Debate resumed from an earlier hour.

The Hon. AILEEN MacDONALD (20:01): I contribute to debate on the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 in my capacity as shadow Minister for Youth Justice. I do so conscious of the very real youth crime pressures being felt across our State, particularly in regional towns like Moree, Kempsey, Bourke, Armidale, Tamworth, Gunnedah and so many others. I acknowledge the work of my National Party colleagues, who live this daily and who advocate for their communities with sincerity and urgency. Our regional communities are hurting, and their calls for safety and accountability must be heard. At the same time, we must ensure that the tools we put into law are effective, fair and grounded in what actually works to reduce offending. On this point, the bill, particularly new section 5, gives me deep concern.

Let me begin by recognising what the bill gets right. The reforms to the Young Offenders Act 1997 are constructive, modern and welcome. They expand access to cautions, conferences and diversion; introduce an expiry period for cautions; and broaden the range of offences eligible for diversion. These changes will help reduce unnecessary court involvement and support police and Youth Justice officers to intervene earlier and more effectively. For regional communities, where services are stretched and early intervention is often the missing piece, these reforms are not just administrative, they are meaningful. I support these parts of the bill wholeheartedly and thank the reviewers for their work.

However, the amendments in new section 5 regarding the codification of doli incapax take us into much more difficult territory. The bill claims to reflect the common law, but the Government's own second reading speech makes clear that new section 5 (7) permits the presumption to be rebutted without evidence of a child's intellectual or moral development and even despite evidence that a child may not have understood that their actions were seriously wrong. This is not merely a codification; it is a substantial shift that lowers the evidentiary protections deliberately built into the common law. It also places very young children—overwhelmingly children with disability, trauma histories or unstable home lives—at far greater risk of criminalisation. Former National Children's Commissioner Anne Hollands has emphasised repeatedly that 10- to 13-year-olds who come before the criminal justice system are not children with stable lives and full cognitive capacity. They are children who have endured multiple adverse experiences—violence, neglect, homelessness, cognitive impairment and school disengagement—and they are disproportionately Aboriginal children. Criminalising those children earlier does not make communities safer. It leads to higher rates of recidivism, deeper system involvement and worse long-term outcomes for families and communities. The evidence is consistent nationwide: Early criminalisation entrenches harm.

I am aware that the Coalition Opposition has foreshadowed amendments to adopt a Queensland‑style threshold. I respect my colleagues' intent. They are responding to communities that want stronger tools to address serious behaviour, and they are doing so with absolute sincerity and with real pressure on the ground. But, from a youth justice perspective, it is important to put the facts on the record. Queensland's test, which requires only that a child "ought not" to have done the act, is far lower than the New South Wales common law standard. It has been criticised for decades by child development experts and legal practitioners, and Queensland continues to face significant youth crime challenges today. While I absolutely support my colleagues in seeking solutions for regional communities, I remain cautious about adopting a model that lowers the developmental threshold and risks sweeping more vulnerable children into the justice system. If we truly want early intervention, we must ensure that our laws do not substitute accountability for criminalisation.

As someone from the regions myself, I want to say this clearly: Our communities need solutions that work. They need the tools to interrupt cycles of harm, not simply respond to them once the harm is entrenched. They need early mental health support, family assistance, culturally grounded programs, drug and alcohol services, and opportunities for young people to be diverted before offending escalates. We will not achieve that if we bring more 10- and 11 -year -olds into the courts. That is why the establishment of the new Select Committee on Youth Justice is so important. It gives this Parliament, across parties, a chance to consider the evidence, the case law, the regional experiences, the Aboriginal over-representation, the developmental science and what actually works for safer communities. That work is essential because the debate today is not just about a legal test. It is about the kind of youth justice system we want to build in New South Wales.

I support the diversionary reforms in this bill. But I remain deeply concerned about new section 5 (7) in its current form and the real risk that it will increase—not reduce—the number of vulnerable young children entering the criminal justice system. I also acknowledge and respect my colleagues' amendments. However, I urge this House to consider the evidence carefully and ensure that any model we adopt strengthens community safety and honours children's rights, their developmental realities and the long-term wellbeing of our regions. To keep communities safe we must intervene early, not simply criminalise early.

Dr AMANDA COHN (20:08): As The Greens spokesperson for youth, I build on the excellent contribution of my colleague Ms Sue Higginson in my contribution to debate on the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025. The independent review of the operation of doli incapax in New South Wales for children under 14 made a series of recommendations to the New South Wales Government relating to the enactment of the presumption in legislation and matters relating to community safety and the interests of children. Those recommendations included providing additional police training and guidance, amendments to address existing barriers to 10- to 13-year-olds accessing diversion processes, alternative intervention pathways and therapeutic treatment. This bill does not implement that review. I will limit my comments to the part of the bill that codifies a watered-down presumption of doli incapax, which will allow the prosecution to argue more easily that kids should be locked up.

We should not be locking kids up at all. It beggars belief that we are once again debating the further criminalisation of children under 14. Not only is that inhumane and not evidence based, but it will also only increase crime long term by introducing children to the criminal justice system and lowering the chances for their rehabilitation. Health representatives including the Public Health Association of Australia, the Royal Australian College of General Practitioners, the Royal Australasian College of Physicians, Women's Health NSW, the Australian Indigenous Doctors' Association and the Australian Medical Association have all called on the Government to raise the age of criminal responsibility to a minimum of 14 years. They point to clear medical evidence that children under 14 years of age are undergoing rapid brain development that means they may not have the required capacity to be criminally responsible. They highlight what we have all heard before, which is that criminalising children from a young age, in their formative development phases, causes immense harm, trauma, mental health problems and poor health outcomes.

As a doctor, I have been responsible for the assessment of young people between the ages of 14 and 16 as to whether they had sufficient maturity to fully understand the nature, complexity, advantages and disadvantages of any medical treatment that they are consenting to. I will explain this in more detail. From the age of 16, young people can provide consent to medical treatment as if they were adults. For those aged between 14 and 16, the assessment as to whether they have sufficient maturity and capacity to provide independent consent is subjective and complicated and requires a level of skill. Children under the age of 14 cannot consent to medical treatment. Antibiotics cannot be provided to a child under the age of 14 without the consent of either a parent or guardian, or going through a legal process to get the consent.

The 10- to 13‑year‑olds being locked up are too young to go on social media or YouTube. They cannot vote, legally gamble, drink alcohol or buy cigarettes. They need permission from their parents to get body piercings or tattoos, and they cannot legally consent to sex. These are children who cannot travel independently, buy knives or even spray paint. They need parental consent to get a passport. They cannot sign binding contracts, get paid an adult wage for work or access Youth Allowance. These are children who cannot control what goes into their My Health Record or control who can have access to that record. They are not able to independently receive a Medicare card or sign up to be an organ donor. It is clear from the medical evidence, from my own experience as a practitioner and from every other law in every portfolio that children under the age of 14 cannot be criminally responsible. They cannot truly understand the long-term nature of a crime they have committed and its impact on people. If they could, we would allow them to consent to being prescribed antibiotics.

It is obscene for these 10- to 13‑year‑olds to be harassed by police, handcuffed, stripsearched, taken to court and locked away in prison cells. Violent actions or behaviour in young children are almost always directly linked to experiences of complex trauma, poverty, neglect and harm, or unaddressed mental or physical health problems. There is so much we could do to actually support children. We know that locking them up is actively harmful. When a child is imprisoned, they are denied the proper access to care, support and education that they need. Those children are disproportionately First Nations children and children with disabilities. They are traumatised and retraumatised and are more likely to come into contact with the criminal system again, throughout their childhood and into adulthood.

We could develop a whole‑of‑government strategy to keep young people out of prison and address the structural drivers of criminalisation. We could invest in and commit to culturally led, trauma-informed diversionary and restorative justice, including specific supports for First Nations-led Justice Reinvestment programs. We could actively support families of young people impacted by the criminal legal system and raise the standards for police and youth detention centres to respect the human rights of children and reduce the harm done to young people in custody. We could meaningfully address poverty, the housing crisis and the cost‑of‑living crisis. But none of that is what we are debating tonight. Instead we are debating a bill that seeks to make it easier for the prosecution to argue that a 10- to 13‑year‑old should be held criminally responsible for an act that they have committed. I repeat that this is actively harmful and not evidence based, and it is inhumane. I understand that key stakeholders oppose the bill, including the Aboriginal Legal Service, the Justice and Equity Centre, the NSW Council for Civil Liberties and others. I also understand that my colleague Ms Sue Higginson will be moving an excellent amendment to the bill, which I look forward to supporting.

