Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister for Women) Share this | Link to this | Hansard source

I rise to speak on the Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025. This bill deals with very important matters: the security of our nation, the powers available to our intelligence agencies and the safeguards that must accompany those powers. At the heart of this debate is the compulsory questioning warrant framework under the Australian Security Intelligence Organisation Act 1979. These are significant powers. They allow ASIO, with the approval of the Attorney-General and a prescribed authority, to compel a person to appear for questioning and provide information relevant to serious national and security threats. In practical terms, they allow ASIO to require a person to answer questions or produce documents where voluntary cooperation is insufficient. These powers are not ordinary. They are not routine and should never be treated as such. We are very mindful that there need to be very serious safeguards and checks around them.

We should also not pretend that the security environment facing Australia is ordinary or routine either. The world has changed dramatically even since these powers were first legislated in 2003 in the aftermath of the terrorist attacks of September 11, 2001. The purpose of the compulsory questioning framework was to address a specific operational gap: ASIO's inability to obtain critical intelligence from individuals who refuse to cooperate voluntarily. The gap mattered then and the gap still matters now. Australia continues to face a complex and volatile national security environment. The threats before us are not confined to terrorism alone. They include espionage, foreign interference, politically and religiously motivated violence, sabotage, attacks on our defence systems, threats to territorial and border integrity and the promotion of communal violence. These are not abstract risks. They are real challenges faced by our intelligence and security agencies every single day.

The bill before us was introduced in the House of Representatives on 23 July 2025. It follows the earlier Australian Security Intelligence Organisation Amendment (No. 1) Bill 2025, which temporarily extended the compulsory questioning warrant framework through to 7 March 2027. This second bill encompasses three broad sets of changes. Firstly, in its original form, it would make ASIO's compulsory questioning powers permanent. These powers have existed since 2003 but have been subject to ongoing extensions by parliament. Secondly, the bill would expand the scope of adult questioning warrants. At present, the definition of an adult questioning matter includes espionage, politically motivated violence and acts of foreign interference. This bill would add further heads of security, including sabotage, the promotion of communal violence, attacks on Australia's defence system and serious threats to Australia's territorial and border integrity.

Thirdly, the bill would strengthen a number of oversight, reporting and administrative safeguards. In particular, it would amend eligibility and termination provisions for prescribed authorities, who are responsible for conducting questioning, to ensure their independence and impartiality. It would also provide for additional reporting to the Attorney-General and require postcharge questioning to occur before a retired judge.

These are important matters, and the opposition has considered them carefully. In a general sense, the coalition recognises the ongoing importance of ASIO's compulsory questioning powers. They remain a core part of Australia's national security framework. In certain circumstances they may be essential to ensuring that ASIO can obtain information necessary to protect Australians. But our support for strong national security laws has always been accompanied by a commitment to strong oversight. That is particularly important where laws involve extraordinary powers.

That is why these issues were rightly examined through the Parliamentary Joint Committee on Intelligence and Security. During that inquiry, the committee heard evidence from a range of witnesses, including ASIO, and considered the concerns raised by individuals and organisations. Some argued that compulsory questioning powers are excessive powers for an intelligence agency to possess. Others argued that they should not be broadened. Some pointed to the fact that the powers had been used only infrequently over the past two decades and suggested that this demonstrates they are not necessary.

But there is another view, and it is one that the coalition considers to be persuasive. The fact that these powers have been used only around 20 times over 22 years does not in itself prove that they are unnecessary. In fact, it can point to the opposite conclusion. It suggests, including because of the existence of a sunsetting arrangement, that the powers have not been used recklessly. It suggests that they have been used sparingly, carefully and in a targeted way. That is exactly how powers of this kind should be used. They should be available, but only where they are genuinely necessary. They should serve as a last-resort capability, not as a routine investigative mechanism.

