Andrew Giles could allow tourists to arrive from black-listed countries while other nationals are banned under emergency migration laws

The Coalition says the broad exemptions could undermine the Albanese government’s attempts to pressure countries such as Iran to take back its citizens.

Home Affairs Minister Clare O'Neil and Immigration Minister Andrew Giles. Picture: NCA NewsWire / Martin Ollman

Entire groups from black-listed countries – including tourists, students and businesspeople – could still enter Australia under Labor’s emergency plan to regain control of migration law, prompting warnings the exemptions could undermine attempts to pressure countries such as Iran to take back its citizens.

As Labor considers whether it needs an urgent session of parliament before the May budget to pass the proposed laws, the ­Coalition has questioned the wide discretion Immigration Minister Andrew Giles would have to allow any visa class to circumvent the laws while other foreign nationals from the same country were banned from Australia.

Opposition immigration spokesman Dan Tehan also ­revealed moves were under way to haul the Australian Border Force before a parliamentary inquiry scrutinising the legislation.

The ministerial discretion is expected to form a key line of questioning at the Senate inquiry, while the Coalition said hearing from the ABF – whose Operation Sovereign Borders commander, Rear Admiral Brett Sonter, told The Weekend Australian that people-smugglers would “sell anything” – would be essential.

The government failed to rush through changes to the Migration Act last week that would have ­enabled Mr Giles to designate a nation that refused to accept the return of its citizens a ­“removal concern country”, preventing most nationals in that country from making visa applications to come to Australia.

Close family members of Australian citizens and permanent residents, and dual nationals who have citizenship of a country that hasn’t been designated, would still be able to apply for visas, as would people hoping for resettlement under the refugee and humanitarian resettlement program.

Government sources confirmed Mr Giles would have discretion to “exempt any other class of visa” after Foreign Minister Penny Wong said the ban would not be used in a “blanket way”, but when necessary.

“It’s a power which would only be able to be exercised in consultation with the person in this job – so it’s the foreign minister – and there may be other diplomatic ­avenues you would try and go through before you get to that point,” Senator Wong told Sky News’s Sunday Agenda program.

“This legislation was about making Australia’s immigration system stronger. It was about ­ensuring that people who don’t co-operate with a requirement to return can be penalised and it was about ensuring we can have a new power to stop granting visas in certain circumstances to those countries who are refusing to have citizens returned.”

The government would not expand on what diplomatic measures it might pursue before banning citizens from a particular country from coming to Australia, but sources noted a range of issues would be considered before a country was labelled of “removal concern”.

The government would take “all reasonable efforts and ­attempts” to engage another country to facilitate the lawful ­removal of its nationals.

Mr Giles would have to consult Anthony Albanese, as well as Senator Wong, and would be able to seek views of other ministers, such as Trade Minister Don Farrell, ­before designating a country.

Mr Tehan said the ministerial discretion needed to be examined by a Senate inquiry, which is due to report by May 7.

“The government, through its incompetent handling of this, has failed to make clear how this would work and what actual discretion the minister has,” he said.

“One of the key questions the government has yet to answer is how Russia, Iran, or South Sudan in any way are going to feel compelled to act by the threat of having their citizens not allowed to travel to Australia. Those ­regimes have shown in every instance an ability to act in their own interests, not their citizens. From a Coalition point of view, hearing from Australian Border Force will be key as they were not at the initial briefing (on the bill) or did not appear at the quickly convened Senate hearing.”

A stalemate has emerged ­between the major parties over whether to recall parliament during the six-week pre-budget break to deal with the controversial legislation, which the government wanted rammed through in 36 hours, with Labor indicating there was no point bringing MPs back unless the Coalition was ready to offer bipartisanship. If passed, the laws would see non-citizens who had exhausted all their legal options to remain in Australia face a mandatory minimum jail sentence of one year if they didn’t follow government orders to return home. Mr Tehan said the government had put forward no compelling reason to fast track the Senate inquiry but the opposition would listen to any explanation as to why the Migration Amendment (Removal and Other Measures) Bill needed to pass before May.

Home Affairs Minister Clare O’Neil last week reluctantly linked the emergency laws to the upcoming High Court challenge brought by an Iranian man known as ASF17, who wants to be let into the community and is ­refusing to return home because he says he will be persecuted over his sexuality.

More than 100 detainees who the government wants to deport could be released if ASF17 wins the case. A hearing is scheduled for April 17.

Senator Wong made no connection between the case and the new laws on Sunday, nor ­explained why they needed to ­urgently pass parliament.

“What the Prime Minister and what the government were hoping was that Peter Dutton might act like an adult and look to the national interest rather than political interest,” Senator Wong said.

“We were prepared to vote for it. We worked with the opposition to give them an inquiry, to brief them on the bill. They were initially supportive of the legislation or positive about it and obviously they’ve decided they can play some politics, and that’s regrettable. It’s up to Mr Dutton to explain and all of the Coalition to explain as the days go by and the fact the government doesn’t have this power, why they think that’s justified.”

The NZYQ High Court ruling last year, which overturned indefinite detention and saw 152 non-citizens – including murderers, child sex offenders and rapists – released into the community, has sparked a flurry of government legislation and legal challenges.