Australia, New Zealand and Transplant Abuse in China

(Revised remarks prepared for a Parliamentary briefing in Canberra, November 23, 2022, and Adelaide, South Australia November 29, 2022 and a public forum in Auckland, New Zealand, December 1, 2022)

by David Matas

21 December 2022

I. Introduction

One reason, though far from the only, that I and other researchers came to the conclusion that in China prisoners of conscience were being killed in industrial fashion for their organs was that there were no laws in place to stop the abuse, neither in China nor abroad. The primary victims when I began my research with the late David Kilgour were practitioners of the spiritually based set of exercises Falun Gong. Now that their numbers have been depleted through mass killing for their organs, Uyghurs have become replacement victims in substantial numbers. But there are others as well, Tibetans and House Christians, especially but not only Eastern Lightning.

In China, the problem in 2006 when I began this work, was not just an absence of laws. A 1979 Chinese law on medical research and a 1984 law on prisoners expressly allowed for the sourcing of organs of the dead without consent of anyone, provided the family did not claim the bodies. China, after the initial report that David Kilgour and I wrote, enacted in 2007 a law requiring consent to organ donation, but without repealing either the 1979 or the 1984 law. As well, the Chinese Communist Party, which runs the legal system, does not apply the law against itself.

Abroad, the situation differs depending on whether the state has nationality or territorial jurisdiction. Civil law countries typically have nationality jurisdiction, meaning that they can prosecute their nationals for crimes committed abroad. Common law countries typically have territorial jurisdiction, meaning that they can prosecute their nationals only for crimes committed on their territory. To go beyond that, specific extra-territorial legislation is necessary. When David Kilgour and I began our work, this extra-territorial legislation directed against organ transplant abuse existed nowhere.

When it came to transplant tourism into China, those from civil law countries also enjoyed immunity, despite the default application of their laws to nationals abroad, because of the absence of mandatory reporting from health practitioners to health administrators of that tourism. Health practitioners would know about transplant tourists because the organ recipients need anti-rejection drugs on return. When David Kilgour and I began our work, this mandatory reporting also existed nowhere.

II. Parliament of Australia

There has been significant concern in the Parliament of Australia about organ transplant abuse in China. There have been many petitions in the Parliament of Australia, both in the House of Representatives and the Senate, addressing Falun Gong and organ harvesting, starting in 2006 when the report that I wrote with David Kilgour first came out and continuing to this year. The Parliament, it is safe to say, is well informed of the abuse and has showed considerable concern about the abuse.

a) Motions

There was an attempt at a motion on the subject matter in the Senate by Senator Madigan in August 2014.(1) The Senator was given one minute to speak on the motion. And that was that. There was no debate and no vote.

In the House of Representatives, on February 8, 2016 Member Parke presented a motion urging “the Chinese Government to immediately cease the practice of harvesting organs from prisoners”.(2) The motion was seconded, but neither debated nor voted on.

The Senate on 24 November, 2016 passed a motion, without opposition or debate, co-sponsored by Greens Senator Janet Rice and Liberal Senator Eric Abetz, which invited the Australian Government to consider both “making it an offence to travel overseas to receive an organ acquired from a non-consensual donor” and “establishing a register of Australians travelling overseas to receive organ transplants, including details on the country in which they receive them.”(3) That same day, in debate on the Australian Organ and Tissue Donation and Transplantation Authority Amendment (New Governance Arrangements) Bill 2016, Senator Rice spoke at length about transplant abuse in China with prisoner of conscience victims and the need for Australian action.(4) Senator Hinch added remarks in support.(5) Senator Abetz gave a similar speech on February 5, 2020 in debate on a motion to adjourn, expressing in particular concerns about links between Westmead Hospital in Sydney and the Chinese transplant system.(6)

A half-way house is debate on a motion without a vote. That procedure was used in March 2021 in the House of Representatives when addressing a motion to condemn China for repression of Uyghurs.(7) The motion was bipartisan and all speakers condemned the repression. The sense of the House was obvious, even though no formal vote was taken.

It may seem odd that the Abetz/ Rice motion called on the Government of Australia only to consider various matters rather than to act on those matters. The oddity can be explained by the feature of formality.

