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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-02-06 Daily Xml
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Criminal Law Consolidation (Mental Competence) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:56): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Children and Young People (Safety) Act 2017, the Child Safety (Prohibited Persons) Act 2016, the Disability Inclusion Act 2018 and the Young Offenders Act 1993. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:57): I move:

That this bill be now read a second time.

I am pleased to introduce the Criminal Law Consolidation (Mental Competence) Amendment Bill 2025. This bill amends the terminology used in relation to a defence of mental incompetence under division 2 of part 8A of the Criminal Law Consolidation Act 1935. In particular, 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'.

This reform addresses concerns that have been repeatedly voiced in South Australia and interstate about the problematic use of the phrase 'not guilty', particularly for victims in this context. In particular, concerns have been raised with the government and myself personally in the wake of the tragic stabbing of Ms Julie Seed at a Plympton real estate agency in December 2023.

Stabbing victim Ms Susan Scardigno and the partner of the late Ms Julie Seed, Mr Chris Smith, have also strongly advocated for the change in this wording. I would like to take this opportunity to particularly thank Chris and Susan for their strength and passionate advocacy to ensure that these important changes are made for victims of these horrific incidents.

Under part 8A of the act, if the court finds the objective elements of the offence are established and that the defendant was, at the time of the conduct, not mentally competent to commit the offence, the court must find the defendant not guilty. It is 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 8A of the act, the court must declare the defendant liable to supervision and, in doing so, may make the 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 for the 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 8A 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 for supervision prioritise the safety of the community.

The bill does not make any substantive changes to the operation of part 8A, nor to any other law; however, we have heard from the community that the use of the phrase 'not guilty' in this context can cause confusion for victims, their families and the broader community, leaving them with the sense that justice has not been served. It can be particularly painful for victims to hear the phrase 'not guilty' when it is undisputed that the person has committed the act that resulted in the death of a loved one. Advocates have made clear that better terminology should be adopted to make it clear that harm did occur, even if the defendant is not criminally responsible. The government agrees. I am advised that a similar change is also being made in New South Wales.

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 of 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 being found not guilty of an offence will, unless a 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 'not guilty' appears.

I am grateful to the Commissioner for Victims' Rights for recommending this reform and, in particular, the advocacy of Ms Sue Scardigno and Mr Chris Smith. 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.

Debate adjourned on motion of Hon. J.S. Lee.

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