A Parliamentary Inquiry into Australian and international organ trafficking released its final report on 3 December 2018. The final report, written by the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (‘the Sub-Committee’), titled Compassion, Not Commerce: An inquiry into human organ trafficking and organ transplant tourism (‘the Report’) makes twelve recommendations as to how the Australian government can combat this practice. The Report examines the prevalence of organ trafficking both internationally and within Australia and discusses Australia’s current involvement in international efforts to stop this trade.
The black-market trade of organs has developed due to the reality that the demand for donor organs is greater than its supply. Currently, there are 1,400 Australians wait-listed for a transplant. The report summarises the current situation:
“Organ trafficking, the unethical removal, transfer or commercialisation of human organs for transplantation outside legal frameworks poses severe risks for both organ recipients and donors. It is an illicit trade that changes over time with developments in transplantation surgery techniques, the availability of medical infrastructure, uneven economic development, migration patterns, demographic trends, socio-economic exclusion, and the evolution of national multinational criminal networks.”
The Report also notes that Australians that engaged in transplant tourism had higher risks of infection, graft failure and death. Patients are also exposed to increased risks of contracting diseases such as HIV, hepatitis B, cytomegalovirus, diabetes and wound infections. Furthermore, this practice impacts Australia’s own public healthcare system, as transplant tourists are more likely to experience infections and complications.
Currently organ trafficking constitutes as a series of stand-alone offences in the Criminal Code Act 1995 (CTH) (‘the Criminal Code’) under Subdivision BA of Division 271. This subdivision of the Criminal Code states:
“Subdivision BA—Organ trafficking
271.7A Removal of organs contrary to this Subdivision
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.
271.7B Offence of organ trafficking - entry into and exit from Australia
Entry into Australia
(1) A person (the offender) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the entry or proposed entry, or the receipt, of another person (the victim) into Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that entry or receipt.
Exit from Australia
(2) A person (the offender) commits an offence of organ trafficking if:
(a) the offender engages in conduct consisting of the organisation or facilitation of the exit or proposed exit of another person (the victim) from Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that exit.
The penalty for these offences is imprisonment for 12 years.
271.7D Offence of domestic organ trafficking
A person (the offender) commits an offence of domestic organ trafficking if:
(a) the offender engages in conduct consisting of the organisation, or facilitation, of the transportation or proposed transportation of another person (the victim) from one place in Australia to another place in Australia; and
(b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that transportation.
The penalty for this offence is imprisonment for 12 years.”
Sections 271.7C and 271.7E set out aggravated offences to the respective offences set out in sections 271.7B and 271.7D. Either offence is aggravated, where:
The penalties for the aggravated offence is imprisonment for 20 years, with this sentence increased to 25 years imprisonment where the victim is under 18.
In regards to the extent these provisions apply to geographies outside of Australia, the Report notes the Australian Government’s submission at [5.10]:
“[S]ections 271.7B and 271.7C: …can apply even when the offending conduct occurs wholly outside Australia in cases where the offender is an Australian citizen, resident or body corporate. For example, if an Australian citizen in a foreign country organised a person’s entry into Australia for the purpose of the person’s organ being removed, that would constitute an offence notwithstanding that the offender’s conduct took place overseas.”
In regards to transplant tourism, Division 271 of the Criminal Code only criminalises the organisation and facilitation of transport for the purposes of organ trafficking. This does not criminalise transplant commercialism or transplant tourism itself.
State and Territory legislation also regulates organ removal for transplant and criminalises transplant commercialism. Most of these laws are substantially consistent with each other. However, these laws do not apply to actions of persons outside of their geographical jurisdiction.
The Sub-Committee recognises that enforceability poses a major practical barrier to enacting these organ trafficking laws. However, the Sub-Committee notes at [5.42] of the report that:
“Human rights are universal; legislation should not excuse such conduct against any person regardless of geography and the conduct that the law permits of Australian people should reflect that.”
As such the Sub-Committee considers that enforcement should be practical where there is a sufficient deterrent effect. Furthermore, the Commonwealth and the State and Territory laws should collaborate in order to apply extraterritorial jurisdiction.
In the Sub-Committee’s recommendation in regards to Australian legislation:
“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:
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