The Hon. JOHN RUDDICK (20:14): The Libertarian Party supports the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025. The current law states that someone under the age 16 who has committed a crime cannot be sentenced as an adult but given a lighter sentence because they are deemed a child. A summary of the bill is that it removes the arbitrary threshold that someone who has not celebrated their sixteenth birthday cannot be sentenced the same as someone who is 15 years and 364 days old. The bill gives the presiding judge the power to use their discretion based on circumstances. That is eminently sensible. There is a wide spectrum of time for when kids turn into adults. Some 10-year-olds look like they are 18 and some 18-year-olds look like they are 10. Their mental development also varies, and discretion is necessary.

Let me cut to the chase. The bill is about escalating Aboriginal youth crime. We are told that this crisis is because of racism and colonialism, and I reject that entirely. Young Aboriginals are brought up in a society where they are bombarded from every direction by debilitating, pessimistic messages. That encourages a sense of hopelessness and so—surprise, surprise—there is a crime wave. The left is all but encouraging young Aboriginal Australians to believe the most important thing about them is their family tree, but then they say that they are and always will be victims because of their family tree. That is wrong and destructive. I support the bill, but of far greater importance is the need to end the bombardment of pessimism that young Aboriginals are being taught.

The Hon. RACHEL MERTON (20:16): I make a contribution to debate on the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025. I approach the debate not with ideology but with a deep commitment to the safety of our communities and the accountability of those who harm them. Youth crime is not an abstract policy puzzle; it is a daily terror for families in regional towns like Dubbo and Moree, and in parts of Sydney's suburbs and everywhere in between. The bill introduced by the Minns Labor Government promises reform but delivers a half measure that leaves our streets vulnerable and victims without justice. The Opposition's position, led by my esteemed colleague the Hon. Susan Carter, addresses the age of criminal responsibility. That is not just necessary; it is a moral imperative to restore balance in a system that has swung too far towards protecting offenders over protecting the innocent. That is contained in Opposition amendment No. 1, and I note that further discussion will take place in the Committee stage.

I start with the stark reality facing New South Wales that we have heard about in debate tonight. According to the NSW Bureau of Crime Statistics and Research [BOCSAR] police initiated 4,662 legal proceedings against children aged 10 to 13 in 2023 alone. That is not a footnote; that is what we are experiencing in our communities. Of those, violence accounted for 30 per cent, theft 36 per cent and breaches of bail or justice procedures 10 per cent. And the numbers are climbing. One in seven offenders charged for retail theft is a young person aged 10 to 17. Those are not mischievous pranks; they are acts that shatter lives. They are home invasions that leave families terrified and car thefts that fuel joyrides ending in tragedy.

I spoke about this in Parliament in September last year. Over the past year we have seen a disturbing increase in reports of youth crime across regional New South Wales.

The statistics speak for themselves. According to the latest reports from the Country Women's Association, the incidence of youth crime has spiked in places like Dubbo, Armidale and Tamworth. As a long-time member of the Country Women's Association, I share with the House the level of concern experienced by its members, who are often older Australians in regional towns. They report that they have never experienced that level of concern relating to the scale of local crime and the fear that they have learnt to live with. Many of those senior Australians are implementing their own safety arrangements in their homes. In Dubbo, there are reports of a 10 per cent rise in youth-related offences, break-ins, vehicle theft and property damage. Those crimes are not just statistics or news reports; they represent real harm to local business, families and individuals who rely on the sense of security and community in regional New South Wales.

Recent reports include four boys, one aged 11 and three aged 13, who were charged with aggravated break and enter with intent, use of violence, assault occasioning actual bodily harm, and reckless wounding after an alleged attempted break-in at a home in Moree. We read about these stories on a regular basis. In May this year three teenagers and a 12-year-old girl were arrested after a high-speed chase across Sydney that ended in Campbelltown. South-west Sydney, greater Western Sydney and parts of Sydney are starting to experience some of that youth crime. Last week, a 13-year-old boy from East Maitland, north of Newcastle, was accused of sexually assaulting an elderly woman, and the concern continues. Regional New South Wales bears the brunt, with rates of proceedings more than three times higher than the State average outside major cities. Disadvantage amplifies the chaos.

I commend the contribution to debate by my colleague the Hon. Aileen MacDonald and uphold that early intervention and diversionary programs absolutely play a vital role. I have a longstanding relationship with the Salvation Army and a lot of other charity groups that focus on and prioritise young Australians. I support their ongoing work, and I commend my colleague for her passion and commitment in that space too. Critics will cry that the Opposition's foreshadowed amendments are tough on kids, but we argue that they are tough on crime and compassionate about consequences. Further, they align with the review that took place, which has informed the bill. Victims want answers and a change to the system. For offenders, it is a lifeline. Proving capacity opens doors to therapeutic orders. Jail must not be the only answer.

New South Wales deserves better than a timid tinkering on this matter. The Coalition amendments, which will be moved in Committee, are responsible and considered. They are not about punishment but protection. Many communities feel terrorised by unchecked youth gangs because crimes were committed against them without redress, and those children's futures have been derailed by the system that is in place today. The Opposition stands ready to deliver real reform. I commend the amendments that we will move in Committee to build a safer, fairer New South Wales in communities both rural and regional, and in the Sydney metropolitan area.

The Hon. DANIEL MOOKHEY (Treasurer) (20:23): In reply: I thank members for their contributions to debate, including the Hon. Susan Carter, Ms Sue Higginson, the Hon. Tania Mihailuk, the Hon. Sarah Mitchell, the Hon. Stephen Lawrence, the Hon. Aileen MacDonald, Dr Amanda Cohn, the Hon. John Ruddick and the Hon. Rachel Merton. The bill strikes an important and appropriate balance when codifying the centuries‑old presumption of doli incapax and addresses barriers to diversion by amending the young offenders Acts, which will help to keep kids out of the criminal justice system and set them on the right path. Of the matters addressed in the debate, it is fair to say the Attorney General has provided extensive reply to many of the same issues. I will simply refer members to the Attorney General's remarks in the other place, as many of the specific responses are contained in his address. With that, I commend the bill to the House.

The ASSISTANT PRESIDENT (The Hon. Peter Primrose): The question is that this bill be now read a second time.

Motion agreed to.

In Committee

The CHAIR (The Hon. Rod Roberts): There being no objection, the Committee will deal with the bill as a whole. I have three sheets of amendments, being Opposition amendments on sheet c2025-321D, The Greens amendments on sheet c2025-323B, and The Greens amendments on sheet c2025-318G. I note that The Greens sheet c2025-318G replaces The Greens sheet c2025-318F. To start with, a number of The Greens amendments conflict with Opposition amendment No. 1. I intend to call the Hon. Susan Carter to move Opposition amendment No. 1 first, then I will call upon Ms Higginson to move her amendments. Then I will put the question as we work our way through it.

The Hon. SUSAN CARTER (20:28): I move Opposition amendment No. 1 on sheet c2025-321D:

No. 1Age of criminal responsibility

Pages 3 and 4, Schedule 1[1], line 6 on page 3 to line 2 on page 4. Omit all words on the lines. Insert instead—

(1)A person under 10 years of age is not criminally responsible for an act or omission.

(2)A person under 14 years of age is not criminally responsible for an act or omission, unless it is proved that, at the time of doing the act or making the omission, the person had capacity to know that the person ought not to do the act or make the omission.

I do not need to trouble the Committee extensively on this amendment. It is in relation to matters that were heavily canvassed in the second reading. Essentially, this amendment will insert the Queensland test into the legislation. We think it is a proven and clear test. We think it is a preferable test. I commend the amendment to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (20:28): The Government supports the bill as it is. The Attorney General explained our opposition to the amendments at length in the other place, and I will not rehash the extensive reasons already given. But they fail to address the real and practical problems experienced by police and prosecutors on the ground, would create inconsistency and uncertainty and would quite possibly make things harder for prosecutors and police in our State. Queensland has had a version of the amendments for a long time, and our rates are lower.

Ms SUE HIGGINSON (20:29): The Greens oppose the Opposition's amendments. They are cruel, frankly ridiculous and ill founded. They reflect a voice that has never met the marginalised community they seek to harm further with these amendments. The Liberals and The Nationals are only moving these cruel amendments and perpetuating the war on children because they have no solutions to the actual problems that New South Wales faces—the housing, climate, biodiversity and cost-of-living crises, to name a few. Under the Libs and the Nats, we saw the frontline services that prevent youth crime stripped of funding and support. We saw public education, health, mental health and domestic violence services supports languish. To attempt political pointscoring on this issue is now nothing short of disingenuous. The amendments essentially insert the Queensland test for the rebuttal of the presumption of doli incapax in New South Wales, and we have seen the egregious implications of that in Queensland.

