Proposed Changes to Doli Incapax (NSW)
On 18 November 2025, the New South Wales Attorney General introduced draft legislation into Parliament that seeks to make significant changes to the state’s youth justice laws, including changing how the doli incapax presumption works. This page outlines the proposed changes.
Legislation
The draft legislation is the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025. If passed, it will make changes to the Children (Criminal Proceedings) Act 1987, the Young Offenders Act 1997 and the Young Offenders Regulation 2016.
The doli incapax presumption
One of the most significant changes proposed by this amending legislation is the codification of the common law presumption of doli incapax (‘incapable of evil’).
Under the presumption, a child under 14 is treated as incapable of committing a criminal offence unless the prosecution adduces evidence that the child understood that their actions were seriously wrong. In other words, in order to be found guilty, the child must be shown to have known the criminal nature of their actions, as opposed to knowing simply that their behaviour was naughty.
The doli incapax presumption is based on the traditional idea that very young children are insufficiently developed and mature to be held criminally responsible for their actions. Instead, according to the traditional thinking, these children should be dealt with outside of the criminal justice system – for example, through punishments delivered by parents and teachers, or through education and counselling.
What is changing?
Under the proposed changes, a child under 14 will still be presumed to be incapable of committing a criminal offence; however, that presumption may be rebutted if the prosecution proves beyond a reasonable doubt that at the time of the offence, the child knew that their actions were seriously wrong.
Under the new laws, courts will determine whether the doli incapax presumption has been rebutted by reference to:
- the conduct that makes up the offence
- the circumstances surrounding the offence
- the child’s intellectual and moral development and education
- the environment in which the child was raised.
The draft legislation explicitly states that a court can determine that the presumption has been rebutted on the basis of the conduct that makes up the offence and the circumstances in which it occurred. This assessment can be made without any other evidence of the child’s intellectual and moral development if the court is satisfied that the evidence of the offending is sufficient to satisfy the test.
This means that the doli incapax presumption will be significantly weaker than it is currently. As the presumption currently works, a court is required to hear evidence that specifically addresses the intellectual and moral development of a child before determining whether the child is sufficiently mature to be found guilty of a criminal offence.
Review of doli incapax
The New South Wales government recently conducted an independent review of the doli incapax presumption. The report on the review was released in October 2025.
The review followed a finding that there had been a significant decline in findings of guilt against children aged under 14. This decline was attributed to the 2016 High Court decision of RP, which clarified how the presumption of doli incapax should be applied.
The independent review made recommendations that included the following:
- that the doli incapax presumption be codified in NSW law;
- that additional training be provided to police and that police consider the presumption when deciding whether to lay charges;
- that access to diversion pathways be expanded for children under 14.
Responses to the changes
The proposed changes have been met with a range of responses.
Many have welcomed the codification of doli incapax and the improved clarity about how it is to operate. However, there are concerns that the proposed changes will make it easier for the prosecution to rebut the presumption, and that this will lead to more young children being criminalised.
The criminalisation of young children and particularly their incarceration is known to lead to increased risks that the young person will come back into contact with the criminal justice system at a later stage. Disadvantaged groups, such as indigenous children, are likely to be particularly impacted.
The proposed changes have also been criticised for failing to implement the recommendations of the independent review, which indicated that early intervention and community support are more effective than punitive measures. Furthermore, the independent review did not recommend that the presumption be made easier to rebut, and in fact, it specifically warned against this.
The New South Wales government is also contemplating other changes to its youth justice system.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.