Outsourcing refugee policy: the Australia-Indonesia ‘people swap’

For those of us with a long enough memory of asylum politics, discussion this week of a “people swap” deal between Indonesia and Australia harks back to earlier plans by the then-Labor government to exchange 800 asylum seekers arriving in Australia by boat with 4000 refugees in Malaysia.

This policy was heavily criticised by then-opposition leader Tony Abbott. It was also struck down by the High Court due to legal arguments about the conditions for asylum seekers in Malaysia.
With no details yet of the substance of a possible people swap with Indonesia, it is unclear how this proposal differs from Labor’s 2011 plan. However, there appear to be some key distinctions - and similarities - worth noting. It appears that Indonesia is taking a much stronger position on this issue. Comments by Dewi Fortuna Anwar, an adviser to Indonesian vice president Boediono, have highlighted Australia’s position as a rich nation and its status as a Signatory to the 1951 Refugee Convention.

Indonesia is not a signatory to the convention, and therefore asylum seekers in its territory may not have the same levels of protection as they could obtain in Australia. This was a central argument of the successful challenge to the earlier Malaysia people swap plan.

Entering into bilateral agreements on asylum and migration has been tried and largely failed in other regions. Italy was found to have breached international human rights law when it signed an agreement with Libya to accept asylum seekers intercepted at sea in 2009.

Malta’s plans to return Somalis by plane to Libya was also stopped by a ruling of the European Court of Human Rights. Once an asylum seeker arrives on the territory of a country such as Australia, that country has certain obligations towards an asylum seeker that cannot be cancelled with the stroke of a pen.

We also know that bilateral agreements have their limitations. As others have pointed out, the only way to address refugee movements is through regional approaches that ensure the same treatment and conditions for asylum seekers throughout the various countries they move through.

Making conditions in one country different to others risks simply shifting refugee movements from one place to another. We see this phenomenon happening now in the Horn of Africa.
With Israel fencing off its Sinai border, more asylum seekers are taking riskier routes through Libya and across the Mediterranean sea to reach Europe. This has resulted in a higher number of deaths at sea and an unknown number of deaths across dangerous desert crossings.

Simply “swapping” asylum seekers for refugees is unlikely to be the panacea that the federal government hopes it will be. The cost and logistics of such an arrangement are high, and the policy itself will do nothing to improve longer-term conditions in Indonesia for the many asylum seekers who will not come under such an arrangement.

Measures such as improving protection for asylum seekers and refugees in Indonesia, encouraging Indonesia to sign the Refugee Convention and working towards regional arrangements through existing schemes like the Bali Process must occur alongside any new policy arrangements.

Australia should also take leadership in helping to deal with the conditions that force people to flee their homes. Focusing on countries that people transit through overlooks the situations that refugees are fleeing from: countries that continue to be ravaged by war or civil conflict.
Creating more obstacles for people seeking protection leads to increases in the use of smugglers, as Hein de Haas of the International Migration Institute has argued. He, along with NGOs and refugee advocates, continue to highlight the need for more safe and legal channels for people to seek protection - not less.

Developing policy through the prism of asylum seekers being seen as a “burden” which must be shared ignores the fundamental right everyone holds to seek and enjoy asylum. It also creates a race-to-the-bottom scenario where all countries - including Australia - do all they can to avoid responsibility and shift refugee protection to other countries with fewer resources to handle large influxes of refugees.

As discussions on this policy progress, we should reflect on criticisms made by Abbott of the original Malaysia people swap deal as “policy on the run”. We should also consider whether outsourcing Australia’s responsibilities for asylum seekers and refugees is a sustainable policy that meets our own commitments to international human rights.

Melissa Phillips Honorary Fellow at University of Melbourne