There was at the time a procedure of denying formal recognition of motions considered complex or contested. Motions with foreign policy implications typically were denied formality on that basis. Senator Madigan in 2014, after presenting his motion, stated: “I acknowledge the policy of the government and the opposition to deny formality to motions that may have foreign affairs implications.”

There is no constitutional bar preventing either the House of Representatives or the Senate from adopting a motion with foreign policy implications. Indeed, the Guide to Senate Procedure on Notices of Motion on the Senate website says today the exact opposite stating that “Notices of motion may seek the Senate’s endorsement of an issue of domestic or foreign policy.”(8)

This procedure on formality has since been abandoned in favour of a procedure which denies the possibility of motions on matters of substance, whether simple or complex, whether contested or unanimous. It was replaced instead, on June 24, 2021, by a procedure allowing Senators to make two minute statements on what would have been otherwise the subject of a motion. The current Senate website appears out of sync with this procedural change.

Australian Senate procedures go beyond the subject matter of this text. Nonetheless, it is hard to see why a matter which Parliaments around the world have been able to resolve – developing a procedure for the presentation of, debate about, and decision on motions – should be so problematic for the Senate of Australia.

There are several Parliaments around the world which have, through motions or resolutions, condemned the mass killing in China of prisoners of conscience for their organs and called for Government action to avoid complicity in those killings. Australia should follow suit.

b) Mandatory reporting

There was a study and a report of the Human Rights Sub-Committee, House of Representatives, Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, titled “Compassion, Not Commerce: An Inquiry into Human Organ Trafficking and Organ Transplant Tourism” of November 2018. The report made many recommendations directed to the Australian Government including one on mandatory reporting and another on extra-territorial legislation.(9)

The recommendation on mandatory reporting was this:

“The Sub-Committee recommends that the Australian Government work with the States and Territories, transplant registries, and the medical community, to consider the appropriate parameters, protections, and other considerations, to support a mandatory reporting scheme whereby medical professionals have an obligation to report, to an appropriate registry or authority, any knowledge or reasonable suspicion that a person under their care has received a commercial transplant or one sourced from a non-consenting donor, be that in Australia or overseas.”

Health professionals will know about transplant tourism, since transplant tourists need anti-rejection drugs on return. Requiring medical professionals to report to a registry or authority may require state and territorial co-operation, which is certainly worth addressing and achieving. The Government of Australia, in response to this recommendation in the Sub-Committee Report stated: “The Australian Government will provide the recommendation to state and territory governments to consider whether any additional action is required.”(10)

Mandatory reporting serves a dual purpose. One is to operationalize an extraterritorial offence of organ transplant abuse. With mandatory reporting, police, investigators prosecutors, and those enforcing ethical standards will know when to act in individual cases.

The other is publicize the dimensions of the organ trafficking problem. With mandatory reporting, it is possible to develop an accurate appreciation of the dimensions of the transplant tourism problem which Australia faces. Aggregates can be made publicly available without breach of privacy. Without that reporting, transplant tourism would be shrouded by patient-health practitioner confidentiality

Another way of achieving the same result is acquiring information on transplant tourism through the Australian incoming passenger card, by asking appropriate questions residents on entry. Changing the incoming passenger card can be done by the Commonwealth government alone. This change, though desirable, is not likely to be as effective as mandatory reporting by health professionals, since this change would require self-reporting by transplant recipients, who may not want to report.

States and territories can each individually take initiatives on mandatory reporting. The initiative of any one state or territory can serve as an example and offer leadership to others, prompting action by others.

Alternatively, the states and territories can act collaboratively with the Commonwealth Government through the Health Ministers’ Meetings. According to the website for these meetings, the meetings enable “health ministers to progress collaborative decisions and actions on issues of national importance”.(11) Mandatory reporting from health professionals to health administrators of transplant tourism is a matter of national importance. Collaborative decisions and actions on this matter should be progressed.

c) Extraterritorial legislation

The Australian criminal law applies territorially, to crimes committed in Australia, whether by nationals or foreigners.(12) The law has extra-territorial effect only when there is express mention of that in the law.(13)

Internationally, a distinction has developed between trafficking in persons for the purpose of organ removal and organ trafficking. The Council of Europe has a Convention against Trafficking in Human Beings which includes trafficking in persons for the purpose of organ removal. The Council of Europe has also a Convention against Trafficking in Human Organs. The United Nations Office on Drugs and Crimes, the administrative arm of the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons takes the position that the Protocol applies to trafficking persons for the purpose of organ removal, but not organ trafficking.(14)

Although the language is similar, there is a difference in the two concepts. When there is trafficking in persons for the purpose of organ removal, the organ source is moved to the location of the organ recipient. When there is organ trafficking, the organ recipient moves to the location of the organ source.

