Young offenders: age of criminal responsibility, doli incapax, Children's Court and diversion: HSC Legal Studies

What this dot point is asking

The syllabus asks you to understand how the law treats people under 18 at every stage: the age of criminal responsibility, the rights of children when questioned or arrested, the Children's Court (procedures and operation), penalties for children and alternatives to court. The "learn to" statements ask you to discuss the issues surrounding the age of criminal responsibility, explain why young offenders are treated differently and assess the effectiveness of the criminal justice system when dealing with young offenders.

This area has changed more than any other part of Crime since 2024: youth bail laws, the "posting and boasting" offence, the codification of doli incapax from 1 March 2026, a diversion pilot announced in September 2026, and diverging approaches to the age of criminal responsibility across Australia. NESA's 2025 Crime marking guidelines listed young offenders (rehabilitation focus, rights of children in investigation, the Children's Court) as content that could support the extended response.

The answer

Why young offenders are treated differently

The law treats children differently for four connected reasons:

1. Development and culpability. Research on adolescent brain development shows that impulse control, risk assessment and moral reasoning are still maturing, so children are generally less blameworthy than adults.
2. Capacity for change. Most young people "grow out" of offending, so rehabilitation is more achievable and more important.
3. The harm of formal processing. Early contact with police, courts and detention is associated with further offending. Diversion avoids labelling a child as a criminal.
4. International obligations. The Convention on the Rights of the Child (ratified by Australia in 1990) requires the best interests of the child to be a primary consideration (article 3), detention only as a last resort and for the shortest appropriate time (article 37), and a separate system focused on reintegration (article 40).

The age of criminal responsibility

In NSW, as in most Australian jurisdictions, a child under 10 is conclusively presumed incapable of committing an offence. For children aged 10 to 13, the presumption of doli incapax applies. In RP v The Queen [2016] HCA 53 the High Court held that the prosecution must prove beyond reasonable doubt that the child knew the conduct was seriously wrong, as distinct from merely naughty or mischievous, and that this cannot be inferred simply from the fact that the child did the act.

Codification in 2026. After an independent review of doli incapax by former Supreme Court judge Geoffrey Bellew and former Deputy Commissioner Jeffrey Loy (final report 29 August 2025), Parliament passed the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025 (NSW) on 27 November 2025. From 1 March 2026, a new s 5 of the Children (Criminal Proceedings) Act 1987:

• states the presumption that a child aged 10 to 13 cannot be guilty of an offence;
• provides that it is rebutted only if the prosecution proves beyond reasonable doubt that the child knew at the time that the conduct was seriously wrong in a moral sense;
• requires the court to consider, if known, the conduct, the surrounding circumstances (including planning or steps to avoid detection), the child's intellectual and moral development and education, and the environment in which the child was raised; and
• makes clear that the presumption can be rebutted on the facts and circumstances of the offending alone.

Supporters say codification makes the test clearer and more consistent. Children's legal advocates argue that allowing rebuttal from the offence circumstances alone makes it easier to prosecute young children, many of whom have experienced trauma or disability.

The raise the age debate. The UN Committee on the Rights of the Child recommends a minimum age of at least 14 (General Comment No. 24, 2019), and at Australia's Universal Periodic Review in January 2026, 27 countries made recommendations to raise (or consider raising) the age. Australian jurisdictions now diverge:

Arguments for raising the age: children aged 10 to 13 are developmentally immature; early criminalisation entrenches offending; the children involved are overwhelmingly those who have experienced abuse, disability, out-of-home care and poverty; and Aboriginal children are heavily over-represented. Arguments against: community concern about a small group of young children committing serious or repeated offences; doli incapax already protects children who do not understand wrongdoing; and alternative services must exist before the age is raised.

The rights of children when questioned or arrested

Children have the same basic rights as adults (silence, a lawyer, an interpreter) plus extra protections:

• Support person. Police must not question a child without a support person present, such as a parent, guardian or independent adult (Law Enforcement (Powers and Responsibilities) Regulation).
• Admissions. Admissions by a child are generally inadmissible unless an adult who is not a police officer was present (Children (Criminal Proceedings) Act 1987 (NSW) s 13).
• Custody Notification Service. Police must notify the Aboriginal Legal Service when an Aboriginal child is detained.
• Searches. Strip searches of children aged 10 to 18 must be conducted in the presence of a parent, guardian or support person where reasonably practicable (LEPRA s 33), and strip searches of children under 10 are prohibited.
• Arrest as a last resort. The Young Offenders Act 1997 (NSW) principles and the Children (Criminal Proceedings) Act require that criminal proceedings not be instituted against a child if there is an alternative and appropriate means of dealing with the matter.

