A crucial step has been taken to address growing concerns about the international trade of human organs as Australia passed its first anti-slavery bill in the New South Wales (NSW) upper house on May 3.
Organ trafficking is a serious criminal offence in Australia but currently, state and commonwealth laws only prevent a person who is in Australia from engaging in an illegal trade of human organs. Loopholes in the legislation mean that if an Australia receives an organ in an illegal or unethical manner while overseas, they face no penalty when they return home.
The passing of the Modern Slavery Bill 2018 in the state’s upper house could be the first step towards criminalising organ transplant tourism — an act where a person advertises for or seeks to purchase organs from overseas.
The bill has now been sent to the lower house for debate before it can become law.
The purpose of the bill, which was introduced in March this year by NSW Christian Democratic Party MLC Paul Green, is to confront the ongoing injustices of slavery, slavery-like practices or human trafficking, including servitude, forced labour, forced marriage, and child exploitation.
The Hon. Paul Green said: “In Australia, there are well over 4,000 cases of human trafficking, with many remaining hidden in plain sight.”
If the bill is passed into law, it will allow for the appointment of an anti-slavery commissioner who will prepare plans to combat human trafficking and slavery-like practices in NSW.
The commissioner will also be responsible for educating and informing residents, including young people and children, about modern slavery and will work cooperatively with government bodies like the police on suspected cases.
The bill was later amended on May 1 to include the trade human organs under the Human Tissue Act 1983 as an offence under the proposed law. This will allow for the commissioner to monitor and work with authorities on suspected instances of illegal organ trading in NSW.
It will also prevent public hospitals or private health facilities in the state of NSW from engaging in any unethical trading of human organs.
NSW Greens MLC David Shoebridge, who introduced the amendment, said that this is the first time an Australian Parliament has taken any steps to address the “appalling exploitative international trade” in human organs. Many organs are stolen or purchased at a low price from socially vulnerable victims or political prisoners in countries like the China, Philippines, India, Central America, Egypt, and the Middle East.
He said that if passed, the new law will “ensure that organ trading is not involved in supply chains, meaning corporations would need to be able to prove they, and their international suppliers, are not using organs or tissues that come from black markets or are the result of trafficking.”
Shoebridge, who introduced his own organ trafficking bill into the NSW parliament in 2015, added that the best way to end the practice is to increase sanctions and improve organ donation rates in Australia.
His bill would make it an offence to use organs or any human tissue without prior consent and would carry a maximum penalty of 25 years in prison. The maximum penalty would apply where a vital organ was removed that would result in the death of the donor. A smaller penalty would apply for people obtaining non-vital organs or tissues.
“It is illegal to do this in NSW and Australia but there is nothing on the statute books to make it illegal to do in China, India or Mexico, and come back here,” Shoebridge said, reported the Herald Sun.
“We have a moral duty to make sure we don’t take advantage of people overseas.”
However, his bill has yet to be successfully passed into NSW law.
Last year, the Attorney-General’s Department admitted to the parliamentary committee investigating human organ trafficking that it can do little to stop sick Australians from flying overseas for stolen organ transplants, reported The Daily Telegraph.
The department said the threat of criminal prosecution “may be insufficient to discourage desperate Australians from travelling overseas to receive lifesaving or life-changing organ transplantations.” It also added that there were “significant practical challenges in investigating crimes across international borders.”
However, Shoebridge said it is important to enact an organ trafficking law that has an extraterritorial operation in Australia as it will serve a strong social and educational function, and send a robust message condemning the unethical practice of organ trafficking.
“It will raise awareness among medical practitioners and the communities around this state, and hopefully around Australia, about the practice of organ harvesting and the illegal trade in human tissue that, sadly, is a growing problem on this planet,” he said.
“It will also put those involved in organ trafficking, and those potentially wanting to engage in this deeply unethical trade, on notice that the citizens and residents of NSW will no longer be able to participate in this inhuman trade.”
He also added that even though it is rare for state laws to govern outside their jurisdiction, it is not unheard of.
Australia enacted one such law in order to combat child sex tourism – a crime that has extraterritorial implications. The offence targets any individuals who engage in the sexual exploitation of children while overseas, according to a paper from the Bond Law Review. These laws were designed to prosecute these individuals upon their return to Australia, even if they had committed the crime in a country where local authorities are unwilling or unable to prosecute them.
Shoebridge argues that the proposed organ trafficking bill could be applied in the same way as child sex tourism offences.
A number of countries have already made it illegal for their citizens to engage in the international trade of human organs.
Taiwan has also banned the sale and purchase of organs for transplantations as a crime against humanity, in particular prohibiting the brokering of organs and transplant tourism.
Andrea Tokaji, an international human rights consultant, said Australia needs to ensure that we do not engage in unethical transplant tourism.
“Australia, as a developed nation and economy in the Asia region, needs to ensure that we do not engage in the unethical Transplant Tourism, therefore creating a market for organ harvesting and organ trafficking,” she said.
“Australia has an obligation to do its part in legislating against the unethical international trade in human organs.”