The Australia Criminal Code has several provisions criminalising trafficking in persons for the removal of their organs.(15) The prohibition in trafficking persons for the removal of their organs is stated to be extra-territorial. The provisions on trafficking persons for the removal of their organs are labelled as offences in organ trafficking. Yet, organ trafficking itself is not prohibited.

The Australian Criminal Code states that
“The removal of a person’s organ is contrary to this Subdivision if:
(a) the removal, or entering into an agreement for the removal, would be contrary to the law of the State or Territory where it is, or is to be, carried out; or
(b) neither the victim, nor the victim’s guardian, consents to the removal, and it
would not meet a medical or therapeutic need of the victim.”

That phrasing seems to suggest that removal of a person’s organs without State or Territory legal authority or consent would violate the Criminal Code. However, if one reads the Subdivision as a whole, one can see that this is not what the Subdivision says. Rather the quoted provision is meant only to define the phrase “the removal of a person’s organ contrary to this Subdivision”. That phrase is used repeatedly in setting out the legislated offences. Where that phrase is used later in the Subdivision as part of a description of an offence, more than removal contrary to State or Territory law, or without consent, is necessary to commit the offence. Also necessary is movement of the person with the organ to be removed either internationally or from one part of Australia to another part of Australia.

If all States and Territories prohibit organ trafficking, it may not matter, to combat domestic organ trafficking, whether the Commonwealth Parliament does so. The Sub-Committee notes that the ‘‘relevant state and territory offences are substantially consistent with each other” and reflect ‘their origin in model legislation proposed by the Australian Law Reform Commission’’.

It may be that the Criminal Code provisions were meant to fill a gap in State and Territory laws by dealing with offences where there is movement across international, State or Territorial boundaries. However, the gap is only partially filled by prohibiting only transplant of persons for the purpose of organ removal and not organ trafficking.

The Commonwealth Criminal Code provisions do not deal with the situation where the organ source does not move either internationally or within Australia. The failure to deal with the situation where the organ source does not move within Australia would not matter if every State and Territory prohibited organ sourcing without consent. But it does matter for an extraterritorial offence. Where Australian transplant tourists leave Australia to benefit from an exploited organ source abroad including a person killed for their organs, Australian law at all jurisdictional levels is silent.

The Sub-Committee recommended adding organ trafficking to the Criminal Code. The Sub-Committee wrote:

“The Sub-Committee recommends that the Australian Government amend the Criminal Code Act 1995 and any other relevant legislation insofar as offences relating to organ trafficking:

include trafficking in human organs, including the solicitation of a commercial organ transplant;
apply to any Australian citizen, resident or body corporate;
apply regardless of whether the proscribed conduct occurred either within or outside of the territory of Australia;”

I assume here that the Sub-Committee meant to write “so that” instead of “insofar as.”

The Government of Australia does not have the legal authority to amend the Criminal Code; only the Parliament of Australia can do so. I assume that what the Sub-Committee meant to recommend was that the Government of Australia propose to Parliament the suggested amendments.

A Government proposal is not necessary for the Parliament of Australia to enact legislation. While it would be admittedly more difficult for a private Member’s or Senator’s bill to be enacted than a Government bill, the adoption by Parliament of a private Member’s or Senator’s bill can happen and has happened.

The Government of Australia, in February 2021, in response to the Sub-Committee report, stated about this particular recommendation on amending the Criminal Code, that “The Australian Government accepts this recommendation in principle.” Yet, their elaboration of this answer makes it apparent that the Government does not accept the recommendation.

Their response to this recommendation goes on to say: “Australia has a comprehensive legal framework in place to prevent and respond to organ trafficking.” The Government response is oblivious to the fact that the legal framework is not comprehensive, that the reference to organ trafficking in the legislation is just a label for the offence of trafficking in persons for the purpose of organ removal but not a prohibition of organ trafficking as such.

