Australian Security Intelligence Organisation Amendment Bill (No 2) 2025

Submission Date: 20 October 2025

The Law Council of Australia provided a submission to the Joint Parliamentary Committee on Intelligence and Security’s (the PJCIS’s) inquiry into the Australian Security Intelligence Organisation Amendment Bill (No 2) 2025 (Cth) (the Bill).

The Law Council has consistently raised significant concerns with the compulsory questioning warrant powers available to the Australian Security Intelligence Organisation (ASIO) under Part III of Division 3 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). These concerns are based on what we see as a longstanding failure to strike an appropriate balance between responding to the gravity of evidenced threats to national security with compliance with the rule of law, Australia’s obligations under international law, and respect for human rights obligations.¹

Despite these objections to broad aspects of how the questioning warrant scheme has historically been designed, the Law Council has continued to engage productively with successive governments in an attempt to improve the scheme with a view to maximising its compliance with human rights and fundamental freedoms.

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. Periodic opportunities to publicly make the case that exceptional powers that trespass on fundamental rights are necessary and proportionate provide an essential democratic oversight function and should not be surrendered.

We maintain that ASIO must be required to regularly demonstrate to the Australian public that these powers continue to be both necessary and proportionate to the threat environment. This is especially so where questioning warrant powers stand to be substantially extended by the Bill without, at present, sufficient justification or a serious attempt at remedying the longstanding concerns raised by the Law Council and others over the course of many years.

The Law Council therefore does not support the removal of the sunset clause for these powers. However, if this step is taken (and in any event), we emphasise the need to strengthen the warrant authorisation framework by including judicial oversight, and ensuring that these warrants do not apply to minors. These necessary improvements, together with other recommended safeguards are set out further in this submission.

The Law Council makes the following recommendations in relation to the measures contained in (and missing from) Bill:

• The sunset clause at section 34JF of the ASIO Act should remain as a critical oversight measure.
• If, contrary to our position, the sunset clause is repealed, there must be regular and independent reviews of Division 3 of Part III to ensure its continuing necessity and proportionality.
• The proposed additional heads of security for which an adult questioning warrant may be sought should be further justified, noting that these would extend extraordinary compulsory questioning warrant powers across most of ASIO’s functions, well beyond what was originally intended. If they remain, they should be defined to provide greater certainty as to scope and application.
• Adult questioning warrants should not be extended to border integrity matters. The current proposals are a reversal of earlier ASIO and Departmental positions.
• The minor questioning warrant framework should be repealed, or at the very least, allowed to sunset. Again, the current proposals are a reversal of earlier ASIO and Departmental positions.
• Proposed paragraph 34AD(9)(a) should require that the Attorney-General is satisfied that exceptional circumstances exist to permit a prescribed authority to continue in the role where they have been found to have misbehaved.
• Further consideration should be given to the merits of a ‘double lock’ approach to the issuing of compulsory questioning warrants, analogous to that in the Investigatory Powers Act 2016 (UK) in which:
  • the Attorney-General makes the primary issuing decision on the questioning warrant;
  • if the Attorney-General decides to issue the warrant, it does not take effect until it has been reviewed and confirmed by a judicial officer;
  • if the judicial officer does not confirm the issuing decision, the warrant is cancelled, and the judicial officer must give written reasons to the Attorney-General and ASIO; and
  • in urgent cases, provision should be made for the Attorney-General’s issuing decision to take immediate effect, with provision for a judicial officer to conduct a subsequent review within three days. If the judicial officer does not confirm the issuing decision, the warrant is cancelled, and the judicial officer may order the destruction of the intelligence or may impose conditions on its retention.
• Provisions for the prescribed role of lawyers at the time of questioning set out in subsection 34FF(3) and the discretionary power to remove lawyers in subsection 34FF(6) should be removed. Alternatively, and at the very least, the following additional safeguards should be provided for:
  • guidance on what constitutes ‘undue disruption’;
  • guidance on when this power may be exercised, including having regard to the fundamental importance of the lawyer’s presence as a safeguard to uphold access to justice and the rule of law;
  • a requirement to issue a prior warning to a person’s lawyer before taking steps to remove the lawyer; and
  • making such directions as a last resort, noting the detrimental impact that a change of lawyer part-way through questioning could have on the person being questioned.
• Section 34FE of the ASIO Act should be amended to provide that a lawyer for a questioning warrant subject is entitled to be given sufficient information to advise the lawyer’s client on the validity of the questioning warrant and acts done under the purported authority of the warrant.

^{1 Law Council of Australia, Submission to Parliamentary Joint Committee on ASIO, ASIS and DSD’s inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (29 April 2022); Law Council of Australia, Submission to Senate Legal and Constitutional References Committee’s inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (20 November 2002).}

Last Updated on 20/10/2025

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