Criminal Law Consolidation (Mental Competence) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (11:49): I move:

That this bill be now read a second time.

I am really pleased, and also very moved, to introduce to this house the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. This bill, rightly, amends the terminology used in relation to a defence of mental incompetence under division 2 of part A of the Criminal Law Consolidation Act 1935. In particular, this bill replaces the phrase not guilty by reason of mental incompetence in the act with a finding of 'conduct proved but not criminally responsible due to mental incompetence'. This reform addresses concerns that have been repeatedly and passionately voiced in South Australia and interstate about the problematic, troubled use of the phrase not guilty, with these concerns particularly, and very much understandably, identified by victims in this context.

In particular, concerns have been raised with our South Australian government in the wake of the utterly tragic stabbing of Ms Julie Seed at a Plympton real estate agency in December 2023; stabbing victim Ms Susan Scardigno, and the courageous partner of the late Ms Julie Seed, Mr Chris Smith, who have strongly, again passionately, advocated for this important change in wording. Their strength and their passionate advocacy is what has led to this bill we bring to this house today. It is for them and for their precious loved one, the victim of this horrific attack, that we have developed it and bring it to this parliament to be debated and hopefully soon become law.

I have had the honour and the pleasure of meeting several times with Chris, with his mum, Karen, on many occasions, and also with Julie's children. They are utterly heartbroken and they are profoundly brave. As are many in our southern community, they are heartbroken. Julie was well known, respected and loved by so many in our broader community family. She was a precious and joyful partner, mum, daughter, daughter-in-law, colleague, fellow sporting club member and friend to so many. What happened to her was so very cruel and utterly devastating. It is hard to fathom exactly how her loved ones are feeling.

Whilst this bill cannot change the terrible trajectory of what Julie went through and the grief her family continue to so deeply feel, it does, hopefully, provide some sense that amidst a tragedy so very hard to make sense of at all we can make things clearer. We can better hold a perpetrator to account and, hopefully, change how our community views such terrible acts. I wholeheartedly, and with such respect, thank Chris and his family for using their voices to drive a change that will mean that, should such a heinous act ever be committed again, a grieving family will not have to feel the same sense of injustice that they endure.

Under part A of the act if the court finds that the objective elements of the offence are established but that the defendant was, at the time of their conduct, not mentally competent to commit the offence, the court must find the defendant not guilty. It is so important to note that this finding of not guilty does not mean there is no consequence for the offence. Subject to division 3A of part A of the act, the court must declare the defendant liable to supervision and, in doing so, may make a supervision order, either committing the defendant to detention or releasing them on licence with specified conditions.

Where the court makes a supervision order, it must fix a limiting term of equivalent to the period of imprisonment or supervision that would have been appropriate if the defendant had been convicted of the offence. This means, for example, that for an offence of murder dealt with under division 2 of part A of the act the court must set a limiting term of life under supervision, because the penalty for murder is life imprisonment.

Part 8A also provides checks and balances to ensure that decisions made in relation to a defendant who is liable to supervision prioritise the safety of the community. The bill does not make any substantive change to the operation of part 8A, nor to any other law. However, we have very clearly heard from the community that the use of the phrase 'not guilty' in this context can understandably cause confusion for victims, their families and the broader community, leaving them with a sense that justice has not been served. It can be particularly painful for victims to hear the phrase 'not guilty' when it is absolutely undisputed that the person has indeed committed an act that resulted in the tragic death of their loved one.

Advocates have made very clear that better terminology should be adopted to make clear that harm did in fact occur, even if the defendant is not criminally responsible. The state government agrees. In line with recommendations of the New South Wales Law Reform Commission, a similar change has been made in that jurisdiction. Clauses 3, 4, 6, 7 and 8 of the bill amend the relevant sections within the Criminal Law Consolidation Act to replace the phrase 'not guilty' with 'not criminally responsible due to mental incompetence' in relation to a defence of mental incompetence.

Clause 5 of the bill inserts new section 269AB in the Criminal Law Consolidation Act, which is intended to ensure that the bill has no substantive effect on any other law that refers to a finding of not guilty. In particular, new section 269AB provides that a reference in the law to a person found not guilty of an offence will, unless contrary intention appears, be taken to include a relevant finding that the defendant committed the objective elements of the offence but was mentally incompetent to commit the offence.