The Sub-Committee referred to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons as the Palermo Protocol. The Sub-Committee wrote:
“The Council of Europe Convention against Trafficking in Human Organs … was established in part in response to a definitional gap in the Palermo Protocol identified by a joint United Nations and the Council of Europe study. The joint study established that the Palermo Protocol addressed only trafficking of persons for the purpose of organ removal, without consideration as to trafficking in human organs themselves.”

The UN participation in the joint study was conducted under the auspices of the United Nations Secretary-General.(16) The Government of Australia, in response to the recommendation that Australia sign on to the Council of Europe Convention against Trafficking in Human Organs, stated:
“Australia has comprehensively criminalised organ trafficking and other human trafficking, slavery and slavery-like offences, fulfilling our obligations as a party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.”

The Joint UN Council of Europe study stated:
“trafficking in OTC [organs, tissues and cells]and trafficking in human beings for the purpose of organ removal are often mixed up or dealt with together. This leads to confusion both in theory and in practice and consequently hinders effective efforts to combat the two categories of crime and also provide comprehensive victim protection and assistance.”

For Australia to assert that the Palermo Protocol and its implementation in Australia are comprehensive, that they include organ trafficking as well as trafficking in persons for the purpose of organ removal, manifests the confusion the Office of the Secretary-General of the United Nations in their Joint Study with the Council of Europe, the UN Office on Drugs and Crime and of the 46 member states of the Council of Europe (as well as Costa Rica, an observer state to the Council of Europe which has ratified the Council of Europe Convention) have all tried to avoid.

The provisions in the Australian Criminal Code which prohibit trafficking in persons for the purpose of organ removal, and which then label those offences as organ trafficking offences, were enacted in 2005.(17) That was several years prior to the Joint UN – Council of Europe study of 2009 and the Council of Europe Convention of 2015.

The confusion in the 2005 Australian legislation manifested the very confusion that the Joint Study and Convention was understandable at the time, in 2005. It is less understandable that the Government would now, in light of subsequent developments and the reference to and reliance on them in the Sub-Committee report, refer to the current Australian legislation as comprehensive.

The Government is free to take the position, should they so wish, that, contrary to the Council of Europe, the Office of the UN Secretary General and the UN Office on Drugs and Crime, there is no difference legally between organ trafficking and trafficking in persons for the purpose of organ removal and that trafficking in persons for the purpose of organ removal includes organ trafficking. If that is indeed their position, the Government then should legislate that position, to avoid confusion, and attempt internationally to have that position adopted. Legislating that position would mean stating explicitly that trafficking in persons for the purpose of organ removal includes situations where the person whose organs are being trafficked does not move and only the potential organ recipient moves.

Convincing the global community that there is no need for the Council of Europe Convention against Trafficking in Human Organs, that it is superfluous, that its obligations are already covered by the Council of Europe Convention against Trafficking in Human Beings, and that the UN Office on Drugs and Crime has got wrong their interpretation of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, is a quixotic battle. Yet, that is a battle in which Australia needs to engage if it wants to maintain consistently a position that there is no difference between organ trafficking and trafficking in persons for the purpose of organ removal.

I would have no objection to such an Australian effort. Indeed, I would welcome it, since China is a state party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons and, if the Protocol covers organ trafficking, China is plainly violating it.

If the Government of Australia really does want to maintain that there is no distinction between organ trafficking in persons and trafficking in persons for the purpose of organ removal, it follows that Australia should object to Chinese violation of that Protocol. More generally, Australia should ask the states parties to the Protocol, at the next session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime and its Protocols, to adopt the position that the Protocol covers organ trafficking, that trafficking in persons encompasses a situation where the person trafficked is not moved and only the organ recipient moves.

The current situation is unsatisfactory. Currently, the Australian Government does not address directly the distinction between trafficking in persons for the purpose of organ removal and organ trafficking. The Government does not assert that they accept the distinction and will propose legislation to Parliament accordingly. Nor do the assert that they reject the distinction and intend to take a consequent position to that effect both in Parliament, through clarifying legislation, and in the international arena. The result is the continuation of the confusion in which the original legislation is steeped.

