The review into the principle of doli incapax in New South Wales, led by the State Parole Authority’s Geoffrey Bellew SC and former NSW Police Deputy Commissioner Jeffrey Loy, could have significant impacts on the state's juvenile justice system. Considering the positions held by Bellew and Loy, it could be assumed that the review’s outcome will be ‘tough on crime’.
Doli incapax is the common law presumption that children aged 10 to 14 are not capable of understanding the difference between right and wrong, making it unethical to hold them criminally responsible. Removal of this principle will lead to younger children being prosecuted and incarcerated, which, considering the current state and effectiveness of the youth justice system, is concerning.
The ABC’s recently released footage from the Reiby Youth Justice Centre depicting the violent assault on a young person is an example of what could await children if held criminally responsible.
The NSW Premier has this year announced that more young people were in prison and being denied bail. "Proof," he said, "that the plan to lock up more kids is working." Neither the Premier nor the Attorney General were able to provide evidence that this was the case. Research does, however, indicate that exposure to criminal justice system increases the likelihood of reoffence.
Naarah Rodwell, CEO of not-for-profit out-of-home care (OOHC) provider, CASPA, is uniquely positioned to understand the long-lasting consequences for children caught up with the criminal justice system.
“CASPA works with children who have experienced complex trauma, family violence and neglect far too young. Inevitably, many of these young people also come in contact with the criminal justice system,” she says.
“Locking up children as young as 10 without consideration for how these environments magnify their childhood traumas and cause further harm does not address the issue’s true cause. Instead, it continues the generational cycle of disadvantage and abuse.”
Extensive research shows that while the adolescent brain is still developing, exposure to abuse and violence in youth justice facilities can profoundly impact a young person’s future. Once caught within the system, there is an increased risk of reoffending. It is crucial to direct children and young people away from this trajectory and towards interventions that address their underlying vulnerabilities.
A recent NSW Bureau of Crime Statistics and Research (BOSCAR) report found the youth justice system has a significant overrepresentation of regional, remote children and Aboriginal children under 14, and that two-thirds of allegations were for non-violent crimes. It is not through further incarceration, but through providing trauma-informed care, mental health support, and educational opportunities, that young people, but especially those from these communities, can heal and build a better future.
The impact of removing the principle of doli incapax from NSW common law promises to be significant:
1. Young children will no longer be protected:
Doli incapax is a safeguard that protects children aged 10 to 14. Its removal will mean younger children being incarcerated.
- 2. Burden of proof not required for incarceration: To incarcerate someone under 14 years of age, the prosecution must prove they can understand the wrongness of their actions. This would no longer be the case if doli incapax were removed.
- 3. Developmental considerations no longer needed: Recognising that children's brains are still developing, doli incapax ensures children are not unjustly punished for actions they may not fully comprehend.
- 4. Current facilities not appropriate for young children: If younger, more vulnerable children are being prosecuted and incarcerated, there are significant concerns about the current youth justice system and its appropriateness, effectiveness and safety.
- 5. Impact on rehabilitation: Without the protection of doli incapax, there is a risk that children could be subjected to punitive measures rather than rehabilitative support. This would amplify existing trauma and increase the risk of reoffence, rather than addressing the root cause of their behaviour.
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As advocates for vulnerable children and young people, CASPA implores the government to reevaluate this approach to youth justice. “If the government is serious about preventing youth crime,” says Rodwell, “the focus should be on the lived experience and the suffering of children and young people, rather than the misplaced notion that doli incapax is just a way for them to avoid consequences. Locking up more children will not result in our communities being safer in the long term.”
Doli incapax plays a crucial role in ensuring the legal system treats young children fairly and according to their developmental capacity. It provides a buffer so that children on the trajectory to a life of offending and reoffending can break the cycle and be diverted to rehabilitation and support services. Its potential removal could have far-reaching consequences for the futures of vulnerable young offenders.
A version of this article was published in the National Indigenous Times on 12 May 2025.