Schedule 1 of the bill contains consequential amendments to other acts where the terminology of 'not guilty' appears. I am really grateful to the Commissioner for Victims' Rights for recommending this reform to the government, and I am so grateful for the bravery and the advocacy of Ms Susan Scardigno and Mr Chris Smith and his incredibly courageous family. My heart stays with them as this bill progresses. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5H—Procedural provisions

This clause amends section 5H of the Act to substitute the reference to recording a finding of not guilty by reason of mental impairment and to rather specify that, if the conduct constituting an offence is proved but the person is not criminally responsible due to mental incompetence, the court must record a finding of conduct proved but not criminally responsible due to mental incompetence.

4—Amendment of section 267AA—Offence where unlawfully supplied firearm used in subsequent offence

This amendment is consequential to the proposed changes to section 5H.

5—Insertion of section 269AB

This clause inserts a new section as follows:

269AB—Reference to finding of not guilty to include finding of mental incompetence

This clause provides that a reference to a person being found not guilty of an offence in any Act, legislative instrument or other law will, unless the contrary intention appears, be taken to include a reference to a finding of a court under this Part that the objective elements of the offence are established but the person is not criminally responsible due to mental incompetence.

6—Amendment of section 269F—What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence

7—Amendment of section 269G—What happens if trial judge decides to proceed first with trial of objective elements of offence

8—Amendment of section 269NB—Division 3A orders

These amendments are consequential to the proposed changes to section 5H.

Schedule 1—Related amendments

Part 1—Amendment of Children and Young People (Safety) Act 2017

1—Amendment of section 16—Interpretation

Part 2—Amendment of Child Safety (Prohibited Persons) Act 2016

2—Amendment of section 5—Interpretation

Part 3—Amendment of Disability Inclusion Act 2018

3—Amendment of section 18A—Interpretation

Part 4—Amendment of Young Offenders Act 1993

4—Amendment of section 32—Reports

These related amendments are consequential to the proposed changes to section 5H of the Criminal Law Consolidation Act 1935.

Ms THOMPSON (Davenport) (11:58): I rise today in support of the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025, a bill that represents a significant step forward in how our legal system recognises both the realities of mental impairment and the experiences of victims and their families. This bill proposes amended terminology be used in respect of a mental incompetence defence under part 8A of the Criminal Law Consolidation Act 1935. Specifically, it replaces the term not guilty due to mental incompetence with the phrase 'conduct proved but not criminally responsible due to mental incompetence'.

This change is more than just a matter of wording. It is a matter of justice and recognition. For too long there has been significant concern, both in South Australia and beyond, about the language used in cases where an individual is found to have committed an offence but is not held criminally responsible due to mental impairment. The term 'not guilty' has often caused confusion and distress for victims and their families as it fails to acknowledge the harm that has been caused. It can suggest inaccurately that the crime itself did not occur, which is misleading to the public and extremely unsettling for those affected.

This bill seeks to remedy that concern by ensuring that the law more accurately reflects both the legal reality and the community's expectations. It clearly establishes that while the objective elements of the offence have been proved, the accused is not criminally responsible due to their mental impairment. In doing so, it provides victims with the recognition that they deserve while maintaining the fundamental legal principles regarding mental competence and responsibility.

The need for this amendment has been underscored by recent tragic events in South Australia, most prominently in the wake of a horrific attack on 20 December 2023 at a real estate office in Plympton. The alleged murder of Ms Julie Seed and the serious knife assault against Ms Susan Scardigno brought renewed attention to the current terminology's shortcomings. Ms Seed's fiance, Chris Smith, has been a vocal advocate for this change, and I believe that we owe it to him, to Ms Seed and to all the victims of crime to listen and act.

We have seen the impact of the current terminology firsthand in South Australia through multiple high-profile cases. One such case is that of Angas Crowe, a promising young man whose life was taken in an unprovoked and senseless stabbing at the Seaford train station in 2017. The man responsible for his death was found not guilty due to mental incompetence. Angas's mother, Tanya, has spoken publicly about the frustration and hurt caused by this terminology, which failed to acknowledge the reality of her son's violent death. This bill ensures that victims and their families will no longer have to hear a verdict that fails to reflect their lived experience.