The amendments should remind the Minns Government that it will never beat the Liberals and The Nationals in a race to the bottom on "tough on crime and kids" laws. They will always accuse Labor of being soft on crime or insufficiently cruel to children. If these criticisms exist anyway, why bother giving any credence to their arguments by engaging in their unsubstantiated attacks on vulnerable First Nations children? The only genuine political or, more importantly, moral advantage to be gained from responses to youth crime is to prioritise responses that go towards the causes of youth crime—lack of health and education services, mental health problems, addiction, abuse and trauma. These responses will reduce youth crime. The current approach from both the major parties will not. In the long run it will actually increase crime and criminality in the young people whom Labor is targeting today. I urge members to oppose the cruel and nasty amendments, and I urge the Minns Government—and I will do so on each amendment—to wake up.

The CHAIR (The Hon. Rod Roberts): I now call Ms Sue Higginson to move The Greens amendment No. 1 on sheet c2025-318G.

Ms SUE HIGGINSON (20:32): I move The Greens amendment No. 1 on sheet c2025-318G:

No. 1Age of criminal responsibility

Page 3, Schedule 1[1], proposed section 5(1) and (2), lines 6–10. Omit all words on the lines. Insert instead—

(1)It is conclusively presumed that a child who, at the time of the alleged commission of an offence, is under 14 years of age cannot be guilty of the offence.

(2)It is presumed that a child who, at the time of the alleged commission of an offence, is 14, 15 or 16 years of age cannot be guilty of the offence.

The amendment is doing what a government with courage, moral clarity and genuine concern for communities and addressing crime would be doing—raising the age of criminal responsibility to 14. It amends the Children (Criminal Proceedings) Act to ensure the conclusive presumption that children under 14 cannot be criminally responsible and moves the inconclusive presumption of guilt on the basis of doli incapax to apply to 14-, 15- and 16‑year-olds. In her contribution to the second reading debate my colleague Dr Amanda Cohn said that 14‑year‑olds are banned from social media, cannot work at McDonalds or buy a hamster, but can be thrown in a cold, dark prison by the Minns Government. That is what happens. Children aged 14 and under just cannot do things because they are considered not responsible. You cannot do it. Yet we are here, still criminalising children under 14 years old and passing laws to make it easier for the police to throw them in prison. Children who are under 14 years old are not capable of evil. They are innocent. They cannot form the guilty mind we have constructed over decades and generations as criminal intent. We have constructed and imposed this. This is by our design. We should face the fact that children under 14 years old cannot form the guilty mind necessary to understand that their conduct is seriously wrong. If they are innocent, they cannot be proven guilty.

Two Australian productivity commissioners recently reiterated something that should stop us all in our tracks: Locking up more children actually increases youth crime. It is just the facts. It is what happens. We now know these things. Many years ago we could be forgiven for not properly understanding or being able to analyse the developmental parts of a young mind and how the brain develops, but we now know. The evidence shows us. Yet this Minns Labor Government refuses to accept the reality. Members should think about it. The very thing we are told will protect our communities is actually making them less safe. "Throw the kids in prison. We will reduce crime and make communities safer." It is rubbish. It does not do so. It makes them less safe. According to Raise the Age NSW, the research prepared for Australia's Attorneys-General found three critical facts:

Involvement with the criminal justice system is 'criminogenic' –it causes crime.

Raising the age and providing support that addresses the causes of offending behaviour wouldachieve better outcomes for children and promote community safety.

Investing in more services for children instead of criminal justice approaches ismore cost-effective.

Let us just make it clear in no uncertain terms: Raising the age will make our community safer, not less safe. But tonight members are conveniently putting that to one side. The NSW Bureau of Crime Statistics and Research [BOCSAR] backs this up. In 2023 nearly 80 per cent of cases against children aged 10 to 13 years old resulted in no conviction, with 25 per cent found not guilty and 53 per cent having the charges withdrawn. For this age group, 73.5 per cent of detention episodes were less than 24 hours. We are putting children through trauma for no meaningful outcome. The Children's Court itself stated that most charges against these children should never have been laid in the first place.

I need the House to understand whom we are actually talking about. These are not hardened criminals. These are among the most vulnerable children in our State. BOCSAR's research shows that, of the children aged 10 to 13 years old who appeared in court in 2023, 90.8 per cent had been identified as at risk of significant harm, 68 per cent had been reported at risk of harm 10 or more times, 26.8 per cent had been in out-of-home care, 40.2 per cent had accessed homelessness services, and 64 per cent had been victims of crimes themselves, with half being victims of violence. So let us just lock these poor darn kids up! Let that sink in. These children have been failed by families, systems and communities, and our response is to criminalise them further. Is that what members will do here tonight?

The evidence on brain development is unequivocal. The Australian Medical Association confirms that children aged 10 to 13 have frontal cortexes—which control behaviour, impulses and decision-making—that are still developing; are unlikely to understand the impact of their actions; and cannot comprehend criminal proceedings. The United Nations Committee on the Rights of the Child, drawing on neuroscience, states clearly that children under 14 years old lack the cognitive functions necessary for criminal responsibility. That is why it recommends a minimum age of at least 14 years globally. The global average is 12.1 years. In 2021, 31 countries condemned Australia for our low age of criminal responsibility. We are international outliers, and not in a good way.

I remind this House of the case of R v Harry, decided in the Children's Court. Harry was a 13-year-old who had over 100 interactions with police. He was charged and refused bail. At the hearing, police tried to rebut doli incapax—the presumption that children lack capacity for criminal responsibility. The magistrate found that the prosecution's evidence showed nothing except for Harry's lack of development. The charges were dismissed but, by then, Harry had spent months in custody. The magistrate said something that should haunt this Parliament:

The greater the need for intervention—the less likely there will be intervention.

…

Doli incapax means the greater the background of disadvantage, the less likely a child will be held criminally responsible—or then be rehabilitated through Court intervention … or be diverted from the criminal system

…

Because no matters are proven, the child cannot be subject to Youth Justice supervision …

Let me translate that: The most vulnerable children—the ones who need help most—fall through every gap. They get arrested, are held in cells, go to court and are released with no support. They then reoffend because we never addressed the reasons they were acting out in the first place. Tonight we are perpetuating that cycle of failure and locking in systemic harm and abuse. This is the cruel irony: By trying to hold 10-year-olds criminally responsible, we ensure that they get no help.

We cannot discuss this issue without acknowledging again the devastating impact on Aboriginal and Torres Strait Islander children. The statistics are a national shame, with 41.3 per cent of 10- to 13-year-olds charged in New South Wales being Aboriginal, but with Aboriginal children making up only 6.2 per cent of the population. Children from regional and remote communities are up to three times more likely to have contact with police, courts and custody. In 2024 between 55 per cent and 60 per cent of children in New South Wales youth detention were Aboriginal children.

The Uluru Statement from the Heart tells us clearly that that is not because First Nations children are innately criminal. Those numbers reflect intergenerational trauma, colonisation, systemic racism and dispossession. Every day that we maintain 10 years of age as the minimum, we actively contradict the National Agreement on Closing the Gap, specifically target 11, which aims to reduce Aboriginal youth detention by 30 per cent by 2031. We are going backwards on Closing the Gap with our current approach of criminalising 10‑year‑olds. Now, without The Greens amendment, this law will make it easier to lock up 10- to 14‑year‑old kids.

Even if the Government does not care about the moral arguments, why do they not care about the money? It costs over $3,000 per day to keep a child in custody. That is $1 million per year per kid. It was not advocates or activists but NSW Treasury—under Treasurer Daniel Mookhey—that stated that raising the age of criminal responsibility was likely to have both social and economic benefits. The Treasurer knows that. Why are we spending $1 million a year to make children worse and to harm them more, when we could spend a fraction of that on programs that actually work and could turn the mess around? We know what works; the evidence is clear. The Australian Capital Territory has shown us the way forward. It has raised the age to 14 with a whole-system solution: quick crisis response from experts across health, community services, police and communities; youth services as first responders, instead of cops; and children and families not having to wait for court outcomes before getting the help they are crying out for and need.

The review of doli incapax firstly recommends improved diversion under the Young Offenders Act, removing barriers so that more children can access warnings, cautions and youth justice conferences. Secondly, it recommends a new alternative intervention pathway that is a voluntary scheme, with multidisciplinary assessment of children's needs, tailored support plans addressing root causes, and case management to coordinate services operating independently of criminal proceedings. The bill attempts to make some of those things more accessible, but only on the basis that we criminalise kids between the ages of 10 and 14. It is a joke, it is perverse and it is frankly sinister that the only thing this Government could think to do to provide more access to young offenders programs is to criminalise the kids first. What a bizarre circumstance we find ourselves in. Thirdly, the review recommends therapeutic treatment orders for high-risk cases where voluntary engagement has not worked but the child needs intensive support.

