By Paul Gregoire and Ugur Nedim
The law in New South Wales has long provided that a child aged under 10 years old cannot be criminally responsible for a crime.
And since 1 March 2026, the legislative framework in our state has recognised the legal principle of doli incapax, which presumes that children aged at least 10 but under 14 are not otherwise criminal acts unless it is proved otherwise, as they’re not sufficiently morally developed to understand wrongdoing.
Introduced into New South Wales parliament in November 2025, the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill has created a legislative framework that provides guidance on the process that a court should follow when considering whether a defendant aged between 10 and 13 has reached moral maturity and can therefore be found to have the mental capacity to commit a criminal offence.
“The presumption is a rebuttable one if the prosecution proves beyond reasonable doubt that the child understood that their actions were seriously and morally wrong,” said NSW attorney general Michael Daley, during his second reading speech on the bill. And the reform came following a reduction in convictions within that age bracket after the High Court clarified doli incapax law.
On launching its March 2024 youth crime crackdown targeting 14- to 17-year-olds in regional NSW, the Minns government confirmed that it would not be raising the age of criminal responsibility above 10 in line with a decades-old nationwide campaign, and rather it went on to statutorily codify doli incapax, which had operated via common law, and this maintains the capacity to lockup 10-year-olds.
The doli incapax statutory framework now operating in NSW reflects the findings the High Court of Australia came to in 2016’s RP versus The Queen, and the complementary reforms accompanying these new laws that were further set out in the AG’s legislation just came into play as well last month.
Doli incapax legislated framework
Prior to the reforms, section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) stated that no one under 10 could be found guilty of an offence.
This written law is called statutory law, and that differs from common law, which is that created by court rulings. Before the new reforms, common law had also considered that 10- to 13-year-olds can’t be found guilty of any crimes, unless it’s shown that they understood the seriousness of their wrongdoing.
Since March, subsection 5(1) of the CCP Act still provides that it’s “conclusively presumed” those under 10 can’t commit crime, but subsection 5(2) now also provides that it’s “presumed” those 10 to 13 can’t break the law, and subsection 5(3) stipulates that the subsection 5(2) presumption can be rebutted if proven beyond a reasonable doubt that a child knew their conduct was “seriously wrong”.
Subsection 5(4) then provides guidance in establishing if a child knew their act was seriously wrong. A three-step process firstly confirms if the child knew what they did was seriously wrong as a fact and not by the law. And if they did, then this alone does not establish guilt, rather the prosecution must prove they understood their act was seriously wrong “in a moral sense” to establish it.
Daley underscores in his second reading speech that the prosecution proving beyond a reasonable doubt that a 10- to 13-year-old did commit a crime does not require that the child knew that their acts were “illegal or criminal” in nature.
Subsection 5(5) then contains a non-exhaustible list of matters it is mandatory to consider when establishing the presumption has been rebutted, which include the “conduct that constitutes the alleged offence”, the circumstances surrounding that conduct, “the child’s intellectual and moral development and education”, as well as “the environment in which the chid was raised”.
“To avoid doubt”, subsection 5(7) outlines that “a court may determine that the presumption has been rebutted based on the conduct constituting the alleged offence and the surrounding circumstances, and this determination can be made “without or despite other evidence of the child’s intellectual and moral development”.
Subsection 5(8) provides the last stipulations regarding the High Court process for establishing whether doli incapax holds, and that is that whether a child has previously been given a caution or participated in a youth justice conference should not be considered in the new circumstances, and neither should any earlier admission or denial statements or any admissions or confessions be.
Non-denial statements
The bill then created a lower threshold relating to diversionary measures in the Youth Offenders Act 1997 (NSW), which Daley described as legislation, enabling “police and courts to provide a swift and proportionate response to lower-level offending”. These recent reforms that took effect on 6 June 2026 apply to all minors between 10 and 17, who come into contact with the criminal justice system.
The YO Act provides diversionary pathways for youths, which means instead of undergoing prosecution and potential criminal conviction and punishment, a child can be diverted towards pathways that serve to rehabilitate and avoid conviction.
Daley’s bill made a number of amendments to various sections of the YO Act to facilitate the threshold change, so that a child charged with a crime can be diverted away from the court and towards receiving a caution or partaking in a youth justice conference, after they’ve made a non-denial statement, rather than the previously required admission of offending.
Section 10 of the YO Act now stipulates that the threshold requirement for diversionary pathways is a valid non-denial statement, which involves a child neither denying or admitting the elements of an offence or the time and date of its commission. And admission of elements does not involve whether the child knew whether their act was seriously wrong or not.
The NSW Department of Communities and Justice secretary must approve non-denial statements, which should be made on a purpose produced form if practicable, and if a child admits guilt to a crime before a court of law, this can be taken as a non-denial statement in the future.
Further, a non-denial statement must be made in front of an adult responsible for the child, another adult present due to the first adult’s consent, and this second adult should not be the investigating law enforcement officer. Also, if the child is older than 14, then another adult of their own choosing should be present, as should be an Australian legal practitioner, who has been chosen by the child.
New section 67A of the YO Act outlines that an “investigating official” can advise a child of the potential to make a non-denial statement if they haven’t and the officer considers a caution or a youth justice conference would suit them. The officer must explain the specific act being covered, the process and decide on the pathway. And such statements can’t be raised in future proceedings.
Broadening the reach of diversion
Under the Act, a caution is a police-issued warning for a minor offence committed by an individual, whilst a youth justice conference is a structured face-to-face meeting for more serious offences. Neither pathway results in a criminal record.
Daley’s bill made additional changes so that the cap of three cautions, prior to having to face a court, remains, but cautions now expire from a child’s record after a three-year period.
The criminal acts that are open to diversion under the YO Act have been expanded to now include stalk/intimidate and the breaching of apprehended violence orders, when it involves violence. However, warnings, which are less serious reprimands than cautions, are not available for the crime of stalk/intimidate.
Part 2 division 1 offences under the Drug Misuse and Trafficking Act 1985 (NSW) have been opened up for diversionary pathways for small quantities of any illicit substances. This includes for drug possession and use. And offences under the Graffiti Control Act 2008 (NSW) are now subject to the Youth Offenders Act.
The NSW chief lawmaker’s bill further made minor changes to the running of youth justice conferences and the regulation relating to the YO Act.
“The NSW government continues to take action in response to community concerns around youth crime,” Daley said on ending his 18 November 2025 second reading speech on the bill.
“Legislating the presumption of doli incapax will improve consistency of its application and better fulfil its protective purpose,” the NSW attorney general concluded.
“Reforms to the Young Offenders Act will also encourage increased diversion wherever possible, while maintaining clear parameters about when diversion may not be appropriate.”
