News · Legal explainer
ASIO questioning warrants and the right to silence.
Federal Parliament debated an expansion of ASIO's compulsory questioning powers this week. The powers already sit outside the ordinary criminal law. A person served with a questioning warrant can be forced to answer questions, even if they are suspected of no crime, and silence itself becomes an offence. Here is how the framework works and what a person compelled to attend can and cannot do.
By Aaron Kernaghan · Published 21 August 2026
What is an ASIO questioning warrant?
A questioning warrant is issued under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth). It compels a person to appear before a prescribed authority and answer questions put by ASIO. The purpose is intelligence collection about a security matter, not the investigation of a specific crime. The Director-General of Security requests the warrant. The Attorney-General, a member of the executive rather than a judge, issues it.
The current framework dates from the Australian Security Intelligence Organisation Amendment Act 2020 (Cth). That Act replaced the older questioning warrants and the separate questioning-and-detention warrants with a single questioning-warrant regime. It also created two categories: an adult questioning warrant for a subject aged 18 or over, and a minor questioning warrant for a subject aged 14 to 17.
These powers are used rarely. On the public record, only a handful of compulsory questioning warrants have been sought in twenty years. That rarity is part of the point. The powers are extraordinary, so this article sets out where they sit against the ordinary rules a person meets when police want to talk to them.
Can ASIO question you if you are not suspected of a crime?
Yes. This is the feature that sets the regime apart. A questioning warrant does not require that the subject be suspected of any offence. The threshold is whether the questioning will substantially assist the collection of intelligence that is important to a relevant security matter. A person can be compelled to attend as a source of information, not as an accused.
Contrast the police caution. When police want to interview a suspect, the person is told they do not have to say anything. That warning reflects the common-law right to silence, preserved in the electronically recorded interview and in the Evidence Act 1995. Under a questioning warrant there is no such warning, because there is no such right. The obligation runs the other way. The person must answer.
Do you have a right to silence when ASIO questions you?
No. Once a questioning warrant is on foot, the right to silence does not apply. Refusing to answer a question is an offence. The privilege against self-incrimination, the rule that a person cannot be forced to give answers that may expose them to a criminal charge, is also removed for this process.
There is one protection that survives. The ASIO Act limits how a compelled answer can be used. A statement a person makes in answer to a warrant question is generally not admissible against them in a later criminal prosecution, and the material derived from it is limited too. This is a use and derivative-use immunity. It does not give the person a right to stay silent. It restricts what the Crown can later do with what the person was forced to say.
The distinction matters. A person can be compelled to speak and still be exposed to consequences that are not a criminal charge, such as a control order application, a passport cancellation, or the intelligence use of what they say. The immunity is narrower than the right it replaces.
What is the penalty for refusing to answer ASIO?
Up to five years' imprisonment. Subdivision G of Division 3 creates the questioning offences. It is an offence to fail to appear when required, to refuse to answer a question, to fail to produce a record or thing, or to give an answer that is false or misleading. Each carries a maximum of five years.
There is a defence. If the person does not have the information sought, or does not have possession or control of the record or thing sought, they do not commit the offence by failing to produce it. The person carries an evidential burden on that defence, which means they must point to evidence that raises it before the Crown has to disprove it.
This is why advice at the door matters. A person who receives a warrant and reacts by walking out, staying silent, or inventing an answer can turn an intelligence process into a criminal charge against themselves. The safer course is to attend, seek a lawyer, and answer truthfully within the process, while the lawyer records what is happening.
Can you have a lawyer present during ASIO questioning?
You can have a lawyer of your choice present, but the role is confined. The lawyer may be in the room. The lawyer may not intervene during questioning and may not address the prescribed authority except to ask for a clarification of a question. Advice to the client is given in breaks, not while a question is live. If the prescribed authority considers the lawyer is unduly disrupting the questioning, the lawyer can be removed and the questioning can continue.
ASIO can also object to a particular lawyer on security grounds, and contact between the person and the lawyer can be monitored. The Law Council of Australia and the Law Society of New South Wales have both raised concerns that these limits leave a person facing compelled questioning without the kind of legal help available in an ordinary police interview.
A lawyer still has real work to do. The lawyer checks the warrant is valid on its face, checks the person is the named subject, uses the breaks to advise, watches the clock on the questioning-time limits, and creates a contemporaneous record. If a search warrant is executed alongside the questioning, the lawyer watches that too.
Can ASIO question a child?
