Doli incapax and the age of criminal responsibility: NSW and the ACT.

The minimum age of criminal responsibility in NSW.

In NSW there is a hard floor. A child under 10 cannot be charged with a criminal offence and cannot be found guilty of one. That rule is set by section 5 of the Children (Criminal Proceedings) Act 1987 (NSW). It is absolute. It does not matter what the child is said to have done or how serious it was. Below 10, the criminal law does not apply at all.

From the age of 10, a child can be charged. But between 10 and 13, a second protection applies, the presumption of doli incapax. The child can be prosecuted, but cannot be convicted unless the prosecution proves the child knew the conduct was seriously wrong. So NSW has two age lines. Under 10, no responsibility at all. From 10 to 13, responsibility only where the presumption is rebutted. From 14, a child is treated as capable, and the presumption falls away.

What doli incapax means.

Doli incapax is Latin for incapable of wrong. It rests on a simple idea, that a young child may do a harmful act without understanding that it is seriously wrong in a criminal sense, rather than just naughty or mischievous. The law presumes that a child aged 10 to 13 lacks that understanding. The presumption is not a fixed bar. It can be displaced. But it starts in the child's favour, and it has to be actively removed before the child can be convicted.

The standard the courts apply comes from the High Court in RP v The Queen. The prosecution must prove that the child knew the act was seriously wrong, not merely that the child did the act and that the act was in fact wrong. The older the child, the closer to 14, the easier that may be, but it still has to be proved by evidence about the particular child, not assumed from the nature of the offence.

Who has to prove it, and how.

The burden is on the prosecution, and the standard is beyond reasonable doubt. This is where doli incapax has real force. It is not enough for the prosecution to prove the elements of the offence. It must also prove, as a separate matter, that this child understood their conduct was seriously wrong at the time. Evidence of the act alone will rarely do it. What the courts look for is evidence about the child: their age within the band, their maturity, their background, any efforts to hide what they did, what they said at the time and afterwards, and what those around them understood of their development.

The result is that a charge against a 10, 11, 12 or 13 year old is not made out just because the act is proved. The prosecution carries an extra burden that does not exist for an adult. For the defence, testing whether that burden has been met is often the whole case.

What NSW changed from 1 March 2026.

Until recently, doli incapax lived in the common law, built up through decided cases. From 1 March 2026, NSW put the presumption into statute, through amendments to the Children (Criminal Proceedings) Act 1987 (NSW). The change followed an independent review of how the presumption was working in practice. Writing the rule into the Act gives it a clear statutory footing, sets out how the presumption operates for children aged 10 to 13, and makes the test easier for courts, police and families to find and apply. The substance of the protection, that the prosecution must prove the child knew the act was seriously wrong, carries through from the common law.

The ACT: a minimum age of 14.

The ACT has gone further than NSW. From 1 July 2025, under the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT), the minimum age of criminal responsibility in the ACT is 14. This makes the ACT the first jurisdiction in Australia to lift the age to 14. A child under 14 generally cannot be charged, subject to limited exceptions that the legislation sets out for a small number of serious matters. The reform came in stages, first to 12 and then to 14, and it was designed to keep young children out of the criminal justice system and direct them to services instead.

The practical effect is a real difference across the border. The same conduct by a 12 year old is treated very differently in the two places. In NSW, that child can be charged, subject to doli incapax. In the ACT, that child is under the minimum age and generally cannot be charged at all. Where a young person's conduct crosses the border, the jurisdiction decides not just which law applies but whether there can be a charge in the first place.

The Children's Court, and why early advice matters.

Children's matters are dealt with in the Children's Court, which runs on different principles from the adult courts and puts weight on rehabilitation. Some serious indictable matters can be sent to a higher court, but most stay in the Children's Court, which applies the age rules and, in NSW, the doli incapax presumption. Because a child's matter turns so heavily on questions of capacity and understanding, what happens at the first police contact carries real weight. The guidance in our note on the police interview and the ERISP is even more important for a child, who should not be answering questions about a serious allegation without a support person and advice. Our note on the first thirty days of a matter explains why the early steps shape everything that follows. Even a charge that looks straightforward, such as a common assault, is not straightforward when the accused is a child.

Primary sources: the NSW minimum age and the codified presumption are in the Children (Criminal Proceedings) Act 1987 (NSW). The doli incapax standard is set by RP v The Queen [2016] HCA 53, searchable on JADE. The ACT minimum age is set by the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT), amending the Criminal Code 2002 (ACT).

Common questions

What is the minimum age of criminal responsibility in NSW?

A child under 10 cannot be charged or found guilty, under section 5 of the Children (Criminal Proceedings) Act 1987 (NSW). A child of 10 or over can be charged, but for children aged 10 to 13 the presumption of doli incapax applies, so the prosecution must prove the child knew the conduct was seriously wrong.

What does doli incapax mean?

It is Latin for incapable of wrong. It presumes that a child aged 10 to 13 cannot be criminally responsible. The presumption can be rebutted, but only if the prosecution proves beyond reasonable doubt that the child knew the act was seriously wrong, not merely naughty. The leading case is RP v The Queen.

Who has to prove doli incapax?

The prosecution, beyond reasonable doubt. The presumption starts in the child's favour. Evidence of the offence itself is usually not enough. The court looks for evidence about the particular child, including maturity, background, and what the child said and did.

Did NSW change the doli incapax law in 2026?

Yes. From 1 March 2026 NSW codified the presumption in the Children (Criminal Proceedings) Act 1987 (NSW). It had been a common law rule. Codifying it puts the presumption for children aged 10 to 13 into the Act rather than leaving it to case law.

What is the minimum age of criminal responsibility in the ACT?

From 1 July 2025 the ACT raised its minimum age to 14, under the Justice (Age of Criminal Responsibility) Legislation Amendment Act 2023 (ACT), the first Australian jurisdiction to do so. A child under 14 generally cannot be charged, subject to limited exceptions. That is higher than NSW, where the age remains 10.

What court deals with children charged with offences?

Usually the Children's Court, which has its own procedures and a focus on rehabilitation. Some serious indictable matters can go to a higher court. The Children's Court applies the age rules and, in NSW, the doli incapax presumption for children aged 10 to 13. Advice at the first opportunity matters.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 28 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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