Bills

Criminal Law Consolidation (Mental Competence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2025.)

The Hon. J.S. LEE (15:19): I rise today to speak in support of the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. 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 honourable members would know, the courts deal with people who are suffering from mental health or cognitive impairment when they commit a crime differently to other criminal matters. It can add to the distress and anxiety that victims and other witnesses are already experiencing when the accused is not dealt with in the ordinary way under criminal law.

The emotional impact of the legal proceedings for victims of crime and their families should never be underestimated, let alone the ongoing trauma and impacts of the crime itself. Victims and families can be further affected by a court finding of 'not guilty by reason of mental incompetence'. These victims often feel a sense of injustice and despair that the defendant is not held responsible for their actions or is maybe getting away with the crime.

I understand that both the current and the former Commissioner for Victim's Rights have advocated for a change to the use of 'not guilty' in this context. It is a case of words matter, and they matter considerably for victims of crime and their families.

Recently, the tragic stabbing of Ms Julie Seed at a Plympton real estate agency in December 2023 has brought this issue to the forefront once more. Stabbing victim, Ms Susan Scardigno, and the partner of the late Ms Julie Seed, Mr Chris Smith, have bravely advocated for a change to the wording following this horrific incident. Victims and families often feel that the 'not guilty' verdict in such circumstances is confusing and triggering and that it does not reflect the reality that the objective elements of the case have been proven and that the defendant did commit a crime, even though they cannot be held criminally responsible for their actions.

This bill will change the terminology used in such findings from 'not guilty' to 'conduct proved but not criminally responsible due to mental incompetence'. I understand that this change of language will have no impact on any aspect of the trial or supervision orders that may be imposed on the defendant. The proposed terminology has been modelled on similar changes already made in New South Wales. Language is important, and this change in wording is a result of the passionate advocacy of victims and families, such as Ms Scardigno and Mr Smith, and a recommendation made by the Commissioner for Victim's Rights.

If this change provides some comfort or makes even a small difference to those impacted and affected by horrendous crimes, it is definitely worthy of being adopted by this parliament. With those remarks, I commend the bill to the chamber.

The Hon. H.M. GIROLAMO (Deputy Leader of the Opposition) (15:23): I rise to speak on the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. I indicate that I am the lead speaker for the opposition and that the opposition fully supports the bill. This bill will amend the Criminal Law Consolidation Act 1935 to rename the defence of mental incompetence under division 2 of part 8A. Currently, a finding of mental incompetence is recorded as 'not guilty by reason of mental incompetence'. This bill will change the terminology of such a finding to 'conduct proved but not criminally responsible due to mental incompetence'.

This bill does not make any changes to the operation of the act. A finding of mental incompetence still provides for supervision orders subject to division 3A of part 8A of the act. Where set, a supervision order must fix a term equivalent to what would have been appropriate if the defendant had been found guilty and convicted.

I understand this reform arises partly as a result of work by the current Commissioner for Victim's Rights, Ms Sarah Quick, and the former commissioner, Bronwyn Killmier. Victims, their families and the community can rightly feel aggrieved and confused when a person whose actions are responsible for the death of or harm to a loved one is found not guilty.

I wish to additionally recognise the advocacy of Mr Chris Smith, the partner of the late Ms Julie Seed, and Ms Susan Scardigno, victims of the tragic stabbing at the Plympton real estate agency in December 2023. The work of this parliament in easing the burden on victims and their families in these horrifying circumstances is of utmost importance, and it would not be possible without such strong and passionate advocates.

Clauses 3, 4, 6, 7 and 8 would substitute the terminology of 'not guilty by reason of mental incompetence' with 'conduct proved but not criminally responsible due to mental incompetence' wherever located throughout the act. Clause 5 would insert new section 269AB specifying that references to a finding of not guilty include a finding of conduct proved but not criminally responsible due to mental incompetence for the purposes of other acts, unless specified otherwise.

I thank Commissioner Quick for her work and Mr Chris Smith and Ms Scardigno for their strong advocacy for this reform. I commend this bill to the chamber.

The Hon. M. EL DANNAWI (15:26): I rise to speak briefly in support of the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. This amendment addresses concerns raised both interstate and here in South Australia about the language used in relation to the defence of mental incompetence. This amendment looks to change the language used under part 8A of the Criminal Law Consolidation Act 1935, replacing a finding of not guilty due to mental incompetence with a finding of conduct proved but not criminally responsible due to mental incompetence.

Currently, there is a disconnect in the way a verdict of not guilty by reason of mental impairment is understood by the general community. The current language of not guilty implies that the accused is just that. The removal of the phrase 'not guilty' and its replacement with 'conduct proved but not criminally responsible' more accurately demonstrates that the objective elements of the offence have been proven. It is phrasing that reflects the lived experience of the victim.

The defence of mental incompetence has a very long history and is respected as an essential part of our criminal justice system. It has changed over time to keep pace with evolving community sentiments and understandings of mental illness. This is one more change that maintains its function as a defence while bringing it in line with community expectations. It is my opinion that these changes in language strike the right balance between acknowledging the experience and pain of victims, the seriousness of the defendant's conduct and the mental health of those defendants. This change was requested by the former Commissioner for Victims' Rights, Ms Bronwyn Killmier, and is supported by the current commissioner, Ms Sarah Quick. These changes follow similar recent reforms interstate. I commend the bill to the chamber.

The Hon. S.L. GAME (15:28): I rise to support the government's Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. While this bill is a minor amendment to the terminology used in relation to a defence of mental incompetence it addresses community concerns about the use of the phrase 'not guilty' and the confusion and pain caused to victims, their families and the wider community when it is heard that an offender who clearly committed a violent and sometimes fatal act is declared not guilty.

In a system where victims are often forgotten it is commendable to see a change that acknowledges the perspective, experience and rights of victims. Replacing the phrase 'not guilty by reason of mental incompetence' with 'conduct proved but not criminally responsible due to mental incompetence' does not change the law; however, it does acknowledge that harm has been caused and also provides some sense of justice being served.

I would like to commend the work of all victims' rights advocates and all victims of crime in their fight for justice and express my commitment to do all I can to bring about the substantive changes that will preserve, protect and further the voice of victims in the criminal justice system.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:29): I thank honourable members for their contributions on this legislation. It is a small change, but an important change. The language we use is important in what it reflects and the way we treat those involved in our criminal justice system. I look forward to a speedy committee stage on this bill.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.