NSWCCL considers that codification of the principle of doli incapax is unnecessary and inadvisable.  NSWCCL considers it a bare minimum that if a child aged between 10-13 years is charged with a crime, their understanding of the serious moral wrongness of that conduct should be established beyond reasonable doubt.  

NSWCCL is concerned that the Review has been commissioned in response to statistics indicating a fall in the successful prosecution of children since the High Court of Australia's decision in RP v The Queen.  Australia spends approximately $1 billion per year incarcerating children, despite unequivocal evidence from across Australia that incarcerating children leads to increased rates of crime.  It is well documented that child crime rates across Australia have been falling for over a decade.  Further, over 70% of the NSW proceedings against children under 14 years in 2023 were for non-violent crimes.  There is therefore no pressing need for law reform that creates legislation that has the effect of increasing interactions of children with the criminal justice system.

When a child interacts with the criminal justice system, that justice system must act in accordance with the best interests of that child.  Incarceration, even for a short time, has deleterious effects on children.  This is particularly pertinent to children with significant vulnerability and First Nations children, who are over-incarcerated and disproportionately harmed by measures aimed at increasing child prosecutions and incarcerations. 

You can read our submission here.