Since the Government statement in February 2021, there has been an election and a change in government. What is the position of the new Government on the Sub-Committee recommendation? Does this Government too take the position that the present legislation already covers organ trafficking and that there is no need for a specific legislative prohibition against organ trafficking, despite the Sub-Committee recommendation? If that is their position, do they intend to act consistently with that position both through legislative clarification and international advocacy? Those are questions any Member of Parliament can ask the Government.

In Canberra, I met with Government officials and carried forward to my meeting with them the suggestion that they implement this recommendation, that the Government propose to Parliament the amendments to the Criminal Code that the Sub-Committee recommended. Any Parliamentarian so inclined can do the same, and propose to Parliament, in a private Member’s or Senator’s bill, the amendments to the Criminal Code recommended by the Sub-Committee. To date, in this Parliament, there has been no such private Member’s or Senator’s bill.

It is difficult for private Members or Senators bills to be enacted even when the Government has no objection to them in principle, simply because of the difficulty in obtaining the necessary Parliamentary time. Nonetheless these proposals serve a purpose by getting the ball rolling, setting out clearly in legislative language what can and should be done.

These private members’ bills have been proposed in many jurisdictions, including Canada, where I am from. And they have been useful exercises. The Canadian bill has just passed Parliament.(18) Australian Parliamentarians should take the next step that is within their powers and propose legislation on their own initiative to implement the recommendation of their own Sub-Committee.

d) The Council of Europe Convention

The Sub-Committee also recommended that

“the Australian Government sign and ratify the Council of Europe Convention against Trafficking in Human Organs, and works with the States and Territories to make the requisite amendments to Commonwealth and State and Territory legislation and ensure non-legislative obligations are met.”

The Australian response to this recommendation was quoted above. For convenience, it is repeated here.
“Australia has comprehensively criminalised organ trafficking and other human trafficking, slavery and slavery-like offences, fulfilling our obligations as a party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.”

This claim of the Government of Australia is wrong in two respects. One it is a non-sequitur since the Sub-Committee is addressing one subject matter – organ trafficking, and the Government responds by addressing another subject matter – trafficking in persons for the purpose of organ removal. The other is that it is wrong to say, as noted above, that Australia has comprehensively criminalised organ trafficking.

It may well be that every State and Territory has criminalised organ trafficking. But that criminalisation has no international effect. And there is nothing in Australian law to prohibit Australian complicity abroad in organ trafficking, as opposed to trafficking in persons for the purpose of organ removal. Australia needs to revisit its response to this Sub-Committee recommendation with the distinction between the offences of organ trafficking and trafficking in persons for the purpose of organ removal in mind.

This response to this Sub-Committee recommendation is troubling because it takes away with one hand what it gives with the other. The Government stated, as noted, in response to the recommendation of the Sub-Committee for extra-territorial legislation prohibiting organ trafficking, that they agreed. The Government here responds that this legislation already exists. Therefore, presumably, they intend to do nothing further.

To date, thirteen states of the Council of Europe have signed and ratified the treaty – Albania, Belgium, Croatia, Czech Republic, Latvia, Malta, Moldova, Montenegro, Norway, Portugal, Slovenia, Spain, and Switzerland. One observer state has ratified the Convention – as noted, Costa Rica and one state which is neither a member nor observer state – Chile, has been invited to do so.

There are also jurisdictions which are not party to the Convention but with the requisite legislation – Israel, Italy, South Korea, Taiwan, and the United Kingdom. So, there are now at least nineteen jurisdictions with the necessary legislation. Canadian proposed legislation has just been enacted by Parliament and awaits the signature of the Governor General.

Australia does not need to sign on to the Convention to enact the necessary legislation. There may be good reasons for not Australia’s not becoming a state party to the Convention, even if the Government of Australia accepts the distinction between organ trafficking and trafficking in persons for the purpose of organ removal. Yet, there is an advantage to becoming a state party to the Convention. By so doing, Australia would join other states in solidarity and in a collective effort to combat foreign organ transplant abuse.

e) Friends of Falun Gong

One last suggestion I would make is the constitution of a friends of Falun Gong Parliamentary group. Australian Parliamentarians, through the many petitions they have presented to Parliament, as well as through the Sub-Committee report, and statements they have made outside Parliament, have shown an understanding of the issue of the mass killing in China of prisoners of conscience for their organs. Yet, there remains much to be done and it is better done coherently, in concert.