There are also important safeguards that remain in place. The Attorney-General must be satisfied that the issuing of a compulsory questioning warrant is necessary. The Office of the Inspector-General of Intelligence and Security retains a central oversight role. IGIS may be present at questioning sessions and provide real-time oversight. Prescribed authorities will continue to have an important independent function, and the bill proposes to strengthen arrangements governing their appointment and activities. It also remains the case that ASIO is an intelligence agency, not a law enforcement agency. ASIO cannot arrest, charge or prosecute. It also cannot gather evidence for the purpose of criminal persecution. Its operations remain subject to oversight by bodies, including IGIS, the Administrative Review Tribunal, the Parliamentary Joint Committee on Intelligence and Security and the Attorney-General.

These safeguards are very important, but they also require ongoing checks and scrutiny in our parliament. That is why the coalition's position on this bill is clear. We support the substance of it and accept that ASIO must be equipped to respond to the increasingly complex and dangerous threat environment facing Australia. We also accept that the expansion of questioning matters is, in principle, a reasonable response to the changing nature of national security threats.

The proposed amendments to oversight and administrative arrangements are also broadly sensible. However, we do not accept that these powers should operate indefinitely without further parliamentary review. The coalition's position is that a sunset clause must remain in the bill. We therefore call for the amendment to retain a sunset clause for three years, and we are thankful the government has agreed to this call. Subject to the passage of that amendment, the opposition will support the remaining measures in the bill.

This is a balanced position. It recognises that Australia's intelligence laws must keep pace with the threat environment and that ASIO must have the legal tools necessary to protect the Australian people. But it also recognises that strong powers must be matched by strong oversight. The continuation of the sunset clause ensures that parliament must revisit the operation of these powers. It means current and future parliamentarians must assess whether the powers remain necessary, effective and appropriately limited. A three-year sunset clause strikes the right balance. It allows the powers to continue operating and acknowledges the seriousness of the threat environment, but it also guarantees that parliament will have a continuing opportunity to review the regime. That is consistent with the way these powers have been treated since they were first introduced by the Howard government. They have been subject to periodic review and renewal, and that model has served Australia well.

The coalition believes it is the most fundamental responsibility of any government to keep Australians safe. We also believe in ensuring ASIO possesses the capabilities it needs to identify and respond to serious threats before they materialise. However, national security—

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Always on ASIO's side.

Dorinda Cox (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Kovacic, please resume your seat. Senator Shoebridge, interjections are disorderly. There is a senator on her feet and she needs to be heard in silence.

You are not in a debate with me, Senator Shoebridge. Have some respect for the senator who is on her feet and needs to be heard in silence. This is not a debate.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

It is a debate!

Dorinda Cox (WA, Australian Labor Party) Share this | Link to this | Hansard source

You are not in a debate with me. Senator Kovacic has the call.

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister for Women) Share this | Link to this | Hansard source

The coalition believes it is the most fundamental responsibility of any government to keep Australians safe. We also believe in ensuring ASIO possesses the capabilities it needs to identify and respond to serious threats before they materialise. However, national security powers must be carefully bound by law, subject to oversight and regularly reviewed by the parliament. The Australia people expect—

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

This is like secret interrogation in a dungeon.

Dorinda Cox (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Kovacic, please take your seat. Senator Shoebridge, if you can't contain yourself, please leave the chamber. If you continue to make disorderly interruptions, I will name you. You do not have the call. Please stop interjecting while Senator Kovacic is on her feet. Senator Kovacic, you have the call.

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister for Women) Share this | Link to this | Hansard source

The Australian people expect their parliament to protect them from serious national security threats. They also expect their parliament to protect the principles and freedoms that define our country. That means being clear-eyed about the threats that we face but careful about the powers that we confirm. It means ensuring intelligence agencies have the tools that they need while ensuring extraordinary powers do not become ordinary by default. For those reasons, the coalition supports the substance of the bill subject to the inclusion of the three-year sunset clause that the government has now graciously agreed to restore. That amendment will preserve the essential balance between national security, accountability and parliamentary oversight and ensure ASIO can continue to undertake its vital work. It will also ensure this parliament continues to do its vital work on behalf of all of those Australians who rightly expect careful and proportionate use of the powers at the heart of this legislation.

David Pocock (ACT, Independent) Share this | Link to 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—

Varun Ghosh (WA, Australian Labor Party) Share this | Link to this | Hansard source

It being 1.30 pm, we will now move to two-minute statements. Senator Pocock, you will be in continuation.