The Minns government is seeking to create a loophole in a law meant to provide protection against the incarceration of children, which could mean more children will be locked up.
On Tuesday, the New South Wales government announced it was strengthening protections for children aged 10 to 14 by legislating a common law presumption known as doli incapax, which means children cannot commit an offence because they do not understand the difference between right and wrong.
The proposed bill will also mandate when that presumption can be rebutted. This includes a loophole which says the presumption can be overturned if prosecutors establish the child committed a crime, and circumstances surrounding the crime prove “beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child’s conduct was seriously wrong”.
The courts can then make a decision on whether to convict the child “without or despite” evidence of the child’s intellectual or moral development, including intellectual impairment.
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Associate Prof John Kasinathan, a University of New South Wales expert in adolescent forensic psychiatry and who appears as an expert witness in child matters, said this was at odds with the point of doli incapax.
Considering a child’s intellectual and moral development “is at the core of doli incapax and, if we are ignoring that, that’s ignoring a large aspect of understanding what’s going on for the child”, he said.
The president of the NSW Bar Association, Dominic Toomey SC, also expressed concern about the loophole, saying the bill “unduly focuses on the child’s alleged offending behaviour”.
“Doli incapax recognises that, at a young age, the brains of children are still developing, and that children lack the maturity required properly to appreciate the significance of their actions,” Toomey said.
“In the absence of the age of criminal responsibility being raised to 14 years, the important presumption of doli incapax should be retained and not undermined.”
The NSW attorney general, Michael Daley, announced the changes on Tuesday after an independent review into doli incapax by former supreme court justice Geoffrey Bellew and former NSW police deputy commissioner Jeffrey Lloyd.
Their report recommended the government legislate doli incapax and provided guidance on how prosecutors can rebut it.
However, it did not recommend allowing courts to set aside consideration of a child’s intellectual and moral development. The report said rebutting the presumption requires “consideration of the child as a unique individual, and an assessment of a wide variety of matters”.
The report also acknowledged “youth crime is a justifiable concern for many communities in NSW” but said the data indicated it was only a small proportion of children in the 10 to 13 age group who engaged in serious or persistent offending.
The government commissioned the review after data was released earlier this year that found the number of children prosecuted had dropped dramatically following a 2016 high court decision.
RP v The Queen established that doli incapax can only be rebutted if police can prove the child understood what they did was seriously wrong, as opposed to naughty.
The decision found that it was not possible to prove beyond reasonable doubt a child knew their conduct was morally wrong in the absence of evidence about the environment in which a child was raised, or their moral development.
After that decision, the Bureau of Crime Statistics and Research found the proportion of 10- to 13-year-olds “with a proven outcome” in the NSW children’s court fell from 76% in 2015-16 to 16% in 2022-23. The number of 10- to 13-year-olds charged had remained mostly stable.
Both Toomey and Timothy Roberts, the president of the NSW Council for Civil Liberties, said the government’s proposed bill was at odds with the high court decision.
In lieu of considering a child’s moral and intellectual development, Daley said prosecutors could instead consider evidence such as whether a crime was planned, or whether alleged offenders brought a weapon, where previously the primary evidence required related to a perpetrator’s upbringing or schooling.
Daley noted it was difficult for police to get evidence around a child’s capability and education “because school psychologists and counsellors are reluctant to hand over their reports … and often there are children, particularly in regional NSW, [who] just haven’t been to school for years”.
The premier, Chris Minns, suggested on Wednesday that it would be up to defence lawyers to raise such evidence.
“The lawyers and the defence have got a right to introduce any piece of information or any piece of evidence … and that occurs regardless of the age [of the child],” he said.
“The defence might bring to the table circumstances related to foetal alcohol syndrome, circumstances at home, school reports, psychological evaluations.”
Sue Higginson, the NSW Greens’ justice spokesperson, said she would be moving an amendment to strike out the loophole.
“It was a shock to see this in the bill,” she said. “It’s contrary to the review and it completely undermines the entire meaning and substance of doli incapax.”
