Coalition Senator's Dissenting Report

Background

1.1Coalition Senators believe that Australia has a pressing responsibility to increase its efforts to disrupt the growing prevalence of global organ harvesting and unethical organ transplantation.

1.2Coalition Senators note the Australian Government has readily accepted the evidence that occurrences of organ harvesting, as a category of human rights abuse, have been increasing throughout the world.

1.3Coalition Senators note the June 2021 report of the 12 UN Special Procedures experts, which identified credible information that ethnic, linguistic or religious minorities may be subject to organ harvesting in our region.

1.4In evidence to the Joint Standing Committee on Foreign Affairs Defence and Trade in September 2022, the Australian Government referenced this report to demonstrate its awareness and concern for global organ harvesting and trafficking activities, noting that reports of organ harvesting were ‘deeply disturbing’.

1.5The overwhelming evidence from inquiry participants was that the issue of organ harvesting and trafficking requires much greater government attention and action.

1.6The significance and urgency of this issue was emphasised by Be Slavery Free, which stated:

Most certainly, when it comes to organ trafficking, when we think of all the areas that we cover – and we go right across, from labour issues to sexual servitude and through all the areas of the Crime Act in Australia – organ trafficking is probably the most heinous, because it’s a slaughterhouse.[1]

1.7The Australian Committee of the International Coalition for End to Transplant Abuse in China re-iterated the view:

Australia needs visibility. It needs to know when someone is coming back [to Australia] that they have had an organ transplant overseas, where they’ve had it and who’s done the operation…we need to understand how that organ transplant occurred. We need to understand whether that organ was sourced legally or through unlawful means. At the moment, again, we don’t have visibility on the extent of the legal ramifications of people going overseas and coming back in.[2]

1.8The Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 is an immediate and effective mechanism to significantly improve Australia’s efforts to disrupt this horrific trade.

1.9Coalition Senators note that, of the 10 submissions received prior to the public hearing on this Bill, eight expressly supported the passage of the Bill. This is reflective of broad enthusiasm from relevant stakeholders and experts.

1.10Of those who did not expressly support the Bill, only one was completely opposed to it, and the other supported the Bill’s intention while offering an alternative method.

1.11Coalition Senators believe the recommendation from Government Senators to suggest one or more public awareness campaigns demonstrates a lack of creativity and an unwillingness to seriously address the widening prevalence of organ harvesting internationally.

1.12This recommendation by Government Senators fails to take into consideration the consensus of inquiry participants, who indicated that the Bill’s passage would be conducive to wider awareness, and that it would complement future awareness campaigns where required.

1.13Furthermore, this recommendation would prevent the passage of this important Bill to assist in advancing Australia’s international human rights reputation.

1.14The motivation for this Bill is substantially drawn from recommendation 2 of the 2018 Compassion, Not Commerce: An inquiry into Human Organ Trafficking or Organ Transplant Tourism report, which stated the need to monitor the transplantation practices of other countries in terms of consistency with human rights obligations, including with regard to the use of the organs of executed prisoners.

1.15The Bill is a pragmatic use of the incoming passenger card, already utilised at Australian borders, to collect much needed data on the prevalence of organ harvesting and unconscionable organ transplants overseas.

1.16While the Bill consciously seeks to avoid directly targeting any particular overseas jurisdiction, it broadens the scope of the recommendation beyond the specific mission of identifying organ harvesting from executed prisoners. It does this by proposing a mechanism to collect data on the prevalence of overseas organ transplants as a whole, whether ethical or otherwise.

1.17The proposal to introduce a new question on the incoming passenger card, which asks arrivals to Australia to declare whether they have received an organ transplant outside Australia within the last 5 years, allows for the immediate and credible collection of data on the prevalence of overseas organ transplants, remaining ambiguous on the potential legality of those transplants.

1.18An enhancement to the level of transparency on this issue is also introduced by requiring the Minister to table an annual report compiling this newly acquired data on overseas organ transplantation.

1.19Coalition Senators agree with Government Senators that ‘urgent action’ is needed in fulfilling the recommendations of the Compassion, Not Commerce report, but have failed to identify an alternative method of combating organ harvesting, limiting their suggestions to a public awareness campaign.

1.20Coalition Senators note that, despite the wide Parliamentary and community endorsement of the recommendations of the Compassion, Not Commerce report, there has been a poor implementation of the recommendations and a subsequent lack of action on combatting organ harvesting and trafficking.

1.21Therefore, the measures proposed in this Bill would constitute important progress, in contrast to the otherwise disappointing and costly period of inactivity since the 2018 inquiry.

Overwhelming support from inquiry participants

1.22This enhanced transparency proposed by the Bill was endorsed by an overwhelming number of submitters.

1.23Coalition Senators again note that, of the 10 submissions received prior to the public hearing on this Bill, eight expressly supported the passage of the Bill.

1.24Of the two who did not expressly support the Bill, one was completely opposed, but the other supported its intention while offering up an alternative method.

1.25Many submitters and witnesses highlight that there is a debilitating lack of reliable data on organ trafficking, and that this is due to the difficulty of tracking a clandestine trade, as well as a lack of significant existing measures that attempt to do this.

1.26As such, those in favour of the Bill emphasised that the collection of data and the introduction of a reporting mechanism would provide a significant improvement in mapping the issue of organ trafficking.