Another example comes from 2020, when a man killed his own mother in Adelaide's northern suburbs, a crime that shocked the local community. Once again, a finding of not guilty due to mental incompetence was delivered, leaving many feeling that justice had not been properly acknowledged and served. While the legal principles of mental incompetence remain essential, we must ensure that the language of the law does not compound the grief of those left behind.

The bill clearly establishes that while the objective elements of the offence have been proved, the accused is not criminally responsible due to their mental impairment. Beyond individual cases, this change reflects a broader, growing consensus that the language of the law should evolve to be more accurate and considerate of victims' experiences. This amendment was first requested by the former Commissioner for Victims' Rights, Ms Bronwyn Killmier, and has the strong support of the current commissioner, Ms Sarah Quick.

Further, it aligns South Australia with similar reforms introduced in New South Wales in 2020, which adopted the phrase 'act proven but not criminally responsible due to mental health impairment'. These reforms were implemented following recommendations from the New South Wales Law Reform Commission in 2013, which found that the term 'not guilty' created dissonance between legal and public understanding, particularly for victims and their families. Victoria has also recognised this issue, with the Victorian Law Reform Commission recommending similar changes in 2014. This review concluded that the phrase 'conduct is proved but not criminally responsible because of mental impairment' would more accurately reflect the reality of such cases, make the law clearer to the public and minimise unnecessary distress for victims.

The bill does not alter the legal operation of the mental incompetence defence in South Australia. It does not change the way that cases are assessed, nor does it alter the protections available for individuals suffering from mental impairment. What it does change, however, is how the law communicates its findings, ensuring that the words we use respect the experiences of victims and reflect the truth of what has occurred. The bill also introduces consequential amendments to ensure that all references to a finding of not guilty under part 8A across our legislative framework are updated for consistency. This ensures clarity and uniformity throughout our statute book.

Stakeholder consultation has strongly supported these reforms. On 26 August last year, the draft bill was circulated to key stakeholders for comment, and the majority of respondents either expressed support or provided a 'no comment' submission. This broad acceptance underscores the fact that this amendment is not controversial, it is simply the right thing to do.

This bill, for me, is about fairness. It is about ensuring that our legal system speaks the truth and does so with sensitivity. The words that we use matter. They shape perceptions and help determine whether victims feel that justice has been served. In passing this bill, we send a clear message: we acknowledge victims, we respect what they have endured, and we remain firmly committed to a justice system that serves them as much as it serves the principles of law. I commend the bill to the house.

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (12:04): I rise to indicate the opposition's support for the bill. As lead speaker for the opposition, I will make some brief remarks about it. As I have referred to in the course of debate, from time to time there are opportunities to improve the criminal justice system's capacity to engage and to empathise, if I might use that word, with victims of crime.

I refer to the fact that South Australia for decades, going back to the eighties, has led the way in terms of law reform in this area. I pay particular tribute to Michael O'Connell in this regard, who for a long time, from I think 2006 to 2018, as victims' rights commissioner in South Australia very much led the way, and continues to do so, in terms of an overall philosophical approach to the way the criminal justice system has at times through its history tended to alienate victims and has gone through waves of development and engagement with victims that have taken on different forms through the decades.

I have referred to the sorts of social advocacy and social movements that characterised the sixties and seventies through to the sorts of initiatives that we have seen in more recent times around access to involvement in the process of prosecution and capacity for victims to be heard in the court, including directly addressing perpetrators who are tried for their crimes.

This is a discrete amendment in relation to the language that is used in describing circumstances in which an accused person will be dealt with differently by the court, the consequence of a finding of mental incompetence. It makes clear to victims that the process of determining the facts has resulted in a finding establishing what has occurred and explaining, characterising in a more empathetic way, the reasons why a person who has been found not criminally responsible due to their mental incompetence will be dealt with in a way reflecting that mental incompetence but in an endeavour, as I have said now a few times in the course of this contribution, to create a means better to reflect the devastating consequence of those actions on the victims and those who are affected.

It has been referred to in the course of the debate, and I would note, when the minister read the government's speech into Hansard, that this follows on from the advocacy of Michael O'Connell's successor in the role of commissioner in South Australia, Bronwyn Killmier. I pay tribute to her service. Indeed, that is carried on by the current commissioner, Sarah Quick, and again I acknowledge, commend and thank Sarah Quick for the work that she is continuing to do in this area.

