In May this year, the NSW Government initiated a review into the legal principle of doli incapax. The principle requires that when prosecuting children, between the age of 10 and 14, the prosecution has to establish, beyond reasonable doubt, that the child knows and is capable of knowing what they did was wrong.

This review was inadvisable and unnecessary in the first place. There is nothing objectionable about making sure that if children as young as 10 are facing criminal charges, that they know what they have done is wrong,  beyond reasonable doubt.

The review was undertaken by independent reviewers appointed by the Minns government. It was not carried out by The NSW Law Reform Commission, the independent statutory agency established to provide expert law reform advice. 

Today, the Minns Labor Government has introduced a bill that will put the common law test into legislation. The proposed legislation will make it easier for prosecutors to rebut this essential presumption. 

Comments attributable to Timothy Roberts, President NSWCCL 

“The review should never have happened in the first place, but even the reviewers found no reasonable support for weakening the protection of our children. 

“It is shocking that the Minns’ Government continues to play political football with the lives of NSW’s most vulnerable. 

“The NSW Government is taking steps to make it easier to lock up children and any step in that direction is the wrong one.

“The best way to divert children from prison is to raise the age of criminal responsibility. Criminalisation of children will only perpetuate cycles of crime, institutionalisation and disadvantage. 

“When a child ends up involved in the criminal system, they have already been repeatedly failed by the government. Government resources would be better used addressing the key drivers of criminal and antisocial behaviours, namely, housing insecurity, poor physical and mental health and socioeconomic disadvantage. This would better ensure the safety of young children and our community. 

“Incarceration, even for a short time, has harmful effects on children. This is particularly pertinent to children with significant vulnerability and First Nations children, who are over-incarcerated and disproportionately targeted and harmed by measures aimed at increasing child prosecutions and incarcerations

“Our neighbours in the ACT have listened to the overwhelming evidence and raised the age of criminal responsibility, there is no reason NSW cannot do the same.”