What is organ trafficking and what are the penalties?

In Plain English

Organ trafficking involves organizing or helping someone enter or leave Australia, or move from one place to another within Australia, with the knowledge that it might lead to their organs being removed against their will for illegal purposes.

There are different levels of offences and penalties, depending on the circumstances:

  • Basic Organ Trafficking: Organizing or facilitating the entry/exit of a person into/from Australia or transportation within Australia, being reckless as to whether it will result in organ removal. This carries a penalty of up to 12 years imprisonment.
  • Aggravated Organ Trafficking: This involves the same actions as basic organ trafficking, but with additional factors, such as the victim being under 18, the offender intending for the organ to be removed, subjecting the victim to cruel treatment, or creating a danger of death or serious harm. Penalties range from 20 to 25 years imprisonment, depending on the specific circumstances.

Detailed Explanation

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 amends the Criminal Code Act 1995 to include specific offences related to organ trafficking.

1. Organ Trafficking - Entry/Exit from Australia (Criminal Code Act 1995 section 271.7B):

  • Offence: A person commits an offence if they organize or facilitate the entry or proposed entry, or the exit or proposed exit, of another person (the victim) into or from Australia and are reckless as to whether this conduct will result in the removal of the victim's organ contrary to the law.
  • Penalty: Imprisonment for up to 12 years.
  • Note: Section 271.7A defines when the removal of an organ is considered contrary to the law, including situations where it violates state/territory laws or lacks consent and doesn't meet medical needs.

2. Aggravated Organ Trafficking - Entry/Exit from Australia (Criminal Code Act 1995 section 271.7C):

  • Offence: A person commits an aggravated offence if they commit an organ trafficking offence (as described above) and any of the following apply:
    • The victim is under 18 years of age.
    • The offender intends for an organ of the victim to be removed.
    • The offender subjects the victim to cruel, inhuman, or degrading treatment.
    • The offender's conduct creates a danger of death or serious harm to the victim or another person, and the offender is reckless as to that danger.
  • Penalty:
    • If the victim is under 18: Imprisonment for up to 25 years.
    • In any other case: Imprisonment for up to 20 years.
  • Alternative Verdict: If the court or jury is not satisfied that the defendant is guilty of the aggravated offence, but is satisfied that they are guilty of the basic organ trafficking offence under section 271.7B, they may find the defendant guilty of the lesser offence, provided the defendant has been afforded procedural fairness.

3. Domestic Organ Trafficking (Criminal Code Act 1995 section 271.7D):

  • Offence: A person commits an offence if they organize or facilitate the transportation or proposed transportation of another person (the victim) from one place in Australia to another place in Australia, and are reckless as to whether this conduct will result in the removal of the victim's organ contrary to the law.
  • Penalty: Imprisonment for up to 12 years.
  • Note: Again, section 271.7A defines when the removal of an organ is considered contrary to the law.

4. Aggravated Domestic Organ Trafficking (Criminal Code Act 1995 section 271.7E):

  • Offence: A person commits an aggravated offence if they commit a domestic organ trafficking offence (as described above) and any of the following apply:
    • The victim is under 18 years of age.
    • The offender intends for an organ of the victim to be removed.
    • The offender subjects the victim to cruel, inhuman, or degrading treatment.
    • The offender's conduct creates a danger of death or serious harm to the victim or another person, and the offender is reckless as to that danger.
  • Penalty:
    • If the victim is under 18: Imprisonment for up to 25 years.
    • In any other case: Imprisonment for up to 20 years.
  • Alternative Verdict: Similar to aggravated organ trafficking related to entry/exit, the court or jury can find the defendant guilty of the basic domestic organ trafficking offence under section 271.7D if not satisfied of the aggravated offence, provided procedural fairness was afforded.