I certainly hope and trust that South Australia will continue to lead the way in terms of the capacity of our criminal justice system to more fully engage in, empathise with and properly reflect the devastating circumstances that victims find themselves in. In this case, while this might be in some ways carrying on from the good work of the New South Wales Law Reform Commission, there is plenty that can be done by way of cooperation. There are good forms of communication across jurisdictions. It is not always the case that we will do things in a way that is immediately uniform across the country, and so leadership continues to be important in this space. I commend the bill and look forward to its speedy passage through the house.

S.E. ANDREWS (Gibson) (12:11): I am pleased to support this bill to amend terminology in the Criminal Law Consolidation Act 1935 to bring it in line with contemporary expectations. We no longer generally refer to community members with the terms we used to use to describe people living with a mental illness, as they are seen as outdated and often offensive. It is similar when we describe a person as not guilty due to mental incompetence, as this gives the community and the victim's family the impression that justice has not been served. I cannot imagine losing a family member or friend or seeing their life change at the hands of another person, let alone the feeling of being told that that person is not guilty.

This bill amends the terminology used in relation to a mental incompetence defence under part 8A of the Criminal Law Consolidation Act 1935, replacing a finding of not guilty due to mental incompetence with 'conduct proved but not criminally responsible due to mental incompetence'. The bill addresses concerns that have been repeatedly voiced in South Australia, interstate and elsewhere about the problematic use of the term 'not guilty' in this context. As I said, the community view 'not guilty' as being a reflection that the person did not commit the act.

This change is intended to give greater recognition to the trauma suffered by victims and to more accurately label the outcome in these matters by demonstrating that the objective elements of the offence are proved, acknowledging that the defendant committed the offence and will likely see sanctions, while further acknowledging they are not criminally responsible for that conduct because of their mental impairment. The bill will make related consequential amendments to references made in other legislation to a finding of not guilty under part 8A. The consequential amendments will ensure consistency in the language used across the statute book.

I understand this bill was requested by the former Commissioner for Victims' Rights and is now supported by our current commissioner. This is important as the commissioners hear from victims and survivors every day.

Recently, this issue has been raised by victims, particularly in relation to the alleged murder of Ms Julie Seed and the serious knife assault against Ms Susan Scardigno on 20 December 2023 at a real estate office in Plympton. The former partner of Ms Seed, Mr Chris Smith, has also advocated for this wording change. As in the case of Ms Seed and Ms Scardigno, these cases are often high profile and affect the community far beyond the direct family and friends of the victim. Another case which was high profile is that of the murder of Phil Walsh in 2015 in my electorate, whose son was found not guilty of murder due to mental incompetence. He is now subject to a lifetime psychiatric supervision order.

It is important to note that while this change better reflects the sentiments of victims the change will not have any impact on the current operation of the law. This bill received support from the majority of stakeholders who were consulted and the changes follow similar changes in the New South Wales government where they adopted the phrase 'act proven but not criminally responsible due to mental health impairment'. I fully support this bill and send my thoughts to everyone who has or will be affected by this bill. I commend it to the house.

The Hon. Z.L. BETTISON (Ramsay—Minister for Tourism, Minister for Multicultural Affairs) (12:14): I stand today to speak in support of the Criminal Law Consolidation (Mental Competence) Amendment Bill 2024. I recognise the work of our Attorney-General on the issue raised by many people here, particularly those victims' rights stakeholders we have here, who have been raising this issue with him.

This bill seeks to amend the terminology used in relation to a defence of mental incompetence under division 2 of part 8A of the Criminal Law Consolidation Act 1935. As we have heard in this house, this has particularly come to the forefront when we all experienced the horror and shock of the murder of Julie Seed in 2023. She was just going about her job as a real estate agent and was the victim of a horrific crime.

Most specifically, this bill seeks to amend the wording. The bill replaces the phrase 'not guilty' by reason of mental incompetence in the act with a finding of 'conduct proved but not criminally responsible due to mental incompetence'. It is phrasing that reflects the lived experience of the victim and the victims' families. I really want to focus on the importance of those words because, when someone is dealing with grief, words matter. By this change, to say that conduct was proved is important: it is important for friends and families of that loved one who has been a victim of a crime.

