Asio's 9/11-era questioning powers to become permanent despite warnings from human rights advocates

The Guardian

2 days ago

Labor will make domestic spy agency Asio's powers for compulsory questioning permanent and expand offences covered by the rules, ignoring warnings from human rights advocates about the need for ongoing parliamentary scrutiny.
The home affairs minister, Tony Burke, introduced legislation on the first full day of parliamentary sittings to add sabotage, promotion of communal violence, attacks on the defence system, and serious threats to Australia's border security to the rules for compulsory questioning.
But the bill would also end so-called sunset provisions, the effective expiry dates which require parliament to reconsider the powers on a regular basis.
Under the Australian Security Intelligence Organisation Act, intelligence operatives have powers to issue a questioning warrant requiring a person as young as 14 to give information or produce items that may assist in a serious investigation.
The powers are scheduled to sunset on 7 September this year. They will be temporarily extended, for 18 months, to allow parliament to consider the wider bill, which would make the powers permanent.
Introduced in the wake of the September 11, 2001 terror attacks in the United States, the powers have hardly been used since 2020, with just four warrants served on three people, in counter-terror and espionage cases.
Part of a slew of new legislation introduced to federal parliament on Wednesday, Burke called powers in the bill 'a vital capability in protecting Australia and Australians from threats to their security.'
'Since its introduction, the framework has been subject to five parliamentary reviews and two independent reviews, causing the Parliament to extend the sunset date five times,' he said.
'Removing the sunset provision reflects the government's view that these powers now form an essential part of Asio's collection powers, particularly in light of the threat environment.'
Burke said existing safeguards and oversight mechanisms would be protected, including oversight by the Inspector-General of Intelligence and Security.
'ASIO has used these powers judiciously in circumstances where Asio's other powers were not appropriate for the circumstances.'
In his annual threat assessment speech in February, Asio director-general Mike Burgess said he expected sabotage to pose an increasing threat to Australia in the next five years, even on defence assets like submarines secured under the Aukus agreement.
Burgess said definitions and responses to serious threats were changing, even suggesting it was conceivable Russia could target Australia for sabotage in the future.
'An attempt to physically damage a nuclear-powered submarine could simultaneously be an act of sabotage, an act of politically motivated violence, an act of foreign interference and an attack on a defence system,' he said.
Australian human rights commissioner Lorraine Finlay has previously warned against moves to extend the compulsory questioning laws, noting the ongoing use of powers that were initially designed to be temporary.
The commission told a parliamentary inquiry considering the laws that in many instances, the questioning powers 'limit human rights without reasonable justification under international human rights law.'
It noted that when introducing the laws, the Howard-era attorney-general, Daryl Williams, described them as 'extraordinary' and said they were to be considered 'a measure of last resort'.
The Law Council also objected to extending the powers, telling the inquiry their sparing use indicated other existing investigative powers were sufficient for Asio operatives, and the thresholds for issuing warrants should be raised.
The changes could pass parliament with support of the Coalition later this year.
The previous inquiry lapsed at the federal election, before handing down a report.