1.27Submitters and witnesses in support of the Bill noted:

... the legislation is an important step in strengthening the laws in Australia to prohibit organ trafficking.[3]

1.28And that:

…the legal requirement for Australians to declare if they have had a transplant overseas, if passed by Parliament, will raise awareness of the issue of organ trafficking amongst the broader Australian community.[4]

1.29Importantly, it was also noted in submissions that these proposed arrangements from Schedule 1 of the Bill could also have an additional benefit in assisting Australian business, medical practices, and the proposed federal Anti-Slavery Commissioner to ‘better assess and identify modern slavery risks of organ trafficking as required by the Modern Slavery Act 2018 (Cth).’[5]

The appropriateness of using the Incoming Passenger Arrival Card

1.30The suitability of the incoming passenger arrival card as a mechanism to collect organ transplant data was not refuted by the Department of Home Affairs.

1.31In fact, officials were able to identify its past and successful utilisation.

During COVID you would have seen that the Department delivered the Digital Passenger Declaration. That was specifically to support the reopening of the borders and to collect information digitally to allow us to open the borders and collect health information at the time.[6]

1.32Officials from the Department of Home Affairs also confirmed:

The digitisation of the Incoming Passenger Arrival Card has been a future aspiration for the Department or for the ABF…at this time, the department and the ABF haven’t moved to a digital card, but it’s certainly something that remains a future aspiration.[7]

1.33And that work is underway on the digitisation of the card:

... there’s initial work underway in looking at what a digital solution to the paper card would be.[8]

1.34Coalition Senators believe work being undertaken by the Department of Home Affairs to digitise the incoming passenger arrival card confirms the timeliness of the initiative contained in the Bill with other efforts currently underway by government.

The matter of dishonest responses on the Incoming Passenger Arrival Card

1.35Government Senators incorrectly identified the potential lack of honesty by passengers arriving in Australia, and falsely completing the Incoming Passenger Arrival Card, as a reason for opposing this Bill.

1.36Coalition Senators contend that the risk of a passenger being dishonest and not reporting may give rise to underreporting, but that this is preferable to no reporting.

1.37Therefore, it is our view that our ability to participate internationally in disrupting organ harvesting and trafficking is still significantly improved, even with a minimal risk of false or non-reporting by arriving passengers.

Options regarding Schedule 2

1.38Coalition Senators acknowledge the informed comments of Professor Burn, Director of Anti-Slavery Australia, who submitted specifically on the matter of Schedule 2 of the Bill.

1.39It was noted in particular that insertion of subparagraph 5C(1)(bc)(ii) and subparagraph 501(6)(ba)(ii) may not necessarily be based on the very broad existing provisions under subparagraph 5C(1)(c)(ii) and subparagraph 501(6)(c)(ii) regarding the ‘non-citizens past and present general conduct’.

1.40It was also suggested the existing subparagraph 5C(1)(c)(ii) dealing with ‘non-citizen of character concern’ may already capture a person who engages in the act of trafficking in human organs and therefore result in that person failing the character test requirements of the Migration Act 1958.

1.41Coalition Senators remain open minded about the best way to resolve issues identified with Schedule 2 of the Bill, are supportive of discussion and debate, and open to amendments proposed by other Senators.

Conclusion

1.42A final, overarching theme of support expressed for the Bill is that it is an important step in the right direction.

1.43The Bill is not designed to be a sweeping, all-encompassing measure to eliminate the practice of organ trafficking or completely eradicate this practice within Australia, or our supply chains.

1.44Some submitters and witnesses indicated that the Bill does not address issues such as a shortage of organs for donation within Australia, or that it fails to propose training protocols for frontline and healthcare workers in recognising signs of organ trafficking, and that, therefore, it should not pass.

1.45Coalition Senators stress the point that the overriding consideration in this Bill is to greatly enhance the collection of data relevant to Australia, so that it can make a greater and more sustained contribution to international efforts to combat organ harvesting and trafficking.

1.46Coalition Senators acknowledge this view is overwhelmingly recognised by submitters and witnesses, who have noted that, whilst the Bill does not offer a comprehensive solution to the issue of organ trafficking, it is an important initiative that will encourage future legislation, support wider efforts from both the public and private sector, raise awareness of the issue, and provide an effective data collection regime to assist in measuring a frequently opaque, illicit trade.

1.47Coalition Senators support the passage of the Bill.

Footnotes

[1]Mr Trevor (Fuzz) Kitto, CoDirector, Be Slavery Free, Committee Hansard, 22 March 2024, p. 1.

[2]Madeleine Bridgett, Member, International Coalition to End Transplant Abuse in China, Committee Hansard, 22 March 2024, p. 9.

[3]International Coalition to End Transplant Abuse in China (ETAC), Submission 6, p. 4.

[4]ETAC, Submission 6, p. 9.

[5]ETAC, Submission 6, p. 11.

[6]Ms Alice Stanley, Assistant Secretary, Australian Border Force, Committee Hansard, p. 21.

[7]Ms Alice Stanley, Assistant Secretary, Australian Border Force, Committee Hansard, p. 21.

[8]Ms Alice Stanley, Assistant Secretary, Australian Border Force, Committee Hansard, p. 21.