Childhood on Trial: The March 2026 Changes to Doli Incapax

I Introduction

The New South Wales (‘NSW’) law has recognised children under the age of 10 as below the minimum age of criminal responsibility (‘MACR’) and therefore are ‘incapable of committing a crime’. Beyond the statutory framework, the common law doctrine of ‘doli incapax’ provides protection for children aged between 10-13. The doctrine operates on the rebuttable presumption that children between this age bracket lack the capacity to form the relevant criminal intent, as they cannot fully understand right from wrong. Consequently, the prosecution bears the burden of proof and must prove beyond reasonable doubt that the child possessed such an understanding at the time of the alleged offence. 

In March 2026, NSW introduced significant reforms to the Criminal Proceedings Act, amending the manner in which the presumption is applied and rebutted. The changes have sparked considerable debate regarding the protection of children from the criminal justice system and accountability for youth offending. This article will examine the reforms in depth and evaluate whether they preserve the protective purpose underpinning the doctrine of doli incapax.

II The Impetus for Reform

The March 2026 reforms followed growing concern regarding the practical approach operation of doli incapax in society, particularly after a substantial decline in proven outcomes for children aged 10 to 13. Following the High Court's decision in RP v The Queen, the proportion of finalised criminal matters resulting in a proven outcome for this age group fell from approximately 76% in 2015–16 to 16% in 2022–23. These figures prompted concerns as to whether the existing common law framework was adequately balancing the protection of children with the need to respond effectively to youth offending. In May 2025, the NSW Government subsequently commissioned an independent review into the operation of doli incapax, which ultimately preceded the legislative reforms that commenced on 1 March 2026. 

III March 2026 Reforms

The reforms mark a significant departure from the previous common law doctrine by codifying doli incapax into statute. Rather than altering the fundamental presumption itself, the reforms principally changed the evidentiary requirements used to determine whether the presumption has been rebutted. Most significantly, the amendments prescribe matters that a court must consider when assessing a child's capacity and expressly permit reliance on the child's conduct and the circumstances surrounding the alleged offence. 

Sections 5(2)–(4) largely preserve the foundational principles of doli incapax, including the prosecution’s burden of rebutting the presumption beyond reasonable doubt and the requirement that the child understood their conduct was seriously wrong in a moral sense. The more substantial reforms arise under ss 5(5)–(7), which prescribe the evidentiary considerations relevant to determining whether the presumption has been rebutted. Section 5(5) requires the court to consider, where known, the child's conduct and the circumstances surrounding the alleged offence, including any planning or attempts to avoid detection, alongside the child's intellectual and moral development, education, upbringing and environment. Section 5(6) further provides that these considerations are non-exhaustive, permitting the court to take into account any other matter it considers relevant.

Significantly, s 5(7) permits the court, where appropriate, to find the presumption rebutted on the basis of the child's conduct and the circumstances surrounding the alleged offence, even in the absence of, or despite, other evidence concerning the child's intellectual and moral development. This provision represents one of the most consequential aspects of the reforms, as it expressly permits the circumstances of the alleged offending itself to provide a sufficient evidentiary basis for rebutting the presumption. 

IV Criticisms of the Reforms

The reforms have attracted criticism regarding whether the new evidentiary framework adequately preserves the protective function traditionally served by doli incapax. Of particular concern is s 5(7), which reinterprets the evidentiary basis required by the prosecution.

The significance of s 5(7) is best understood when contrasted with the High Court’s decision in RP v The Queen. The case concerned an 11 year old boy who was convicted of two counts of sexual intercourse with his younger brother. The Court allowed the appeal and the convictions were set aside, finding that the evidence was insufficient to establish beyond reasonable doubt that the child understood the serious moral wrongness of his conduct. In reaffirming the principles of doli incapax, the Court emphasised that guilty knowledge cannot be established merely by proving that the child committed the alleged act, regardless of how serious or obviously wrong that conduct may appear.

Section 5(7) arguably departs from this approach by permitting greater reliance on the nature and circumstances of the alleged offending itself. Although the reforms retain the prosecution's burden of proof beyond reasonable doubt, critics contend that allowing conduct to assume greater evidentiary significance risks shifting the inquiry away from the particular child's intellectual and moral development. This raises concerns regarding the potential consequences of facilitating the prosecution of children as young as 10. Karly Warner, CEO of the Aboriginal Legal Service (NSW/ACT), warned that ‘making it easier to convict children as young as 10 would have tragic repercussions for children, families and NSW communities’. Warner's concerns are supported by research regarding the adverse consequences of exposing children to the criminal justice system at an early age. 

Baldry and Cunneen emphasise that children's brains and behavioural patterns continue to develop into their late teens, making younger offenders particularly vulnerable to the consequences of criminalisation. Incarceration during these formative years has been associated with an increased risk of depression, suicide and self harm, poor emotional and educational outcomes and the deterioration of family relationships. These consequences raise significant questions as to whether reforms facilitating the prosecution of younger offenders are consistent with the protective and rehabilitative principles underlying youth justice.

V Conclusion

The March 2026 reforms represent a significant shift in the operation of doli incapax in NSW. While the reforms retain the presumption itself and preserve the prosecution's burden of proof beyond reasonable doubt, the expanded evidentiary framework, particularly under s 5(7), arguably weakens the protective function traditionally afforded to children aged 10 to 13. By permitting greater reliance on the nature and circumstances of the alleged offending, the reforms risk shifting attention away from the individual child's intellectual and moral development. Although concerns regarding declining proven outcomes and youth offending provide legitimate grounds for reform, greater criminal accountability should not come at the expense of recognising the developmental vulnerability of children. Given the significant consequences associated with early exposure to the criminal justice system, the effectiveness of the reforms should ultimately be measured by whether the youth justice system is capable of responding to offending while preserving the protection, rehabilitation and development of the children within it.