NSW launches review of doli incapax legal protection for minors
A civil liberties group has warned a fresh government review into a core legal protection for minors could soon put more kids in prison and strip away an 'ancient' community safety principle.
The review, announced by NSW Attorney-General Michael Daley, will reassess 'doli incapax', or the presumption in law that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible for their actions.
It follows months of rolling community outrage over an alarming spike in youth crime across multiple towns in regional NSW.
For the Central West, Far West and Orana and New England and North West areas, the NSW Bureau of Crime Statistics and Research recorded a 26 per cent jump in the number of young people proceeded against by the NSW Police from 2020 to 2024.
In 2024, 3444 young people went through legal proceedings across the three jurisdictions.
On Thursday Mr Daley said the review would include victims' groups, local and regional communities, Aboriginal-led organisations and legal and government stakeholders.
'Recently, concerns have been raised about the operation of doli incapax,' he said.
'I commissioned this review to ensure close consideration of any improvements that can be made and possible legislative reforms.'
Doli incapax is designed to protect children from unfair prosecutions.
In 2016, the High Court ruled prosecutors must prove beyond a reasonable doubt that a child defendant understood their actions to be 'seriously wrong' at the time of the offence.
Since the 2016 decision, BOCSAR has found the proportion of 10-13-year olds with a proven outcome in the NSW Children's Court slumped from 76 per cent in 2015-16 to 16 per cent in 2022-23.
Prosecutors withdrew charges in more than half of all cases in 2022-23.
Though doli incapax is a common law protection established by the courts, in Australia parliament rules over the courts, meaning the state government could potentially legislate away or reduce doli incapax.
NSW Council for Civil Liberties president Timothy Roberts said he was worried the review would propose legislative reform that would do just that.
'This review is completely unnecessary,' he said.
'What is wrong with the court saying that we need to be sure that children, as young as 10, facing criminal charges know that what they are accused of is wrong and we know this beyond reasonable doubt?
'Less young children in prison is a good thing. This review does nothing to achieve that goal and only risks making it worse.'
State Parole Authority chair and former Supreme Court Justice Geoffrey Bellew SC and former NSW Police deputy commissioner Jeffrey Loy will lead the review.
Specifically, the review will consider how the presumption of doli incapax is applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation.
It will also consider how doli incapax interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other relevant matters including community safety and the interests of children.
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But that hasn't deterred Australia's eSafety commissioner, Julie Inman Grant, from introducing world-first industry standards to hold tech companies to account for the content they platform. The standards came into force in December 2024 and require storage services such as Apple's iCloud and Google Drive, messaging services, and online marketplaces that offer generative AI models to prevent their products from being misused to store or distribute child sexual abuse material and pro-terror content. 'We have engaged with both AI purveyors and the platforms and libraries that host them to ensure they are aware of their obligations under the standards,' an eSafety commission spokesperson said. 'We believe the standards are a significant step in regulating unlawful and seriously harmful content and align with our broader efforts to ensure that AI tools, such as those used to create deepfakes, are held to the highest safety standards.' 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International co-operation is crucial for successfully prosecuting commercial child sexual abuse content cases, and Jones says that in best practice examples, when a global chain is identified, the tech industry is brought in as part of the investigation. 'I'm seeing more of an involvement in the tech sector around supporting law enforcement. But that's sometimes at odds with encryption and things like that,' Jones says. Loading 'I think the tech industry has a duty of care to the communities that they serve. So I don't think it's good enough to say, 'Oh, well, it's encrypted. We don't know what's there.' ' Salter takes a more pessimistic view of the tech industry's actions, arguing that most companies are moving away from, not towards, proactively monitoring the presence of child sexual abuse content. 'The emergence of AI has been something of a vortex of doom in the online child protection space,' Salter says. 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