These approaches work because they: one, address trauma, disability, mental health and family dysfunction; two, connect children to education, housing and health services; three, keep children in communities rather than prisons; and four, break cycles of offending rather than entrenching them. Aboriginal community‑controlled organisations must be at the centre of designing and delivering these responses for First Nations children. I want the Premier, the new Leader of the Opposition and all members of this Parliament to think about something. Premier Minns and the Leader of Opposition, Kellie Sloane, both have children who are or who have recently been in their teenage years. They have watched their children grow, struggle, learn and make mistakes. If they think back to when their children were 10 years old, in year 4 at school, they will remember that they still believed in magic, still needed help with their homework and still called out for them in the middle of the night.

I ask them directly: Is there anything in this world that a 10-year-old child could do that would make them believe that child is evil, that they are beyond redemption, and that they should be handcuffed, processed through police cells and locked in a detention centre? Can they imagine their own 10-year-old child—a child still learning to regulate their emotions and still developing their sense of right and wrong—being arrested, held alone in a police cell and appearing before a court? Would they want that to happen, or would they want them to get a comprehensive assessment, therapeutic support, educational help and family services? The children we are talking about—those 2,144 kids aged 10 to 13 who were charged in 2023—are somebody's children. They deserve the same consideration that members would want for their own children. Members' children have extraordinary privilege, but the small number of children the Government is persecuting do not. They have been harmed and failed. In another world or another set of circumstances, members' children could be before the court facing trauma, harm and dispossession at the hands of a different set of political leaders.

I ask every member of this place who has children, grandchildren, nieces and nephews or who represents children in their communities to hold that image in their mind as we present the overwhelming evidence for why New South Wales must raise the age of criminal responsibility from 10 to at least 14. The evidence is overwhelming. Criminalising 10-year-olds increases crime, contradicts brain science, violates international standards, fails Closing the Gap commitments, wastes public money and, most importantly, does not work. We have better alternatives. We know what works. The only question is do we have the courage to do what is right? I commend this amendment to raise the age of criminal responsibility to 14 to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (20:47): The Government supports the bill as it is. Raising the age in New South Wales is not currently on the Government's agenda. The New South Wales Government is currently considering alternative and additional responses needed to ensure community safety, while supporting children aged under 14 who are demonstrating problematic and harmful behaviours so they can be diverted from the criminal justice system, including through record and sustained investment in early intervention, prevention and youth diversion programs. As recently as November, the Government announced more than $23 million in targeted funding focused on breaking the cycle of reoffending amongst young people and preventing at-risk youth from entering the justice system in the first place.

The Hon. SUSAN CARTER (20:47): I respect very much the passion of the mover of this amendment. If it was calling on the Government to actually follow through with more of the recommendations from the doli incapax review with respect to therapeutic interventions, the Opposition would be tempted to support it. If it was calling for actual dollars to be put into diversionary programs, or even an action plan delivered for what was promised in Moree, the Opposition would be tempted to support it. The Opposition agrees entirely that the Parliament cannot just look at youth justice as criminalising; it also has to look at supporting and diverting. The Opposition will not be supporting this amendment because, although the member who moved it quite rightly pointed to the very troubled background of a lot of juvenile offenders and their high needs for support in a variety of ways, that is not what this amendment would achieve.

The age of criminal responsibility was first set at seven and then it was raised to 10. Ms Sue Higginson now asks us to raise that to 14 with a sliding scale up to 16. As I indicated in my contribution to the second reading debate, that looks superficially attractive. The reality is that if the amendment is agreed to, 13‑year‑olds will become very attractive targets for gangs as potential drug mules or other lawbreakers, and that cannot be in their best interests. I also question the assumption that every child who is convicted and found criminally responsible will end up locked in jail for a year. There will be a number of consequences for children who are found criminally responsible. Importantly, there will be a responsibility connected to the behaviour. That might need to be assisted therapeutically or in a range of other ways. My only other observation is that I find it surprising to talk about the doli incapax presumption right up to the age of 16, bearing in mind that the amendment was moved by a party that advocates for 16‑year‑olds to be able to vote.

Ms SUE HIGGINSON (20:50): I contribute again because I have to. I feel compelled. I was not going to, but I am doing the Murphy. I feel very compelled. I am frankly gobsmacked that Opposition members think they are more expert on what raising the age really means than all the experts from relevant systems across the globe. Frankly, it is preposterous. Nobody in their right mind would suggest that raising the age of criminal responsibility means not holding young people responsible for their actions. In fact, raising the age of criminal responsibility imposes a greater burden on the State. It is the circuit breaker we all need.

We need to take the failing criminal responsibility element away from the scenario and place the child in a circumstance where they can be held properly responsible in a context where they understand why they have done what they have done; so they can talk with the experts about what it has meant to have no housing security, to have parents who have been stuck in cycles of violence, to have been subjected to awful cycles of trauma; so that we look at their untreated underlying health conditions and start engaging on a treatment plan; so that we work out how a child can feel that they belong in school, where they are learning, and in the playground with their contemporaries and peers. We are talking about making it easier for the police to throw children into prison, and about not raising the age of criminal responsibility. But we are talking about children. Raising the age of criminal responsibility is a fundamental circuit breaker that changes the direction of the system and will make it start to function in the way that experts have spoken about.

I am reminded of an article in the paper just a few weeks ago. A Scottish criminologist was on Australian soil to look at the Victorian system, where more kids are currently being thrown in prison than ever before. She said, "Yes, you can do this, Australia. You can go down this path and you can fill your jails full of young people. You can keep throwing them in jail, or you can do what we did in Scotland. We took the circuit breaker and we stopped throwing kids in jail. We started to hold kids morally, ethically and properly responsible for what they had been doing. We sat them in big circles. The victims talked to the children. The doctors and surgeons and experts came and talked about what it takes to mend a person that the child may have harmed." We started to talk to the children about how we can address the underlying things that are causing them to behave in ways that inflict what we know as crimes upon others, such as property offences or offences against the person."

If we are not going to engage a circuit breaker but go in the opposite direction and double down on criminalising, then we are absolutely setting everyone and everything up to fail. We are doing it with eyes wide open. In responding for the Government earlier, the Treasurer said, "We are investing a little bit more in some of these things and we are doing some of these diversionary programs and we are doing that." I say to the Government that it is not enough and it is not going to work. The Government cannot just throw crumbs at that part of the system when it is throwing millions and billions each year into criminalising kids, with the objective of locking them up. That is what these laws are doing.

Raising the age of criminal responsibility is what the experts are telling us to do. It is the very circuit breaker that we need. I completely reject the suggestion by Opposition members that they know better than all the experts. At their 2023 meeting, all Attorneys General agreed it was necessary and should be done. For some reason New South Wales has decided not to go down that path. We know some States and Territories have been going down that path and New South Wales pulled out.

The New South Wales Attorney said to me in budget estimates that one of the other States would take the lead on raising the age, and then in came the big law-and-order moral panic of conservative governments—the Northern Territory and then Queensland—all punching down on their most troubled and vulnerable kids. The direction turned because the politics turned. Guess what Labor does whenever there is a big conservative law‑and‑order agenda and moral panic? Labor capitulates. Strangely, Labor seems to out‑trump the conservative forces of politics, and it is disgraceful. I do not know why the New South Wales Labor Government is not leading the way and raising the age. This wealthy State has access to the things that will give these troubled kids what they need, including support, attention and therapy. But no—let's chuck them in jail.

Ms SUE HIGGINSON (20:57): I move The Greens amendment No. 2 on sheet c2025-318G:

No. 2Matters to be considered

Page 3, Schedule 1[1], proposed section 5(5), lines 20–28. Omit all words on the lines. Insert instead—

(5)In determining whether the presumption has been rebutted, a court—

(a)must have regard to the following matters, if known to the court—

(i)the conduct that constitutes the alleged offence,

(ii)the child's intellectual and moral development and education,

(iii)the environment in which the child was raised, and

(b)may have regard to the circumstances surrounding the commission of the alleged offence, if known to the court.

Example of circumstances surrounding commission of alleged offence—

the child taking steps to plan the conduct, including equipping themself for the conduct or to avoid detection

This amendment restructures new section 5 (5) of the Children (Criminal Proceedings) Act 1987 and goes some way to ensuring the bill aligns with the common-law presumption which the Government's own independent review told it to codify without watering down. The High Court has made it clear that the circumstances surrounding the commission of an alleged offence are not enough to prove that a child knows their conduct is seriously wrong.

The rebuttal of doli incapax cannot be substantiated merely by the fact that an alleged offence occurred in certain circumstances. In a number of cases the guilty act and the circumstances surrounding it are never in dispute. What is disputed is what the circumstances themselves can lead to. InRP v The Queen, the judgement was quite explicit in stating:

No matter how obviously wrong the act or acts constituting the offence may be, the presumption—

that a child is doli incapax—

cannot be rebutted merely as an inference from the doing of that act or those acts. …

The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised.

