Chapter 2Key issues
[O]rgan trafficking is opaque. It’s probably one of the most secretive offences that occur around the world. It is not easy to identify or prosecute.
2.1This chapter outlines some key issues raised in evidence to the Committee about the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 (the Bill), including:
increasing awareness of the issue of unethical and illegal overseas organ transplants;
the reliability of the data derived from International Passenger Cards (IPCs);
granting the Minister the power to cancel visas; and
amendments to the Criminal Code.
2.2This chapter also articulates the Committee’s views and recommendations in relation to the Bill.
Increased awareness
2.3As outlined in chapter 1, amendments proposed in the Bill aim to increase public awareness of the issue of illegal and unethical organ transplants by adding questions to the Incoming Passenger Card (IPC). Submitters broadly agreed on the need to increase public awareness regarding unethical and illegal overseas organ transplants, however, some suggested this could be more effective through a public awareness campaign.
2.4Evidence also highlighted the need to increase organ donation rates in Australia and to simplify the process of registering for organ donation.
2.5The section below looks at issues around public awareness in relation to the Bill.
Public awareness campaign
2.6Witnesses and submitters alike expressed the need for increased awareness around illegal organ transplants which could be achieved through a dedicated public awareness campaign.
2.7Be Slavery Free, a coalition of 18 organisations aimed at stopping slavery, submitted that requiring persons entering Australia to answer questions regarding receiving an organ transplant overseas ‘is an important opportunity to raise awareness of the issue of organ trafficking amongst the broader Australian community’. To support the collection of information, Be Slavery Free suggested the launch of a public awareness campaign:
An appropriately funded social marketing campaign, focusing on strategic locations and communities most likely to be affected, could transform the incoming passenger form requirement into widely recognised public knowledge and practice.
2.8The International Coalition to End Transplant Abuse in China (ETAC) an independent, non-partisan organisation comprised of lawyers, academics, ethicists, medical professionals and human rights activists, pointed out that a dedicated public health campaign focused on overseas organ transplants would enable the Government to implement recommendations 8 and 9 of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s (JSCFADT) report: Compassion, Not Commerce: An Inquiry into Human Organ Trafficking and Organ Transplant Tourism.
2.9Anti-Slavery Australia added:
Anti-Slavery Australia endorses Recommendation 8 and 9 of the Compassion, Not Commerce Report and recommends that the Australian Government take swift action to implement these initiatives.
2.10Anti-Slavery Australia went further and recommended that more research on organ trafficking in the Australian context was required, including in the following areas:
Research on the prevalence of organ trafficking within Australia;
Research on the number of Australian citizens and residents who receive organs in overseas jurisdictions including:
Documented or reported instances where an organ donor was exploited ;
Identification of circumstances where the absence of policies or domestic frameworks led to a risk that an organ donor was exploited.
Challenges accessing organs in Australia
2.11Submitters also commented on the low organ donation rates in Australia and discussed how a public health campaign to increase organ donation rates would partly address the issue of overseas organ transplants and ‘systematically build community awareness of the need for organ donation.’
2.12Anti-Slavery Australia and Dr Bruce Arnold, a medico-legal scholar, noted that the proposed Bill does not address the factors that drive people to seek organs overseas. Both submitters highlighted that a key factor that drives people to look for organs overseas is due to the lack of organs available for transplantation in Australia. Dr Arnold stated:
More importantly, [the bill] does not engage with the fundamental problem: the deficiencies in the Australian health system that induce Australians to travel overseas in search of a supply of organs for transplantation.
…
The Bill sidesteps the substantive challenge regarding organ trafficking, ie the ongoing disparity in Australia and elsewhere of organ supply and demand.
2.13In relation to the supply and demand of organs in Australia, Anti-Slavery Australia noted the number of people on the organ transplant waiting list in 2023 (1 799) and the number of organ transplants completed in 2022 (1 224), and observed that ‘[i]t is unclear how many people in this time period died waiting for an organ transplant.’
2.14Submitters posited that a possible reason for the lack of supply of organs for transplant in Australia may be due to the difficulty in becoming an organ donor in Australia.
2.15There are specific circumstances in which a person can donate their organs upon death. Currently, a person can register their intention to be an organ donor through their existing ‘mygov’ account, via the Express Plus Medicare App, or via the Organ and Tissue Authority website. However, the final decision regarding organ donation rests with the deceased person’s family.
2.16Currently, 70 per cent of Australians say they would be willing to donate their organs; however, of the 1435 requests to donate organs in 2023 only 793 families agreed to donate the deceased persons organs.
