuine belief that the need for this power is not about to go away.

There are multiple safeguards in both the act and the statement of procedures. Minors must only be questioned in the presence of a legal representative, and the minor does have the right to have their representative—a parent or guardian—present. ASIO does have to consider known vulnerabilities. It's highly unlikely that questioning would ever go beyond eight hours. But if there were a situation where that was realistically viewed as a matter of life and death for others, then the flexibility that is currently there should be there and needs to be there. The Attorney-General has to regard whether the warrant would be in the best interests of the minor as a primary consideration.

With respect to the issues of minors, can I give some context as to how the case load for counterterrorism has changed. On our National Support and Intervention Program, we have 230 participants. Half of them are under 24, and 31 per cent are under 18. Of those who were charged with related offences in 2025, 11 out of 19 were minors. Since 2020, operational activity against people under the age of 18—there have been 53 people who have been 17 or younger, with the youngest being 12. Obviously, 12- and 13-year-olds are not part of the powers of this act; it kicks in at 14. We are in a situation where the pace of radicalisation can now be really fast. Getting information as quickly as we can is absolutely essential. Sadly, that increasingly involves minors.

I wish these powers were not required. I wish what I believe the Howard government had genuinely thought 20 years ago—that this would be something required for a finite period of time—had turned out to be true. I wish the concept of having to compulsorily question minors never arose. The reality is that the arguments now for these powers are stronger than they have ever been, and I cannot pretend to the parliament that I think they're going to go away. Every indicator we have of the direction now is that these powers are more essential than they've ever been.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.