After the NSW youth criminalization rate has fallen by five times, children aged 10 to 14 have to know the difference between right and wrong.
The NSW Attorney General's Office said the review will consider how the Doli Ingapax principle (Latin "powerless") is used in criminal proceedings, its impact on interventions, possible improvements and legislative frameworks.
In New South Wales, the Crime Age is 10 years old, but Doli Ingapax can apply for up to 14. If the police can prove that a child understands what they do is seriously wrong, rather than naughty, it can be dismissed.
State Attorney General Michael Daley said on Thursday that state Release Board Chairman and former Supreme Court Justice Geoffrey Bellew SC and former NSW Police Deputy Chief Jeffrey Loy will lead the Doli Incapax review.
In 2016, a high court ruled clarified Doli Incapax, leading prosecutors to prove that children recognize that they were seriously wrong when they committed the crime. Since then, conviction rates for children aged 10 to 13 have plummeted.
The NEW Crime Statistics and Research Bureau (BOCSAR) report found that the proportion of young people aged 10-13 (incriminal or innocence) in the NEW Children's Court fell from 76% in 2015-16 to 16% in 2022-23.
Prosecutors filed charges in more than half of the cases in 2022-23, with Victoria and South Australia similar patterns.
The Attorney General's Office said there was no similar decline in Queensland and Western Australia, where Doli Ingapax has been codified in legislation (rather than a common law understanding like New South Wales).
"Doli Incapax's presumption of common law goes back hundreds of years. Its presence in all Australian jurisdictions and its presence in common law has been recognized by the High Court," Daly said in a statement.
"Recently, concerns have been raised about the operation of Doli Incapax. I commissioned a review to ensure that any improvements that can be made and possible legislative reforms are closely considered."
The Attorney General's Office quoted Bocsar as saying the results raised questions about how best to support young people in reducing future criminal participation.
According to Bocsar, in the state's criminal justice system, Aboriginal children and children represent disproportionately in regional and remote New South Wales areas and remote areas. Indigenous legal groups say the age of crime should be raised to 14, and Doli Incapax's presumption was completely eliminated.
Camilla Pandolfini, CEO of the Redfern Law Center, said children “should not end up in jail.”
"Putting young children to jail won't make anyone safer. This doesn't solve the cause of crime (or) solve the reason for criminalizing very young children. This only increases the risk of recidivism."
Instead of reviewing Doli Incapax, she said the state should focus on crime prevention and increase funding for Aboriginal community organizations and local services in rural and regional communities.
The NSW government recently expanded its controversial youth bail law, although experts warned that it would not curb crime and internal obstacles to internal MPs for a long time.
State nationals have been pushing for support from the NSW government and the Liberal Party to support changes to Doli Incapax.
Budget estimates hearings were told last month that the youth justice system is currently about 90%.
“The changes in bail laws coincided with an increase in the past year,” Paul O'Reilly, deputy secretary for the system reform of the Ministry of Community and Justice, said at the hearing. “It is not clear that the increase is entirely attributed to changes in bail laws.
“What we are seeing is that overall, police and court bail decision-making behavior has changed, and we also find an increase in crime and violence and an increase in crime.
“All of these things have increased more detention of children and we are currently operating as we are.”
Bocsar's latest data shows that youth crime has remained stable in the short and medium term in NSW.
However, data show that young people have “significantly increased” in shoplifting and possession of illegal weapons.