ASIO Compulsory Questioning Powers
The federal government has passed legislation to make ASIO’s compulsory questioning powers, which were introduced as a temporary measure after 9/11, permanent. This has been a controversial decision as the powers are widely viewed as an unjustifiable infringement on human rights. This page outlines ASIO’s compulsory questioning powers under the Australian Security Intelligence Organization Act 1979.
What are the compulsory questioning powers?
ASIO’s compulsory questioning powers are set out in Division 3, Part III of the Act.
These powers allow ASIO, with a warrant, to compel a person to answer questions, produce documents and give information if ASIO reasonably believes that this will substantially assist in collecting intelligence about any of the following types of criminal activity:
- Espionage
- Sabotage
- Politically motivated violence (including terrorism)
- Acts of foreign interference
- Communal violence
- Attacks on defence or border infrastructure
The compulsory questioning powers also include criminal offences consisting of non-compliance with questioning or providing false information.
Warrants
ASIO may obtain three types of warrants under Division 3 Part 3 of the Act. It is an offence not to comply with a warrant. The warrants are as follows:
Questioning warrant
This is a warrant that requires an adult to attend and answer questions.
Questioning and detention warrant
This is a warrant that allows ASIO to detain an adult for questioning for up to 168 hours over a period seven days. The period of detention may be extended by application by ASIO, but may not be indefinite.
Minor questioning warrant
This is a warrant that allows ASIO to compulsorily question a young person between the ages of 14 and 18. ASIO does not have the power to compulsorily question a child under 14.
Offences
The Act contains a number of offences relating to non-compliance with ASIO’s compulsory questioning powers.
These offences include:
- failing to appear for questioning under a warrant
- refusing to answer questions or produce material under a warrant
- giving false or misleading information during questioning
- destroying or tampering with material requested under a warrant
All of these offences carry a maximum penalty of imprisonment for five years.
Introduction and extension of powers
The compulsory questioning powers were introduced in 2002 in the aftermath of the terrorist attack of September 11, 2001. They were originally explicitly temporary, and had a sunset clause, under which they would expire in 2006, unless renewed by the government.
The Howard government said that the powers were an extraordinary response to an extraordinary threat and should not be permanent.
The powers were extended three times after their introduction, each time by a period of five years. In 2020, the regime of questioning powers was amended, with the introduction of minor questioning powers, and the reframing of warrant provisions, and a sunset clause under which the regime expired in September 2025.
The powers, which have now been in place for over 20 years, have now been made permanent. However, the powers are still to be reviewed by the Parliamentary Joint Committee on Intelligence and Security (PJCIS). PJCIS is due to report by March 2027.
Additional oversight powers
Additional oversight powers have been added to the legislation.
These include a requirement that ASIO report to the Attorney-General on its conduct under questioning warrants.
There is also a requirement that ASIO provide the Inspector-General of Intelligence and Security (IGIS) with all warrant requests, issued warrants, questioning recordings and related statements. IGIS may also attend questioning sessions.
Minor questioning warrants
ASIO and the Australian Human Rights Commission have both recommended that the power to question persons under 18 years of age be repealed.
This change has not yet passed but will be considered by the PJCIS. As the government itself supports the change, it is highly likely that these powers will be repealed.
Community responses
The decision to make ASIO’s compulsory questioning powers permanent has been met with dismay and condemnation by many sectors, agencies, and organisations, including the Australian Human Rights Commission, the Law Council of Australia, the Greens and civil liberties advocacy groups such as GetUp.
Criticisms of the decision have included that the powers represent a significant curtailment of civil liberties; that they were introduced as an ‘extraordinary measure’ and ‘a last resort’; and that the removal of the sunset clause has occurred without public consultation or a fully transparent parliamentary enquiry.
Concerns have been voiced that the powers could be misused to target legitimate activism and criticism of the government.
The Home Affairs minister, Tony Burke, said that the powers needed to be retained, “to navigate an increasingly complex, challenging and changing security environment and deliver on its mission to protect the safety of Australia and Australians”.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.