Yes, in defined circumstances. A minor questioning warrant can be issued for a person aged 14 to 17, but only in connection with politically motivated violence. Extra protections apply. The minor may be questioned only in the presence of a lawyer or another approved person. The periods of questioning are shorter than for an adult. A parent or guardian has rights of contact, subject to the same secrecy rules described below.
The presence of a support person does not restore the right to silence. A minor under a warrant is still required to answer. The protections are about supervision of the process, not a choice about whether to take part in it.
Is it an offence to tell someone ASIO questioned you?
It can be. The ASIO Act contains secrecy offences that restrict disclosure of information about a warrant and about the questioning. During the operational period, telling another person that a warrant exists or that questioning is happening can be an offence. Some disclosure restrictions continue after the questioning ends. There are carve-outs, including for obtaining legal advice, but they are limited and specific.
The practical effect is that a person compelled to attend cannot simply post about it, warn associates, or brief the media. The secrecy sits on top of the questioning obligation. Between the duty to answer and the duty not to disclose, a person served with a warrant needs advice quickly and needs it from a lawyer who understands the restrictions.
What does the ASIO Amendment Bill (No. 2) 2025 change?
The current news hook is the Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025 (Cth), which was before the Senate this week after passing the House of Representatives earlier in the year. As introduced, the Bill makes changes to the compulsory questioning framework. Three are commonly reported.
First, it would make the questioning powers a permanent part of the ASIO Act rather than powers that lapse on a sunset date, subject to a review by the Parliamentary Joint Committee on Intelligence and Security. Second, it would widen the grounds on which a warrant can be sought, from the current focus on politically motivated violence, espionage and foreign interference, toward the broader set of matters that fall within ASIO's statutory heads of security. Third, it adjusts the operational rules for how long a person can be questioned.
The government's case for the Bill is that the security environment has changed and that a power used sparingly should be available across the full range of threats ASIO is charged with assessing. The case against, made by the Greens in the Parliament and by legal bodies including the Law Council of Australia, is that broadening the grounds and removing the sunset reduces the safeguards on an already exceptional power, and that questioning a person who is suspected of nothing, without a working right to silence and with restricted legal help, is a serious step to make permanent. Both positions are on the public record of the Parliament. Readers can follow the Bill's progress and read the explanatory material on the Parliament of Australia website.
For a person who may be affected, the detail of the Bill matters less than the point that already exists in the law. ASIO can compel answers. The moment to get advice is when the warrant is served, not after the questioning has finished.
How this differs from a police interview.
The two processes are easy to confuse and must not be. In an ordinary police investigation a person can decline to be interviewed, can answer "no comment", and can leave unless arrested. The right to silence is real and, in most cases, exercising it is the safer course. Under an ASIO questioning warrant none of that holds. Attendance is compelled, answers are compelled, and silence is an offence.
If a person is unsure which process they are in, that is itself the first question for a lawyer. A knock on the door from police is not the same as a questioning warrant, and the correct response is different in each case. Confirm the document, confirm who is present, and call a lawyer before answering anything of substance.
Frequently asked.
What is an ASIO questioning warrant?
A warrant under Division 3 of Part III of the ASIO Act 1979 (Cth) that compels a person to appear before a prescribed authority and answer ASIO's questions for intelligence purposes. The Director-General of Security requests it; the Attorney-General issues it.
Can ASIO question you if you are not suspected of a crime?
Yes. A warrant does not require suspicion of an offence. The test is whether questioning will substantially assist the collection of intelligence important to a security matter, so a witness or associate can be compelled to attend.
Do you have a right to silence when ASIO questions you?
No. The right to silence does not apply and refusing to answer is an offence. A use and derivative-use immunity limits how compelled answers can be used against the person in a later prosecution, but it does not create a right to stay silent.
What is the penalty for refusing to answer ASIO?
Up to five years' imprisonment. It is an offence to fail to appear, refuse to answer, fail to produce a record, or give false or misleading information. There is a defence where the person does not have the information, record or thing.
Can you have a lawyer present during ASIO questioning?
Yes, but the role is limited. The lawyer cannot intervene during questioning or address the prescribed authority except to seek a clarification, advises only in breaks, and can be removed for unduly disrupting. ASIO can object to a particular lawyer on security grounds.
Can ASIO question a child?
In defined circumstances. A minor questioning warrant can be issued for a person aged 14 to 17 in connection with politically motivated violence, with extra protections including questioning only in the presence of a lawyer or approved person and shorter questioning periods.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 21 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.
Primary source: Australian Security Intelligence Organisation Act 1979 (Cth), Part III Division 3, on the Federal Register of Legislation. Bill progress and explanatory material: Parliament of Australia.