David Pocock (ACT, Independent) Share this | Hansard source

I rise to talk to ASIO Amendment Bill (No. 2). I raise the concern that Australians listening to this debate would not be comfortable with the idea that a security agency can knock on your door, take you in and force you to answer their questions even if you've done nothing wrong.

ASIO's powers to question are extraordinary. Many in our communities would be shocked that staying silent under questioning from ASIO means a risk of being sent to prison for five years. Most concerning is the fact that this power applies to children—to any child in this country aged 14 and older. Children don't need to be suspected of any crime at all. To many, these powers sound like those available in an authoritarian state, but they exist in Australian law today. As currently drafted, the bill before the Senate would entrench them in our law forever and expand them further than the agency itself has asked for.

These powers were introduced in 2003, a couple of years after the shock and grief that followed the September 11 attacks. The parliament was told that they would be exceptional, temporary, a tool of last resort. A sunset clause was built into the law for that exact reason—so that parliament would have to come back, look the Australian people in the eye, look young Australians in the eye and keep justifying them. That sunset clause has been renewed five times in 22 years. Five times, this parliament has said, yes, these powers are still exceptional and, yes, the Australian people are owed the reassurance that comes with regular public scrutiny of the most coercive tools the state holds over them.

When this bill was first introduced, the Labor government wanted to do away with that safeguard altogether. It's hard to believe. That would have meant taking a power sold to the Australian people as temporary and making it permanent. But the government has circulated some very welcome amendments that will sunset the powers three years after the commencement of the bill. This is a very welcome change. It shows that, at least on the question of oversight, the government is still listening to experts, listening to advocates and listening to Australians who have called for proper scrutiny of the extraordinary powers vested in ASIO.

I want to acknowledge the outstanding work of the Law Council, the Australian Human Rights Commission and many others in calling out the need for scrutiny. I want to thank the government for accepting, albeit late in the process, that the sunset of these powers should remain. That is clearly the right outcome. But it's also a hard won outcome, and it did not happen because the government changed its mind on the merits; it happened because civil society stood up and refused to accept bad reform—reform that Labor had in fact argued against in the past.

The Law Council of Australia was emphatically against the removal of the sunset clause. Mr Lloyd Babb SC, Chair of the Law Council's National Security Law Working Group, put this to the Parliamentary Joint Committee on Intelligence and Security on 17 November last year:

The sunset clause is acknowledgement of the extraordinary status of the questioning warrant framework. It forces a public debate regarding intelligence-gathering powers that undermines the possibility of fair and adversarial criminal process for those questioned. Periodic and public scrutiny by this committee encourages the judicious use of questioning warrants.

The Law Council was not alone in calling for the sunset clause to be retained. The Australian Human Rights Commission, lawyers, academics, community organisations and members of the public refused to let these extraordinary powers remain permanent without a fight. That is what democratic scrutiny looks like. But, even with the sunset clause restored, the bill still asks Australians to accept things we should not have to accept.

In its current form, the bill retains ASIO's power to compulsorily question children as young as 14—children who have not been charged with an offence, children who may never be charged with any offence. The standard is not criminal suspicion; it is whether the Attorney-General believes intelligence gathering is warranted. Reassuringly, ASIO has never used this power, not once in 22 years. Two years ago, ASIO itself made a submission for the PJCIS review of division 3 of part III of the Australian Security Intelligence Organisation Act 1979. In it, they say:

… we no longer see a strong case to support the continuance of the power to question minors under warrant.

The Department of Home Affairs also made a submission to a similar effect. I'll read their submission to the 2024 review. It says:

The Department suggests it is also important that minor questioning warrants be considered in light of their proportionality and the need to protect the rights and interests of vulnerable people. As an intrusive and extraordinary power, the carrying out of a minor compulsory questioning warrant would be confronting and difficult for the minor involved, with potentially enduring ramifications. The powers were introduced at an exceptional moment in world and Australian affairs, and the Department suggests it is appropriate to reflect on whether it remains necessary to maintain such an extraordinary and intrusive power.

We've got ASIO and the Department of Home Affairs saying that it doesn't look like this power is actually necessary. ASIO says, 'You should probably drop it.' The Department of Home Affairs says we should consider it. But the government has now walked away from that advice with no real explanation, and it is asking the Senate to write it permanently into the statute book.

To paraphrase the Law Council, extraordinary powers affecting children should not sit on the statute book for a rainy day. That is not a good enough reason to hold a coercive power over Australian children. The bill asks Australians to accept that ASIO can compulsorily question them on grounds the agency itself said it did not want and did not need. Have a think about that. The Labor government wants ASIO to have powers to question minors, 14 to 18, that they don't even want and that they say they don't even need.

The bill adds border security to the list of matters on which a person can be forced to answer questions, despite ASIO telling the PJCIS in 2024 that this was not necessary or reasonable. The Department of Home Affairs said the same thing. Neither agency asked for this expansion. Again, the government has not explained why it is there, and yet here it sits in a bill about powers of the most serious kind we have in this country.

Why is the government doing this? Why does the Labor government add extraordinary powers that our intelligence agency says that they don't want and don't need. Home Affairs says, 'We don't need to be in there.' Why? You have to ask the question. You probably won't get an answer, because I don't think it can be explained. This is the executive just wanting more and more power. They are not actually putting Australians first but setting up a system where there is surveillance and the ability of ASIO and other agencies to take extraordinary action against Australian citizens.

Another really concerning element of the bill is that a person's access to legal representation can be restricted and the lawyer of their choosing can be removed and replaced. How on earth is this happening in Australian law? The Australian Human Rights Commission has been clear on this. These limits on legal representation are not justified and they breach rights Australia has signed up to under international law. There is no equivalent regime in any other country in the Five Eyes alliance—not the US, not the UK, not Canada, not New Zealand, only here. Let that sink in. Australia is doing things that not even the US will do to their citizens. I don't understand how senators can, hand on heart, vote for this sort of legislation. I'll move amendments that seek to make two changes to this bill. The first will remove the power to compulsorily question children. As we've heard, ASIO say this is unnecessary. Home Affairs don't be see the reason for it. It seems to be only the major parties that think we should be compulsorily questioning—