‘Doli Incapax’ protects children from cycle of trauma but more services and learning opportunities are needed to break the circuit

by James Nichols

In June the Attorney General Michael Daley appointed the Honourable Geoffrey Bellew SC, former Justice of the Supreme Court of NSW, and Mr Jeffrey Loy APM, former Deputy Commissioner of the NSW Police Force, to conduct a review into the operation of doli incapax (that children between 10 and 14 are incapable of deceit – in other words incapable of knowing that their actions were seriously wrong) * in New South Wales.

On the surface the review seeks recommendations on how doli incapax could be codified into law rather than rely on the common law precedents. This outcome would ultimately shift the burden of proof to the defence of the child; increasing the risk of conviction and time spent in remand, particularly for Aboriginal children aged 10-13 years. This reality would see more children who have their cases withdrawn or who are not convicted still face the full trauma of incarceration without access to diversionary or rehabilitation programs.

So why are we considering this as a society when we know that locking up children is expensive, ineffective and traumatic?

There is a public misperception driven by politicians and some quarters of the media that there is a ‘youth crime crisis’ in New South Wales, but the offending and police proceedings statistics don’t back this up.

The Bureau of Crime Statistics and Research (BOCSAR) says that rates of youth crime have been dropping in NSW – for example the rate that police proceeded against young people (aged 10-17) has dropped from 375.6 per 10,000 to 260.6 per 10,000 young people from April 2024 to March 2025.[1] That is a decrease during a period when the government has been tightening youth bail laws, and sending in police squads into regions to round up offenders in high profile operations.

Despite data indicating that there are areas and regions where young people need more support, where they are acting out and sometimes in serious ways, realpolitik says ‘we must lock up more kids as that is the only way to keep our communities safe’. 

All the evidence suggests otherwise: the New South Wales youth detention system does not rehabilitate, nor does it re-educate – in fact it is more likely that young people will reoffend once in the system.

Doli incapax protects children from more systemic harm

The common law presumption of doli incapax is one of the few remaining protections for children under 14. Legislating it will cause more harm and lead to increased convictions, especially for Aboriginal young people.

Our lawmakers should instead focus on reducing harmful contact between 10 to 13-year-olds and the criminal justice system.  

These findings show what is at stake:

To overcome this, we’re better served to shift funding into programs that prevent offending in the first place. Justice reinvestment gives us a roadmap to do exactly that, especially for Aboriginal communities from which our people remain the most overincarcerated on the planet.

What do young people say?

One of our justice reinvestment community partners at Learning the Macleay in Kempsey told me recently that even with current operations of the law, children are locked up, traumatised, and then released back into communities with virtually no support—many of them never convicted. 

Rather than punishing more children and young people for acting out in response to their environment, we should be considering how the youth justice system can be more preventative in its operations.

Greater investment in justice reinvestment strategies that tackle the root causes of youth crime—poverty, trauma, lack of opportunity—through community-led solutions, can be part of the answer.

We know what works—strong cultural connections, family support, education, and hands-on learning opportunities.

As part of preparations for the Yuwa Nyinda Youth Summit held by Learning the Macleay in Dunghutti country in April, young people in Acmena Youth Justice Detention Centre shared that the programs they need include:

• Cultural activities led by Elders
• Fitness and sport programs
• Support for addiction, grief and trauma
• Trade skills, outdoor learning, and education tailored to their strengths

Ultimately, we all want a safer community for our families and children, and while Aboriginal children are at significantly greater risk of falling through the cracks into the criminal justice system, we need to look elsewhere in systems to provide more holistic and effective responses.

Just Reinvest NSW and Learning the Macleay are calling for:

• The retention of the common law presumption of doli incapax
• Earlier consideration of incapacity—at point of arrest, not just in court
• Access to diversion programs for all children, including those on remand
• A whole-of-government approach to shift resources into community-led prevention and support

Ends.

*In NSW there are two sets of minimum age for criminal responsibility. The first establishes the age of criminal responsibility at 10 years [Section five, Children (Criminal Proceedings) Act 1987], meaning that a child under 10 years of age cannot commit a criminal offence because they do not yet have the mental capacity to form the necessary intent or understanding that what they did was a criminal offence. From the age of 10 to 14 there is an onus on the prosecution to prove that the young person knew that their actions were wrong under what is known as the doctrine of Doli incapax (Latin for ‘incapable of deceit’). In NSW this is a common law doctrine only and is not reflected in legislation. Under this doctrine ‘the common law presumes that a child between the age of 10 and 14 years does not possess the necessary knowledge to have criminal intention, that is, the child is incapable of committing a crime due to a lack of understanding of the difference between right and wrong’. To see JRNSW’s full policy position go to ‘Position Papers’ https://www.justreinvest.org.au/about/policy-impact/

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[1] BOCSAR https://bocsar.nsw.gov.au/topic-areas/young-people.html