Serious Overseas Criminal Matters Scheme: Name Changed and Criteria Tightened

Wednesday 11 July 2018 @ 2.10 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

In a recent media release (dated 2 July 2018), the Commonwealth Attorney-General, Christian Porter announced that the Government would be limiting access to legal assistance under the Serious Overseas Criminal Matters Scheme ("the Scheme") so that the scheme would only apply to ". . . those Australians overseas facing the death penalty". Additionally, the AG announced that stricter criteria for the Scheme would be introduced. These changes apply from 2 July 2018.

The Scheme

Prior to the changes the Attorney-General's website indicated that the Attorney-General's Department may help Australians facing serious criminal charges in an overseas country with the cost of their defence. The site also provided for applications to be made for grants to cover legal fees and other expenses. The website now says that:

"The Attorney-General's Department may help Australians facing criminal charges involving the death penalty in an overseas country with the cost of their defence."

Assistance under the Scheme used to be offered to Australians facing more than 20 years in prison in a foreign jurisdiction, but has now been restricted to only those facing the death penalty. The Scheme is not authorised by a statute and its provisions are set out as part of the - The Commonwealth Guidelines for Legal Financial Assistance 2012 , in particular Part 3 - Schemes to Which These Guidelines Apply at Clause 3.6 entitled "The scheme for overseas criminal matters involving the death penalty", which now provides:

" The purpose of this scheme is to provide financial assistance for an individual
facing an overseas criminal legal action if:
(a) the individual is being, or will be, prosecuted for a criminal offence for which the individual may be punished by the death penalty; and
(b) the individual has a continuing connection with Australia.
Note: Overseas legal action is defined in section 2.1."

What Has Changed

The AG announced the changes following on a government review that is reported to have been triggered by a string of media reports highlighting controversial cases - in particular the case, of paedophile Peter Scully who used the Scheme to claim more than $500,000 while on trial in the Philippines. After the review, the Scheme was renamed to the Scheme for Overseas Criminal Matters Involving the Death Penalty.

The scheme for overseas criminal matters involving the death penalty now excludes cases where a person may be facing imprisonment of 20 years or more. Person who no longer qualify under the new scheme may still be eligible for funding by the Commonwealth under the revised "Special Circumstances Scheme" [see The Commonwealth Guidelines for Legal Financial Assistance 2012 at Clause 3.10] .

Another change is the application of stricter criteria to the grant of assistance under the Scheme, including consideration of an applicants previous criminal record, of which the Attorney-General has said in his Media Release:

"At the same time, stricter criteria will also now apply to the Scheme. Firstly, consideration will be given to whether the person has previously been the subject of criminal proceedings in Australia or overseas and, if so, the gravity, nature and outcome of those proceedings."

Another consideration applying under the stricter criteria will be consideration of the reason(s) why a person is overseas, in order to exclude people who have departed to avoid prosecution in Australia. The Attorney-General's media release said:

"The other additional factor will be the circumstances under which the accused departed Australia. Someone who fled Australia to avoid criminal proceedings in Australia would not qualify for assistance."

It should also be noted that the stricter criteria will also apply to the Special Circumstances Scheme, and the Attorney-General, not his Department, is the decision-maker for overseas criminal matters under both schemes.

The Attorney-General's View of the Changes

The Attorney-General sees the changes as trying to:

"achieve a balance between assisting Australians arrested overseas for serious criminal matters and ensuring that Australian taxpayer funds are spent appropriately and in a manner that is consistent with community expectations" .

He also points out that: "As a consequence of these changes, the Government is expected to save $1.6 million over four years."

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