III. Australian State Parliaments

a) New South Wales

David Shoebridge in August 2015 presented a petition to the Legislative Council of New South Wales Australia on international trafficking and harvesting of human organs. The petition stated:

“that the international community has noted the deterioration of the human rights situation in China which has been involved in the removal of organs from live prisoners of conscience or persecuted minorities and administering the use of these organs,

that Mr David Shoebridge MLC has begun formal consultation on the Human Tissue Amendment (Trafficking in Human Organs) Bill to prohibit New South Wales residents from engaging in illegal harvesting or trafficking of human organs,

that the international trade of organs produces abuses of human rights, seeing people killed to order with one person’s life being deliberately taken to save another’s,

that while most countries have laws prohibiting the sale and forced removal of organs evidence suggests that the practice continues to be widespread in a number of countries, the most commonly cited country is China,

that one way of addressing this brutal trade is for countries like Australia to impose prohibitions on its citizens, making it a crime to receive trafficked organs sourced by illegal and unethical means, and requesting that the House outlaw human organ trafficking and harvesting as proposed in the bill, make it illegal for people in New South Wales to receive an organ overseas that has been trafficked or illegally harvested, and urge the Federal Government to make changes to laws regarding overseas organ harvesting and trafficking.”(19)

David Shoebridge one year later, in November 2016, introduced into the New South Wales Parliament a private member’s bill titled the Human Tissue Amendment (Trafficking in Human Organs) Bill 2016.(20) The Bill provided that:

“A person must not:

(a) enter into, or offer to enter into or promote, a commercial transplant arrangement, or

(b) knowingly provide any services (including medical services) under a commercial transplant arrangement, or

(d) consent to the transplantation to the person of tissue removed from the body of another person under a commercial transplant arrangement.”

The Bill further provided:

“a person commits an offence under this Part even if one or more of the acts constituting the offence occurs outside New South Wales and the person who does the acts constituting the offence, or the person from whom the relevant tissue is removed, is ordinarily resident in New South Wales.”

The Bill also provided:

“A registered health practitioner has a duty to provide a report to the Secretary [of the Ministry of Health] if he or she has a reasonable belief that a patient or other person has been transplanted with or received tissue that was removed from the body of another person (whether living or deceased):

(a) under a commercial transplant arrangement, or

(b) without the appropriate consent to the removal or to its use in that patient or other person.”

The New South Wales Human Tissue Act prohibits trading in tissue.(21) Tissue is defined to include an organ. The prohibition is not legislated to have extra-territorial effect, something the private bill of David Shoebridge tried to remedy.(22)

The New South Wales Modern Slavery Act has an extraterritorial provision which applies to trading in organs and forced organ harvesting, but the extraterritorial effect applies to matters other than the prohibitions against trading in organs and forced organ harvesting. This Act applies “outside the State to the full extent of the extraterritorial legislative capacity of the Parliament” of the State.(23) The Act defines a modern slavery offence to mean both an offence described in a schedule of the Act(24) and an offence of attempting, or of incitement, to commit an offence described in the schedule.(25)

One of the offences described in the schedule is an offence against the section of the Human Tissue Act which prohibits trading in issue, but “only in relation to tissue that is an organ”. Another offence to which reference is made in the Schedule is the New South Wales Crimes Act prohibition against holding a person in slavery or servitude.(26) The Crimes Act provides that, in determining whether a person is held in slavery or servitude, regard may be had to “whether the person has been coerced, threatened or deceived into doing anything which involves the supply or sale of the person’s tissue” within the meaning of the Human Tissue Act.(27) The schedule applies also to the various offences in the Commonwealth Criminal Code related to trafficking persons for the purpose of organ removal.

The Modern Slavery Act creates an Anti-slavery Commissioner with a range of advocacy and reporting powers, but who can not act in individual cases.(28) What the Act does not do is prohibit modern slavery or require reporting on transplant tourism. In this Act, the concept of extraterritoriality is applied to the offences of organ trading and forced organ harvesting. But extraterritoriality is limited to the powers of the Government of New South Wales and the Anti-slavery Commissioner set out in the Act.

