New laws are poised to pass the Senate and enshrine ASIO’s extraordinary powers of interrogation without proper judicial, parliamentary or public review. Marcus Reubenstein reports.
In July 2025, an extension of Australian Security Intelligence Organisation (ASIO) powers to detain suspects without judicial warrants and with limited access to legal representation was rammed through the House of Representatives in just two days, with the full support of the Government and Opposition.
The Bill is about to be approved by the Senate and will extend ASIO powers brought in after the 9/11 terror attacks, legislated in 2003, that give the agency coercive questioning powers without judicial approval or oversight.
Warrants to detain and interrogate need only have the approval of the Attorney General, who almost always acts on the advice of the security establishment. Ergo,
the nation’s highest law officer rubber stamps ASIO warrant applications.
Coercive powers, secrecy
Unlike police detention for suspected crimes, where suspects or persons of interest can refuse to answer questions, those apprehended by ASIO are afforded no such rights. If someone detained by ASIO refuses to speak, that is a crime for which they could face a summary judgment and up to five years imprisonment.
It’s also a crime for an individual to disclose to a third party that they had been detained and questioned in the first place.
The proposed amendments to the ASIO Act will remove the sunset clause on Howard government laws, intended to be temporary measures in which the parliament retained ultimate oversight of the conduct and activities of ASIO.
Senator David Shoebridge commented:
“It’s a chilling example of how far to the right Labor has shifted in a few short years and their increasing disregard of civil liberties and democracy. Now both major parties are in lockstep and ready to
wave through laws that seek to make these coercive powers permanent.
The Law Council of Australia has also raised significant concerns about the extension of these ASIO powers. In a submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS), it wrote,
“Given the inconsistency of public statements about the utility of the questioning warrant powers, especially as they apply to minors, the Law Council cannot support these powers being rolled over in perpetuity.”
ASIO powers
Under the ASIO Act, individuals detained and subjected to coercive questioning need not be suspected of any crime. Given the already wide scope of national security legislation, this effectively means ASIO can simply drag an individual in and question them as part of a fishing expedition.
In its submission to the PJCIS, made before the Bondi terror attack, ASIO maintained that foreign interference, specifically in relation to its interrogation powers, was a major priority.
This raises the question as to why these additional coercive powers are needed because the foreign interference laws passed in 2018 give significant powers, wide open to interpretation, for individuals to be arrested and charged.
Bondi Shooter revelations leave blood on the hands of politicians, police, ASIO
As for the brief PJCIS inquiry into the new laws, which only attracted six submissions, Senator Shoebridge says:
“The Labor Liberal inquiry into these laws went to the partisan Parliamentary Joint Committee on Intelligence and Security, who can consistently be relied on to wave through ever more shocking attacks on the rights of ordinary citizens.”
Don’t mention the war
Unlike the two days of debate before the current amendment was passed by the House of Representatives, the original ASIO Act amendment, which passed the parliament in 2003, was debated for 15 months. The legislation faced significant resistance from the then Labor opposition.
During parliamentary debate, now prime minister, Anthony Albanese quoted from a speech by Adolf Hitler’s Reich Marshall, Hermann Goering, who said, “Voice or no voice, the people can always be brought to the bidding of the leaders… It works the same in every country.”
Albanese told parliament, “Its [the ASIO amendment] provisions potentially allow for the mistreatment of ethnic minorities, the suppression of dissent and the detaining and investigation of wholly innocent Australians.”
That was then; Albanese is now instituting a far-reaching expansion of the laws to which he was once so opposed.
Insufficient legal protections
The 2003 amendment to the ASIO Act gave the agency the power to detain minors as young as 16, which was later extended to children as young as 14. The only safeguard is that minors are required to have legal representation, or a parent or guardian present, during questioning.
In 2024, both ASIO and the Department of Home Affairs, which has oversight for ASIO, called for these powers to be scrapped by parliament. Now they have fallen in line behind government proposals to expand these powers.
At the time, while ASIO argued for an expansion of its powers, it said legislation to detain and charge minors suspected of engaging in criminal activity was covered by existing laws.
Lawyers are entitled to be present during questioning of individuals. However, their ability to interact with and advise their clients is dictated by the ASIO officers conducting the interrogation.
If ASIO decides the lawyer present at an interrogation poses a security risk, most likely because it is determined they will inform a third party that the interrogation has taken place or disclose the line of questioning, that lawyer can be removed.
Save for requesting clarification of questions or seeking a break to consult with clients during questioning, lawyers are not allowed to intervene in the interrogation. In effect, this means a lawyer is prohibited from advising their clients of their rights or guiding them as to how they may answer questions.
Lawyers are permitted to take notes whilst present during interrogations. However, they are required to surrender these notes to ASIO officers prior to leaving the building in which the interrogation has been conducted.
In some circumstances, the Attorney General can impose conditions on
warrants that give detainees no right to legal representation during questioning.
In its submission to the PJCIS review of the proposed amendments, the Department of Home Affairs, which has oversight for ASIO, wrote, “The Department considers the current arrangements in relation to lawyers to be appropriate.”
In the current security environment, and under pressures from powerful lobby groups and foreign governments, both Labor and the Coalition see it in their interests to not only expand ASIO’s extraordinary powers but to do it in such a way that sparks no public awareness.
From “prize recruit” to prisoner: Dan Duggan’s ASIO links exposed as US extradition looms