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Joint Standing Committee on Foreign Affairs, Defence and Trade
08/06/2018
Human organ trafficking and organ transplant tourism

FLETCHER, Mr Graham, First Assistant Secretary, North Asia Division, Department of Foreign Affairs and Trade

MILLS, Ms Rebecca, Acting Director, People Smuggling and Trafficking Section, Department of Home Affairs

PEARCE, Ms Tracey, Acting Assistant Secretary, Transnational Crime Policy Branch, Department of Home Affairs

[14:05]

CHAIR: I welcome officers from the Department of Home Affairs and the Department of Foreign Affairs and Trade. Would any of you like to make any opening comments?

Ms Pearce : Thank you for inviting us to appear before the inquiry today. To help you with your deliberations I'd like to make a short opening statement on behalf of the Department of Home Affairs.

Human trafficking, slavery and slavery related practices are extremely complex and clandestine crimes which require a specialist and multifaceted response. Australia has had a comprehensive whole-of-government strategy to combat these crimes since 2004. Key measures include comprehensive criminal offences; specialist Australian Federal Police investigative teams; a dedicated victim support program and visa framework; and partnerships with civil society, business and the community.

As part of this strategy, the government criminalised organ trafficking under the Commonwealth Criminal Code in 2005. This fulfilled our obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, which supplements the United Nations Convention Against Transnational Organized Crime. In 2013, the government strengthened its response by introducing four standalone organ-trafficking offences in the Criminal Code. These standalone offences clarified and broadened the conduct which was previously criminalised as part of the broader human-trafficking offences.

Australia's organ-trafficking offences criminalise the movement of people into, from or within Australia for the unlawful removal of their organs. To commit an organ-trafficking offence, a person only needs to be reckless to the possibility of committing the offence; the organ does not need to be removed from the donor's body. The maximum penalty for an organ-trafficking offence is 12 years imprisonment. If an aggravating factor is present—for example, if the victim is subject to cruel, inhumane or degrading treatment—then the maximum penalty is 20 years imprisonment. If the victim is under 18 years of age, the maximum penalty increases to 25 years imprisonment.

Our collective efforts in this space are guided by the government's National Action Plan to Combat Human Trafficking and Slavery, and are detailed in the annual reports of the Interdepartmental Committee on Human Trafficking and Slavery to parliament. The government has also committed to introduce a modern slavery act by mid-2018 to establish a modern slavery reporting requirement. This will require large businesses operating in Australia to submit annual public reports on their efforts to combat modern slavery risks in their supply chains and operations. Modern slavery risks covered by the reporting requirement may include risks of organ trafficking, as well as other types of human trafficking. If a business identifies that there is a risk of organ trafficking in their operations and supply chains they will be required to report on those risks, any actions taken to minimise them and how they assess the effectiveness of those actions.

The government remains committed to working collaboratively with civil society, business and the community to ensure that our response to these crimes remains as effective as possible. Thank you.

CHAIR: There are a few matters that are not necessarily the same. We have evidence before us suggesting that we should extend enforceability provisions to take in extraterritorial provision. There's a bill before the New South Wales parliament that does that in part. Relating to transplant tourism, the government's submission said that this could involve some enforceability challenges. Are you able to elaborate on that?

Ms Pearce : There are a number of challenges regarding enforcing offences, such as organ transplant tourism, that have extraterritorial application. This includes practical issues around investigating the circumstances in which the transportation took place: like access to the victim, witnesses and any evidence in the foreign jurisdiction. Victims, offenders and evidence can be located in more than one country, depending on the circumstances. This then means that the same set of circumstances can generate investigations and prosecutions in more than one jurisdiction.

As I said, there are challenges in obtaining the relevant evidence from overseas jurisdictions, including potentially extraditing offenders, particularly in circumstances where the relevant conduct is not criminalised under the law of the foreign country or not well enforced. Cooperation from the source countries through legal extradition and extradition would be required, and that would cover things like collecting the evidence, identifying the exploited donors and detecting and extraditing offenders. So there would need to be a collaborative effort between countries to help enforce offences that have that extraterritorial application.

