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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT
(OVERSEAS ORGAN TRANSPLANT DISCLOSURE AND OTHER MEASURES)
BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Dean Smith)
MIGRATION AMENDMENT (OVERSEAS ORGAN TRANSPLANT
DISCLOSURE AND OTHER MEASURES) BILL 2023
OUTLINE
This Bill amends the Migration Act 1958 (the "Migration Act") to better inform the
Commonwealth of Australia about persons entering Australia who have received an organ
transplant and to enable certain relevant information to be made publicly available. It also
amends the Migration Act to allow the Minister to refuse to grant, or to cancel, a person's visa
if the Minister reasonably suspects the person has been involved in conduct constituting an
offence involving organ trafficking.
Reporting requirements regarding overseas organ transplants
Currently there are no reporting requirements for arrivals entering Australia relating to organ
transplants. Recommendation 2 of the 2018 report of the Joint Foreign Affairs, Defence and
Trade Committee Compassion, Not Commerce: An Inquiry into Human Organ Trafficking
and Organ Transplant Tourism noted the importance of monitoring the transplantation
practices of other countries.
The Bill amends the Migration Act to place new requirements on a person entering Australia
to answer questions in their incoming passenger card regarding overseas organ transplants.
They will need to declare whether they have received an organ transplant outside Australia
within the last 5 years. If the person has received any organ transplants outside Australia
within the last 5 years, they will be required to provide the name, and the place (as in the
country, and the town or city) of the medical facility where each of those organ transplants
took place.
This measure will help to improve the Australian Government's ability to collect reliable data
in relation to organ transplants upon persons entering Australia. It will provide much needed
data and information about the occurrence, scale and location of potential illegal and
unethical organ transplants, assist the Australian Government to monitor potential human
rights abuses, and support the work of the Australian Government in combatting organ
trafficking.
Updated reporting responsibilities of the Minister
The Bill will require the Minister to cause to be prepared an annual report regarding
information on overseas organ transplants provided in incoming passenger cards, and to table
this report in each House of the Parliament.
The report will incorporate the number of answers during the previous calendar year
indicating a person has received an organ transplant overseas within the last 5 years, and
information on the town or city and countries identified in the responses, including the
number of times each place was identified. It will not be required that the report prepared by
the Minister identify the name of medical facilities where organ transplants have occurred.
Amending the Migration Act character test
The Bill amends the Migration Act to include an express reference to an offence involving
trafficking in human organs in the character test.
Trafficking persons for the purposes of organ removal was first criminalised in
Commonwealth legislation through the Criminal Code Amendment (Trafficking in Persons
Offences) Act 2005. The relevant provisions, now in Subdivision BA of Division 271 of the
Criminal Code, criminalise only the act of organising or facilitating the movement of another
person where the movement could result in the removal of an organ in a manner contrary to
State or Territory law, or contrary to the consent or medical needs of the other person. The
Subdivision does not criminalise transplant commercialism or transplant tourism.
The changes in this Bill to the character test would enable the Minister to decide to refuse to
grant, or to cancel, a person's visa if the Minister reasonably suspects the person has been
involved in conduct constituting an offence involving trafficking in human organs, whether
the person, or another person, has been convicted of an offence constituted by the conduct.
This change to the character test will apply on and after the commencement of the Bill as
enacted, regardless of whether the relevant organ trafficking conduct occurred before
commencement.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause sets out how the Bill, as enacted, is to be cited. That is, as the Migration
Amendment (Overseas Organ Transplant Disclosure and Other Measures) Act 2023.
Clause 2: Commencement
2. This clause provides the whole of the Bill, as enacted, commences on the day after the
end of the period of 6 months beginning on the day this Act receives the Royal Assent.
Clause 3: Schedules
3. This clause provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned. In addition,
any other item in a Schedule to this Act has effect according to its terms.
Schedule 1--Overseas organ transplant disclosure
Migration Act 1958
Item 1 - After section 166
4. This item amends the Migration Act to insert a new section 166A. This section
requires a person entering Australia to provide to a clearance authority answers to questions
relating to overseas organ transplants. The questions that a person would be required to
answer are set out in subsection 166A(1).
