NSW criminal responsibility: the age rules and what to check next
Start with the child’s age at the alleged offence, then check when proceedings began. Compare the rules, find child-specific legal help and gather the papers a lawyer needs before an interview, statement or court appearance.
Key points
- Age at each alleged offence matters, not just the child’s age today. Check date ranges that cross a tenth or fourteenth birthday.
- For ages 10–13, the prosecution must prove knowledge of serious moral wrongness beyond reasonable doubt as well as the offence. A charge is not proof of guilt.
- Court guidance applies the codified test to proceedings commenced on or after 1 March 2026. The separate youth-diversion reforms commenced on 1 July 2026.
- Committing the act alone does not prove the required knowledge. Known development and upbringing matter, and specified diversion material is excluded from the assessment.
- Ask for legal advice before an interview, formal statement, non-denial statement or guilty plea. A support person and a lawyer have different roles.
- Start with child-specific free legal help. A private consultation is optional; neither an AI call nor a booking provides representation or changes a court date.
For NSW offences, a child under 10 at the time of the alleged conduct cannot be guilty. At ages 10–13, the prosecution must overcome the presumption of doli incapax by proving beyond reasonable doubt that the child knew the conduct was seriously morally wrong. From 14 that age-based presumption ends, but guilt still must be proved. For a child facing police questioning, ask to call the free Legal Aid NSW Youth Hotline on 1800 10 18 10 before an interview or formal statement.
Checked on 23 October 2026: current Judicial Commission guidance, the complete passed reform text, the RP judgment, Law Society commencement guides and official child legal-help information. Current consolidated NSW legislation was inaccessible; the precise limits are recorded below. Sources and limits of this check.
Compare the age at the alleged offence
Scroll the tables sideways to compare all columns.
| Age at alleged conduct | Starting rule | What still needs checking |
|---|---|---|
| Under 10 | The child cannot be guilty of the NSW offence. | This does not establish that every police power, welfare process or administrative record is excluded. |
| 10, 11, 12 or 13 | Presumed not criminally responsible unless the prosecution proves the required knowledge beyond reasonable doubt. | The particular child, alleged conduct, evidence and applicable proceedings-date framework. |
| 14 or older | The age-based doli incapax presumption no longer applies. | The offence still must be proved and other defences may apply. Youth court and sentencing rules are separate questions. |
This page concerns NSW offences. Do not apply it automatically to Commonwealth charges or another state. Each count and alleged date may need separate assessment.
Three dates that answer different questions
The Judicial Commission explains that the codified section 5 test applies to proceedings commenced on or after 1 March 2026. It separately describes the common-law approach for older proceedings. Do not assume that an offence after March, or a hearing held now, is the sole test.
The Law Society’s Part 1 guide confirms the March criminal-responsibility commencement; Part 2 identifies 1 July 2026 for the separate Young Offenders Act reforms. These dates did not raise the NSW minimum age above 10.
Scroll the tables sideways to compare all columns.
| Date or age | Why it matters | Bring |
|---|---|---|
| Birth date and each alleged offence date | Determine under 10, 10–13 or 14-plus status at the conduct. | Proof of birth date and the complete alleged date range for every count. |
| When proceedings commenced | Current court guidance distinguishes proceedings before 1 March 2026 from those commenced on or after that date. | Court Attendance Notice, charge papers and any earlier court documents. |
| Age when charged and the relevant court | Children’s Court jurisdiction generally concerns under 18 at offence and under 21 when charged, subject to offence-specific exceptions. | Charge date, court name, next listing and any transfer/order documents. |
What doli incapax requires — and what it does not
The question is whether this child knew, at the time, that the particular conduct was seriously wrong in a moral sense. Knowing something is naughty, against a rule or likely to attract punishment is not automatically enough. The child does not have to prove innocence or immaturity.
The current court explanation of section 5 and complete parliamentary reform text identify important safeguards. Knowledge must not be inferred merely from commission of the act. The court must consider conduct, surrounding circumstances and, if known, intellectual and moral development, education and upbringing. The factors are not exhaustive.
Conduct together with its circumstances may be sufficient without, or despite, other developmental evidence, but only if the prosecution proves the required knowledge beyond reasonable doubt. Planning or avoiding detection is not an automatic shortcut to guilt; nor is an expert report invariably required.