CHAIR: Was it that sort of technicalities that were present in what I understand is the only case that's been referred to the AFP, which was later dropped because of the death of the alleged perpetrator?

Ms Pearce : I would probably have to confirm, but, from what I understand about that case in particular, the woman changed her mind upon arrival into Australia, and it didn't progress to prosecution, because, as the offence was drafted in 2011, it required the actual removal of the organ for an offence to have been committed. However, that was changed in the 2013 amendments to that legislation, so now it doesn't need to be a removal of the organ, just being reckless as to whether the organ would be removed. In addition to that case, the prospective recipient died during the investigation.

CHAIR: Yes. There's evidence before the committee that our organ trafficking offences are not consistent with our obligations under the Palermo protocols. Any comments on that?

Ms Pearce : We're of the view that the offences of organ trafficking are consistent with Australia's international obligations under the trafficking protocol. Under the trafficking protocol we are required to criminalise trafficking for the purpose of the removal of organs. Article 3 lists the removal of organs as one of the forms of exploitation that must be criminalised under the protocol. Article 5 provides the state party shall establish measures to establish the conduct listed in article 3 as criminal offences when committed intentionally. Article 5 states that states should criminalise attempting to commit an offence, participating as an accomplice or organising or directing other persons to commit the offence. We're of the opinion that the trafficking offences that we have do meet those requirements.

CHAIR: This is probably a question for you, Mr Fletcher. Many witnesses before this inquiry have recommended that Australia enter into the European convention. Are there any particular problems for us doing so? It is open to nations outside Europe.

Mr Fletcher : I think the Attorney-General's Department in their submission last year stated their view that the government was not considering becoming a party. I don't know whether our particular reasons—

CHAIR: I'm not so much interested in what the government might have said. I'm more interested whether there are technical, legal, constitutional or other impediments, problems or hurdles for us to do so.

Mr Fletcher : If you become a party to a treaty, you need to implement it domestically. I don't know if my colleagues know whether we're able to do that. That may be the impediment: that we regard the obligations of the treaty as not easily enforceable, in fact, already done in a different manner within our own jurisdiction.

CHAIR: So that's more a question for the Attorney-General's Department than DFAT?

Mr Fletcher : Yes. Our department does international treaty-making but in consultation with agencies that are responsible for the subject matter.

CHAIR: We'll ask them when we get a chance. Is there any update on the evidence from DFAT from last year in relation to the practice of the use of organs for transplant in China? To try and summarise what I think has been said by at least some witnesses today, there has been less use or a reduction in use or less emphasis on taking organs from, for example, executed prisoners and more a regime based on consent—more like we would have in Australia—and less overseas tourism for this purpose to China. Does the department have any further evidence or observations about this from when we last discussed it last year?

Mr Fletcher : Our conclusions are very similar to what you've just said. China is gradually building what we would regard as a modern organ donation system. They've legislated against foreigners coming into China for transplant tourism—that occurred in 2009. It's one thing to have something on the books; it's another thing to have it properly implemented. It seems, from our discussions with people in China, that they are serious about trying to develop a proper organ donation system that does not rely on executed prisoners. They realise why that doesn't look very good at all. There are probably still a few rough edges around that system. It's a very big country and it's very difficult to be categorical about whether, in fact, the policies that are stated at a central level are implemented thoroughly. From the information that's available to us, we think they are taking steps to that end. I think we've dealt with the whole question of Falun Gong and organ harvesting separately. We have no further information in relation to that, so our assessment still remains: we don't believe there is credible evidence of that activity occurring. But what you asked me about was within the official system.

CHAIR: Yes.

Senator MOORE: I'll go to you first, Mr Fletcher, and then I have some particular questions about the legislation. The evidence we had this morning raised a range of issues, none of which would be new to you, in terms of concerns about Falun Gong and, generally, in terms of the Chinese government and their human rights record. One of the issues was that they were concerned that there wasn't extensive investigation or discussion with people in China that would find out what was really on the ground. They kept saying that people are telling them what's happening, and the Australian government says that they have no information that supports that. That is a fair assessment of what came up last year in our evidence: from the information available to the Australian government, there was not sufficient evidence to verify the kinds of claims that have been made by people about the volumes. We had evidence today from people that were involved in a documentary film that looked at the Korean experience, which showed extensive commercial activity around transplants, involving hospitals and hotel complexes working together, which was clearly a money-making sale-of-organs arrangement. They said that that was quite public. They have evidence of people on record talking about what was going on, how much it would cost and that 'if you come back next week we can give you this stuff'. From the work that you do interacting with our embassy in China—with whom do you discuss these things?

