Senate debates
Wednesday, 21 August 2024
Bills
Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023; In Committee
9:18 am
Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source
I move the amendment on sheet 2830:
(1) Page 2 (after line 11), after clause 3, insert:
4 Review of operation of amendments
(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by this Act.
(2) The review must commence as soon as practicable after the end of the period of 3 years after the commencement of this Act.
(3) The persons who undertake the review must give the Minister a written report of the review within 6 months of the commencement of the review.
(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
Simple in its form, it establishes or inserts in the bill a requirement that there be undertaken an independent review of the new reporting arrangements after the first three years of their operation. The minister would determine who would undertake the review. That review would be then made available to the minister in the form of a written report within a six-month period. That report, following its delivery to the minister, would be made available to the parliament.
This is a very, very simple, prudent public policy initiative that seeks to ensure that, where there might be concerns about the operation of the scheme, where there might be suggested improvements or refinements to better support the purpose of the scheme, they can be undertaken, observed, reported on and contested, where necessary, in a very, very structured way. This amendment was suggested by Senator Scarr in his contribution to the second reading debate on the bill last week.
9:20 am
David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source
The Greens support the amendment. I think keeping the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 focused on the incoming passenger card, which is a very achievable outcome and incredibly important, is perhaps the most useful way that we can hopefully persuade a majority in the other place to support the bill. I also think the review is a useful step forward. Again, I thank Senator Smith for the way he's approached this.
Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source
The government won't be opposing this amendment. We have no concerns with the proposal to review the operation of this legislation if it passes the parliament. It's a sensible amendment, but it does not change the government's position in relation to the bill as a whole.
9:21 am
Dave Sharma (NSW, Liberal Party) Share this | Link to this | Hansard source
I want to rise to commend Senator Smith for introducing the Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 on an incredibly important issue and taking forward elements of the recommendations of the recent joint standing committee report. As that report notes, there's evidence of the growing incidence of organ trafficking and harvesting around the world. It's becoming more preponderant, and there is increasing evidence of growth in the black market of unethical organ transplants to around 10,000 per year. As Senator Shoebridge said, it's hard to think of a more exploitative practice than the harvesting and trafficking of the organs of someone who's in a position of power imbalance, financial disadvantage or poverty. That's why it's important that this market is regulated and that Australia does all it can to strengthen its own safeguards in this area.
I think the amendments to the Migration Act that are provided for in this bill—the requirement to disclose, on the incoming passenger arrival card, if a person has received an organ transplant outside Australia within the past five years; and amendments to the character test to provide that someone will not pass the test if the person is reasonably suspected of having been involved in an offshore offence involving trafficking human organs—are both sensible amendments.
I note that members on the committee had the view that disclosure on the incoming passenger card was not a particularly robust method for enforcing the intent of the government in this respect, but I would point out that on the incoming passenger card we ask people to answer a number of questions honestly, and that provides valuable information to the government. There are offences attached to not providing honest answers to that. Senator Smith, as the person who's moved this bill, what offences are likely to attach if someone provides a false disclosure, on the incoming passenger card, about receiving an organ transplant outside Australia in the past five years? And how might that act as a deterrent to make sure that people do provide an honest answer in that regard?
9:23 am
Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source
While the matter of the independent review mechanism wasn't canvassed in the Senate committee report, nor was it a feature of the original bill, in Senator Scarr's contribution to the second reading debate last week he proposed a safe and prudent mechanism, one that I think enjoys the support of the chamber. On that basis we thought it a good idea. Most importantly, it's so that those people who are not convinced that the scheme is worthy or will work can satisfy themselves that various concerns are properly captured and contested. We would hope that this scheme would work very well in its first application of that initial three-year period. But we would not be opposed to better ideas or improvements that might respond to changing international circumstances.
Question agreed to.
I move opposition amendment (1) on sheet 2831:
(1) Schedule 2, page 5 (lines 1 to 29), to be opposed.
This amendment seeks to remove schedule 2 of the existing bill. As an act of abundant care and caution, this bill currently has a schedule 2 which reinforces the character test and cancellation requirements that already exist in the Migration Act. During the committee inquiry process—and I'll read an extract of that shortly—and, indeed, through Senator Ciccone's own contribution on behalf of the government, attention was drawn to the fact that schedule 2 may not be necessary. For senators, I'm going to read part of the coalition senators' dissenting report in the final report on this bill. Under the heading 'Options regarding Schedule 2', it said:
1.38 Coalition Senators acknowledge the informed comments of Professor Burn, Director of Anti-Slavery Australia, who submitted specifically on the matter of Schedule 2 of the Bill.
