MEDIA RELEASE
19 November 2025
The Aboriginal Legal Service (NSW/ACT) Limited (ALS) has criticised a NSW Government bill that could make it easier to jail children aged 10 -13 years by weakening doli incapax. The bill also proposes long overdue improvements to increase access to youth diversion for children of all ages.
“While we welcome measures which will divert more children away from courts and into community-based support, this alone cannot offset the risk of harm to children, families and the community by making it easier to throw our most vulnerable children behind bars,” said Karly Warner, Chief Executive Officer of the ALS.
The Minns Government yesterday announced that it will codify doli incapax in legislation – but instead of strengthening the existing principle, the government is introducing changes intended to make it easier for police to argue that children as young as 10 should be convicted, despite the fact that their brains are not fully developed.
This change goes against the recommendations of the government’s own recent expert review, which recommended preserving doli incapax in its current state to make the community safer and protect children.
“The government’s bill risks weakening doli incapax by reducing the evidence that is needed for courts to convict young children. This is a dangerous and unjustified change which will place our most vulnerable children at risk of lifelong involvement in the criminal justice system,” said Ms Warner.
“Making it easier to convict children goes against recommendations of the government’s own independent expert review, which said doli incapax should be preserved in legislation without any changes,” said Ms Warner.
“The expert reviewers – a former NSW Police commissioner and Supreme Court judge with over 80 years’ combined legal systems experience – found that using criminal courts and punishment to control children is unproductive and fails to provide a meaningful, long-term solution for the child and the community.”
“Locking up children not only compounds existing trauma for that child, it also increases the likelihood that they will reoffend – ultimately increasing future crime.”
Ms Warner said doli incapax is a legal safeguard set down by the High Court of Australia that prevents young children from falling into the quicksand of the criminal justice system. This will be the first time doli incapax has been codified in legislation developed by NSW Parliament.
“Doli incapax is an important and long-standing legal protection based on the scientific evidence that children under the age of 14 do not have the capacity to form criminal intent.
“The majority of 10-year-olds that NSW Police decide to charge and drag to court are Aboriginal children. Any change intended to increase conviction rates for children represents another departure from the government’s Closing the Gap commitments,” said Ms Warner.
“We call on the Government to heed the advice of the expert review by strengthening – not weakening – doli incapax. This is what children, families and the community deserve,” said Ms Warner.
ENDS
Media contact:
Kayla Foster, 0447 040 029, [email protected]