Mr Fletcher : We talk to friendly governments—the United States, the UK, Canada, New Zealand and some European governments—we talk to contacts that we've got within China itself and we talk to the NGO community, like Amnesty International and Human Rights Watch. The consistent response we have is that there is no credible evidence of the kind of activity that is being claimed.

Senator MOORE: When people contact the department with the evidence that they have, do people follow up on the claims that are made about particular hospitals, particular surgeons and particular travel routes? Is that investigated?

Mr Fletcher : No. There are some other governments that have done that and said, 'We spent X number of weeks following it up and we found it didn't hold water.' I've looked at the reports as well, and often it's someone ringing up from overseas. Who are they really speaking to? It's not the kind of evidence you'd put into a courtroom.

Senator MOORE: No.

Mr Fletcher : As I said last year, we don't have the name of one victim. That's not to say that there aren't problems in China's transplant system. Money is a powerful incentive and doubtless there is corruption in the official system, and that's what they're trying to address through these new arrangements. But as to the idea that there is a separate parallel hidden vast network of unspeakable activity where people are essentially killed for their organs, we don't believe that that is happening.

Senator MOORE: Do we raise it with our human rights dialogue?

Mr Fletcher : Yes, we have.

Senator MOORE: And the response from China is as you said—that this is not an issue?

Mr Fletcher : They say that this is all complete nonsense.

Senator MOORE: That's what I thought. The question put to us was about what we are doing to raise the issue. So I just wanted to get on the record that it is a human rights dialogue.

Mr Fletcher : As you would appreciate, there are a number of issues we talk to China about in relation to human rights, and this is one of them.

Senator MOORE: Thank you. Ms Pearce, two things: in discussion about the legislation, most of the evidence we have received is very strongly in support of widening the legislation base. I'm just trying to understand our current legislation, which seems to me to be very focused on what happens in Australia—people being brought into Australia to be used to provide donations, which was the one case that may have got on the books. There's nothing that really looks at people leaving Australia, having surgery and then coming back. Is that right?

Ms Pearce : The offence of organ trafficking does include entry into Australia but also exit from Australia. So, if someone was organising or facilitating someone to leave Australia to go overseas for the purpose of organ trafficking, that would be an offence. But the offence of organ transplant tourism, as we understand it, is not an offence under the Commonwealth Criminal Code.

Senator MOORE: How would you actually investigate the first claim? How would you actually find out? Would someone pass on, 'We think so and so is planning to go overseas next month for an organ transplant'—like a dob-in call?

Ms Pearce : From what I understand—and I can take part of this on notice to check the details—there would need to be a referral to the Australian Federal Police about the offence. For example, in the fact sheet for medical professionals that our colleagues from the Department of Health mentioned, there is a section at the back that says, 'If you have concerns that somebody may be involved in this process there is a number to contact the AFP.'

Senator MOORE: Another wide claim is that there should be mandatory reporting from medical professionals if they become aware or concerned that one of their patients is considering this. There have been mixed feelings about that, but at this stage there's nothing that covers that, is there?

Ms Pearce : Not that I'm aware. That would be something more for the Department of Health.

Senator MOORE: On a separate issue—and Mr Andrews might want to follow up on this—in the course of this morning's evidence an issue came up around an art exhibition in Sydney called—

CHAIR: Real Bodies. This came up in the course of evidence this morning. So I appreciate that you may not be in a position to necessarily answer. It seems that there is a somewhat grotesque exhibition that is for commercial purposes that involves plastinated bodies and organs.

Senator MOORE: And fetuses.

CHAIR: And fetuses, and pregnant women with fetuses, or however you describe it. It has been banned in France, Israel, Hawaii and in some other places. How did this get into Australia? Are there any provisions that might preclude it from happening?

