Controversial Loophole Emerges in NSW Child Protection Bill
The New South Wales government has introduced legislation intended to strengthen protections for children against incarceration, but the proposed bill contains what critics are calling a 'shock' loophole that could ultimately lead to more young people being detained.
What the Bill Proposes
On Tuesday, the Minns government announced it would legislate the common law presumption known as doli incapax, which recognises that children aged 10 to 14 cannot commit offences because they typically lack understanding of the difference between right and wrong. The bill, introduced by NSW Attorney General Michael Daley, follows an independent review conducted by former Supreme Court justice Geoffrey Bellew and former NSW police deputy commissioner Jeffrey Lloyd.
However, the proposed legislation includes a controversial provision allowing prosecutors to overturn this presumption if they can establish beyond reasonable doubt that the child knew their conduct was 'seriously wrong' rather than merely naughty. Crucially, the bill permits courts to make this determination 'without or despite' evidence concerning the child's intellectual or moral development, including any intellectual impairments.
Expert Concerns and Legal Context
Associate Professor John Kasinathan, a University of New South Wales expert in adolescent forensic psychiatry, expressed serious concerns about this approach. "Considering a child's intellectual and moral development is at the core of doli incapax," he stated. "If we are ignoring that, that's ignoring a large aspect of understanding what's going on for the child."
The government's move comes in response to data showing a dramatic drop in child prosecutions following the 2016 High Court decision in RP v The Queen. That ruling established that doli incapax could only be rebutted with evidence about the child's environment and moral development. Subsequently, the Bureau of Crime Statistics and Research found the proportion of 10- to 13-year-olds with proven outcomes in NSW children's courts fell from 76% in 2015-16 to just 16% in 2022-23.
Timothy Roberts, president of the NSW Council for Civil Liberties, noted the proposed bill appears directly at odds with this High Court precedent.
Government Justification and Opposition
Attorney General Michael Daley defended the approach, explaining that police often struggle to obtain evidence about children's capabilities because "school psychologists and counsellors are reluctant to hand over their reports" and many children, particularly in regional NSW, "just haven't been to school for years." Instead, prosecutors could consider evidence such as whether a crime was planned or whether alleged offenders brought weapons.
Premier Chris Minns suggested on Wednesday that defence lawyers could still introduce developmental evidence, stating: "The defence might bring to the table circumstances related to foetal alcohol syndrome, circumstances at home, school reports, psychological evaluations."
However, Sue Higginson, the NSW Greens' justice spokesperson, described the provision as a shock and announced she would move an amendment to strike it out. "It's contrary to the review and it completely undermines the entire meaning and substance of doli incapax," she argued.
The independent review that prompted the legislation had explicitly recommended against allowing courts to set aside consideration of a child's intellectual and moral development, noting that rebutting the presumption requires "consideration of the child as a unique individual, and an assessment of a wide variety of matters."