We know that, when they have experienced tragedy and grief, having a clear acknowledgement of guilt—which is made clear through this wording—is important in an attempt to achieve closure. As we have talked about in this house, it is about contemporising the words within the act. The current language of 'not guilty' implies that the accused is just that. It can be particularly painful for victims to hear the phrase 'not guilty' when there is no doubt that the person has committed the act that resulted in the death of a loved one.

As we have heard here, we have had other states that have moved before us in this way. In New South Wales, reforms were developed in response to recommendations from the Law Reform Commission in 2013. The New South Wales Law Reform Commission noted the dissonance between the way a verdict of not guilty by reason of mental impairment is understood by lawyers and the way it is understood by the general community, in particular by victims and their families.

We also heard this in Victoria, under the Victorian Law Reform Commission, where they made similar recommendations in 2014 recommending the use of the language 'conduct is proved but not criminally responsible because of mental impairment'. The Victorian Law Reform Commission expressed the view that the recommended language more accurately labels the outcome in these matters, demonstrating that the conduct the accused was charged with was proved, and also acknowledging that the accused is not criminally responsible for that conduct because of their mental impairment. It was very important, as listed by the Victorian law reform, that the implications of this language was making this finding clearer and more readily understood by victims and the community.

We know that advocates and victims have made it clear that better terminology should be implemented to make it clear that harm did occur. This is really important for us at a time when we must recognise the impact of crime on people and, of course, how they then respond to that—how do they keep on moving? How do they deal with this? How do they recognise this?—so it is very clear that harm did occur.

The defence of mental incompetence has a very long history and is an essential part of our criminal justice system. But, of course, it has shifted over time to keep pace with community expectations of mental illness. This is one more change that maintains its function as a defence while bringing it in line with community expectations. What is very important about this change is that the language strikes the right balance between acknowledging the experience and the pain of victims, the seriousness of the defendant's conduct and the mental health of those defendants.

I am grateful to the Commissioner for Victims' Rights, Sarah Quick, and our previous commissioner, Bronwyn Killmier, for recommending this reform. I also want to recognise the advocacy of Sue Scardigno and Chris Smith, the partner of Julie Seed, in their advocacy for this change. Victims of crime deserve to be heard—that is very important—and I am pleased to support this bill to achieve some closure, even in such a small way.

In speaking about this bill, I also want to recognise the other work that we have been doing in the three years of this government. Obviously most recently we have come out very strongly about the tough laws to tackle knife crime, and it is incredibly important that we move on this situation. We have looked at reforms to the use of excessive self-defence laws—and this was brought to our attention through the tragic killing of Limestone Coast woman, Synamin Bell—introduced into parliament and debated.

In looking at different reforms that we have done, for me something that was particularly important was to stop harassment in the legal profession. When considering these reforms, these are things that are hard to make decisions on, and they are hard-to-have conversations, but it is important that we do to support people. We have also had a funding boost for payments to victims of institutional child sex abuse as part of the National Redress Scheme.

There are different things that we are doing because it is right to do them, because Labor is focused and we make these things happen. Within that, anti-terrorism laws have come into effect about presumption against bail. Obviously, we await the recommendations of the Royal Commission into Domestic, Family and Sexual Violence, but we have strengthened our laws against strangulation as well. These are things that are incredibly important in a modern society. We must call out these things and we must act, and that is what we have done today.

A particular area of interest, given my long-term connection with those people working in retail, is better protection for South Australian retail workers: that businesses can seek to bar people who exhibit violent or intimidating behaviour in shops and shopping centres. The Malinauskas Labor government is progressing these areas. I am very proud to be part of this government. Today, before us, we speak about another area of reform and we continue to look for what is best for South Australians now and into the future. I support the bill.

Ms STINSON (Badcoe) (12:22): I rise today to support this bill, the Criminal Law Consolidation (Mental Competence) Amendment Bill, and I start by saying that this is a matter that hits incredibly close to home for me on a number of fronts. Firstly, I just want to say to Julez and to her family that in life she made an incredible difference and even in her passing she is making an incredible difference. This law, unfortunately, comes about in part because of the horrific murder of Julie Seed in my electorate in Plympton, in fact, just metres away from where I work in my electorate office.

