Chapter 1Introduction
Referral of the Bill
1.1On 22 June 2023, Senator Dean Smith introduced the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 (the Bill) into the Senate.
1.2On 9 November 2023, pursuant to the Senate Selection of Bills Committee, the Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 30 March 2024.
1.3On 29 February 2024, the Senate agreed to extend the reporting date to 14 May 2024.
Conduct of the inquiry
1.4The Committee advertised the inquiry on its website, wrote to relevant organisations and individuals inviting submissions by 1 February 2024 and published a media release announcing the inquiry.
1.5The Committee received 11 submissions, which are listed at Appendix 1.
1.6The Committee held one public hearing in Canberra on 22 March 2024. The witness list for this hearing can be found at Appendix 2.
Purpose of the Bill
1.7This Bill seeks to amend the Migration Act 1958 (the Migration Act) to better inform the Commonwealth of Australia about persons entering Australia who have received an organ transplant. It would also allow the Minister to refuse to grant, or to cancel, a person’s visa if it is reasonably suspected the person has been involved in conduct constituting an offence involving organ trafficking.
1.8Currently there are no reporting requirements for persons arriving in Australia relating to organ transplants. The collection of this information aims to assist the Australian Government’s ability to collect reliable data and provide information about the occurrence, scale and location of potential illegal and unethical organ transplants. It is also intended to aid the Government in monitoring potential breaches of human rights and thereby supporting in combatting organ trafficking.
1.9On 22 June 2023, in his second reading speech, Senator Dean Smith outlined the purpose of the Bill:
In September 2021, the Australian Government responded to the Compassion, Not Commerce: An inquiry into Human Organ Trafficking or Organ Transplant Tourism report, describing the issue of organ trafficking and related crimes as "a complex, evolving problem, encompassing many countries".
This evidence—procured from a variety of global bodies, governments, and NGOs—coincides with increasing reports and examples of organ trafficking and harvesting across the world, with concern the scale of the activity is more widespread that previously imagined.
Importantly, the Bill fulfils a number of recommendations of the Compassion, Not Commerce: An inquiry into Human Organ Trafficking or Organ Transplant Tourism report, including: Recommendation 2; the need to monitor transplantation practices of other countries with regard to consistency with human rights obligations, including with regard to the use of the organs of executed prisoners; and Recommendation 4; the need for suitably anonymised data regarding the participation by Australians in overseas commercial transplants.
Background
1.10In Australia, organ trafficking is defined as the removal of organs either:
for trade or the sale of organs; or
where no consent has been given for the removal of the organs.
1.11Current organ trafficking laws ‘criminalise the movement of people into, from or within Australia for the unlawful removal of their organs.’
1.12Although transplant tourism is not legally defined in Australia, it refers to circumstances where an intended organ recipient travels overseas to purchase an organ. The Compassion, Not Commerce report found ‘organ trafficking and transplant tourism is a global problem’ that occurs in many countries around the world.
1.13One of the factors that drives people to seek organs overseas is the lack of organs available for transplantation.
1.14Australia has a national program for organ donation which is administered through the Organ and Tissue Authority. Since the program began in 2009, 18144 people have received life-saving organ transplants. The first 10 years of the program saw an increase of 122 per cent in deceased organ donation rates which resulted in an 81 per cent increase in people receiving an organ transplant. The impacts of the COVID-19 pandemic saw a 23 per cent reduction in the number of deceased organ donations between 2020 and 2021.
1.15A person must die in a hospital in specific circumstances to be considered for organ donation. As illustrated in Figure 1, only a small number of potential organ donors are found suitable for organ donation.
Figure 1: Australia’s potential deceased organ donor population and transplantation outcomes
Source: Organ and Tissue Authority, www.donatelife.gov.au/all-about-donation/statistics-in-australia (accessed 3 May 2024).
1.16According to the 2023 Donation and Transplantation Activity Report, approximately 1 800 Australians are on a waitlist for a transplant and approximately 14 000 additional people on dialysis.
1.17As mentioned in Senator Dean Smith’s second reading speech, this inquiry aimed to implement recommendation 2 and 4 from the Joint Standing Committee on Foreign Affairs, Defence and Trade’s (JSCFADT) Compassion, Not Commerce report. During the course of this inquiry submitters also considered a number of other recommendations from the report, including recommendation 5, recommendation 7, recommendation 8 and recommendation 9 (a complete list of the recommendations from the Compassion, Not Commerce report is available at Appendix 3).
Key provisions of the Bill
Disclosure of overseas organ transplants
1.18The Bill would require persons entering Australia to answer three additional questions on their incoming passenger card disclosing if they have received an organ transplant outside Australia in the previous five years, as well as the country and the town or city of the medical facility where said transplant occurred.
1.19The Bill would require the Minister to prepare a report annually within one month of the end of the calendar year and table the report in both Houses of the Australian Parliament within 10 sitting days after the report was prepared. The report would incorporate the number of positive answers received during the previous calendar year and information on the place where the transplant occurred, including the number of times each place was specified. The Minister would not be required to reveal the name of the medical facilities where organ transplants have occurred.
Organ trafficking
1.20The Bill would also amend the character test in the Migration Act to include reference to an offence involving trafficking in human organs. It would allow the Minister to refuse or cancel a person’s visa if the Minister reasonably suspects that person has been or is involved in trafficking in human organs. As outlined in the EM:
This provides for a non-citizen to be of “character concern” under the Migration Act if the Minister reasonably suspects the non-citizen has been or is involved in conduct constituting an offence involving trafficking of human organs.
Consideration by other parliamentary committees
Parliamentary Joint Committee on Human Rights
1.21The statement of compatibility with human rights in the Bill’s EM states that the Bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.22The EM also states that the amendments contained in the Bill are beneficial and engage with the right to liberty in Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and the trafficking in persons – Protocol to Prevent, Supress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations (UN) Convention against Transnational Organized Crime.
1.23The EM added that the amendments may have ‘the consequence of limiting human rights in some circumstances, those limitations are considered reasonable, necessary, and proportionate.’
1.24The Parliamentary Joint Committee on Human Rights had not considered the Bill prior to this report tabling.
Senate Standing Committee for the Scrutiny of Bills
1.25The Senate Standing Committee for the Scrutiny of Bills notes Scheule 1, item 1, proposed section 166A may raise concerns under principle (i) in relation to privacy.
Financial impact statement
1.26The EM did not contain a financial impact statement.
Acknowledgement
1.27The Committee wishes to express its gratitude to the individuals and organisations that contributed to this inquiry.
Note on references
1.28In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between the proof and official transcripts.