: Review of mental impairment defence

Review of mental impairment defence

Kellie Toole
South Australia

A recent report by the Sentencing Advisory Council of South Australia (‘SAC’) has announced that the state has a higher proportion of defendants relying on the mental impairment defence than other Australian and international jurisdictions.

The SAC’s Discussion Paper Considering the Operation of Part 8A of theCriminal Law Consolidation Act 1935 (SA) is now forming the basis of a formal review of mental impairment provisions.


A review of this area of the law is welcome. Particular issues that require attention are: whether the threshold for the application of a mental impairment defence needs to be lifted; the codification of principles concerning non-insane automatism; how provisions on mental impairment and intoxication should interact; whether defendants who fail to take medication for diagnosed mental health conditions should be treated differently to those who are undiagnosed or properly medicated; whether periods of detention or supervision imposed should continue to reflect the sentence that would be imposed on a defendant without a mental impairment; and how to manage people who are under supervision.

There is a viable argument that the threshold for a mental impairment defence is too low in South Australia. Mental impairment must not be a vehicle for the unfair avoidance of criminal responsibility. However, there has been unfortunate and unhelpful media coverage which presents the review as a welcome ‘tough on crime’ initiative.

Parliament must guard against using the review of the mental impairment defence for political gain. Fundamental principles of criminal responsibility demand that criminal liability should only be imposed on defendants where their offences are committed as a result of conscious, willed action. If a person commits an offence as a result of a mental impairment, then it is essential that they are spared the stigma and penalty that would be imposed on a person who committed the same offence without a mental impairment.

Defendants with mental impairment issues should be provided with treatment and support as necessary for their condition through the criminal justice and public health systems, in keeping with the respect and compassion that members of the community suffering disabilities deserve.

KELLIE TOOLE teaches law at the University of Adelaide.

(2014) 39(1) AltLJ 141
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