Ms Pearce : I don't have the details on the process for that particular exhibition, so we'd have to take that one on notice. We do have import controls for human remains. If people do want to bring human remains into Australia, they need to have a clearly identified reason. For example, human remains that are, as they describe, commercial in nature require an import declaration 'Commercial' would include remains brought in for display or for scientific or research purposes. There are also, of course, additional biosecurity requirements attached to that, but I'd have to take any further questions around that on notice, just to get a bit more detailed information.

CHAIR: If you could look at it, we would be grateful because, I think it's fair to say, on behalf of those of us on the committee who are here, that it's somewhat disturbing. This is not bringing in body parts for the purposes of anatomical dissection in a medical school or something like that. It's quite clearly on display and, whilst there may be other evidence, what we've had before us so far is that the plastination process, if I could call it that, could only occur at a very early stage after the death of the person or the organ concerned, so there are some aspects to it that I think raise some questions. I think we would be interested to know whether or not there are any potential breaches of the customs regulation and not just the biosecurity aspects of this or whether or not there should, in fact, be some regulations in place that would enable this to be looked at more closely, perhaps, than has happened in the past. It's hard to make the case that this is artistic. It may be easy to make a case that somehow it's educational, but I'm a bit stumped by that as well, to be honest.

Ms Pearce : We'll take that one on notice.

Senator MOORE: As well as the customs stuff—and, certainly, Customs passing what comes into the country is really important—I think there are political sensitivities around the ongoing discussions. And I know, Mr Fletcher, there has not been found to be considerable evidence to back claims, but, when there are members of the Australian community who feel so strongly about body parts from one particular country and then this display has come in from that country to be circulated around the country, I think there's a political sensitivity as well as the purely customs idea. When something of this nature comes up, it seems to me that this could cross a few ministries—the Minister for the Arts and the Minister for Foreign Affairs as well as your minister. I think there's a sensitivity about it. It did create considerable discussion this morning from people who were already concerned about the organ transplant or organ harvesting concept that this just came straight up—one that we hadn't considered up until this morning. So that was difficult.

Mr Fletcher, I know this is going to be the answer because we haven't been able to identify the evidence element, but a number of people this morning raised issues about whether the DFAT website could have something on it about areas where organ transplants could happen and whether that was something that would be subject to a travel warning. That came up from a couple of people. We've also had the recommendation that, under the Health website, there would be something about the issue of going overseas and transplant concerns. Health has told us that there's a fact sheet that talks about that that is on both their website and the Home Affairs website. Has anything been raised in DFAT about warning people about this issue?

Mr Fletcher : In fact, in preparation for this hearing, I asked whether we did have anything on the website, and the answer is no. But we do seek to provide guidance on major risks that Australians may face overseas. It partly depends on how prevalent is the problem, but the evidence that I think the professor gave earlier that, overseas, generally speaking, success rates are lower and infection rates are higher, can perhaps be included in a general statement about health and medical treatment overseas.

Senator MOORE: And one of the things that has been troubling me through this inquiry is the fact that we're looking particularly at the issues around organ harvesting, but there is a huge medical tourism process happening in this country. When you go to places like the Philippines, Malaysia, even India and Sri Lanka now and Bali, there are strong advertisements in terms of people having medical and dental procedures in those countries. Was there any general view—you said something on the website—about being very careful about being prepared if you're going to do that because of different practices and also the added problem of travelling after you've had surgery? It's one of those things that people say is not good to do. I've just noticed recently that, when you go to some of those countries, there's a real focus on Australian tourists: 'Come here and have cosmetic surgery. Come here and have dental surgery.' In particular, there are huge issues with dental work. I couldn't find anything on the DFAT website.

Mr Fletcher : No, and I think, if we do put something on there, clearly, we'd have to take the health department's advice on how to word it so that it's correct without trying to indicate that all the health systems overseas are horrible and only ours is any good.

Senator MOORE: I think that's true. It's more about warnings to people about being careful, if you're going there and you're unwell.

CHAIR: Thank you for coming in this afternoon and discussing the issue with us. We appreciate it, and we would appreciate any further information or advice you can give us as well.

Proceedings suspended from 14:32 to 14:53