Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023
22nd June 2023: Senator Dean Smith (Western Australia) introduced the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023; a Bill for an Act to amend the Migration Act 1958, and for related purposes.
“The amendments proposed in the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 are sensible and non-controversial, but they are also meaningful improvements that will advance Australia’s mission to uphold and enhance human rights – both here and around the world.
Organ trafficking is a uniquely appalling violation of the dignity of the individual, defined by the unethical removal, transfer, or commercialisation of human organs for transplantation outside legal frameworks.”
“Features of this Bill derive primarily from inquiry and recommendations made by the Human Rights sub-committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade report Compassion, Not Commerce: An inquiry into Human Organ Trafficking and Organ Transplant Tourism, which was tabled in November 2018.
This report recommended a mandatory reporting scheme, where medical professionals would carry an obligation to report any knowledge or suspicion of a commercial transplant taking place.
Balancing the need to report data that can be used to counter organ trafficking practices internationally with the need to preserve an individual’s right to reasonable medical privacy, this Bill instead proposes the mandatory reporting of overseas transplants mechanism be undertaken via the incoming passenger card.
What the Bill does
The amendments provided for in this Bill:
- add a requirement to Australia’s migration framework that persons entering Australia must disclose if they have received an organ transplant outside Australia within the last five years.
- If this is the case, the individual will be required to disclose the name of the medical facility where that transplant occurred, and the town and/or city and country of the facility.
- This information is to be disclosed by persons entering Australia via the incoming passenger card.
- The resulting data will then be made available to the responsible Minister, who will be required to table an annual report in the Parliament detailing:
- the number of times persons entering Australia have answered that they received an organ transplant outside Australia within the last five years; and
- the town and/or city and country where the organ transplant took place.
- amend the Migration Act 1958 to provide that a person does not pass the character test if the responsible Minister reasonably suspects that the person has been, or is involved in, an offence involving trafficking in human organs.
These measures are purposefully designed to assist in global efforts to prevent organ trafficking.
Australia’s approach thus far
In 2005, the Australian Government criminalised organ trafficking under the Criminal Code Act 1995 and, in 2013, strengthened the Commonwealth Criminal Code by introducing four stand-alone organ trafficking offences.
Australia’s organ trafficking offences criminalise the movement of people to, from, or within Australia for the unlawful removal of their organs. An organ does not have to be removed for an organ trafficking offence to be committed.
“…concerns about the occurrence and scale of organ trafficking are justified given the significant imbalance between
the number of patients globally who are awaiting an organ transplant and the limited availability of consensual, legal organs for
transplantation.
Several recent events have made the need for remedies to this international crime more urgent.
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.”
‘”Consistency with international efforts
The amendments contained in the Bill compliment efforts taken internationally to respond to the growing prevalence of organ trafficking.
In May 2021, the United Kingdom House of Lords amended the Human Tissue Act 2004 following passage of the Organ Tourism and Cadavers on Display Bill [HL] and it awaits debate in the House of Commons.
The Bill prohibits citizens and residents of the United Kingdom from travelling internationally to receive material for a transplant that was obtained without the consent of a donor and a donor’s next of kin.
The Organ Tourism and Cadavers on Display Bill [HL] is aimed at preventing the rising prevalence of organ tourism, characterised as the practice by which citizens of a country that has a rigorous legal framework preventing unethical transplant travel to countries with weaker legal frameworks to receive an illicitly purchased organ.
In December 2022, the Canadian Parliament amended the Criminal Code and the Immigration and Refugee Protection Act to create new offences in relation to trafficking in human organs and to provide that a permanent resident or foreign national is inadmissible to Canada if the appropriate Minister is of the opinion that they have engaged in certain activities relating to trafficking in human organs.
The penalty for breach of the Canadian organ trafficking offences is 14 years in prison.”
“…While there are limitations regarding the extent to which we, as Australians, can prevent human rights violations abroad, Australia maintains a responsibility to do everything within our Parliamentary mechanisms to uphold the inviolability of universal human dignity.”
“It is not enough to be a signatory to international conventions such as the Universal Declaration of Human Rights, or the Genocide Convention, without doing what we can to ensure the tenets of these conventions are upheld globally. This amendment is a step forward toward that eternal and noble goal.”
“The amendments contained in this Bill are designed to be a practical and least intrusive tool to support global efforts in combatting organ trafficking.
They should be seen as sensible and timely initiatives that add to the suite of other measures that have already been incorporated in the law and support other non-legislative measures being used by Australian authorities.”