The judgment is clear that the acts themselves cannot be used to rebut the presumption of doli incapax as set out in this legislation and that the prosecution must point to evidence about the child's development. This approach is consistent with the fundamental principles that underpin our criminal justice system and which safeguard against gross and harmful injustices being perpetrated against our most vulnerable children. The judgement instructs us to look beyond what the child did and towards who the child is. The judgement makes clear that those children are not responsible for falling victim to the factors motivating criminal behaviour and that the Government is responsible for protecting children from falling victim to those factors. Justice Gageler's concurring judgement is even more explicit. He said that evidence of the development or disposition of the child is needed. We need evidence about the child, not evidence of the act. The plurality judgement emphasised that this was about the principle and not just one case when it stated:

No matter how obviously wrong the act or acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act or those acts.

That is categorical language. It does not matter how horrific the act appears. Horrific acts come from children in horrific circumstances. The Aboriginal Legal Service explains the rationale clearly in its submission to the doli incapax review, which said:

Most children aged 10-13 who are charged with criminal offences are, in fact,doli incapax – they have not yet reached a stage of neurodevelopment, nor developed the social, emotional and intellectual maturity necessary to form criminal intent and to be liable for criminal responsibility.

The Government knows that a child can commit an objectively terrible act without fully understanding that it is seriously morally wrong, and the Government is attempting to make legislation about that tonight. So why muddy the waters with mandatory considerations? A child may be doli incapax for a number of reasons, including brain development. Australians for Native Title and Reconciliation emphasised:

Research by the Australian Medical Association indicates that the maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 14 years of age, due to their frontal cortex (the part of the brain that controls behaviours) still developing.

I turn now to the trauma and disadvantage of children in the criminal justice system. Child protection reports identified that for children in the criminal justice system, 90.8 per cent were at significant risk of harm, 68 per cent had been the subject of 10 or more reports, 26.8 per cent had been in out-of-home care, 40.2 per cent had accessed homelessness services and 72.2 per cent had been recorded as victims of prior crime.

In RP v The Queen, the High Court distinguished between a child knowing an act is naughty or will get them in trouble and understanding it is seriously wrong in a moral sense. A child can know that stealing a car is bad and will make police angry without understanding the serious moral dimensions of theft, property rights and harm to others. By failing to support the amendment and making the circumstances a mandatory consideration, we risk police conflating the serious nature of criminal circumstances with a misguided assumption that a child understands the serious nature of those circumstances.

A child stealing a car and driving it around dangerously may have significantly serious ramifications for safety. It can be falsely argued, because of those serious ramifications, that the child understood stealing the car to be seriously wrong, even though they plainly did not. If a child violently assaults somebody, the child may not understand that the violence is seriously wrong even though the violence itself is serious. That violence may have often been done to the child in the past by parents or other children. If violence was not done to them then they may have witnessed it over and over again. I know that members of Parliament and the Attorney General agree that that conflation should be avoided. The Government can explicitly acknowledge that agreement by supporting this amendment.

The case law following RP supports the assumption that circumstances are not determinative in and of themselves. Courts have made clear that evidence of deception, lying or flight is not in any way an admission that a child knows and understands that their behaviour is seriously wrong. Precedent has also been set that a child's acknowledgement that an act was seriously wrong is not enough to demonstrate they had true understanding that an act was seriously wrong at the time they committed an offence. Children are under extreme distress in court proceedings. What a child admits to police cannot seriously be taken to reflect their psychological understanding at the time. A child may say, under duress from parents, that failing to eat their greens at dinner or stealing a toy from their sibling is behaviour that is seriously wrong. Nothing supports the assumption that a simple admission would allow courts to determine that children meet the very high standard of doli incapax.

In assessing a child's capacity for true criminal intent, the fact that the act occurred, in and of itself, is not relevant. The act is only relevant insofar as the elements and circumstances may prove beyond all doubt that a child truly understands that their criminal behaviour is seriously wrong. The bill should reflect that presumption. Therefore, this Committee should reflect the common law and support this very simple but very sensible amendment.

The Hon. DANIEL MOOKHEY (Treasurer) (21:05): The Government supports the bill as it is. If adopted, the amendment would mean that new section 5 (5) would not meet its intended outcome, which is to put beyond doubt that the court must consider the circumstances of the offending when determining whether the presumption has been rebutted. Section 5 (5) as currently drafted is a direct response to stakeholder feedback to the doli review that the High Court's decision in RP is sometimes used in legal proceedings to exclude the circumstances surrounding the offending as a relevant consideration in the presumption. The doli review found that approach is incorrect and must be changed.

The Hon. SUSAN CARTER (21:05): The amendment stands in direct conflict with the Opposition's amendments. We prefer our approach.

Ms SUE HIGGINSON (21:06): I move The Greens amendment No. 3 on sheet c2025-318G:

No. 3Example of circumstances

Page 3, Schedule 1[1], proposed section 5(5)(b), example, lines 24–26. Omit all words on the lines.

The amendment removes the example of circumstances included in the bill. That example is unnecessary and creates confusion in the view of many stakeholders, including the New South Wales Bar Association. By including the example, the Government is confusingly drawing attention to specific circumstances that must be considered, despite the common law presumption being almost entirely codified by the bill and despite the express intention of the Government that no one act or omission is proof of an understanding that an act was seriously wrong in the mind of a child. The court has made clear—and even the Government would concede—that just because a child takes steps to plan the conduct, including equipping themselves for the conduct or taking steps to avoid detection, it does not mean they have an understanding that their behaviour was seriously wrong beyond all doubt, as the law intends.

For example, a child may watch a television show where a bad guy takes steps to plan a violent assault and then emulate that behaviour in real life. The example instructs the court to consider the steps the child has taken but, when the court considers that hypothetical case in actuality, it would find that the child did not seriously understand the ramifications of an assault on a victim simply because they believed it to be in keeping with a moral code set out by a television show. In that case, the court has wasted everyone's time by following the instruction of the example, and that has meant a child spent more time in traumatising legal proceedings because of a badly drafted law.

There are many established cases where a child may wish to avoid detection of conduct that, in their minds, is mischievous and naughty but not seriously wrong. Children conceal things from parents, teachers, carers and authority figures all the time. Therefore, taking steps to avoid detection can never, in and of itself, be evidence that a child fully understands the ramifications of serious wrongdoing. In RP v The Queen, which dealt with a serious case of child sexual assault, the judgement stated:

It is common enough for children to engage in forms of sexual play and to endeavour to keep it secret, since even very young children may appreciate that it is naughty to engage in such play. The appellant's conduct … does not carry with it a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from it being rude or naughty.

It is abundantly clear that these examples are not meant to be definitive. Therefore they do not need to be prescriptive. Today we can take a simple step in this Parliament to clarify a very important law by supporting this amendment to remove an odd example with little legal consequence. This amendment has the support of the New South Wales Bar Association and the Aboriginal Legal Service. These are the people using these laws on the front line, working with judicial officers across New South Wales to do their very best to hold children responsible for the acts that they engage in. I commend this amendment to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (21:09): The Government supports the bill as it is. We think the inclusion of the example currently provided in the bill is helpful to show what the circumstances surrounding the commission of an alleged offence may be. Of course, the example in the bill is illustrative only.

Ms SUE HIGGINSON (21:10): I move The Greens amendment No. 4 on sheet c2025-318G:

No. 4Rebuttal of presumption

Page 3, Schedule 1[1], proposed section 5(7), lines 30–38. Omit all words on the lines.

This amendment is very important.

The Hon. Wes Fang: More than the others?

Ms SUE HIGGINSON: They are all important, but this amendment is the most important. It is about the removal of proposed new section 5 (7), referred to as the "little poison pill". This subsection waters down the common law presumption, which plainly contradicts the Government's own independent review and which will result in more kids being cruelly prosecuted, locked up, traumatised, dispossessed and harmed. When I asked the Attorney General whether the Government's review suggested this provision, he said, "No, the review did not suggest this one." The Attorney General and the Premier think this provision will result in the successful incarceration of more young people.

Let us remember what the Premier said in budget estimates about the changes he has made to bail laws. When questioned about whether these laws will result in more First Nations kids behind bars, he said, "Yes, they will," and that is what this bill will do. It is the deliberate, designed intention of Premier Chris Minns to lock up more First Nations kids. In no uncertain terms, that is what the provision in new section 5 (7) will do. Both Michael Daley and Chris Minns could not help but include this subsection. They do not have one shred of evidence for it. The Government's own review told them not to do it. There is no reason to do this other than what appears to be their fixation on causing more harm to children in New South Wales.