Consequently, the current law for New South Wales does not effect what the private member’s bill of David Shoebridge proposed. For New South Wales, organ trading and complicity in forced organ harvesting by a resident of New South Wales outside of New South Wales are still not prosecutable offences.

b) South Australia

A Joint Committee of the Parliament of South Australia on the Operation of the Transplantation & Anatomy Act 1983 produced a report in November 2015 which recommended that:

“the Act should be amended to prescribe as a criminal offence the complicity of South Australian residents in transplant abuse abroad i.e. the sourcing of human organs without consent” and

“the Act should be amended to require mandatory reporting by medical and health professionals to the Department of Health of any South Australian resident known, or reasonably assumed, to have returned from transplant surgery abroad, in particular in relation to the country of origin of the transplanted organs.”(29)

IV. New Zealand Parliament

The New Zealand Crimes Act prohibits trafficking in persons for the purpose of removal of their organs, but not organ trafficking.(30) The Human Tissue Act requires informed consent for the donation of an organ.(31) Neither legislation has extra-territorial effect. Both apply only to the territory of New Zealand.

In May 2015, the Parliament passed unanimously a motion

“That this House is gravely concerned about the severe human rights abuses taking place against Uyghurs and other ethnic and religious minorities in the Xinjiang Uyghur Autonomous Region, and that it call on the Government to work with the United Nations, international partners, and to work with all relevant instruments of international law to bring these abuses to an end.”(32)

In the debate on that motion, Debbie Ngarewa-Packer, Co-Leader of the political party Te Paati Māori, in the debate on that motion, said:

“we are here for today is making sure that we use our sphere of influence to bring to attention that more than a million people are estimated to have been detained at internment camps in the regions, and many are suffering from rape; abuse; horrible, inhumane practices such as organ harvesting; mass torture; slavery; forcible removals.”

The Labour Member of Parliament Louisa Wall in October 2021 stated publicly that the Government of New Zealand needed to do something to counter forced organ harvesting in China with prisoner of conscience victims. She said: “Our MPs seem to have a pact that they’re not allowed to say anything at all critical of the CCP and barely mention the word China in any kind of negative terms.”(33)

Margo MacVicar for The International Coalition to End Transplant Abuse in China petitioned the Parliament of New Zealand in October 2021 asking for the Parliament “to make a resolution requesting China to permit a credible and independent international team to verify claims that all organs sourced from executed prisoners and prisoners of conscience have ceased”. The response of the Petition Committee, conveying the position of the Government, was: “We do not believe it is useful for the House to make such a resolution. New Zealand has already raised the issue with China and sought updates on its policies.”(34)

In my view, such a resolution would be useful. A public resolution by the Parliament would carry more weight than a private initiative by Government officials. The answer is also unclear. What issue was raised by the Government? Was it the issue of sourcing organs from prisoners of conscience? Or was it the issue of the need for an investigation by a credible and independent international team?

A second request made by the MacVicar petition was “that the House adopt a resolution urging New Zealand citizens and residents not to travel to China for the purpose of organ transplantation.” The Petition Committee responded that Government’s travel advice “does not include moral, ethical, or broader policy considerations”. This is an astonishing statement. The Government appears to be conceding that even when they know, beyond any reasonable doubt, that transplant tourism to China would lead to the killing of innocents for their organs, they would remain silent. That position must surely be wrong.

The third request made by the MacVicar petition was that “the House condemn, in principle, the extrajudicial execution of prisoners and prisoners of conscience for the purposes of removing their organs for commercial gain, wherever in the world this may occur”. The Petition Committee rejected this request too stating the position of the Government that any resolution adopted by the New Zealand Parliament of the sort suggested by the petition “could be considered to be departing from the ‘country-neutral’ proposition in those [UN General Assembly] resolutions.” This response is sheer obfuscation. The suggestion that the phrase “wherever in the world” is not country neutral defies the plain meaning of words.

