The Australian Security Intelligence Organisation’s (ASIO)
questioning and detention powers set out in Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979 (ASIO Act), are due to sunset on 7 September 2020. It is vital that our intelligence agencies continue to have these powers to keep Australians safe from those who seek to do us harm. The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill) will ensure that ASIO has an updated and effective suite of compulsory questioning and tracking device powers to suit current and future security threats.
On 13 May 2020, the Bill was introduced to the Australian Parliament. To facilitate parliamentary consideration and public consultation of the proposed reforms, the Bill was immediately referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 17 July 2020.
The Committee is inviting submissions to the inquiry until Friday 26 June 2020. If you would like to make a submission to the inquiry you may do so through the
Parliamentary Joint Committee’s website.
To view the Australian Security Intelligence Organisation Amendment Bill 2020 and Explanatory Memorandum, see:
The need for proposed reforms
The threat from terrorism remains unacceptably high and ASIO continues to face a range of steadily worsening security challenges from hostile actors. In his annual threat assessment, the Director-General of ASIO described the current threat from espionage and foreign interference as greater now than at the height of the Cold War. These sophisticated activities pose a risk to key pillars of Australia’s democracy and attempt to undermine our sovereignty.
ASIO’s current questioning and detention warrant and tracking device regimes are not tailored to these challenges. In particular, ASIO can only use its compulsory questioning and questioning and detention powers to collect intelligence in relation to terrorism offences. To address this legislative gap, the reforms strengthen ASIO’s existing human intelligence capabilities by expanding the availability of ASIO’s compulsory questioning powers to espionage, foreign interference and politically motivated violence (including terrorism).
In 2018, the Parliamentary Joint Committee on Intelligence and Security (the Committee) conducted a
review into the operation, effectiveness and implications of ASIO’s existing questioning and questioning and detention warrant powers at Division 3 of Part III of the ASIO Act.
In its review, the Committee recommended:
- ASIO retain a compulsory questioning power
- ASIO’s current detention powers be repealed
- legislation for a reformed compulsory questioning framework be introduced by the end of 2018 and include an appropriate sunset clause, and
- the sunset date of 7 September 2018 be extended by 12 months to allow sufficient time for legislation to be developed and reviewed.
The Government responded to the Committee’s report in May 2019 and accepted the recommendations in principle.
The Committee’s fourth recommendation was implemented by the
Counter-Terrorism Legislation Amendment Act (No. 1) 2018, which extended the operation of ASIO's questioning and detention powers by 12 months to 7 September 2019.
Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Act 2019 further extended the current powers to 7 September 2020, to provide adequate time to progress the reforms through Parliament, and facilitate review of the reforms by the Parliamentary Joint Committee on Intelligence and Security.
The measures contained in the Bill implement the Government’s response to the PJCIS’ inquiry and introduces other important reforms to the ASIO Act to ensure the agency remains operationally agile. These include:
- repealing ASIO’s current questioning and detention regime, and introducing a reformed compulsory questioning and apprehension framework
- amending the surveillance device powers in the ASIO Act to enable the use of tracking devices with internal authorisation in limited circumstances, and
- modernising the definition of ‘tracking device’.
Summary of measures in the Australian Security Intelligence Organisation Amendment Bill 2020
The Bill introduces a number of significant reforms to ASIO's compulsory questioning and surveillance device powers under the ASIO Act.
The Bill amends the compulsory questioning framework in Division 3 of Part III of the ASIO Act by:
- enabling ASIO’s continued use of questioning warrants, but removing its ability to use questioning and detention warrants
- replacing the existing detention framework with a more limited apprehension framework to ensure attendance during questioning and to prevent contact with others or the destruction of information
- enabling the use of questioning warrants in relation to espionage, politically motivated violence and acts of foreign interference, rather than just in relation to terrorism offences
- enabling the Attorney-General to issue questioning warrants directly, removing the role of the issuing authority
- enabling ASIO to request, and the Attorney-General to issue, questioning warrants during an emergency
- amending the eligibility requirements for appointment of prescribed authorities
- providing the power for a police officer to conduct a search of a person who is apprehended, and the ability to seize dangerous items and items that could be used to communicate
- providing the power for a police officer to conduct a search of a person who is attending questioning
- permitting ASIO to seek a questioning warrant in relation to minors aged 14 to 18 years old in relation to politically motivated violence
- strengthening the right to legal representation during questioning, and
- enabling a questioning warrant to be executed following the laying of charges against the person.
The Bill also amends the surveillance device framework in the ASIO Act by:
- modernising the tracking device framework, enabling ASIO to use tracking devices with internal authorisation in certain circumstances rather than under a warrant, and
- clarifying that the surveillance device framework is permissive and does not require ASIO to obtain a warrant where conduct would not otherwise be unlawful.
What safeguards apply?
The use of these powers will be subject to high legislative thresholds, safeguards and oversight mechanisms. These include improved access to legal representation during the execution of a questioning warrant, access to an interpreter where required, the availability of, and access to, complaint mechanisms, offences for contravention of safeguards, and extensive reporting obligations on ASIO to promote transparency and stronger oversight by the Attorney-General.
Further oversight mechanisms include parliamentary oversight by the Parliamentary Joint Committee on Intelligence and Security and comprehensive oversight by the Inspector‑General of Intelligence and Security, who provides independent review and advice on the legality and propriety of ASIO’s operations and activities. These powers may only be used in particular circumstances and in the proper performance of ASIO’s functions. The use of these powers must be proportionate to the threat posed to Australia’s national security.