The Government can wheel out any justification it likes for causing harm to children, but they all fall flat because there is simply no justification for this subsection. Proposed new section 5 (7) significantly departs from the common law. It allows the prosecution to argue that a court may determine that the presumption has been rebutted based on evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence, and the determination may be made without or despite other evidence of the child's intellectual and moral development, if the court is satisfied that the evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence are sufficient to satisfy the requirement set out in new section 5 (3).

I cannot conceive of a scenario where a child with intellectual or moral developmental impairment could commit a criminal offence with the knowledge that the offence is seriously wrong, as set out in new section 5 (3) of the bill. Therefore this new subsection is, at best, unnecessary and confusing and, at worst, a sinister attempt to lock up more children with moral or intellectual impairment. We all know who these impacts will fall on most significantly: First Nations children. This new subsection will be used to continue the dispossession, racism and, ultimately, genocide of the First People of this beautiful country.

Surely, proving that a child has knowledge that their conduct is seriously wrong in a moral sense requires consideration of their intellectual and moral development, their education and their upbringing. It is true, in a scientific sense, that those factors directly impact a child's moral understanding of right versus wrong. Why does the Minns Labor Government want to deny the science? The Government's own independent review had explicit guidance on this issue. It states:

No matter how obviously and objectively 'wrong' the act(s) constituting the offence may be, the plurality in RP made it clear that the presumption that a child is doli incapax cannot be rebutted merely by inferences drawn from the doing of such act(s).

The prosecution must point to evidence from which an inference can be drawn, beyond reasonable doubt, that the child's development is such that they knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised, as well as evidence of the development or disposition of the child.

Why does the Government want to contradict its own expert review? Why does this Government want to contradict common law, the advice of experts and the guidance of international law? There is no genuine justification for this provision in the bill. It could only be motivated by a genuine determination on the part of the Minns Labor Government to cause more harm to children, in the name of a confected notion of some form of political gain. To say that those Labor leaders are pathetic in this circumstance is an understatement. I simply fail to understand why Labor members want to be in power if they cannot use that power to defeat terrible legislative changes, like this bill, that impact on the most vulnerable First Nations children in our State.

If we remove this provision in the bill, in the view of The Greens, the entire bill will represent an encouraging, evidenced step forward on youth justice. Without our amendment, this bill represents another significant step backwards. What will be the legacy of this Labor Premier? He has not solved the housing crisis, the climate crisis or the biodiversity crisis. He has only succeeded in beating the Liberals and The Nationals in a race to the bottom as to who can cause the most harm to vulnerable children. Unless his party supports this amendment to the bill, we will be left with the legacy of a Premier who caused harm to vulnerable kids. On 20 November the New South Wales Bar Association put out the following media release:

The NSW Bar Association is concerned that legislative reforms proposed by the NSW Government will undermine the presumption of doli incapax, which is a critical legal protection for children between 10 and 14 years of age.

Despite claims to the contrary, the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Bill 2025 does not codify the common law with respect to doli incapax.

The statement goes on to explain how that is the case, and then it makes reference to the amendment I have just moved. Removing new section 5 (7) in schedule 1 to the bill is a recommended amendment to the bill from the Bar Association:

By allowing a court to determine that the presumption has been rebutted based on the evidence of the alleged conduct and the surrounding circumstances alone, without or despite evidence of the child's intellectual or moral development, the Bill is inconsistent—

with RP v The Queen [2016] HCA 53. New section 5 (7) may also undermine the onus being placed upon the prosecution to adduce evidence to rebut the presumption to the criminal standard of beyond reasonable doubt. Under new section 5 (7), the prosecution might choose only to adduce evidence of the alleged conduct and the circumstances of the alleged offending, placing a potential evidentiary burden on the child to adduce other evidence concerning the matters in new section 5 (5) (c) and (d). Those circumstances would undermine a child's right to silence and would be unfair and unworkable. It is frankly gross that the Government inserted that part into the bill. It was not in the review recommendations. It is contrary to the promise that the Government made, which was that doli incapax would be codified.

Government members maintain that falsehood. The extraction of that provision from the bill is precisely needs to be done, according to the experts, including the Aboriginal Legal Service, the Bar Association and everybody else who has bothered to properly engage with what is happening here. I implore every member of the House, including Opposition members, to support this amendment. I ask the Treasurer to not say that the Government supports the bill unamended. I ask him, having listened to the arguments and to the experts, to do the right thing by his Government. I ask him to save his Premier and his Attorney General from themselves.

The Hon. DANIEL MOOKHEY (Treasurer) (21:20): I thank the Ms Sue Higginson for her exhortation. I have an ear infection in my right ear, so I was listening through my left ear, but it was a bit muffled from my perspective. Nevertheless, I am sorry to disappoint the member by saying that the Government supports the bill as it is. The bill implements the recommendations of the doli incapax review to introduce a non-exhaustive list of statutory considerations for determining whether the presumption has been rebutted, including the circumstances surrounding the commission of the offence. The review identified that this reform is needed to address current issues, including what appear to be misunderstandings about the nature of the evidentiary focus and a perceived lack of guidance from the authorities about what matters are relevant to rebutting the presumption.

The bill implements the review recommendation in the strongest way, making consideration of those matters mandatory for courts. Specifically, new section 5 (5) provides that, if it is known to the court, the court must consider the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence. The court must also consider the child's intellectual and moral development and education, and the environment in which the child was raised. The purpose of that change is to enhance the operation and ensure the consistent application of doli incapax in New South Wales, including by better supporting police and prosecutors in their investigations and their court appearances.

The CHAIR (The Hon. Rod Roberts): I intend to put the question on the Opposition amendment first. If the Opposition amendment is successful then The Greens amendments Nos 1 to 4 on sheet c2025-318G will lapse. The Hon. Susan Carter has moved Opposition amendment No. 1 on sheet c2025-321D. The question is that the amendment be agreed to.

The Committee divided.

Ayes14

Noes23

Majority9

AYES

Carter

Maclaren-Jones

Rath (teller)

Fang (teller)

Merton

Ruddick

Farlow

Mitchell

Tudehope

Franklin

Munro

Ward

MacDonald

Overall

NOES

Banasiak

Faehrmann

Mookhey

Borsak

Graham

Moriarty

Boyd

Higginson (teller)

Murphy

Buckingham

Hurst

Nanva (teller)

Buttigieg

Jackson

Primrose

Cohn

Kaine

Sharpe

D'Adam

Latham

Suvaal

Donnelly

Lawrence

PAIRS

Barrett

Houssos

Amendment negatived.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendment No. 1 on sheet c2025‑318G be agreed to. Is leave granted to ring the bells for one minute?

Leave granted.

The Committee divided.

Ayes6

Noes31

Majority25

AYES

Boyd

Cohn (teller)

Higginson (teller)

Buckingham

Faehrmann

Hurst

NOES

Banasiak

Kaine

Murphy

Borsak

Latham

Nanva (teller)

Buttigieg

Lawrence

Overall

Carter

MacDonald

Primrose

D'Adam

Maclaren-Jones

Rath (teller)

Donnelly

Merton

Ruddick

Fang

Mitchell

Sharpe

Farlow

Mookhey

Suvaal

Franklin

Moriarty

Tudehope

Graham

Munro

Ward

Jackson

Amendment negatived.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendment No. 2 on sheet c2025‑318G be agreed to. Is leave granted to ring the bells for one minute?

Leave granted.

The Committee divided.

Ayes6

Noes31

Majority25

AYES

Boyd

Cohn (teller)

Higginson (teller)

Buckingham

Faehrmann

Hurst

NOES

Banasiak

Kaine

Murphy

Borsak

Latham

Nanva (teller)

Buttigieg

Lawrence

Overall

Carter

MacDonald

Primrose

D'Adam

Maclaren-Jones

Rath (teller)

Donnelly

Merton

Ruddick

Fang

Mitchell

Sharpe

Farlow

Mookhey

Suvaal

Franklin

Moriarty

Tudehope

Graham

Munro

Ward

Jackson

Amendment negatived.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendment No. 3 on sheet c2025-318G be agreed to. Is leave granted to ring the bells for one minute?

Leave granted.

The Committee divided.

Ayes6

Noes31

Majority25

AYES

Boyd

Cohn (teller)

Higginson (teller)

Buckingham

Faehrmann

Hurst

NOES

Banasiak

Kaine

Murphy

Borsak

Latham

Nanva (teller)

Buttigieg

Lawrence

Overall

Carter

MacDonald

Primrose

D'Adam

Maclaren-Jones

Rath (teller)

Donnelly

Merton

Ruddick

Fang

Mitchell

Sharpe

Farlow

Mookhey

Suvaal

Franklin

Moriarty

Tudehope

Graham

Munro

Ward

Jackson

Amendment negatived.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendment No. 4 on sheet c2025-318G be agreed to. Is leave granted to ring the bells for one minute?