2.17The Organ and Tissue Authority’s website states, ‘With only a small number of potential donors, increasing consent is critical to increasing our donation rate.’
2.18Dr Arnold agreed submitting that there is ‘a compelling public policy rationale for systematically building community awareness of the need for organ donation’. Dr Arnold went on to state:
Enhanced awareness requires attention to misinformation or uncertainties regarding donation, in particular health institutions respecting the wishes of a deceased person’s family rather than the stated wish of the deceased person to donate organs on death. The individual’s decision should be binding.
2.19The Committee also heard of the difficulties in signing up to become an organ donor. Madeliene Bridgett, Member of ETAC explained:
I went to renew my licence, I was shocked, I have to say, that I wasn't asked about whether I wanted to donate my organs. Prior to me going overseas, it was part of your drivers licence and every time you renewed your licence. Then I went to renew my licence and I said, 'Are you not going to ask me whether I'd like to donate my organs?' They said, 'No, we don't do it that way anymore.'…It was so difficult for me to find out how I actually did that. I had to go to Medicare, get a form and fill in the form to actually do that. I don't know why it was ever taken off the drivers licence question, because that captures so many people.
2.20When questioned about a public health campaign for Australians to donate their organs, Madeliene Bridgett responded, ‘Absolutely, I fully support that.’.
2.21While supporting the proposal to increase organ donation rates in Australia, Professor Wendy Rogers, Chair of ETAC observed that even with double the organ donation rate, there will still be waiting lists and therefore the need for people to go overseas for trafficked organs. Professor Rogers stated:
There is never going to be a system in which there are no waiting lists, because the more organs you have, the more people you see who might be able to benefit from an organ. For example, you might transplant people who are older than are currently eligible or who have comorbidities, who are not currently eligible. So, even if we have a big uptick in the number of organ donors in Australia, it won't totally eliminate people going overseas for trafficked organs. And so, even with the best donation rate in the world, I think we will still need to have measures like the statement on the incoming passenger card and mandatory reporting in a national registrar.
Reliability of data derived
2.22Submitters supported the need to collect data on overseas organ transplants, however, questioned the reliability of the data collected via the IPC. Submitters and witnesses noted that data collected via the IPC would be reliant on persons answering questions honestly.
2.23In support of a data collection system, Anti-Slavery Australia stated:
…clearly there is a need for further research into the prevalence of trafficking in human organs in Australia as well as the establishment of a robust data collection system that captures the rates of Australian citizens and residents who travel overseas for the purpose of organ transplants including whether there has been any illegality.
2.24However, Anti-Slavery Australia warned that the information collected through the IPC does not distinguish between travel for legitimate organ transplantation and travel for illegal organ trafficking, noting that not all overseas transplants are illegal and/or unethical. Anti-Slavery Australia made the following observation:
…it is unlikely that persons entering Australia will honestly answer the disclosure question given the potential for them to be investigated for a crime. This will have an impact on the accuracy of the data captured.
2.25At the hearing, Professor Jennifer Burn from Anti-Slavery Australia elaborated:
[A]s an Australian coming into Australia who has received a lawful transplant, perhaps through a form of altruistic donation from a relative, may feel stigmatised, shamed and marginalised. We've said consistently that the best approach is a human rights approach. And that includes proper national awareness raising and education throughout Australia about what these issues involve.
2.26The concerns around the reliability and efficacy of using the IPC as a data collection method was also shared by the Department of Home Affairs and Australian Border Force (ABF):
The department and ABF do share a concern around the accuracy of information that may be provided by self- declaration, particularly given the volume of passengers coming into Australia, the short amount of time they have to complete the IPC and also cultural, linguistic and other sensitivities around personal private health information, and around whether a data collection of this kind would result in a comprehensive and reliable picture of organ trafficking or organ recipient status.
2.27Professor Burn also questioned what the implications would be if a person coming through the Australian border ticked ‘yes’ on their IPC, declaring they had received an organ transplant overseas in the previous five years, as intended by the Bill.
2.28Evidence from the Department of Home Affairs indicated that nothing would happen to the person making the declaration, as it does not affect their border clearance process.
The Australian Border Force would not be legally required to undertake further action or questioning in circumstances where a traveler provided a declaration on the Incoming Passenger Card that they had received a transplant. Travelers providing a declaration would move through immigration and customs clearance as per the usual process.
Alternatives for the collection of data
2.29Some submitters questioned whether the IPC was the appropriate method of collecting overseas organ transplantation data while others suggested a couple of alternatives to collect data on overseas transplants including the introduction of a national register and including questions in the Census.
