NSW Gov
Police and the courts will have stronger tools to break the cycle of youth offending following the passage of legislation reforming the way doli incapax operates.
The legislation which passed Parliament today improves the ability for prosecutors to rebut doli incapax which presumes children aged 10 to 13 lack capacity to be criminally responsible.
It also strengthens the Young Offenders Act 1997 to give NSW Police and courts additional tools to respond to youth offending.
The Government understands the community's concerns about youth crime - especially in rural and regional NSW - and continues to take strong action to improve community safety.
Putting doli incapax into law
For the first time in NSW, we have enshrined the current doli incapax test into law. This will give courts clearer rules for deciding whether a child can be held criminally responsible.
The changes also ensure courts must consider what the child is alleged to have done, and the surrounding circumstances, when deciding if the child knew their conduct was seriously wrong.
It also makes clear it is open for the court to find doli incapax has been rebutted on the facts and circumstances of the alleged offending alone - without or despite other evidence.
Proven rates for this age group collapsed under the former Coalition state government. Following a High Court decision in 2016, convictions fell from 76 per cent in 2015-16 to just 16 per cent in 2022-23.
Some other states with doli incapax codified in legislation did not show a similar decline.
Earlier this year, the NSW Government commissioned an independent review into doli incapax amid concerns about its operation.
This was undertaken by State Parole Authority Chair and former Supreme Court Justice, the Honourable Geoffrey Bellew SC, and former NSW Police Deputy Commissioner, Mr Jeffrey Loy APM.
The legislation will be complemented by additional training for agencies regarding the legislative reform.
Early intervention and diversion
Early intervention is critical because it gives young people a chance to change course before their behaviour becomes more serious or entrenched.
Under our changes, children will be able to access diversionary options if they make a statement that they do not deny, or admit, the elements of the offending and when and where it happened.
Currently, young people need to admit the offence to be eligible for these diversion options.
These diversion options can include formal cautions or youth justice conferences, which can link to behaviour change programs, mental health counselling or drug and alcohol rehabilitation to address underlying drivers of offending.
The review into doli incapax found diversion was the best response for less serious offending by 10-13-year-olds and called for constraints on access to be addressed.
Eligibility for diversion does not guarantee diversion - NSW Police and courts will retain discretion to charge and convict if the offending is inappropriate for diversion. This gives authorities another tool in their fight against offending.
The Government will also begin consideration of a voluntary diversionary pathway for children who interact with police and the justice system, as well as a mandatory treatment pathway for high-risk children.
Building safer communities
The passage of the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 builds on significant investments to address youth crime including:
- $23 million to continue and expand targeted response in Moree, Tamworth and Kempsey and support young people on bail.
- Introducing and extending a strict bail test for young people accused of repeat car theft and break and enter offences.
- Criminalising performance crime through a new 'post and boast' offence.
- $26.2 million to increase community safety in the regions announced last year.
- More than $100 million in additional youth justice funding.
- Ongoing NSW Police efforts under Operation Soteria and Operation Regional Mongoose.
Attributable to the Attorney General Michael Daley:
"These reforms ensure doli incapax operates in the best interests of children and the broader community.
"It gives police and the courts more tools to break the cycle of youth offending and keep the community safe.
"We have expanded access to diversionary options and given the courts greater clarity around the circumstances which can be considered when rebutting doli incapax."
Attributable to the Minister for Police and Counter-terrorism Yasmin Catley:
"Every time I travel across the state, people say that police are doing everything they can to prevent crime, disrupt crime and put offenders before the courts. But they can't shoulder this burden alone.
"When police are forced to arrest the same repeat offenders over and over, it drags them away from other critical work especially in our regions. Our laws need to back them in, not bog them down.
"Police and the NSW Government want young people walking into community programs, not courtrooms. We'll keep backing the good work happening on the ground to steer young people away from crime and towards a better future."
Attributable to the Minister for Youth Justice Jihad Dib
"We need to strike the right balance - holding young people to account and giving appropriate consequences whilst at the same time recognising that the best long-term outcomes come from diversion, support and early intervention to keep young people from interacting with the justice system."
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