Raising the Age: A Defining Test on Youth Justice
When the NSW Government released its long-awaited review into doli incapax — the ancient legal principle that protects children under 14 from criminal prosecution — the reaction from Aboriginal and legal advocates was swift.
The Aboriginal Legal Service (NSW/ACT) Limited (ALS) welcomed the findings, calling them “a lifeline for children who risk being trapped in the quicksand of the criminal justice system.”
At its heart, doli incapax rests on one simple premise: that children aged between 10 and 13 cannot form criminal intent. The law presumes they don’t fully understand the difference between being naughty and being seriously wrong. Yet despite this safeguard, children as young as 10 are still policed, charged, and in some cases, remanded in custody — experiences that can leave lifelong scars.
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The Review and Its Findings
The independent review, led by former Supreme Court justice Geoffrey Bellew SC and former NSW Police Deputy Commissioner Jeffrey Loy APM, examined how doli incapax operates in practice. Their report recommended that the presumption be codified in legislation to ensure clarity and consistency, while expanding access to diversionary pathways for young children involved in low-level offending.
The review noted a significant decline in proven offences among children aged 10–13 in NSW since the 2016 High Court decision in RP v The Queen, which clarified how the presumption should be applied. According to Bureau of Crime Statistics and Research (BOCSAR) data, the proportion of guilty outcomes in this age group has plunged from 76% in 2015–16 to just 16% in 2022–23. Charges were withdrawn in more than half of all cases.
That decline, the reviewers suggest, reflects a system slowly catching up to the science. As ALS CEO Karly Warner put it, “The science is irrefutable. Children under the age of 14 do not have the capacity to form criminal intent. Treating them like criminals only destroys lives and makes communities more dangerous.”
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What’s Missing from the Review
While the review made seven recommendations, one glaring omission has sparked criticism: it was explicitly forbidden from recommending an increase to the age of criminal responsibility.
Advocates like the ALS argue that codifying doli incapax is not enough — the law itself must change. They say that until NSW raises the minimum age of criminal responsibility to 14, as recommended by medical experts and international human rights bodies, children will continue to fall through the cracks.
“Throwing children behind bars doesn’t work,” said Ms Warner. “But we know what does. The Premier must heed the evidence and invest in supports for children and families that will prevent them entering the justice system in the first place.”
The ALS and other campaigners insist that the best diversion is prevention: giving children stability, education, and therapeutic support rather than criminal records. “The best way to divert children is to raise the age and not criminalise them in the first place,” one advocacy statement said.
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Government’s Position: ‘We Need to Get This Right’
Attorney General Michael Daley thanked the reviewers, calling their work “considered” and promising the Government would “carefully examine the report.” He acknowledged that “the current settings are not operating in the best interests of children or the broader community.”
However, the Minns Government has so far resisted calls to raise the age, citing community concerns about youth crime. Recent initiatives include stricter bail tests for repeat offenders, a new “post and boast” offence targeting those who film and share serious crimes, and more than $100 million in additional youth justice funding.
Daley’s concern is that without intervention, “children are left without any support when charges are dismissed or withdrawn, only to come back before the courts because they were not supported to change their behaviour.”
Advocates counter that such logic misses the point — that “support” should not come through police or courts, but through health, education, and family services.
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The Crossroads Ahead
The review offers a chance for NSW to realign its justice system with both science and human rights. But without raising the age, many argue it’s a half-measure.
The ALS’s message to Premier Minns is blunt: “If you want to make communities safer, listen to the voices of Aboriginal leaders, experts, and now the findings of this review — don’t touch doli incapax. Instead, raise the age.”
For now, the Government’s line is familiar: it will “consider the recommendations.” But as the evidence mounts and the moral case grows stronger, the question facing NSW is not just whether it will preserve doli incapax — it’s whether it will finally stop criminalising children who cannot yet comprehend crime itself.
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At a Glance: The Doli Incapax Review
What It Means:
Doli incapax is Latin for “incapable of evil.” It presumes children aged 10–13 cannot understand that their actions are seriously wrong, and therefore cannot form criminal intent — unless proven otherwise.
Seven Key Recommendations
(as outlined by the Bellew–Loy Review)
- Keep doli incapax as a safeguard, but codify it in legislation for clarity.
- Expand diversion options — let children access Youth Justice Conferences or cautions without having to admit guilt (“not denying” an offence would suffice).
- Develop therapeutic interventions and early support rather than court appearances.
- Improve police training on working with children under 14.
- Enhance data collection to track outcomes and support reform.
- Consult Aboriginal communities and experts before any legislative change.
- Reject weakening or abolishing the doli incapax presumption.
By the Numbers
| Year | 10–13-Year-Olds Found Guilty in NSW |
|---|---|
| 2015–16 | 76% |
| 2022–23 | 16% |
- 50%+ of charges withdrawn before trial (2022–23)
- BOCSAR data shows this drop followed the 2016 RP v The Queen ruling
- Other states that codified the law earlier (e.g. QLD, WA) did not see similar declines
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Advocates Say:
“The science is irrefutable. Children under the age of 14 do not have the capacity to form criminal intent.”
— Karly Warner, CEO, Aboriginal Legal Service (NSW/ACT)
“If you want to make communities safer, don’t jail children — raise the age.”
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For more information see the Raise The Age website
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