From my office you can actually see the REAL Estate Agents Group office, and on that day, my staff and I were in our office and I heard about what had happened, both in terms of the shocking loss of Julie and also the horrific, serious assault of her colleague and friend, Susan Scardigno. I have been absolutely overwhelmed by the incredible strength and advocacy of her partner, Chris Smith, who is known to me due to his involvement with the Adelaide Angels Baseball Club, of which I am the proud No.1 ticketholder.

I have been incredibly moved by the way the baseball community, but also our local community, has rallied to support Chris and also Julez's children, who now live their lives without their mum because of this terrible thing happening in our community. I want to pay tribute to how Chris has gone about his life and his advocacy in the wake of this tragedy. I really honestly think that most of us would struggle to get out of bed, let alone look at this as an opportunity to achieve change, to achieve reform, and to make some small change.

I know that Julez would be incredibly proud of him, incredibly proud of how he is pushing forward and trying to make change on her behalf in the wake of such a tragedy, and also how he is raising their beautiful children. I do not think many of us can even imagine what it would be like to be in that situation, and I am in great admiration of what he is doing. Chris has met with members of our government, particularly the Attorney-General, about what changes can be made. This is an incredibly difficult area of the law and an incredibly difficult area of our health policy as well.

Those in this chamber would know that in my past life I was a journalist, and my work focused on court reporting, so unfortunately I have spent quite some decades in fact reporting on similar cases in our courts and I have been a witness to the horror of such offending and the incredible complexity of it. There are simply no winners. There are generally no winners in the justice system, but there are particularly no winners in these sorts of cases where you have a defendant who has been deemed mentally incompetent perpetrating violence against innocent victims.

There are families on all sides who are affected in these circumstances, families who wished that their loved one had received the appropriate medical care. Sometimes that is incredibly fraught. Those families, obviously, are absolutely ripped apart about what their loved one has done, despite the fact that under our law there is a legal explanation and that until this reform they were found not guilty by way of mental incompetence. There is so much going on in these cases.

The families who I have spoken to obviously want to see greater investment in our mental health services. They want their loved ones who are sick to get the attention they need because this is a parent's and loved one's worst nightmare, that their child who has a mental health issue ends up perpetrating some form of violence against someone else, and of course there is absolutely heart-wrenching heartache for the family of the person who is either hurt or, in this case, has lost their life.

In my time as a court reporter I covered many cases that unfortunately were mental incompetence cases involving violence. Generally though, the violence is family on family or people who are known to each other and that, of course, throws up a whole other series of emotions and confusion and difficulty in dealing with these issues. Of course, the one that comes to mind—and would certainly be the most high profile that I think every South Australian would probably know of—was the death of former Crows coach Phil Walsh at the hands of his son, Cy.

Unfortunately, those cases in which there is violence perpetrated between family members are far more common than the case that we saw at Plympton, in which we essentially had people who were unknown to each other who were perpetrating violence. Nonetheless, no matter what the situation is that one finds themself in, the heartache for those who are victims is immeasurable and the heartache for the family of the perpetrator is often forgotten but is equally heart-wrenching.

Depending on the mental state of the person involved, in time it also wreaks havoc on the perpetrator, who in our system may be found not to have been of sane mind at the time when they committed such offences but in time goes on to understand that, or sometimes does. There are just so many levels of pain in these cases.

Members may also know that towards the end of my career as a court reporter I became very involved in advocating for victims. I served on the board of JusticeNet SA for quite some time, which provides pro bono legal support largely in the civil sphere to people and not-for-profit organisations. I also served on the board of the Victim Support Service for quite some time, and in fact was the chair for a period before I put my hand up to run for the seat of Badcoe.

I put my hand up to serve on those boards because I had had a long period of reporting on and, in a way, participating in our justice system. I do not think you can help in that environment but feel for victims of crime—feel for the experiences that they have that have led them to come before the court system but also the experience that they have through the court system.

In my view, the court process is retraumatising for people. Not only does a person live through a painful experience—an experience of violence or some other wrong being perpetrated against them—but then in our system, as it is, they are forced to relive that, sometimes again and again. That trauma does not go a long way to help people to recover and move on from what has happened to them. Sometimes, our court system takes many years and victims are forced to repeat their situation many times.

Sometimes victims achieve justice and a sense of catharsis or feeling heard about what has happened to them, but sometimes they do not. That is the way of our justice system and, to an extent, very little can be done about that. It is a sign of a good justice system that the law is being applied and applied rigorously, and that does not necessarily always mean that everyone steps out of it with what they feel is a productive or satisfying conclusion. But, of course, those experiences have impacts on victims and on their families.