Leave granted.

The Committee divided.

Ayes6

Noes31

Majority25

AYES

Boyd

Cohn (teller)

Higginson (teller)

Buckingham

Faehrmann

Hurst

NOES

Banasiak

Kaine

Murphy

Borsak

Latham

Nanva (teller)

Buttigieg

Lawrence

Overall

Carter

MacDonald

Primrose

D'Adam

Maclaren-Jones

Rath (teller)

Donnelly

Merton

Ruddick

Fang

Mitchell

Sharpe

Farlow

Mookhey

Suvaal

Franklin

Moriarty

Tudehope

Graham

Munro

Ward

Jackson

Amendment negatived.

Ms SUE HIGGINSON (21:42): I move The Greens amendment No. 1 on sheet c2025-323B:

No. 1Children's Criminal Proceedings

Page 4, Schedule 1. Insert after line 2—

[1A]Sections 53–55

Insert after section 52—

53Matters to which prosecution must have regard

(1)Before deciding to commence a proceeding for an offence allegedly committed by a child at 10, 11, 12 or 13 years of age, the prosecution must have regard to whether it appears that there is admissible evidence to prove beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child's conduct was seriously wrong, having regard to section 5(4).

(2)For subsection (1), as far as practicable, the prosecution must consider the following—

(a)information available to the prosecution about the child's age, maturity and stage of development,

(b)information available to the prosecution about whether the child has a disability or mental illness,

(c)previous decisions by a court or any person about whether the child could be held criminally responsible for any other conduct,

(d)other matters relevant to the criminal responsibility of the child or the circumstances of the alleged offending.

(3)If the prosecution decides to commence a proceeding for the alleged offence, the prosecution must record—

(a)the reasons why it appears that there is admissible evidence to prove beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child's conduct was seriously wrong, having regard to section 5(4), and

(b)information, evidence or other matters referred to in subsection (2) that were considered by the prosecution, and

(c)other prescribed information.

(4)A record under subsection (3)—

(a)must be in the prescribed form, and

(b)must be filed in the court at the commencement of the proceedings.

54Review of charge against child who allegedly committed offence at 10, 11, 12 or 13 years of age

(1)If a summary proceeding is commenced in the Children's Court against a child for the alleged commission of an indictable offence at 10, 11, 12 or 13 years of age, the prosecutor must review the charge against the child in accordance with this section.

(2)Subsection (1) does not apply to a charge for an offence being prosecuted by the Director of Public Prosecutions.

(3)The prosecutor, having regard to the preliminary brief or the full brief for the charge, as the case requires, must consider whether it appears at the time of the review that there is—

(a)sufficient admissible evidence to prove beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child's conduct was seriously wrong, having regard to section 5(4), and

(b)sufficient admissible evidence to prove beyond reasonable doubt each element of the alleged offence, and

(c)a reasonable prospect of the child being found guilty of the alleged offence.

(4)The prosecutor must complete the review as soon as possible after the date of commencement of the proceedings and, if practicable, not later than 21 working days after that date.

(5)If it appears to the prosecutor at the time of the review that the matters described in subsection (3) are not satisfied, the prosecutor, as soon as possible after the completion of the review, must consider whether it would be appropriate to withdraw the charge against the child for the alleged offence.

(6)To avoid doubt, if a summary proceeding is commenced against a child for the alleged commission of more than one offence, nothing in this section requires the prosecutor to—

(a)review a charge against the child for the alleged commission of an offence at 14 years of age or older, or

(b)consider the withdrawal of a charge against the child for the alleged commission of an offence at 10, 11, 12 or 13 years of age if it appears to the prosecutor that the matters described in subsection (3) are satisfied for the charge.

55Notice of completion of review of charge

On completing a review of a charge against a child in accordance with section 54, the prosecutor reviewing the charge must take reasonable steps to give the child or the child's legal representative written notice—

(a)that the prosecutor has completed the review, and

(b)of whether the prosecutor is satisfied of the matters referred to in section 5(4).

The amendment shows the Government what genuine vision for youth justice reform could look like. It seeks to replicate certain sections of the Victorian Youth Justice Act passed last year by a Labor government by inserting similar provisions into New South Wales legislation. The amendment also gives legislative effect to recommendation 1 of the Government's independent review, which recommends greater training and guidance for police in determining doli incapax. Thanks to lack of training and leadership, the NSW Police Force is catastrophically failing to understand doli incapax when recommending prosecution for children under the age of 14. As a Parliament, we must understand that to drag a child in year 4 or 5 at primary school through draconian, cruel and scary court processes for absolutely no reason is a grave injustice in and of itself. Without this amendment, police will continue to misapply the law. The amendment instructs prosecutors to consider whether there is admissible evidence to prove, beyond reasonable doubt, that a child knew that their conduct at the time of the offence was seriously wrong.

The High Court, experts, the independent review and now the Government have all made clear that there is only a tiny number of cases where children aged 10, 11, 12 or 13 years old can be proven, beyond reasonable doubt, to have an understanding of the seriously wrong nature of any action they take. Nevertheless, prosecutors have commenced hundreds of proceedings against vulnerable children, with extremely low levels of success. Many of the cases brought are so clearly concerning children with irrefutable presumptions of doli incapax that it suggests prosecutors may be doing it simply to make a point. This amendment instructs prosecutors to consider what they are doing before they cause this level of harm to children. The amendment also applies to reviews of charges against children. The intention of these amendments earned the support of the Victorian Labor Government. The New South Wales Minns Labor Government has a chance to do the same thing as its Victorian colleague by supporting these amendments here today. I commend the amendment to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (21:46): The Government supports the bill as it is because the amendment would have the effect of requiring the prosecution to consider whether there is evidence to rebut doli incapax before commencing proceedings against a child to whom the presumption applies. In considering current issues with the operation of doli incapax, the doli incapax reviewers specifically considered the stage at which doli incapax is considered in criminal proceedings. They were alive to stakeholders' feedback about the instances where doli incapax is considered at later stages in the process and the issues that may result. After careful consideration of the issues, they did not recommend legislation of this kind. Instead, the reviewers made other comprehensive recommendations, which are specifically designed to improve the operation of doli incapax in practice and improve more broadly the criminal justice response to children aged 10 to 13 years.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendment No. 1 on sheet c2025-323B be agreed to.

Amendment negatived.

Ms SUE HIGGINSON (21:47): By leave: I move The Greens amendments Nos 5, 7 and 13 on sheet c2025-318G in globo:

No. 5Offences covered by Act

Page 6, Schedule 2[8], lines 15–23. Omit all words on the lines.

No. 7Offences for which warnings may be given

Page 7, Schedule 2[11], lines 23–25. Omit all words on the lines.

No. 13Referrals for conferences by DPP and courts

Page 8, Schedule 2[28], lines 32–37. Omit all words on the lines.

These amendments remove item [8] of schedule 2 to bill, along with items [11] and [28], which have notes that contain a similar direction to item [8]. These amendments seek to remove the explicit reference to certain acts pertaining to the Crimes (Domestic and Personal Violence) Act 2007. It simply does not make sense to exempt certain offences from the Young Offenders Act or to water down the ability for a child to be diverted from the criminal justice system simply because of the nature of a particular offence. Courts, prosecutors and investigating officials have the discretion to divert children in almost any other case, and this discretion should be offered to vulnerable children, without exception.

In specific relation to a child who contravenes an apprehended violence order, police need the discretion to determine whether it is appropriate to divert a child rather than to advance more punitive measures, such as court proceedings. The entire principle—that diversion is preferable to prosecution—is based on the presumption that children cannot form the guilty mind that instructs them that their behaviour is seriously wrong. To act as though that presumption simply evaporates in the case of domestic or personal violence is simply disingenuous. The definition of personal violence is incredibly broad. It can encompass damaging property, and we know that police use the broad nature of that law to justify bringing cases against children. A significant number of children who are subject to apprehended violence orders have had them taken out by carers due to interactions in the out‑of‑home care system. Children in the out-of-home care system are the most vulnerable, and it makes no sense to impose a more punitive response upon those children than upon others.

A child who has committed an act of domestic or personal violence has almost always had domestic or personal violence modelled to them by their father or another family member. Children replicate what their parents do and, in an epidemic of violence against women and family violence, it would be ignorant to suggest that children do not see their parents modelling heinous acts of violence against women. In many cases, the victims of domestic violence—usually the mothers of those vulnerable children—go in search of services and are turned away. They seek police intervention and are turned away, at best—sometimes they are wrongly accused—and they then go to the Government for support and are turned away also.

