\n<\/p>\n
The Minns government is seeking to create a loophole in a law meant to provide protection against the incarceration of children, which could mean more children will be locked up.<\/p>\n
On Tuesday, the New South Wales government announced it was strengthening protections for children aged 10 to 14 by legislating a common law presumption known as doli incapax, which means children cannot commit an offence because they do not understand the difference between right and wrong.<\/p>\n
The proposed bill will also mandate when that presumption can be rebutted. This includes a loophole which says the presumption can be overturned if prosecutors establish the child committed a crime, and circumstances surrounding the crime prove \u201cbeyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child\u2019s conduct was seriously wrong\u201d.<\/p>\n
The courts can then make a decision on whether to convict the child \u201cwithout or despite\u201d evidence of the child\u2019s intellectual or moral development, including intellectual impairment.<\/p>\n
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Associate Prof John Kasinathan, a University of New South Wales expert in adolescent forensic psychiatry and who appears as an expert witness in child matters, said this was at odds with the point of doli incapax.<\/p>\n
Considering a child\u2019s intellectual and moral development \u201cis at the core of doli incapax and, if we are ignoring that, that\u2019s ignoring a large aspect of understanding what\u2019s going on for the child\u201d, he said.<\/p>\n
The NSW attorney general, Michael Daley, announced the changes on Tuesday after an independent review into doli incapax by former supreme court justice Geoffrey Bellew and former NSW police deputy commissioner Jeffrey Lloyd.<\/p>\n
Their report recommended the government legislate doli incapax and provided guidance on how prosecutors can rebut it.<\/p>\n
However, it did not recommend allowing courts to set aside consideration of a child\u2019s intellectual and moral development. The report said rebutting the presumption requires \u201cconsideration of the child as a unique individual, and an assessment of a wide variety of matters\u201d.<\/p>\n
The report also acknowledged \u201cyouth crime is a justifiable concern for many communities in NSW\u201d but said the data indicated it was only a small proportion of children in the 10 to 13 age group who engaged in serious or persistent offending.<\/p>\n
The government commissioned the review after data was released earlier this year that found the number of children prosecuted had dropped dramatically following a 2016 high court decision.<\/p>\n
RP v The Queen established that doli incapax can only be rebutted if police can prove the child understood what they did was seriously wrong, as opposed to naughty.<\/p>\n
The decision found that it was not possible to prove beyond reasonable doubt a child knew their conduct was morally wrong in the absence of evidence about the environment in which a child was raised, or their moral development.<\/p>\n
After that decision, the Bureau of Crime Statistics and Research found the proportion of 10- to 13-year-olds \u201cwith a proven outcome\u201d in the NSW children\u2019s court fell from 76% in 2015-16 to 16% in 2022-23. The number of 10- to 13-year-olds charged had remained mostly stable.<\/p>\n
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Sign up to Breaking News Australia<\/span><\/p>\n Get the most important news as it breaks<\/p>\n Privacy Notice: <\/strong>Newsletters may contain information about charities, online ads, and content funded by outside parties. If you do not have an account, we will create a guest account for you on theguardian.com to send you this newsletter. You can complete full registration at any time. For more information about how we use your data see our Privacy Policy. We use Google reCaptcha to protect our website and the Google Privacy Policy and Terms of Service apply.<\/span><\/p>\n after newsletter promotion<\/p>\n Timothy Roberts, the president of the NSW Council for Civil Liberties, said the government\u2019s proposed bill was at odds with the high court decision.<\/p>\n In lieu of considering a child\u2019s moral and intellectual development, Daley said prosecutors could instead consider evidence such as whether a crime was planned, or whether alleged offenders brought a weapon, where previously the primary evidence required related to a perpetrator\u2019s upbringing or schooling.<\/p>\n Daley noted it was difficult for police to get evidence around a child\u2019s capability and education \u201cbecause school psychologists and counsellors are reluctant to hand over their reports \u2026 and often there are children, particularly in regional NSW, [who] just haven\u2019t been to school for years\u201d.<\/p>\n The premier, Chris Minns, suggested on Wednesday that it would be up to defence lawyers to raise such evidence.<\/p>\n \u201cThe lawyers and the defence have got a right to introduce any piece of information or any piece of evidence \u2026 and that occurs regardless of the age [of the child],\u201d he said.<\/p>\n \u201cThe defence might bring to the table circumstances related to foetal alcohol syndrome, circumstances at home, school reports, psychological evaluations.\u201d<\/p>\n Sue Higginson, the NSW Greens\u2019 justice spokesperson, said she would be moving an amendment to strike out the loophole.<\/p>\n \u201cIt was a shock to see this in the bill,\u201d she said. \u201cIt\u2019s contrary to the review and it completely undermines the entire meaning and substance of doli incapax.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" The Minns government is seeking to create a loophole in a law meant to provide protection against the incarceration of children, which could mean more children will be locked up. On Tuesday, the New South Wales government announced it was strengthening protections for children aged 10 to 14 by legislating a common law presumption known<\/p>\n","protected":false},"author":1,"featured_media":34492,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[55],"tags":[166,19597,2282,175,8442,4279,4245,112,4124,2328,3904],"class_list":{"0":"post-34491","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-social-issues","8":"tag-children","9":"tag-incarceration","10":"tag-justice","11":"tag-law","12":"tag-locked","13":"tag-loophole","14":"tag-meant","15":"tag-nsw","16":"tag-protect","17":"tag-shock","18":"tag-youth"},"_links":{"self":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/34491","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=34491"}],"version-history":[{"count":0,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/34491\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/media\/34492"}],"wp:attachment":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=34491"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=34491"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=34491"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}