Terms of Reference
The operation of the presumption of doli incapax in NSW came to the attention of the NSW Legal Assistance Forum (NLAF) in early 2019 in the context of the report The sky is the limit: keeping young people out of prison by raising the age of criminal responsibility, published by Amnesty International in September 2018 and the subject of a presentation to the NLAF Plenary Group on 20 March 2019.
The minimum age of criminal responsibility and the implementation of the presumption of doli incapax are related issues. The minimum age of criminal responsibility is currently being reviewed by the Council of Attorneys-General (CAG), and this process could impact on the extent to which the presumption of doli incapax continues to have application.
On 28 August 2019, the NSW Government announced that the Young Offenders Act 1997 will be reviewed.
The presumption of doli incapax is a well-established legal principle and the NLAF can take practical steps to promote its proper application in NSW. Evidence reveals that the presumption is not being applied consistently in NSW.
NLAF believes that the presumption must be applied consistently across the NSW justice sector and in particular by police, prosecutors and the courts.
To develop strategies (within the capacity of NLAF and its members) to promote the consistent application of the presumption of doli incapax in NSW.
- Identify measures to support the consistent application of the presumption of doli incapax in NSW, including:
- In the exercise of police discretion about whether to proceed against a child under 14 years, and
- In its application in courts across NSW.
- Develop protocols about obtaining evidence to rebut doli incapax.
- Identify possible legislative reforms (including to the Young Offenders Act 1997 to assist the diversion of young people under 14 years from the criminal justice system.
The Doli incapax Working Group should include representatives from the following organisations:
- Legal Aid NSW (chair)
- Aboriginal Legal Service NSW/ACT
- Children’s Court NSW
- Community Legal Centres NSW (represented by Youth Law)
- Law and Justice Foundation of NSW
- Law Society of NSW
- NSW Bar Association
- Office of the Director of Public Prosecutions
- Youth Law
- NSW Police Force
TERM OF OPERATION:
12 months (option to then review and refine terms of reference)
Every six weeks
Anastasia Krivenkova, Manager Strategic Law Reform, Legal Aid NSW