5. Paragraph 166A(1)(a) requires the person to disclose whether they have received an
organ transplant outside Australia within the last 5 years. If the person has received such a
transplant, the person would be required to answer 2 further questions. First, paragraph
166A(1)(b) requires the person to disclose the country, and the town or city, of the medical
facility where each relevant organ transplant took place. Second, paragraph 166A(1)(c)
requires the person to disclose the names of the medical facilities.
6. Subsection 166A(2) provides for the incoming passenger card to incorporate the
questions relating to organ transplants set out in subsection 166A(1). A person entering
Australia must answer the questions mentioned in paragraphs 166A(1)(a), (b) and (c) as
included in their passenger card.
7. Subsection 166A(3) requires the Minister to cause a report to be prepared on the
answers to the organ transplant questions provided by persons entering Australia to a clearance
authority in the incoming passenger card. The Minister will be required to cause the report to
be prepared within one month after the end of each calendar year.
8. Subsection 166A(3) requires the Minister to only cause a report to be prepared on the
number of times persons have indicated in their answers that they have received an organ
transplant outside Australia within the last 5 years, and information on the places of medical
facilities specified in answers to the question in paragraph 166A(1)(b). The information to be
contained in the report does not include information on the names of medical facilities
disclosed in answers to the question in paragraph 166A(1)(c).
9. Subsection 166A(4) requires the Minister to cause a copy of the report to be tabled in
both Houses of the Australian Parliament within 10 sitting days of that House after the report
was prepared.
Schedule 2--Organ trafficking
Migration Act 1958
Item 1 - After subparagraph 5C(1)(bc)(ii)
10. This item inserts a new subparagraph (iia) into paragraph 5C(1)(bc) of the Migration
Act. This provides for a non-citizen to be of "character concern" under the Migration Act if
the Minister reasonably suspects that the non-citizen has been or is involved in conduct
constituting an offence involving trafficking in human organs.
11. This amendment is consequential on the amendment to the character test made by
item 2. Instances where the concept of "character concern" is used include
subparagraph 336E(2)(a)(iii) and paragraph 336E(2)(ec) of the Migration Act, in relation to
permitted disclosures for the purpose of data-matching or identifying non-citizens who are of
character concern.
Item 2 - After subparagraph 501(6)(ba)(ii)
12. This item inserts a new subparagraph (iia) into paragraph 501(6)(ba) of the Migration
Act, to include an express reference to an offence involving trafficking in human organs in
the Migration Act's character test. This amendment provides that a person does not pass the
character test if the Minister reasonably suspects that the person has been or is involved in
conduct constituting an offence involving trafficking in human organs. This could be an
offence against an Australian law, or a law of a foreign country.
Item 3 - Application of amendments
13. This item deals with the application of amendments made by Schedule 2.
14. Subitem 3(1) provides that new subparagraph 5C(1)(bc)(iia) of the Migration Act
applies for the purposes of subsection 336E(2) of that Act, in relation to a disclosure of
identifying information that is made on or after that commencement.
15. Subitem 3(2) provides that new subparagraph 501(6)(ba)(iia) of the Migration Act
applies in relation to a decision to grant or refuse to grant a visa, if:
• the application for the visa was made before but not finally determined as at the
commencement of item 3; or
• the application for the visa is made or on or after the item 3.
16. Subitem 3(2) also provides that new subparagraph 501(6)(ba)(iia) applies to a
decision made on or after the commencement of item 3 to cancel a visa.
17. Subitem 3(3) provides that new subparagraphs 5C(1)(bc)(iia) and 501(6)(ba)(iia) of
the Migration Act apply as mentioned in subitems 3(1) and (2) in relation to a person whether
conduct constituting an offence involving trafficking in human organs was engaged in before,
on or after the commencement of item 3.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures)
Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This Bill amends the Migration Act to better inform the Commonwealth of Australia about
persons entering Australia who have received an organ transplant. The Bill provides for
questions about organ transplants to be added to the incoming passenger card for persons
entering Australia. This Bill will help improve the Commonwealth's ability to collect reliable
data in relation to organ transplants on persons entering Australia. The Minister will be required
to cause a report to be prepared and tabled in the Parliament regarding responses to these
questions.
