PHOTO: Tasha Kostyuk on Unsplash
“Big Brother is Watching You”
George Orwell’s famous phrase from 1984 sends chills down one’s spine, but the society that he presented based on the world in 1949 may not be too far out of sight.
Mass surveillance is described by Amnesty International as “the monitoring of internet and phone communications of large numbers of people — sometimes entire countries — without sufficient evidence of wrongdoing.”
Surveillance is no new phenomenon in Australia. Spurred by the War on Terror in 2001, Australia enacted important legislative and institutional changes to better protect national security, introducing surveillance mechanisms which operated with little to no judicial oversight, including, as described by Jenny Hocking, the “increasing use of nonjudicial, inquisitorial bodies [and] a significant expansion in and merging of police and national security collections” to respond to organised crime.
In recent times, surveillance and monitoring across Australia has expanded even more. In such a time, citizens are more vulnerable than ever as the granting of extensive powers through legislative and police enforcement schemes means they can easily be targeted. While much of this technology has emerged under the need to keep up with crime which spreads rapidly through the current globalised, digital sphere; legislative regulation of these monitoring mechanisms are lacking, which leaves room for surveillance to gradually diminish core freedoms.
The National Driver Licence Facial Recognition Solution, operating through the Attorney-General’s Department, involves using driver’s licence images to create biometric templates which are stored centrally. This scheme intends to fight against identity theft and enhance road safety and identity verification mechanisms. While this surveillance mechanism likely has a “one-to-one” application, and proportionately responds to the crime of identity theft, more recent facial recognition technologies fail to do so. In early 2020, it was found that Australian police were using Clearview AI’s social media-derived database prior to the establishment of the Government facial recognition database on an unofficial basis. Clearview AI was previously found to operate a database in the US in which any photograph or video recording featuring a human face in a publicly accessible internet resource was likely to have been included in the database.
PHOTO: Facial Recognition Software. Pete Woodhead on Wikimedia Commons
More recently, in late June of 2026, Western Australia engaged in an overt live facial recognition trial, where it scanned 905, 117 faces across the span of three months using artificial intelligence. This technology was used to scan pedestrians walking on the street, against existing alert-lists. Images of community members who are not on the alert list are automatically pixelated in real time and are not saved, and there is no record-keeping of this data. Consequently, 79 arrests were carried out over this period, including 36 outstanding warrant arrests and 114 registered sex offenders being identified and engaged with. The criteria used to create these pre-determined watchlists is unknown. While the Western Australian government posits that this list includes individuals wanted for serious offences or those who may pose a risk to themselves or the community. The latter category is not well defined and could easily be abused as the standard leans towards subjectivity rather than objectivity.
As Tom Sulston, head of policy at the advocacy group Digital Rights Watch, notes “We should be concerned… we have a right to go out in public without being surveilled, without having our biometric data uploaded to the cloud, and without it being used for purposes we don’t really know.”
On a legislative scale, the Commonwealth Parliament has enacted amendments to existing legislation to extend the powers of Australian investigative agencies, the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). Specifically, in 2020, the Telecommunications (International Production Orders) Bill 2020 (Cth) provided an outline for Australian agencies to obtain interception, stored communications and telecommunications data directly from communication providers overseas, in countries where Australia has a designated international agreement. Furthermore, in 2021, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021, modified the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Crimes Act 1914, to enable the AFP and ACIC to have unlimited access to devices and networks used to facilitate criminal activity and to take over a person’s online account when gathering evidence to further a criminal investigation. Both of these legislative amendments illustrate how Australian authorities have actively sought for greater intrusion into civilian’s lives and increased access to private information.
The Rule of Law
PHOTO: Tingey Injury Law Firm on Unsplash
The rule of law is one of the foundational principles behind the Australian legal system.
Its modern conception was popularised by legal theorist Albert Venn Dicey in 1885. The rule of law is the basic principle that the law should equally apply to all people, regardless of their position in society. This means that legislators, judges, members of government and all other persons in Australia are bound by the same laws.
To ensure the consistent application of the law to all members of society, the state can only punish those who have been proven beyond a reasonable doubt to have broken the law. All persons are presumed innocent unless proven by a court to be guilty. The presumption of innocence works as a crucial part of the rule of law to ensure that law-abiding members of society are not punished for crimes they did not commit. Any restrictions on the presumption of innocence (and the rights it requires) will therefore impact the rule of law in Australia.
It is for this reason that the recent expansion of ASIO’s powers should be held under scrutiny, not as stand-alone measures, but as yet more features in an expanding security regime.
