Laws which came into effect in 2003 give ASIO powers to obtain warrants to question, or detain and question, a person under compulsion in relation to a potential terrorism offence.
Questioning can occur for up to eight hours, or 24 hours with an extension, while people can be detained for up to seven days.
Under the plan being worked on by the Morrison government, the questioning power would be expanded to apply to foreign agents of influence – including intelligence operatives and sleeper agents – who are suspected of being threats to the nation’s security.
This could include foreign spies, or their proxies, who are planning to launch cyber attacks, cause damage to important infrastructure and interfere in elections.
While the power to detain for seven days would be repealed, the questioning power would be beefed up to give ASIO or law enforcement officials an effective detention power by being able to apprehend a person who does not comply with the warrant to question them.
The revelations come after ASIO director-general Mike Burgess last week warned that more foreign agents and their proxies are operating on Australian soil than during the height of the Cold War.
This included a “sleeper” agent who was running a major spy ring and providing information back to his handlers for years before being uncovered by ASIO.
Without naming China or any other country which has been ramping up its foreign interference activities, Mr Burgess said ASIO would need to have “a wide range of tools in our tool box” to counter the growing threat.
Mr Dutton said the next day if security agencies believed they needed more powers to tackle foreign interference “we will provide that support because this is a very serious threat”.
The parliamentary joint committee on intelligence and security has previously recommended ASIO keep its powers of compulsory questioning but lose powers of compulsory detention.
The detention powers have never been used since they were introduced by the Howard government in the wake of the 9/11 terrorist attacks, while at least 16 warrants have been issued for compulsory questioning.
ASIO has previously argued the questioning power should be broadened to cover espionage, foreign interference, sabotage, politically motivated violence, attacks on Australia’s defence system and threats to the nation’s border security.
The expansion of the powers will be done as part of an effort to extend the counter-terrorism laws beyond this year.
The laws have a sunset date of September 7, meaning parliament will have to pass a new bill to extend the powers.
A spokesman for the Department of Home Affairs said the government had committed to implementing the recommendations of the intelligence and security committee, and would announce an “amended compulsory questioning framework in due course”.
While the Morrison government considers beefing up the power of security agencies, Attorney-General Christian Porter has been in discussions with his department’s secretary Chris Moraitis on ways to improve the Foreign Influence Transparency Scheme to better target groups linked with foreign intelligence services.
Mr Porter said he told his department directly that there had been a “lack of common sense applied to date” after being advised that it had prioritised action against the organisers of the conservative CPAC conference in Sydney.
He said the scheme should be focusing on foreign influence that could involve arrangements between organisations and individuals which were “manifestly not in Australia’s best interests to remain hidden from public view”.
“While regulatory decisions in the foreign influence registration scheme are made independently by the Department, I am ultimately responsible for making sure it operates as intended and I am actively discussing this with the secretary of my department to ensure it has the right personnel and skills to make smarter and more effective decisions going forward,” he told the Sunday Age and Sun-Herald.
“If common sense interpretations of what clearly and unequivocally constitutes an arrangement with a foreign principle under the terms of the legislation are applied, the legislation will function effectively.”
The Sydney Morning Herald and the Age last year revealed authorities were investigating claims a Chinese espionage ring tried to install an agent for Beijing in a seat in Federal Parliament.
Sources with knowledge of the alleged plot believed the suspected Chinese intelligence group offered a million dollars to pay for the political campaign of Liberal Party member and Melbourne luxury car dealer Bo “Nick” Zhao, 32, to run for an eastern suburbs seat.
Anthony is foreign affairs and national security correspondent for The Sydney Morning Herald and The Age.