Collecting data through the Incoming Passenger Card
2.30Most submitters did not oppose the introduction of questions concerning overseas organ transplantations added to the IPC, however, a number of submitters questioned the appropriateness of this method of data collection.
2.31For example, the Department of Home Affairs explained that the IPC is a mechanism to collect data from travellers for border clearance purposes, including immigration, customs and biosecurity. The requirements for the completion of the IPC are specified in the Migration Act 1958 (Migration Act) and the Migration Regulations 1994. The Department of Home Affairs cautioned that:
Utilising the IPC for purposes other than critical border clearance processes would see the declaration used in a way not currently intended and broaden the scope beyond the requirements under the Migration Act.
2.32Anti-Salvery Australia also questioned whether the proposed changes to the IPC would be inconsistent with the object of the Migration Act. Anti-Salvery Australia provided the following explanation:
Anti-Slavery Australia also notes that the objective of the Migration Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Thus, the mandatory disclosure of health information from citizens via the passenger arrival card may fall outside the scope of the Migration Act. If this is correct, then the Bill will fail in its objective to capture data on the number of overseas transplants received by Australian citizens…
A national register
2.33A national overseas organ transplant registry, collated by medical professionals, was one potential data collection method suggested by submitters as an alternative to the IPC.
2.34In their submission, ETAC stated:
Having a national registry of overseas organ transplants will not only effectively monitor overseas transplants, it will also assist the Australian healthcare system to better deal with the far reaching clinical, ethical, and legal issues which arise as a result of Australian individuals having a transplant overseas.
2.35In support of a national register, Anti-Slavery Australia noted the current lack of available data:
[…] there is currently no national registry that publishes data on the number of Australians who have received an organ transplant overseas and no specific mechanism for collecting such data.
…
We are concerned that the lack of available comprehensive data on the prevalence of organ trafficking in Australia may hamper efforts to prevent Australians from engaging in transplant tourism.
2.36ETAC noted that a national register would require mandatory reporting by medical professionals and therefore would support the implementation of recommendation 5 of the JSCFADT’s Compassion, Not Commerce report.
2.37Professor Rogers from ETAC noted that medical professionals may be reluctant to provide information due to patient confidentiality; however, Professor Rogers provided the example of infectious diseases where mandatory reporting does not compromise patient confidentiality and is a method to record data relating to a specific issue.
Census
2.38Another alternative data collection method to the proposed questions on the IPC was to include questions in the Census, conducted every five years.
2.39In answers to questions taken on notice, Anti-Slavery Australia acknowledged that due to the increased security around confidentiality included in the Census Act 1905, persons who have had an overseas organ transplant would be more willing to disclose that information:
We submit that these protections around confidentiality may encourage more honest responses and thus more accurate data when compared to responses likely to be provided via the incoming passenger card. This is because similar provisions concerning secrecy and non-disclosure are not provided under the Migration Act.
2.40Anti-Slavery Australia deduced that questions regarding overseas organ transplant disclosures fall within the scope of questions that could be asked on the Census. However, Anti-Slavery Australia noted that the next Census is due to take place in 2026 and that the consultation window for questions to be included has already passed, resulting in any new questions having to wait until the 2031 Census to be included.
Visa cancellations
2.41Schedule 2 of the Bill allows for the Minister to cancel a person’s visa if it is reasonably suspected they have been involved in trafficking in human organs.
2.42The Department of Home Affairs and Anti-Slavery Australia both noted that Schedule 2 of the Bill appears unnecessary due to powers already in existence under the Migration Act.
2.43The Department of Home Affairs stated:
There are a range of powers under the Migration Act to allow cancellation of a person, including with regard to their past and present criminal conduct or a person's past and present general conduct where the person is not of good character. And, in the department's view, a person who has either facilitated organ trafficking—that is the trafficking in a person for organ transplantation—where that would be a potential crime in Australia. That offence would be captured by our existing broad powers in the Migration Act. Similarly, if a person was the recipient of a trafficked organ through what's otherwise known as organ tourism, we would have broad powers existing under the Migration Act to consider cancellation of that matter.
2.44This view was supported by Anti-Slavery Australia who provided the following explanation:
We submit that the insertion of subparagraph 5C(1)(bc)(ii) and subparagraph 501(6)(ba)(ii) may not be necessary based on the very broad existing provisions under subparagraph 5C(1)(c)(ii) and subparagraph 501(6)(c)(ii) regarding the ‘non-citizen’s past and present general conduct’. It is reasonable to assume that the past and present general conduct of a person who engages in the act of trafficking in human organs would result in that person being considered a ‘non-citizen of character concern’ under subparagraph 5C(1)(c)(ii) and further, would result in that person failing to pass the character test pursuant to subparagraph 501(6)(c)(ii).