Recent Amendments to the ASIO Act
The Australian Security Intelligence Organisation (ASIO) is Australia’s domestic and foreign intelligence agency. Its role is to anticipate and respond to threats to Australia’s national security, serving a similar function to the USA’s Federal Bureau of Investigation (FBI) and the UK’s MI5.
In 2003, under the Howard Government, the Commonwealth Parliament voted to first establish ASIO’s compulsory questioning powers without judicial approval. The powers created go far beyond those shared by comparable agencies amongst Australia’s closest security allies. Since then, successive governments have voted to renew these powers, meaning what should have been an extraordinary measure has instead become the standard.
PHOTO: NSW Police arresting protestors in Sydney, Matt Hrkac on Wikimedia Commons
The Australian Security Intelligence Organisation Amendment Act (No 2) 2026 is the most recent amendment to the Australian Security Intelligence Organisation Act 1979 (‘the Act’). This is the legislation that establishes ASIO’s powers formally. The 2026 Amendment has brought ASIO’s power under scrutiny and caused many analysts to re-evaluate the necessity and validity of ASIO’s powers. Broadening ASIO’s compulsory questioning powers beyond their original scope to include more content under ‘adult questioning matters’, these purportedly extraordinary powers have become the baseline by which governments measure their ability to ‘protect Australia’s national interests’. They will now be in force until at least August 2029.
The Compulsory Questioning Framework
Division 3 of the Act is devoted to outlining what the compulsory powers allow ASIO to do.
These powers can be used when questioning any individual aged fourteen or over.
‘Adult questioning matters’, outlined in s 34A of the Act, are the areas that ASIO must be investigating when conducting a compulsory questioning session. Prior to the most recent amendment, this was limited to: espionage; politically motivated violence; and acts of foreign interference. As of August 2026, ‘adult questioning matters’ have been expanded to include ‘promotion of communal violence’, ‘sabotage’and ‘attacks on Australia’s defence system’, as well as the initial three.
If ASIO claims to be investigating anything that falls under these categories, it may obtain a warrant summoning an individual for compulsory questioning. The individual need not be a suspect of a crime. ASIO must only demonstrate that there are ‘reasonable grounds’ to believe that questioning the individual will ‘assist the collection of intelligence’ for an investigation into an adult questioning matter.
The compulsory questioning powers include a provision that prohibits those under questioning to speak of the fact that they have been summoned, with a maximum penalty of five years’ imprisonment.
But why is this an issue? Is that not the nature of a secret service — to be secretive?
The Impact of Compulsory Questioning on the Rule of Law
The rule of law depends on the application of the law to all citizens (and non-citizens) of a nation equally. The imprisonment of those that merely communicate to others that they are to be questioned — not of what they were questioned, not their responses, but the mere fact that they have been summoned to be questioned — has been construed by some to signal a significant step in the direction of a police state.
PHOTO: Harry Shelton on Unsplash
The right to silence, or the right against self-incrimination, is one of the core ways in which the Australian justice system upholds the presumption of innocence, and by extension the rule of law. As an accused person must be presumed innocent, they must not be expected or required to defend themselves. Essentially, the right to silence ensures that people are only ever incriminated by the presence of evidence, not an inability to provide a defence.
However, in a compulsory questioning session, the right to silence is lost. Per s 34GD of the Act, it is an offence punishable by five years’ imprisonment to refuse to answer a question asked during a compulsory questioning session.
Another right that is restricted during a compulsory questioning session is the right to legal representation. Although a detained adult or minor has the right to representation, the ‘prescribed authority’ (the official conducting the compulsory questioning session) has the right to remove the legal representative if they decide that the representative is ‘unduly disrupting’ the questioning process. Per s 34FF of the Act, the role of a legal representative is limited to requesting clarification of an ambiguous question, and requesting a break in the questioning session to provide advice to the subject.
The significant limitations on the functions and freedoms of legal representation during compulsory questioning sessions raises further questions as to the ability of ASIO’s powers to uphold the rights that keep the rule of law in Australia.
Recent Developments
What is currently in practice? Is mass surveillance a reality for any Australian state?
NSW has recently implemented new state legislation introduced in September 2026; the Crimes and Other Legislation Amendment (Further Organised Crimes Reforms) Act 2026 expanding the powers of the Police alongside the Crime Commission to allow them to compel suspects to give up their digital devices immediately on request. Following the seizure of devices, police will be able to download all the data from the device, and even access encrypted messages. Consequences of failing to adhere to such orders may result in a four-year jail sentence, a $4400 fine or both sanctions.