If a child as young as 10 is engaging in domestic violence because they have been trapped in a cycle of domestic violence at the hands of their violent father—a cycle that the mother has tried to escape—should the child bear the brunt of criminal responsibility for being a part of that cycle? Or should this Government, led by a Labor Premier who has refused to fund frontline domestic violence support services, shoulder some of the responsibility and implement a serious response to root out violence against women?

Victims of domestic and family violence come in many forms, and children who are victims are disproportionately likely to engage in violent acts themselves. Instead of punishing the victims, we should be preventing the perpetrators from acting. This amendment does not substantially change the way in which the youth justice system works. It seeks simply to rectify odd exemptions and contradictions in the bill that have no basis other than what seems like some kind of political motivation and outcome for the Minns Labor Government, which has chosen a law and order agenda that is convenient to speak about on 2GB. I commend the amendments to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (21:51): The Government supports the bill as it is.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendments Nos 5, 7 and 13 on sheet c2025-318G be agreed to.

Amendments negatived.

Ms SUE HIGGINSON (21:52): I move The Greens amendment No. 6 on sheet c2025-318G:

No. 6Verbal non-denial statements

Page 6, Schedule 2[9], proposed section 10(4), line 40. Omit "must, if practicable". Insert instead "may".

This amendment makes a minor change to schedule 2 [9] to permit oral non-denial statements to be made in court in order to empower a court to divert pursuant to sections 31 and 40. As it currently stands, children are able to make admissions in court rather than guilty pleas. Guilty pleas are admissible in subsequent proceedings and can therefore have severe ramifications for children moving through the criminal justice system. A child as young as 10 has a brain that is still developing and a prefrontal cortex that will not mature for years. For them to formally admit to complex legal concepts that they cannot possibly comprehend is a step too far. We are asking a child who can barely read and has been failed by every system meant to protect them to sign a document admitting that they dishonestly appropriated property without consent. It is kind of absurd.

Neuroscience tells us that children under 14 lack the cognitive capacity for abstract reasoning. The United Nations Committee on the Rights of the Child recognises that they cannot understand the impact of their actions or comprehend criminal proceedings. Right now 74.8 per cent of 10-year-olds get diverted. By age 14, that drops to 51.4 per cent. Why? Because as the children get older, they get legal advice. That advice is "Don't admit to anything. The prosecution probably can't prove doli incapax anyway." What happens? Some 80 per cent of those children go through court for no meaningful outcome. Charges get withdrawn, the child gets no intervention, the victim gets no acknowledgement and the community gets no safety. Meanwhile, the children, 90 per cent of whom have been reported at risk of significant harm and 72 per cent of whom are themselves victims of crime, get churned through the courts and the cells with no support to address why they offended in the first place.

An oral "I don't deny it" is developmentally appropriate. It acknowledges involvement without requiring comprehension of every technical legal element. It is more trauma informed. Children communicate orally, not through written legal documents. It is also considerate of the culture of First Nations children, who are disproportionately subject to horrific court proceedings. Oral traditions are central to First Nations culture. Oral acknowledgements align with Aboriginal concepts of accountability and restoration. Written legal documents are alienating and culturally inappropriate. It is a simple change that the Parliament can make so the aims of the reforms can be better realised. I commend the amendment to the Committee.

The Hon. DANIEL MOOKHEY (Treasurer) (21:55): The Government supports the bill as it is.

The CHAIR (The Hon. Rod Roberts): Ms Sue Higginson has moved The Greens amendment No. 6 on sheet c2025‑318G. The question is that the amendment be agreed to.

Amendment negatived.

Ms SUE HIGGINSON (21:55): By leave: I move The Greens amendments Nos 8 to 12, 14 and 15 on sheet c2025-318G in globo:

No. 8Entitlement to be dealt with by caution

Page 7, Schedule 2[13], line 30. Omit all words on the line. Insert instead—

Omit section 20(7).

No. 9No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 7, Schedule 2[15], lines 34 and 35. Omit all words on the lines.

No. 10No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 8, Schedule 2[18], lines 7 and 8. Omit all words on the lines.

No. 11No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 8, Schedule 2[22], lines 19 and 20. Omit all words on the lines.

No. 12No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 8, Schedule 2[25], lines 25 and 26. Omit all words on the lines.

No. 14No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 9, Schedule 2[29], lines 1 and 2. Omit all words on the lines.

No. 15No caution if dealt with, referred for or given a caution on 3 or more occasions within the previous 3 years.

Page 9, Schedule 2[33], lines 24 and 25. Omit all words on the lines.

These amendments remove section 20 (7) of the Young Offenders Act, which allows children to be denied the chance to be dealt with via caution at the behest of police officers and others after they have been cautioned more than three times. The removal will render the three-year limit on cautions obsolete, given it restores unlimited discretion to police and courts. If a child is still offending after three cautions, it is proof that criminalisation is not working and that more targeted diversion and focused rehabilitation is what the child needs. Moving to punitive responses that increase the risk of recidivism makes no sense and is entirely counterproductive.

Children getting more than three cautions are the most vulnerable and the most failed children in our entire community. They are the kids cycling in and out of out-of-home care with no stable adult in their lives. They are the kids with undiagnosed cognitive impairment and untreated trauma. Those children need more intervention, not less. They need more support, not criminal prosecution. Yet the current provision means that, after three cautions or three attempts to divert and support, we throw up our hands and say, "Off to court with you." The devastating irony for 10‑ to 13‑year‑olds is that going to court can often mean nothing happens. The prosecution cannot rebut doli incapax, the charges get withdrawn, the child has been through the traumatising court process—the bail conditions, the appearances, the detention—for absolutely no constructive outcome whatsoever.

There is no accountability, no support plan and no intervention to address the child's underlying needs. Cautions are an invitation for a child to chart and start on a different path. It is an invitation that gets more imperative as the child continues to offend, not less. In its submission to the independent review of the operation of doli incapax in New South Wales for children under 14, the Children's Court stated that it supported removing the limit because "lawyers will advise children to attend court if diversionary options are finite and the alternative is likely an acquittal". When the very court that deals with these children every day is telling the Parliament that the cap is counterproductive, we need to think seriously about amendments to rectify those oversights.

The limits are arbitrary, they remove discretion and they are counterproductive. The three-caution limit is not protecting communities. It is not delivering accountability and it is pushing our most vulnerable children—who need help, not criminalisation—into a court system that will churn them through and spit them out with no support whatsoever. Remove the limit. Let police and courts exercise discretion based on the individual child, the specific circumstances and what will actually address their offending. I ask the Committee to vote for the amendments.

The Hon. DANIEL MOOKHEY (Treasurer) (21:59): I am indebted to Ms Sue Higginson for moving the amendments in globo. Nevertheless, the Government supports the bill as it currently is.

The CHAIR (The Hon. Rod Roberts): The question is that The Greens amendments Nos 8 to 12, 14 and 15 on sheet c2025-318G be agreed to.

Amendments negatived.

Ms SUE HIGGINSON (21:59): By leave: I move The Greens amendments Nos 16 and 17 on sheet c2025-318G in globo:

No. 16Non-denial statements inadmissible

Page 10, Schedule 2[39], proposed section 67A, line 23. Omit "certain".

No. 17Non-denial statements inadmissible

Page 10, Schedule 2[39], proposed section 67A(1), lines 24–28. Omit all words on the lines. Insert instead—

(1)This section applies if an investigating official believes the child could be dealt with by way of a caution or conference for the offence if the child makes a non-denial statement.

The Government's bill states that protections apply to only certain non-denial statements, and subsection (1) (a) tells us that statements made willingly or promptly do not get protection. Let me be clear about what that means. A child who cooperates immediately, is honest and does not try to evade or delay loses protection. But a child who hesitates, is evasive and makes the officer work for it does get protection. We are literally punishing children for being cooperative. We are incentivising them to be difficult and evasive. That is perverse, counterproductive and defeats the entire purpose of the reform.

The purpose of section 67A is to encourage non-denial statements by protecting children from having those statements used against them. If we only protect some statements—if we punish honesty—we discourage the very behaviour we are trying to encourage. Sections 66 and 67 of the Act already protect all statements made during cautions and conferences. Why should section 67A be different? Why should non-denial statements get less protection? The Government says guilty pleas need to be carved out. Fine—that is already done in subsection (5) (b). We do not need additional exclusions. We do not need to punish cooperative children. The amendments remove the word "certain" from the section heading and delete subsection (1) (a) entirely. Every child making a non-denial statement should get the same protection, regardless of how quickly or willingly—

The CHAIR (The Hon. Rod Roberts): Order! According to standing order, it being 10.00 p.m., I shall now leave the chair and report progress.

The DEPUTY PRESIDENT (The Hon. Dr Sarah Kaine): The Committee reports progress. Further consideration of business before the Committee is set down as an order of the day for the next sitting day. According to standing order, proceedings are interrupted.