The Children's Court: procedures and operation

The Children's Court (Children's Court Act 1987 (NSW)) hears criminal matters for people who were under 18 when the offence was committed and under 21 when charged, except serious children's indictable offences (such as murder and serious sexual assault), which are dealt with in the District or Supreme Court. Its procedures are designed to be less formal and more protective:

• Closed court. Criminal proceedings are generally closed to the public.
• Identity protection. Publishing or broadcasting the name of a child involved in criminal proceedings is prohibited (s 15A of the 1987 Act), with limited exceptions.
• Specialist magistrates trained in children's issues.
• Youth Koori Court. First operating at Parramatta in 2015, it allows Aboriginal and Torres Strait Islander young people who have pleaded or been found guilty to work with Elders on an action plan addressing risk factors (housing, education, health, culture) before sentence.

Penalties for children

The Children's Court's penalties (s 33 of the Children (Criminal Proceedings) Act 1987) follow the principle that detention is a last resort:

• dismissal, with or without a caution;
• a good behaviour bond or probation (still available for children, unlike adults after 2018);
• a fine (limited);
• a youth justice conference outcome plan;
• a community service order (Children (Community Service Orders) Act 1987 (NSW));
• a suspended control order; and
• a control order: detention in a youth justice centre.

A conviction cannot be recorded for a child under 16 (s 14), and for older children the court has a discretion. Children sentenced for serious offences in higher courts can be sentenced under adult law, but youth remains a significant mitigating factor.

Alternatives to court: the Young Offenders Act 1997 (NSW)

The Young Offenders Act 1997 (NSW) establishes a hierarchy of diversion for summary offences and many indictable offences (serious offences such as sexual assault and offences causing death are excluded):

1. Warnings. Given by police for minor summary offences; no admission is required and no record is kept as a prior.
2. Cautions. Given by police or the court where the child makes a non-denial statement about the offence (before mid-2026, an admission) and consents; a child can receive a limited number.
3. Youth justice conferences. A restorative meeting of the child, their family, the victim, police and a convenor that produces an outcome plan (an apology, reparation, community work, counselling).

The 2025 amending Act broadened eligibility for cautions and conferences to children who make a statement that they do not deny (rather than fully admit) the offence; those Young Offenders Act changes commenced in mid-2026. Other alternatives include the Youth on Track early intervention program and, from 2027, an $8.4 million voluntary diversion pilot for children aged 8 to 13 at risk of offending, starting in Tamworth, announced on 15 September 2026 alongside consultation on a mandatory diversion pathway.

Youth bail and recent tough-on-crime measures

Recent reforms have pushed in the other direction. Section 22C of the Bail Act 2013 (from 3 April 2024) requires a "high degree of confidence" before a 14 to 17 year old charged with repeat serious break and enter or motor vehicle theft offences while on bail is released. The "posting and boasting" offence (Crimes Act 1900 (NSW) s 154K) targets offenders who publish material about such offences. On 15 September 2026 the government tabled a statutory review finding that s 22C had helped stabilise youth crime in regional NSW, and on 24 September 2026 Parliament passed legislation extending it beyond its 1 October 2026 expiry (in 2025 the government had sought an extension to April 2028). Critics, including the Aboriginal Legal Service, argue that remanding children increases the risk of reoffending and disproportionately affects Aboriginal children in regional towns.

Detention data

BOCSAR reported that there were 208 young people in detention in NSW in June 2026, down from 236 a year earlier. Aboriginal young people fell by 26.7% to 107, but still made up 51.4% of all young people in detention. Most young people in detention in NSW are on remand rather than serving a sentence, which is why bail law has such a large effect on youth detention.

Assessing effectiveness

Judgement. The NSW system is largely effective for the majority of young people, who are diverted and do not reoffend, but it is least effective for the small group of young people with complex needs who cycle through remand and detention, a group in which Aboriginal children are heavily over-represented.

In one sentence

NSW treats young offenders differently because of their development and capacity for change, through doli incapax (codified in 2026), extra rights when questioned, a closed Children's Court, rehabilitative penalties and Young Offenders Act diversion, although the low age of criminal responsibility, tougher youth bail and Aboriginal over-representation limit how effectively it achieves justice.

Try this

Q1. Outline the doli incapax principle. (3 marks)

• What the marker wants. Age range, the presumption, the prosecution's burden to prove the child knew the act was seriously wrong, and the 2026 codification or RP v The Queen.

Q2. Describe the procedures and operation of the Children's Court. (5 marks)

• What the marker wants. Jurisdiction, closed court, identity protection, penalties and the no-conviction rule, and the Youth Koori Court.

Q3. Assess the effectiveness of alternatives to court for young offenders. (7 marks)

• What the marker wants. Warnings, cautions and conferences, the 2025 eligibility change, the Youth Koori Court and the 2026 diversion pilot, weighed against repeat offending and over-representation.