Amending the Criminal Code
2.45The proposed Bill would amend the Migration Act, however a common theme raised in evidence was the need to amend the Criminal Code Act 1995 to include offences of ‘trafficking in human organs’.
2.46Amending the Criminal Codewas a recommendation made by the JSCFADT’s Compassion, Not Commerce report.
2.47ETAC explained the current limitation of Australia’s organ trafficking laws:
Australia’s current organ trafficking laws are inadequate as they do not capture conduct whereby Australians receive an organ transplant that has been unlawfully and unethically removed without the consent of the organ donor. Often referred to as “transplant tourism”, this conduct does not always involve trafficking in persons for the removal of organs, if at all.
2.48In answers to questions taken on notice, Anti-Slavery Australia explained the current limitation of the Criminal Code in relation to organ trafficking:
Schedule 2 of the Bill proposes to insert after subparagraphs 5C(1)(bc)(ii) and 501(6)(ba)(ii) of the Migration Act, the following terms – ‘an offence involving trafficking in human organs.’ However, there is no such current offence in Australian law. For example, the existing provisions under Division 271 of the Criminal Code do not contain any ‘offence involving trafficking in human organs’. Rather, section 271.7B prescribes an ‘offence of organ trafficking – entry into and exit from Australia’ and section 271.7D prescribes an ‘offence of domestic organ trafficking’.
2.49Anti-Slavery Australia argued that the amendments proposed by the Bill would be better substantiated with amendments made to the Criminal Code Act 1995.
Committee View
2.50Organ trafficking and illegal organ transplantation are appalling practises and an abhorrent crime. The Committee is strongly of the view that action needs to be taken to increase public awareness of these practises.
2.51The Committee notes that most submissions supported of the purpose of the Bill –- to collect data on overseas organ transplants in an effort to identify organ harvesting and transplant tourism locations. However, inquiry participants disagreed on the most effective way to collect data on overseas organ transplants.
2.52The Committee agrees with evidence provided by witnesses and submitters on the Incoming Passenger Card not being a reliable way of collecting information on overseas organ transplants, as the proposed measure and central tenet of the Bill relies entirely on people entering Australia completing the card truthfully. The Committee is also mindful that the Bill may not be consistent with the objective of the Migration Act and the border clearance process.
2.53The Committee is strongly of the view that an integral part of addressing any issue is to raise public awareness of the problem. Dedicated public awareness campaigns to inform the Australian people about the risks and potential implications of illegal overseas organ transplants would provide necessary context for anyone contemplating seeking organs overseas. It is imperative that people know that forced organ harvesting occurs.
2.54Additionally, raising public consciousness about the importance of organ donation in Australia would likely go some way towards increasing the organ donation rate. Research indicates the numbers of people seeking overseas organs decreases with improved local donation rates.
2.55While the intent of the Bill is commendable, the Committee remains unconvinced of its effectiveness and is of the view that more work is required to address the appalling practise of organ trafficking.
2.56The Committee recommends that the Australian Government commit to delivering one or more public awareness campaigns:
to inform the public about the risks, dangers and consequences of illegal overseas organ transplants; and
aimed at increasing the number of registered organ donors in Australia.
2.57The Committee agrees with the Department of Home Affairs and Anti-Slavery Australia that the powers to cancel a person’s visa if they are reasonably suspected of participating in illegal organ trafficking are already in effect under the Migration Act 1958, negating the need for Schedule 2 of the Bill.
2.58While the Bill seeks to address recommendations from the Joint Standing Committee on Foreign Affairs, Defence and Trade’s report Compassion, Not Commerce: An inquiry into Human Organ Trafficking and Organ Transplant Tourism, the Committee does not believe the proposed measures would effectively implement the recommendations from this report. Nevertheless, the Committee highlights its support of the recommendations made in that report and agrees that more urgent action is required.
2.59The Committee recommends that the Australian Government redoubles its efforts to implement the recommendations agreed to in its 2021 response to the Joint Standing Committee on Foreign Affairs, Defence and Trade’s report Compassion, Not Commerce: An inquiry into Human Organ Trafficking and Organ Transplant Tourism.
2.60The Committee reiterates its support of the Bill’s intention to collect data on illegal organ transplants, particularly as it applies in the Australian context. However, the committee is not convinced that the bill would effectively achieve this aim and that the above recommendations would do more to address the practise of illegal overseas organ transplants.
2.61The Committee recommends that the Bill not be passed.
Senator Raff Ciccone
Chair
Labor Senator for Victoria