NSW launches review of doli incapax legal protection for minors

A civil rights group is up in arms about a government move to review a core legal principle called ‘doli incapax’, designed to protect minors from unfair prosecution.

A civil liberties group has warned a fresh government review into a core legal protection for minors could soon put more kids in prison and strip away an “ancient” community safety principle.

The review, announced by NSW Attorney-General Michael Daley, will reassess “doli incapax”, or the presumption in law that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible for their actions.

It follows months of rolling community outrage over an alarming spike in youth crime across multiple towns in regional NSW.

For the Central West, Far West and Orana and New England and North West areas, the NSW Bureau of Crime Statistics and Research recorded a 26 per cent jump in the number of young people proceeded against by the NSW Police from 2020 to 2024.

In 2024, 3444 young people went through legal proceedings across the three jurisdictions.

On Thursday Mr Daley said the review would include victims’ groups, local and regional communities, Aboriginal-led organisations and legal and government stakeholders.

“Recently, concerns have been raised about the operation of doli incapax,” he said.

“I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.”

A youth crime spike has hit multiple towns across regional NSW in the past few months. Picture: FRNSW Gunnedah.

Doli incapax is designed to protect children from unfair prosecutions.

In 2016, the High Court ruled prosecutors must prove beyond a reasonable doubt that a child defendant understood their actions to be “seriously wrong” at the time of the offence.

Since the 2016 decision, BOCSAR has found the proportion of 10-13-year olds with a proven outcome in the NSW Children’s Court slumped from 76 per cent in 2015-16 to 16 per cent in 2022-23.

Prosecutors withdrew charges in more than half of all cases in 2022-23.

Though doli incapax is a common law protection established by the courts, in Australia parliament rules over the courts, meaning the state government could potentially legislate away or reduce doli incapax.

NSW Council for Civil Liberties president Timothy Roberts said he was worried the review would propose legislative reform that would do just that.

NSW Attorney-General Michael Daley announced the review on Thursday and said it would include victims’ groups. Picture: NewsWire / John Appleyard

“This review is completely unnecessary,” he said.

“What is wrong with the court saying that we need to be sure that children, as young as 10, facing criminal charges know that what they are accused of is wrong and we know this beyond reasonable doubt?

“Less young children in prison is a good thing. This review does nothing to achieve that goal and only risks making it worse.”

State Parole Authority chair and former Supreme Court Justice Geoffrey Bellew SC and former NSW Police deputy commissioner Jeffrey Loy will lead the review.

Specifically, the review will consider how the presumption of doli incapax is applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation.

It will also consider how doli incapax interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other relevant matters including community safety and the interests of children.

Originally published as NSW launches review of doli incapax legal protection for minors