Review of operation of doli incapax in NSW for children under 14
In May 2023, the NSW Attorney General Michael Daley, appointed the Honourable Geoffrey Bellew SC, former Justice of the Supreme Court of New South Wales, and Mr Jeffrey Loy APM, former Deputy Commissioner of the New South Wales Police Force, to conduct a review into the operation of doli incapax in NSW. The review will report on the operation of, and legislative options for, the common law presumption of doli incapax pursuant to its TORs and findings will be reported to the Attorney General in the second half of 2025.
ALHR has consistently urged the NSW Government to pursue evidence-based reforms that prioritise children’s rights, development, and rehabilitation over punitive responses. Raising the age of criminal responsibility to at least 14 years, is at the heart of urgently needed evidence-based reform that will reduce youth crime, prevent harm to children, make communities safer and ensure NSW complies with Australia’s international human rights law obligations under the Convention on the Rights of the Child.
ALHR strenuously opposes any reforms or measures that would weaken the protection of the presumption of doli incapax and that:
- are inconsistent with international human rights law and standards;
- are inconsistent with the significant body of expert advice and evidence consistently put forward by medical, legal and community-led grassroots organisations working with children;
- would result in a net-widening of the number of children in contact with the criminal law;
- would disproportionately impact children who are already egregiously overrepresented in the NSW criminal justice system, including Aboriginal and Torres Strait Islander children, children with disabilities, and children from culturally and linguistically diverse backgrounds.
ALHR commends the ACT’s leadership in raising the age of criminal responsibility to 14 years.