SNAICC Submission to the Review of Doli Incapax in NSW

Executive summary

The current application of doli incapax fails to protect Aboriginal and Torres Strait Islander children from the harms of criminalisation and does not address the underlying causes of these children’s contact with the justice system – such as poverty, intergenerational trauma, systemic racism and social disadvantage. The presumption is inconsistently applied, procedurally complex, and often delays our children’s access to appropriate supports, while allowing children as young as ten to be arrested, detained, and prosecuted.

SNAICC recommends replacing the doli incapax presumption for 10 to 13-year-olds in NSW with a legislated minimum age of criminal responsibility of 14 years, consistent with international human rights obligations and overwhelming medical evidence about children’s development. This change must be accompanied by extending the operation of doli incapax to children aged 14 to 17, to account for cognitive disability, developmental delay, and the impacts of systemic disadvantage.

To divert children from unnecessary and prolonged contact with the justice system, doli incapax must be available from a child’s first point of contact with that system. Reforms must also embed cultural authority into decision-making processes about doli incapax, ensuring that assessments of children’s capacity are informed by community, kin and Elders. Aboriginal and Torres Strait Islander children must also have access to culturally safe, therapeutic supports from the outset, regardless of legal status or capacity, through investment in Aboriginal Community Controlled Organisations (ACCOs). SNAICC also strongly recommends the establishment of a national Aboriginal and Torres Strait Islander-led independent monitoring and oversight mechanism to monitor implementation of enforceable national child justice standards, including operationalisation of the presumption of doli incapax.

Ultimately, doli incapax alone cannot disrupt the criminalisation of our children. True reform requires shifting from punitive responses toward care, healing, and self-determination.

Raising the age of criminal responsibility and embedding Aboriginal-led, community-based solutions are critical steps toward breaking the cycle of overrepresentation and upholding the rights and dignity of Aboriginal and Torres Strait Islander children.