One of those experiences that I have seen victims and the families of victims really struggle with is when they are going through this pathway of a mental health defence being open to an offender. It can be quite arduous in that there are a lot of reports and sometimes it takes a long time for psychological reports and evaluations to be prepared, for those to come before the court to be assessed, and for additional information to be sought quite a lot of the time. That in itself, the time-consuming nature of it, can be quite upsetting for victims.

But also of course just the fact that they have endured this loss or this serious injury or injury of a loved one or themselves and then feel quite understandably that no-one is being held to account for that, that there is somehow an excuse or an acceptable reason for the violence to have happened to them or their loved one, I think is completely understandable.

Even if we look at black-letter law, we can understand why our law is structured in that way. I can absolutely see that, when you are in the moment and you are the victim or your loved one is a victim, it does not make a great deal of sense that there is any excuse or explanation that might be sufficient to explain or excuse the violence and trauma that you or your loved one has been through.

To people in that situation, it just makes zero sense that their loved one's experience is not being fully acknowledged. People have different attitudes to blame and retribution and punishment, but for many people they do want to see an offender punished and it does feel like someone is getting off scot-free when this process is applied.

Even if it is applied properly, when a mental health defence is put forward and they hear the words 'not guilty' ring out of the judge's mouth and the family member is sitting there having had the experience they have had of losing a loved one or their loved one being seriously injured, those words 'not guilty' are just so painful. It is another trauma being inflicted on them and it feels to them like their pain is not being acknowledged and that the correct penalty, the correct punishment, is not being doled out to someone who has caused such unimaginable heartache to them that they will endure for their entire lives.

There is of course the flip side, which is that mental health is a serious thing and it is a real thing. It is something that so many families experience and it is under our law—and I do think rightly so—acknowledged as a viable defence. That has been the case in our law for a very long time. I am certainly not an advocate of abolishing that acknowledgement, but I think that this bill is an acknowledgement that the words we use matter and that in circumstances of such incredible pain and sensitivity we as lawmakers and our judicial system can afford to be just a little bit more sensitive.

It is the case that victims for quite some time have called out the unfairness they feel through the mental incompetence defence and have called out the language that is used. I know that Chris and his family would like to see greater reform in this area. I know that they, like many others who have been through a similar experience, do question the validity of a mental incompetence defence and that avenue that is available to people who legitimately have suffered mental incompetence in their act of an offence or subsequent to it and I do understand that. I can completely understand where they are coming from, but, as I said, I do think that that is an important defence in our system and it should remain.

What this bill is talking about though is a matter of language and how we express what a mental incompetence defence is. By replacing a finding of 'not guilty due to mental incompetence' with 'conduct proved but not criminally responsible due to mental incompetence', I do think that better describes the situation that is unfolding and the legal process that is happening here.

What it is saying to people is, 'We do acknowledge that that conduct happened. That conduct happened to your loved one or happened to you, and this justice system is acknowledging that that happened.' Of course then it goes on to acknowledge that the defendant has a lawful defence, a genuine and viable defence by way of mental incompetence, which by the time these words are said has been proven through the use of expert reports and evaluation of the defendant and the situation that unfolded.

I think these words will bring some comfort to victims, but I do not think it provides ultimate comfort. I think we have to be frank about the limitations of this, but I do think it is something where we can be—maybe proud is not the right word but we can be satisfied that this is progress in the right direction and that this is a sign that our legal system and those in this house are recognising the experience of victims. I think that that has happened over the last decade or two increasingly and is a good thing—that we are constantly evaluating our legal system and assessing whether it is fit for purpose, whether it is reflecting our values as a community and whether it is expressing itself to our community in the way that we think it ought.

The replacement of the words 'not guilty' with 'conduct proved but not criminally responsible' is important. It is not everything, and I do not think victims will find any sort of absolute solution in this, but it is progress and I do commend those who have worked on this, particularly the Attorney-General and his office but also others. I would like to also acknowledge the Premier, who met with Chris Smith and his supporters early on in the piece after the terrible tragedy unfolded in Plympton. I think that really shows the measure of the man—in meeting Mr Smith at a time of great grief, extending the comfort that he could to him and committing our government to do what we could to assist, although nothing we can do, of course, will I think completely satisfy the enormous hole that has been left through this tragedy.