NSW expansion of surveillance powers is underpinned by NSW Premier Chris Minns’ commitment to “hit criminal networks at every point” in a response to what he perceives as “increasingly sophisticated” gang activity. However, these new police powers operate beyond gang activity. They can be used against any conduct constituting Serious Criminal Offences, including treason, assault or property damage.
PHOTO: Police in Lyon, France, during the 25th weekend of the yellow vests movement, ev on Unsplash
More recently, in early October 2026, the Minns Labor Government revealed its plans to establish NSW Police’s Australian-first Armed Response Command (ARC).
What does this mean for everyday civilians in NSW?
They will see 250 ARC officers on the streets of NSW carrying rifles and travelling in specialist vehicles starting from November. The intention behind such a highly-visible and intelligence-led unit is to respond rapidly to threats, especially following the wake of the Bondi Beach attack, but this simultaneously fosters ongoing vigilance of civilians as announced by NSW Police Commissioner Mal Lanyon that, “police can be anywhere, at anytime”.
Repeating or Rhyming — Surveillance Patterns from the Past
History suggests that the use of surveillance tools on civilians has often culminated in dangerous regimes. What is the best way to protect against this and preserve liberal democracy? Ultimately, it comes back to maintaining international order, safeguarding civil liberties and legal systems which check power; where civil liberties are enforced, political leaders are kept in check and less able to exploit power. As of today, some 38 percent of the global population live in Not Free countries, the highest proportion since 1997. This suggests that democracy is weakening, as authoritarian rulers gain power, illiberal forces grow and political division increases. This is significant because it means that even ostensibly free countries like Australia should be wary, as the global political climate becomes more fragmented and the future stability of civil liberties and democracy becomes uncertain.
The consequences of the erosion of legal systems has been clear in past examples such as in Nazi Germany, a totalitarian dictatorship — on 17 June 1936 — Heinrich Himmler, head of the SS (Nazi paramilitary corps), was given command of the Gestapo, and all other law enforcement forces. Under the Gestapo, power was especially unchecked, with it being able to operate without any consideration of civil restraints — meaning it was authorised to act in any manner consistent with conducting “preventative arrest”. Through this process, it targeted many civilians simply because they were against Nazism including thousands of leftists, intellectuals, Jews, political clergy and homosexuals. The Gestapo operated through evoking fear in civilians of the terror that it could inflict, as one scholar described them as, “omniscient, omnipotent, and omnipresent”.
PHOTO: Prisoners at a concentration camp in Sachsenhausen, Germany, Unknown Author on Wikimedia Commons
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To be clear, Australia is not on track to replicate the extreme level of state control and political instability in Nazi Germany, as it has several mechanisms of checks and balances on power to uphold the rule of law and prevent the formation of a dictatorship. This includes the separation of powers — enshrined in the Australian Constitution — which divides power between the judiciary, legislature and executive, ensuring that the judiciary is fully independent from any political influence or arbitral control. Another is the operation of democratic elections whereby voting is compulsory, which enables citizens to have a say in the people who come to power. Moreover, increased surveillance and extension of police powers does not guarantee the culmination of a dictatorship, especially as other liberal democracies across the world, including the UK and the USA — like Australia — are currently enforcing more stringent surveillance practices.
The rise in surveillance at both the federal and state levels in Australia still remains a cause for concern. This is part of a larger global pattern as highlighted by the United Nations Office of the High Commissioner for Human Rights, where intrusive surveillance technologies are being used to limit freedoms and civil rights of people around the world. As ASIO can execute a compulsory questioning session without judicial approval, needing only a warrant signed by the Attorney-General, the system of checks and balances embedded in Australia’s governance seems to be undermined. Combined with the trend of rising surveillance in Australian states, ASIO’s compulsory questioning powers risk contributing to the erosion of the rule of law in Australia.
Where to From Here?
Ultimately, increasing surveillance across Australia should be treated with caution. History suggests that police power, when unchecked, has the capacity to exploit minority groups and other individuals without reason; illustrating the dangerous repercussions of blurring the lines between political governance and law enforcement.
Although ASIO’s compulsory questioning powers have been enacted relatively few times, it is important to remember that what is used for the apparent good can always — as found in the US where there were more than 30,000 deaths from police violence between 1980 and 2018 — be abused.
If we allow extraordinary powers to go unscrutinised, they will form the floor on which those seeking to dismantle democracy will stand.
Rahma Al Haj Kasem
Rahma Al Haj Kasem is a second-year Laws (Honours) and Arts student. She is interested in international relations and the intersection of modern history, ideology and popular movements that shape the contemporary political landscape. She is especially interested in the influence of politics on law and the societies it shapes. Outside of her studies, Rahma enjoys reading at her favourite cafe, writing and adding stickers to her laptop.
