The Minns government claimed it found a balance between strict youth crime laws and early intervention.
The NSW Labor government passed the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 just weeks after the publication of an independent review urged it to reconsider its approach to youth crime.
The legislation has made it possible for prosecutors to rebut doli incapax, a law that presumed children between the ages of 10 and 14 lack the capacity and state of mind to be criminally responsible.
It also offers “additional tools” to courts to consider what the child is alleged to have done, and the surrounding circumstances, when deciding if the child was aware their conduct was seriously wrong.
Attorney-General Michael Daley claimed the reforms “operates in the best interests of children and the broader community”.
“It gives police and the courts more tools to break the cycle of youth offending and keep the community safe,” Daley said.
Minister for Police and Counter-terrorism Yasmin Catley said police are being dragged away from “critical work” when they are forced to instead “arrest the same repeat offenders over and over”.
“Our laws need to back them in, not bog them down,” Catley said.
The legislation followed a review undertaken by State Parole Authority chair and former Supreme Court justice Geoffrey Bellew SC and former NSW Police deputy commissioner Jeffrey Loy APM.
In it, Bellew and Loy supported the current common law principle of doli incapax as expressed by the High Court in RP v The Queen. It determined that it was the prosecution who bore the onus of proof to present evidence to rebut the criminality presumption.
In its current form, Bellew and Loy said it is “generally consistent with law principles applicable to the mental element of any offence”. While establishing state of mind is challenging, they said it did not justify introducing different legislation for children.
“It also provides an important safeguard against the possibility of inappropriate findings of criminal responsibility when a child lacks that knowledge, and recognises the considerable vulnerability of children aged 10–13 years and the significant impact upon such children of a criminal conviction,” they said.
Under the reforms, the government said children can access diversionary options if they make a statement that they do not deny, or admit, the elements of the offending and when and where it happened.
Currently, children need to admit the offence to be eligible.
The government said it would also begin consideration of voluntary diversion pathways for children who interact with the justice system, as well as mandatory treatment pathways for high-risk children.
Minister for Youth Justice Jihad Dib said it was important to find a middle ground.
“We need to strike the right balance – holding young people to account and giving appropriate consequences whilst at the same time recognising that the best long-term outcomes come from diversion, support and early intervention to keep young people from interacting with the justice system,” Dib said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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