New publication | Brief on ‘doli incapax’ in NSW, the minimum age of criminal responsibility, and implications for advocacy and law reform

The Social Determinants of Justice Research Hub is pleased to share a new publication, Brief on ‘doli incapax’ in NSW, the minimum age of criminal responsibility, and implications for advocacy and law reform.

Early police contact was identified as one of the eight social determinants of justice and the lower the age of first police contact, the more likely there would be a significantly higher number of police contacts, arrests and a lifetime of criminal justice involvement. This is particularly so for children with disability and those in out-of-home care who have been characterised as having ‘challenging behaviours’ and who are frequently left to the police to manage, as well as Indigenous children who are significantly more likely to have contact with police at a younger age as both victim and offender.

This brief explores how the criminal justice system in NSW deals with children aged 10-13 years who often have complex support needs and move from being characterised as ‘at risk’ by police to ‘a risk’ as they move into their teens. The legal presumption of children as ‘doli incapax’ (‘incapable of crime/wrong’) is frequently cited as a major reason for not increasing the minimum age of criminal responsibility (MACR) in Australia. The presumption is seen as both over- and under-protective by different stakeholders. This brief sets out the thresholds for doli incapax, the differences in the law and practice in NSW versus other jurisdictions, the serious concern with it being understood as a form of individualised justice or alternative to MACR and concludes with the implications for advocacy and law reform in NSW.