The Law Council of Australia has today opposed a proposal to permanently enshrine the Australian Security Intelligence Organisation's compulsory questioning powers by removing the safeguard provided by periodic review and public scrutiny.
Speaking before the Parliamentary Joint Committee on Intelligence and Security on the Australian Security Intelligence Organisation Amendment Bill (No 2) 2025, the Law Council cautioned that these powers should continue to be considered extraordinary despite the length of time they have been in effect.
"Coercive questioning powers were granted to ASIO after September 11. They were introduced as an extraordinary, limited and temporary measure to address the threat of mass casualty terrorism," Law Council of Australia President, Juliana Warner explained.
"We support measures that empower Australia's intelligence agencies to keep our country safe, however it is imperative that these powers are necessary and proportionate, respect rule of law principles, and have adequate statutory safeguards in place to protect human rights.
"One of the changes this Bill will make is to remove the sunset clause, which means these laws will be permanently entrenched in law. The sunset clause reminds ASIO, the Parliament, and all Australians that these powers are exceptional. Just because they have been in place for an extended period does not mean we should lose sight of the fact that they are extraordinary powers and should continue to be treated as such."
The Bill also seeks to extend ASIO's questioning powers to almost all aspects of the agency's mandate.
The Law Council is not satisfied that the evidence-base and arguments for expanding the compulsory questioning warrant scheme to ASIO's full security remit have been adequately justified.
"We are disappointed the Bill did not follow through on suggestions made only last year by ASIO and the Department of Home Affairs to remove the power to coercively question children as young as 14 under this scheme," Ms Warner said.
"ASIO has never sought a warrant to question a child. Last year, ASIO and the Department of Home Affairs admitted that powers introduced to combat Al-Qaeda were no longer considered a proportionate and productive way to engage with children. The Law Council is concerned that the reversal of this sensible position has not been adequately explained.
"We share ASIO's concern about the increased number of terrorism investigations involving minors, but caution that the continued existence of powers considered disproportionate and counter-productive is not justified where other alternatives are preferred by the agencies in question. Unused, extraordinary powers affecting children—including non-suspects—should not sit on the statute book for a rainy day.
"While the Law Council welcomes the additional safeguard measures in the Bill, including improved reporting to the Attorney-General, these represent marginal rather than substantial improvements.
"Confidence in the scheme would be significantly improved by requiring judicial ratification of warrants and repealing restrictions on lawyer involvement and discretionary powers to remove lawyers."
