Yesterday, the NSW Government introduced new laws into NSW Parliament to give NSW Police and the courts stronger tools to interrupt youth offending earlier and keep communities safe, including long-overdue reforms to the way doli incapax operates.

These reforms address a major gap where some children are engaging in offending that puts themselves and others at risk, yet face no consequences, intervention or support to stop the cycle of reoffending.

The Government will improve the ability for prosecutors to rebut doli incapax – the legal presumption that children aged 10 to 13 lack capacity to be criminally responsible.

The Government will also strengthen and modernise the Young Offenders Act 1997 to provide NSW Police and courts with additional tools to respond to youth offending.

The Government says it understands the community’s concerns about youth crime – especially in rural and regional NSW – and continues to take strong action to improve community safety.

"While there is still work to do, we are seeing encouraging signs. The June 2025 BOCSAR quarterly update on NSW Recorded Crime Statistics revealed that, in the two years to June 2025, young people proceeded against to court declined significantly by 12.3 per cent in regional NSW."

Putting doli incapax into legislation for the first time in NSW

The Government will change the Children (Criminal Proceedings) Act 1987 to put the current doli incapax test into law and give courts clearer rules for deciding whether a child understood their actions were seriously wrong.

To rebut doli incapax and secure a conviction for children aged 10 to 13, prosecutors need to prove the child knew their actions were seriously wrong.

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 independent review included a recommendation to codify doli incapax.

The Government will amend the Children (Criminal Proceedings) Act 1987 to legislate the current common law threshold for rebutting doli incapax, with new mandatory considerations for courts. This will give prosecutors and courts clearer guidance about how to rebut doli incapax.

The changes will 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.

For example, this would allow prosecutors to point to steps taken to plan or conceal the crime.

The reforms will also make it 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.

The legislation will be complemented by additional training for agencies regarding the legislative reform.

Giving NSW Police and courts more tools to intervene earlier – before offending gets more serious

The Young Offenders Act 1997 will also be amended to expand access to important intervention and diversionary measures for children.

Early intervention is critical because it gives young people a chance to change course before their behaviour becomes more serious or entrenched.

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.

Under these 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 offence and the time and place of the offending.

The review into doli incapax found that diversion is likely to be the best response for less serious offending by 10-13-year-olds, and that constraints on access to diversion should be addressed.

For young people who commit less serious offences, diverting them away from court has been found to reduce future offending.

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.

Working hard to build safer communities

The Government’s reforms build 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.

Premier of New South Wales Chris Minns said, “These reforms are about stepping in earlier, giving police and the courts clearer tools, and making sure young people who are putting themselves and others at risk don’t simply fall through the cracks.

“For too long, the system has left a gap where some children were offending without any real consequence, support or intervention. That isn’t good for those young people and it certainly isn’t good for the community. 

“These changes are practical, responsible and designed to stop a pattern of behaviour before it becomes entrenched.”

Minister for Police and Counter-terrorism Yasmin Catley said, “Police are doing everything they can to keep communities safe. They are in the community every day, not only arresting offenders but working with kids to steer them onto the right path.

“We all want our community to be safe and better outcomes for young people, but police can’t do this alone – which is why we’re announcing this reform.

“We're expanding the Young Offenders Act to give more kids access to diversionary options to help steer them away from a life of crime.

“This builds on the Minns Labor Government’s substantial investments to address youth crime. We are working hard to support communities and break this cycle of offending.”

Minister for Youth Justice Jihad Dib said, “Part of our work to reduce youth crime across the state includes investing in appropriate community-led interventions to ensure young people at risk of criminal involvement get the right supports at the right time to keep their lives on track.

“There’s not a one size fits all approach when it comes to diverting young people away from the youth justice system. We will work with communities, the police, courts, community service providers and Youth Justice NSW to help young offenders change their behaviour and keep communities safe.”

Attorney General Michael Daley said, “These important, considered reforms will ensure doli incapax operates in the best interests of children and the broader community. It will also allow for the presumption to be applied more consistently by police and the courts.

“Importantly, it will make clear the circumstances of the alleged offending must be considered by the courts when determining if the presumption has been rebutted.

“The reforms to the Young Offenders Act will also ensure police have more tools for young people to be engaged in diversionary options where appropriate.

“We do not want to a situation where children are left without any intervention when charges are dismissed or withdrawn, only to come back before the courts because they were not supported to change their behaviour. 

“That’s why we are investing in intervention and diversion measures to break the cycle of youth offending and keep communities safe.”