1.39 It was noted in particular that insertion of subparagraph 5C(1)(bc)(ii) and subparagraph 501(6)(ba)(ii) may not necessarily be based on the very broad existing provisions under subparagraph 5C(1)(c)(ii) and subparagraph 501(6)(c)(ii) regarding the 'non-citizens past and present general conduct'.
1.40 It was also suggested the existing subparagraph 5C(1)(c)(ii) dealing with 'non citizen of character concern' may already capture a person who engages in the act of trafficking in human organs and therefore result in that person failing the character test requirements of the Migration Act 1958.
1.41 Coalition Senators remain open minded about the best way to resolve issues identified with Schedule 2 of the Bill, are supportive of discussion and debate, and open to amendments proposed by other Senators.
Long story short, in the period since the release of that legislation report by the Foreign Affairs, Defence and Trade Legislation Committee, in conversation with other senators around the chamber and, indeed, after Senator Ciccone's own contribution on behalf of the government drawing out the fact that schedule 2 may not be necessary and after further inquiry and deliberation, I've came to the decision that schedule 2 is not necessary. So this amendment seeks to amend the bill to remove schedule 2, but it in no way changes the application of the existing character test et cetera that exists in the Migration Act of 1958.
9:28 am
David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source
I think, primarily for the reasons I indicated in the second reading debate, we support this amendment. We also think it's probably already covered in the character test. To give you some idea of why we think it's covered in the character test, I recall having a discussion with a urologist on this issue—about people travelling to and from Australia for the purpose of organ transplants. And it has stuck in my mind since. He said a colleague of his phoned him up for some ethical advice, and the request for the ethical advice was she wanted to know what her obligations were because she said the patient had called and cancelled the dialysis treatment for the following week. In cancelling the dialysis treatment she'd said, 'I'm about to go overseas. They're going to shoot my donor.' There was no pathway to report that. There was no clear way in which that information was being captured anywhere in the system. That's a compelling reason to support the substantive elements of the bill, but it also gives you an understanding of the nature of the decision-making being taken in this space. If that doesn't meet the character test concerns, then what does?
9:29 am
Dave Sharma (NSW, Liberal Party) Share this | Link to this | Hansard source
I just have a question for Senator Smith, if I may. Is the understanding correct then that someone who has been involved in organ trafficking or harvesting would fail the character test with the words as they are currently written in legislation? Have we or the committee heard evidence of people having visas denied to them on the basis of character grounds because of their involvement in organ trafficking and harvesting? Have Home Affairs or the department of immigration provided any evidence that they're actually taking action with the law as it stands on this basis?
9:30 am
Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source
On the first point, the evidence to the committee was absolutely that the existing arrangements under the Migration Act 1958 are more than sufficient and that it would be better to have consistency across migration character test matters across various bills. We agree with that point. Second, there had been no evidence provided to the committee that anyone had yet had their visa cancelled as a result of illegal organ harvesting trafficking crimes. That was identified by some witnesses as sufficient evidence that perhaps Australia was not doing enough in this particular area. We know that the activity exists. We know that unscrupulous people travel to promote and to support the trade. No evidence was provided that anyone had had their visas cancelled, but that might in fact be a matter that the independent ministerial review mechanism might choose to report on or disclose over time.
9:31 am
Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source
I indicate the government's approach to this amendment. The government won't be opposing this amendment. We made it clear from the outset that it was the view of the government that the proposed cancellation power in the bill was unnecessary, as the Migration Act already provides the minister and departmental delegates with a range of cancellation powers in circumstances where the visa holder is of character concern. I think the debate, as we've heard, reflects some of that approach as well. The amendment, however, doesn't change the government's approach to the bill as a whole. As I indicated earlier, the government maintains its position that amending the incoming passenger card will be largely ineffectual and that recipients and organisers are highly likely to conceal and fail to declare accurate information. That was set out in much more detail by my colleague Senator Ciccone, and I'll rely upon his more detailed outline rather than trouble the chamber with it again.
Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source
I put the question that schedule 2 stand as printed.
Question negatived.
The question is now that the bill, as amended, be agreed to.
Bill, as amended, agreed to.
9:33 am
Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source
by leave—rather than proceed to a division, I ask that the government's position in relation to the bill be noted.
Bill reported with amendments; report adopted.