This Bill will also expand the character test to enable the Minister to decide to refuse to grant,
or to cancel, a person's visa if the Minister reasonably suspects the person has been involved
in an offence involving trafficking in human organs. A person objectively failing the character
test may be considered on a discretionary basis for visa refusal or cancellation on character
grounds, regardless of whether there has been a conviction, or of any sentence imposed. The
Bill also makes a consequential amendment to the definition of character concern in section
5C of the Migration Act.
Human rights implications
The amendments contained in this Bill are beneficial and engage the following human rights:
• Right to liberty - Article 9 of the International Covenant on Civil and Political Rights
(ICCPR).
• Trafficking in persons - Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime.
The practical effect of these amendments will mean a person who objectively does not satisfy
the character test set out in section 501 of the Migration Act for an offence involving
trafficking in human organs will be liable for consideration of refusal or cancellation of a visa
on that basis.
Article 9(1) of the ICCPR states: "Everyone has the right to liberty and security of a person.
No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are established by
law."
The amendments do not change the framework within which the character refusal and
cancellation powers function. The updated provisions provide new grounds for refusal or
cancellation of a visa in relation to conduct constituting an offence involving trafficking in
human organs. The amendments only seek to provide additional, specified, objective grounds
to consider refusing or cancelling a visa. The decision to refuse or cancel a visa on these
grounds will be discretionary.
If a non-citizen's visa is cancelled or refused, the person is liable for immigration detention
under section 189 of the Migration Act. As set out above, Article 9 of the ICCPR is a
prohibition on arbitrary detention. The object of the Bill is to amend the character test to
provide a specific and objective ground to consider cancellation or refusal of a visa where a
non-citizen has been involved in conduct constituting an offence involving trafficking in
human organs.
The provision aligns with community expectations that non-citizens who have committed
serious offences such as the trafficking in human organs should not be allowed to enter
Australia.
The UN Human Rights Committee has recognised in the ICCPR context that "The Covenant
does not recognize the right of aliens to enter or reside in the territory of a State party. It is in
principle a matter for the State to decide who it will admit to its territory [...] Consent for
entry may be given subject to conditions relating, for example, to movement, residence and
employment" (CCPR General Comment 15, 11 April 1986).
Trafficking in persons - Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime defines trafficking as: "trafficking in persons, is intended to
include a range of cases where human beings are exploited by organized criminal groups,
particularly where there is an element of duress involved and a transnational aspect, such as
the movement of people across borders".
The Palermo Protocol addresses organ trafficking in the context of human trafficking, where
the object of the crime is the trafficked person, rather than the organ itself. Parties to the
Palermo Protocol are encouraged to enact measures that make it a criminal offence in conduct
constituting trafficking in persons. The updated provisions to the character test in the
Migration Act work within the spirit of the Palermo Protocol and have a positive effect in
advancing Australia's international commitments to deter the trafficking in people.
In 2009 the Council of Europe and the United Nations conducted a joint study on trafficking
in organs, tissues and cells and trafficking in human beings. The study identified a gap in the
coverage of the Palermo Protocol, which addresses organ trafficking the study stated:
"Trafficking in organs ... differs from trafficking in human beings for organ removal in one
of the constituent elements of the crime - the object of the criminal offence. In the former
case, the object of the crime is the organs, tissues, and cells, while in the latter case it is the
trafficked person". This is why the Bill uses an all-encompassing term "an offence involving
trafficking in human organs" in Schedule 2 when expanding the character test, so a visa may
be refused or cancelled in relation to someone who is involved in trafficking in harvested
organs or who is involved in trafficking other persons to have their organs removed without
their consent. This specific reference to organ trafficking complements the existing reference
in the character test provisions (subparagraph 501(6)(ba)(ii)) to an offence of trafficking in
persons. The provisions expanding the character test in the Migration Act aim to strengthen
deterrence measures encouraged in existing international Protocols.
Conclusion
This Bill is compatible with human rights because it works within existing international
frameworks to achieve Australia's human rights obligations. It may also have the consequence
of limiting human rights in some circumstances, those limitations are considered reasonable,
necessary, and proportionate.
[Senator Dean Smith]