What Is the Serious Overseas Criminal Matters Scheme (SOCMS)?

Cassie Sainsbury was facing a 30-year sentence in Columbia for attempting to smuggle cocaine out of the country. Thanks to legal assistance, she was able to negotiate a 6-year sentence, and her lawyers have presented new evidence that might shorten her time in jail. Schapelle Corby was sentenced to 20-years in a Bali prison for smuggling marijuana. With the help of legal assistance, she was released from prison after 9 years and deported to Australia.

Sainsbury and Corby both benefitted from the taxpayer-funded Serious Overseas Criminal Matters Scheme (SOCMS). The controversial program also assisted Australia’s most notorious criminal, Peter Scully, who made and distributed movies of children as they were tortured, sexually abused, and murdered in the Philippines. A Philippines court recently sentenced Scully to life imprisonment for human trafficking and rape.

The SOCMS reportedly spent about $500,000 to defend Scully. Publicity surrounding the use of taxpayer funds to assist a murderous pedophile facing charges in another country fueled an impetus to reform the program. While the concept of helping Australians who are facing serious penalties in countries where they might not be treated fairly is well-intentioned, Scully (who fled Australia in 2011 to avoid fraud charges) is not a model of a deserving Australian facing unduly harsh penalties in a foreign land.

Serious Overseas Criminal Matters Scheme

Until recently, the SOCMS provided legal support for overseas Australians facing the death penalty or jail terms of more than 20 years. In addition to Scully, Sainsbury, and Corby, other Australians who received legal defence funding through the SOCMS include David Hicks, who was accused of joining a terrorist training camp, and Bali Nine drug traffickers Myuran Sukumaran and Andrew Chan, who were executed in Indonesia.

Probably as a result of the negative publicity surrounding the taxpayer-funded assistance to Scully’s defence, the Attorney-General’s Department announced changes to the SOCMS on 2 July 2018. In the absence of special circumstances, Australians are no longer eligible for funding under the SOCMS unless they are facing an overseas death penalty.

In addition, Australians are not usually eligible for assistance unless:

• they are unable to fund their own defence,
• they do not quality for legal assistance in the overseas country, and
• they maintain a continuing connection with Australia.

In deciding whether to fund a defence, the SOCMS Guidelines now require the Attorney-General to consider whether the applicant has been the subject of criminal proceedings in Australia and the circumstances under which the applicant departed Australia.

At least two of the new provisions would likely disqualify Scully if he were seeking assistance under the revised Guidelines. The Philippines has no death penalty, and Scully’s decision to flee from Australian criminal charges might well be seen as a voluntary severance of his connection with Australia.

Overseas Death Penalty

The revised SOCMS might still be a controversial use of taxpayer money, but Australia does have a legitimate interest in protecting its citizens from the unfair application of the death penalty. Given that execution is contrary to Australian values and to prevailing international norms, Australia has good reason to assist Australians who might be put to death.

According to Amnesty International, 56 countries maintain the death penalty, although in some of those countries, capital punishment is rarely imposed. In others, the death penalty is common. In both 2016 and 2017, executions were carried out in 23 countries.

China and North Korea do not publicly release the number of government-sanctioned executions within their borders. China is believed to impose the death penalty more often than all other nations combined.

Of the remaining countries that authorize capital punishment, 84% of the world’s executions are carried out in four countries: Iran, Saudi Arabia, Iraq, and Pakistan. The execution rate has been increasing in Egypt and Bangladesh. Amnesty International was unable to gather statistics from Syria, Libya and Yemen.

Some legal systems that implement the death penalty, such as those based on Sharia law, are built on a foundation that can be significantly different from the Australian concept of justice. Some legal systems that execute offenders are corrupt. Even in countries that respect the concept of due process, legal systems make mistakes. Protecting Australians from unjust executions is not an unwarranted use of taxpayer money.

Ongoing Problems with the SOCMS

As Amanda Sapienza writes, concerns about the SOCMS extend beyond the individual decisions it makes, such as the decision to fund Peter Scully’s defence. Since the SOCMS was created by the Attorney-General’s Department, rather than the legislature, whether its expenditure of public money is consistent with the Australian Constitution is an open question.

Perhaps more disturbing is the apparently unfettered nature of the Attorney-General Department’s discretion in expending funds earmarked for the SOCMS. As Sapienza points out, the Department’s Guidelines are “littered with clauses to preserve the Attorney-General’s discretion in relation to making grants of assistance. They essentially amount to a statement that nothing in the Guidelines prevents the Attorney-General from changing them, departing from them or making decisions not in accordance with them.

That concern carries over to the revised scheme. Although the revision purports to eliminate funding for the defence of crimes carrying a potential sentence of 20 years or longer, the revision allows funding when the death penalty is not an available punishment under special circumstances. One special circumstance is “where an individual – who has a continuing connection with Australia – is being, or will be, prosecuted for a criminal offence overseas for which the individual may be punished by a term of imprisonment equal to or longer than 20 years, and the Attorney-General is satisfied that the exceptional circumstances of the case justify the provision of financial assistance by the Commonwealth.”

The term “exceptional circumstances” is vague, at best. It is not clear how the Attorney-General is to decide whether the particular circumstances of a case are or are not exceptional. One wonders whether the change in the Guidelines really changed anything at all. It may still be possible for the Attorney-General to grant an application for funding in a case like Peter Scully’s.

While the SOCMS is a worthwhile scheme, questions about the Attorney-General’s constitutional authority and discretion should critics argue be addressed by legislation. When the expenditure of taxpayer money is at stake, elected representatives should provide authorization, guidance, and oversight. Legislation is always the best way to ensure accountability in a democratic government.