The Government of New Zealand one month ago, at the end of October 2022, made a Joint Statement with several other countries, including Australia, in a Committee of the United General Assembly in response to a report of the Office of High Commissioner for Human Rights report on human rights concerns in the Xinjiang region. That report did not address forced organ harvesting but did address enforced disappearances. The report stated that there are large numbers of people in the region “alleged to be ‘forcibly disappeared’ or ‘missing’”.(35)

The Joint Statement refers to the report and its evidence of enforced disappearances and other violations. The Statement then comments “Such severe and systematic violations of human rights cannot be justified on the basis of counterterrorism”, the general justification China gives for its repression of Uyghurs.(36)

V. Conclusion

The Chinese industrialized mass killing of prisoners of conscience for their organs does not have the same visibility as many other wrongs. The victims can not speak. Their bodies, cremated, can not be autopsied. The crimes occur in settings – detention centres and hospitals – where there are no bystanders, only perpetrators and victims. The few whistleblowers there are mostly do not want to make public statements both because of risk to themselves and their families and the wish to avoid admitting publicly their own guilt. Chinese hospital, prison and detention records are not publicly available.

The Chinese Communists engage in systematic cover-up, closing down data streams once cited, and denying all evidence of the abuse, even evidence which comes from their own records. They fabricate contrary evidence which is easy enough to see through with diligence, but can be deceptive for the unwary.

The crime is unusual. Though transplant abuse occurs in many countries, China is the only country where it is state sponsored, industrialized and directed against prisoners of conscience. The unusual nature of the crime leads many who hear about it to find it, at first hard to believe. No one who has gone through the evidence has any doubt about the crime. Yet, not many people have the time and patience to do that.

A problem with the evidence of organ transplant abuse in China is not too little evidence, but rather too much. It is easy enough to convince anyone of the abuse who has the patience to go through the evidence. Yet, those who want proof in thirty seconds will not find it.

Falun Gong is not well known. The words mean nothing in any language but Chinese. Its existence is relatively recent, starting from 1992. There is a cloud of Communist propaganda against the practice which people unfamiliar with the practice or practitioners have difficulty sorting out.

Chinese Communists are amenable to some changes in wrongful practices which attract global criticism. However, their killing of prisoners of conscience for their organs is a subject on which they do not budge.

China is politically and economically powerful. The Chinese Communist Party uses that power to pursue its own agenda. There are all too many people outside of China who feel compelled for economic or political reasons not to criticize the Party.

Many mechanisms for preventing and remedying foreign organ transplant abuse can be implemented using general terms, without mentioning China. But it is impossible to be completely effective in combatting transplant abuse in China without reference to China.

Yet, if we are setting priorities for combatting human rights violations, the priority should not be the most visible violations, nor those violations inflicted on victims we can see and hear, nor the violations quickest to communicate, nor the violations that least confront the economic and political power of China, nor the violations most amenable to change, nor the violations we are most used to seeing, nor the violations by confessing perpetrators, nor the violations inflicted on victims we know most about, nor the violations easiest to identify. Rather the worst should be first. There is regrettably a wealth of human rights violations around the world and in China to which efforts can be directed. Yet, it is hard to match, in terms of gravity, the mass killing of innocents, of prisoners of conscience, for their organs.

When it comes to gross human rights violations, out of sight should not be out of mind. Survivor testimony is compelling. But we must not forget the voices of those who can no longer speak nor the faces of those we can no longer see. Nor, simply because they deny and cover up, should be we forget their murderers.

Though the victims of mass killings of prisoners of conscience for their organs are beyond helping, we can create a legacy from their deaths of prevention and remedy. Australia can do its part. As one can see, there has been already substantial agreement in Australia in principle. Yet, the principle needs to be turned into practice.

Many of the family members, the community members and the murderers of the victims remain alive. The family members and community members deserve justice. The murderers should be denied immunity.

The virtually universal principled concerns expressed in Australia and New Zealand need to be implemented practically with a sense of urgency. The abuse continues. Every effort should be made to prevent further victimization.

Australia and New Zealand can not, on their own, end transplant abuse in China. But they can, on their own, end the complicity of Australians and New Zealanders in that abuse. When should Australia and New Zealand do what they can to end transplant tourism into China? The answer is ideally yesterday. At the very least it should be now.

David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada. He co-founded, with David Kilgour and Ethan Gutmann, the International Coalition to End Transplant Abuse in China.