I wanted to conclude by, of course, endorsing this bill. I am pleased that it comes before this house, and I look forward to it having support across the chamber but, again, I just want to reiterate to Julez, wherever you are, that you are still making your presence felt. We have not forgotten you. We remember you always, and today we honour you in this bill and in these changes, and we send all of our love and support to all of your family and also to Susan Scardigno's family.

Mr DIGHTON (Black) (12:42): Thanks to the member for Badcoe for sharing more of Julie Seed's story, the tragedy of her loss and her family. This bill remains an important part of her legacy for our community.

This bill amends the terminology used in relation to a mental incompetence defence under part A of the Criminal Law Consolidation Act, replacing a finding of 'not guilty due to mental incompetence' with 'conduct proved but not criminally responsible'. It is important that that acknowledgement, as the member for Badcoe has said, is an issue that was raised by victims, and obviously, as the member for Badcoe has said, it has been in relation to the tragic death—the alleged murder—of Julie Seed and the serious knife assault against Ms Susan Scardigno on 20 December.

The bill addresses concerns that have been repeatedly raised and voiced in South Australia, interstate and elsewhere about the problematic use of the term 'not guilty' in this context. It is intended to give greater recognition to the trauma suffered by victims and more accurately label the outcome in these matters by demonstrating the objective elements of the offence are proved but also acknowledging that the defendant is not criminally responsible for the conduct because of their mental impairment.

I want to acknowledge that the bill was requested by the former Commissioner for Victims' Rights, Bronwyn Killmier, and is supported by the current commissioner, Sarah Quick. I also acknowledge the work of our Commissioner for Victims' Rights in bringing about support for legal changes in our court system and also for supporting our victims all the time.

As a former legal studies teacher one of my jobs was to teach our young people and students about our legal system and our criminal justice system. In particular, we would discuss issues such as the rights of defendants and the rights of the accused. I always found it interesting because students would raise with me the question of where were the rights for victims; that was their first response: 'Mr Dighton, you keep talking about the rights of the accused and the rights of the defendant, what about the rights of the victims?'

Of course I would talk to them about the importance of the presumption of innocence, the importance of ensuring we had a fair trial. We would talk about the elements that needed to be proven in terms of actus reus (guilty act) and mens rea (guilty mind) and, whilst there was a great opportunity to discuss how important those were, the sentiment the students raised about this idea of fairness for a victim and how our system supports that is a really important one, and a reason why this legislation is really important.

This is an important change to better reflect the sentiments of victims. It will not have any impact on the current operation of the law, but I want to acknowledge that it will help ensure that the law is more readily understood by the community—because, again, there is the assumption that not guilty by virtue of mental incompetence almost does not provide that sense of justice to our victims and many in our society.

It will remove the offence caused to victims, family members and others who find the phrase 'not guilty' confusing and unpalatable. That is a really important change. We need to ensure that justice is both seen and heard, and this bill will help achieve that. I support the bill and commend it to the house.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (12:47): Thank you wholeheartedly to all the members who have spoken with such compassion for the families of those who have been tragically killed or harmed in situations that have given rise to this bill. Thank you very much also to the members for Davenport, Gibson, Ramsay, Badcoe and Black—in particular thank you very much to the member for Badcoe for sharing that heartfelt experience after what she and her staff went through in terms of their proximity to this absolutely terrible, terrible situation.

Thank you very much again, as I said in my remarks, to both the current and former victims rights commissioners, who have rightly raised the need for this bill. Thank you very much to the Attorney-General who, I know, has spent time meeting with families impacted and who, together with his team both within his office and in the department, have taken care in both drafting the bill and also in ensuring that those families facing such heartbreaking situations were engaged and were part of the discussions to get to the point we are at today.

So importantly, I again place on record my heartfelt thanks and absolute admiration for the courage of Susan and her family, and for the incredible strength and bravery, amidst absolute tragedy, of Chris, Karen, Isabella and the entire family of Julie Seed. May she rest in peace. Again, thank you to her family for being so incredibly brave in the face of such tragedy. Their work has absolutely shaped and helped to bring this bill to the house. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (12:51): I move:

That this bill be now read a third time.

Bill read a third time and passed.