Examine the legal treatment of young offenders, the principles of the Young Offenders Act 1997 (NSW), doli incapax, and contemporary reform issues

What this dot point is asking

NESA wants you to know how NSW treats children and young people who come into conflict with the law: the minimum age of criminal responsibility, the doli incapax presumption, the diversionary hierarchy under the Young Offenders Act 1997 (NSW), the Children's Court, and the contemporary debate over raising the age. Expect this material in Section II or in the contemporary issue extended response.

The answer

Age of criminal responsibility

In NSW, the minimum age of criminal responsibility is 10 years. Children under 10 cannot be charged with any offence (Children (Criminal Proceedings) Act 1987 (NSW) s 5).

For children aged 10 to 13, the common-law presumption of doli incapax applies. The prosecution must prove not only the elements of the offence but also that the child knew their conduct was seriously wrong, beyond merely "naughty". The High Court in RP v The Queen (2016) 259 CLR 641 held that this requires evidence specific to the child, not assumption from the conduct itself.

For children aged 14 to 17, capacity is presumed.

The Young Offenders Act 1997 (NSW)

The Young Offenders Act 1997 (NSW) creates a four-step diversionary hierarchy. Police and the Director of Public Prosecutions must consider lower steps before charging.

1. Warning (s 14). Police caution given in the field for minor offences. No formal record, no court appearance.
2. Caution (s 18). A formal caution at a police station, with parent or guardian present, for slightly more serious offending. Up to three cautions per child.
3. Youth justice conference (Part 5). A restorative meeting between the offender, victim and family, facilitated by a Youth Justice Conference convenor. Produces an outcome plan (apology, reparation, community work).
4. Charge. If diversion is inappropriate, the child is charged and proceedings begin in the Children's Court.

Excluded offences (Schedule 1 of the Young Offenders Act 1997 (NSW)) include sexual offences and serious indictable offences. These proceed directly to charge.

The Children's Court

Most matters concerning children under 18 are heard in the Children's Court of NSW, established under the Children's Court Act 1987 (NSW). Closed to the public, with a publication ban on the child's identity (Children (Criminal Proceedings) Act 1987 (NSW) s 15A). Serious indictable matters (e.g. murder) are transferred to the District or Supreme Court.

Sentencing of young offenders

Detention is a last resort. Where imposed, it is served in a youth detention centre administered by Youth Justice NSW. Maximum control orders under the Children (Criminal Proceedings) Act 1987 (NSW) are 2 years.

Contemporary reform: raising the age

The Council of Attorneys-General has been considering raising the minimum age of criminal responsibility from 10 to 14 since 2018. The 2020 Council of Attorneys-General report recommended raising the age. The Australian Capital Territory raised the age to 12 in 2023 (Raising the Minimum Age of Criminal Responsibility Legislation Amendment Act 2023 (ACT)) with a commitment to 14 by 2025. Victoria announced a commitment to raise the age. NSW has not yet raised the age.

The proposed reform is supported by:

• the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017);
• the Australian Medical Association;
• the Aboriginal Legal Service NSW/ACT;
• the United Nations Committee on the Rights of the Child.

Indigenous over-representation

Aboriginal and Torres Strait Islander children are severely over-represented in NSW youth detention. The Productivity Commission Closing the Gap Annual Report 2024 confirms Indigenous youth incarceration rates have not improved meaningfully in the last decade.