Major Shift in NSW Child Protection Law
The New South Wales government has enacted controversial legal reforms that significantly alter how the justice system treats young offenders. The Minns government has passed legislation removing the requirement for courts to consider a child's intellectual and moral capacity when prosecutors can establish they committed an offence.
This change fundamentally impacts doli incapax, a long-standing legal protection that recognises children under 14 lack the maturity to fully understand the consequences of their actions. The protection has made it more difficult to convict children aged between 10 and 13, requiring prosecutors to prove the child understood their actions were seriously wrong, not merely naughty.
The Case That Highlighted the System
The implications become starkly clear through the case of Leo*, an 11-year-old boy who walked free from a regional NSW court in 2023 despite facing 72 serious charges. Court documents revealed Leo had used a weapon during a robbery, smashed car windows, and taken stolen vehicles for joyrides.
However, the magistrate found Leo not guilty of all offences after determining he didn't understand the criminal wrongness of his actions due to his underdeveloped moral reasoning. The court heard about Leo's challenging background: his older brother was in juvenile detention, his father was in prison, and his mother struggled to control his behaviour.
"He just keeps laughing at me, he says 'I don't care, they'll never catch me'," his mother stated in her witness testimony. The magistrate noted that exposure to unlawful behaviour had become normalised for Leo, who appeared to regard intended punishment as a reward rather than a deterrent.
Government Defies Key Recommendations
The government claims its changes align with an independent review of doli incapax by former Supreme Court justice Geoffrey Bellew and former NSW police deputy commissioner Jeffrey Loy. However, legal advocates strongly dispute this characterisation.
Lauren Stefanou, principal solicitor at the Aboriginal Legal Service, expressed alarm at the decision. "This means that, even if there is evidence that a child accused of an offence is living with an intellectual disability and a background of complex trauma, the court can decide that they should be convicted anyway," she warned, noting the change will disproportionately affect Aboriginal children.
The NSW Bar Association contends the government has actually gone against the review's recommendations by allowing courts to convict children "without or despite" considerations of their moral development.
Diverging Views on Youth Justice
Attorney General Michael Daley defended the reforms, stating, "These changes are not about locking more children up. The aim here is to facilitate an informed, evidence-based hearing before the courts." The government has also followed recommendations to strengthen diversionary pathways for less serious offences through changes to the Young Offenders Act.
Premier Chris Minns highlighted what he sees as a flaw in the current system: "We've got a situation now where 85% of people under the age of 14 are going to court and having no finding at all. Now no finding means no therapeutic intervention, no counselling services, no support from charities."
However, critics argue the criminal justice system isn't the appropriate mechanism for addressing underlying causes of youth offending. David Heilpern, Dean of Law at Southern Cross University and former magistrate, stated plainly: "You don't intervene with young people by increasing their criminality. That's not a proven, evidence-based approach."
Associate Professor John Kasinathan, a UNSW expert in adolescent forensic psychiatry, described court decisions for children like Leo as "sliding doors moments" that can determine their future trajectories. "If you incarcerate children earlier, that's been shown to result in longer or more severe criminal trajectories," he cautioned. "The only interventions that work in this age group are health-led interventions."
With conviction rates for children aged 10 to 13 having plummeted since a 2018 High Court decision strengthened doli incapax protections, these reforms mark a significant policy shift in how NSW approaches youth crime and child development.
