The government has been grappling with indefinite detention issues since the High Court ruled in favour of plaintiff NZYQ last November.
With another High Court case looming that could see at least 100 additional people released from indefinite detention, Labor has attempted to change the Migration Act.
Immigration Minister Andrew Giles says the proposed amendment would strengthen the migration system.
"The Albanese government is committed to strengthening Australia's migration system, making it better and stronger and fairer and ensuring it is working in Australia's national interest. The migration amendment removals and other measures Bill 2024 will provide the government with necessary tools to strengthen our immigration compliance framework, including to better manage immigration detention."
The amendment would allow the Immigration Minister to issue what's called a "removal pathway direction", forcing a non-citizen to complete an application for a passport or their travel documents.
If a person doesn't comply with this direction, they face a minimum of 12 months, and up to five years, in prison.
David Manne is a human rights lawyer and Executive Director of Refugee Legal.
He says the proposed changes are extreme.
"The government is resorting here to extreme and completely unwarranted measures to circumvent the ruling of the High Court and to subvert our basic obligations under law, not to deport people in danger. This could have very serious implications for our migration system. And it's draconian, completely unwarranted, its discriminatory and ultimately extreme overreach."
There are concerns that this bill is indefinite detention by another name.
The CEO of the Refugee Action Council, Paul Power, says it could put people at risk of persecution in danger.
"We're really concerned about the fact that the legislation will give the government the power to coerce people who have serious concerns about potential persecution on return into either being forcibly returned or being sent to jail."
The Opposition has been hounding the government about immigration detention issues since the November High Court ruling.
The draft bill initially passed the lower house with the support of the opposition, but was sent to a two-hour inquiry [[26 March]] where Home Affairs officials were questioned about the legislation.
Opposition Home Affairs spokesperson James Paterson says he did not get the answers he was after.
"They couldn't explain how or when they would use this legislation or who it would apply to in light of that it's very difficult for the coalition to support such a rushed passage of this legislation. We are very concerned about unintended consequences."
The Greens moved a motion to send the bill to a longer inquiry, which was supported by the coalition and crossbench.
Greens Senator David Shoebridge says the evidence from Home Affairs proves there needs to be more scrutiny.
"What was also apparent was they had not spoken to a single person outside of the government, not the UNHCR, no NGO, no external voice in developing this legislation and then trying to ram it through parliament in 36 hours. That kind of politics, which is all puff, all wind, and no substance has been exposed from Labor."
The laws also allow the government to designate what's called a "removal concern country".
Once a country is designated, a blanket ban is imposed on visa applications from that country, with some exceptions including for family members of people in Australia, and some refugee visas.
Mr Manne says that could break up families.
"What it's also trying to do is bar refugees from entering Australia and will tear families apart which strikes at the heart of our basic obligations to protect people fleeing from danger. I mean, people from countries who would normally be able to come here will now be barred purely because they're the same nationality as people already here who can't be deported. It's draconian, it's discriminatory, and extreme overreach."
The law also allows the government to reopen previous protection determinations.
Mr Manne says that power could put people's lives at risk.
"The government is also trying to reopen the cases of people who have been found by the government itself to be in need of protection to try and reopen their cases with a view to subverting that decision to enable their deportation. We should never be introducing laws into the in this country for people who have genuine fears of being returned to danger, to persecution. We should never be introducing laws that put those people's lives at risk. And the fundamental problem with this legislation is it does exactly that. It ultimately subverts our obligations under law not to deport people to danger."
Home Affairs Minister Clare O'Neil says Labor is disappointed the bill will go to an inquiry.
"We're very disappointed that the Liberals have decided to stymie our government's efforts to make sure that we have a better run, better managed migration system, and to improve community safety. We bought before the Parliament this week a bill which was absolutely in the national interest, a common sense bill that would have given the Immigration Minister powers that, in my view, he absolutely should already have. Those powers would have allowed us to make sure that we've had a better managed, better run migration system."
The government wants the bill to pass before High Court hears the case involving an Iranian citizen in immigration detention - plaintiff ASF17 - on the 17th April.
With a Senate inquiry not due to report back until Parliament sits again in May, that deadline seems unlikely.