Specified Young Offenders Act cautions, conference participation and related admissions or non-denial statements are excluded from this assessment. The legislation distinguishes a formal court guilty plea. Do not assume every statement is protected: obtain advice before making one.
In RP v The Queen [2016] HCA 53, the High Court allowed the appeal because the required knowledge had not been proved on the evidence. The full judgment concerns the common law; the later statutory framework must also be checked. It does not mean every child of the same age receives the same result.
Before a police interview or formal statement
If a child under 18 is facing a criminal-law problem, the Legal Aid NSW Youth Hotline is a direct legal-advice route: 1800 10 18 10. It operates 9am–midnight weekdays, continuously from Friday 9am to Sunday midnight, and 24 hours on public holidays. Ask police to help the child contact a lawyer before questioning.
The Legal Aid guide for under 18s recommends advice before a police interview or formal statement. A child generally has a right to silence about the allegation, but specific identification and other legal requirements can apply. Ask whether the child is arrested or free to leave and what police are requiring. This is not advice to resist a lawful direction.
Ask for an appropriate support person and tell the lawyer about communication, disability, interpreter or cultural needs. A support person does not replace legal advice; conversations with a non-lawyer support person are not necessarily confidential legal communications.
If an interview or statement has already occurred, preserve the records and tell the lawyer who was present and what happened. Do not assume the statement is automatically admissible or automatically excluded. Do not ignore a court notice or existing bail condition while seeking advice.
Diversion, court and records are separate questions
The July 2026 reforms introduced non-denial statements for specified diversion routes. Such a statement concerns the alleged elements, time and place; it is not an admission of knowledge of serious moral wrongness. Validity and protection rules have conditions, including adult/lawyer presence requirements and a formal guilty-plea exception. Get advice before making a statement or plea.
A youth justice conference may agree an outcome plan involving the young person, support people, a victim and others. A victim does not have to attend every conference. A court can refer a matter after proceedings have begun; completion, non-completion and the referral stage affect what happens next.
The Youth Koori Court practice note provides eligibility, suitability and capacity requirements and a role for Elders or Respected Persons. Ask the child’s lawyer about a referral; it does not guarantee admission or a particular sentence.
Children’s Court criminal proceedings generally restrict public attendance, with exceptions. Publication restrictions are a separate issue. Avoid posting case identifiers online and ask the lawyer what may lawfully be shared; do not assume the case is completely secret.
A recorded conviction is not inevitable, but a non-conviction outcome is not a promise of no police or court record. Ask about the particular charge, outcome, future check and disclosure rule instead of assuming records disappear at 18.
Scroll the tables sideways to compare all columns.
| Possible route or issue | Useful question | Important limit |
|---|---|---|
| Warning, caution or youth justice conference | Is this offence and child eligible, and what consent or statement is required? | Eligibility is not a guarantee; offence, history, decision-maker and required steps matter. |
| Children’s Court or a higher court | Which court has jurisdiction and what is the next required appearance? | Some serious offences and traffic matters follow different routes. Turning 18 does not automatically resolve jurisdiction for childhood conduct. |
| Youth Koori Court | Is a referral suitable and available for this young person? | A conditional sentencing process after a guilty plea/intention or finding, not a forum for determining disputed guilt. |
| Records and privacy | What will be recorded and what must be disclosed for this particular purpose? | A finding, conviction, police record and disclosure check are different. Diversion does not promise every record is erased. |
Compare free child legal help with a private consultation
Legal Aid’s means-test policy lists children’s criminal matters in the Children’s, District and Supreme Courts among matters not means tested. Confirm the service and representation arrangements; this does not mean any chosen private lawyer or every cost is covered.
Scroll the tables sideways to compare all columns.
| Service | What it can offer | Check |
|---|---|---|
| Legal Aid NSW Youth Hotline and Children’s Legal Service | Legal advice for under 18 criminal problems; duty and representation services. | 1800 10 18 10 and the hours above. Ask to see the duty solicitor before entering court. |
| Aboriginal Legal Service NSW/ACT | Criminal legal help for Aboriginal and Torres Strait Islander people. | Public 1800 765 767; in custody ask police about the separate dedicated 24/7 notification service. |
| LawAccess NSW or Youth Law Australia | Information/referral; eligible advice appointments, or online legal help for under 25s. | LawAccess staff are not lawyers. Online requests do not promise an immediate custody response. |
| Optional private initial consultation | An independent lawyer can assess the actual papers and advice needed. | AUD$295 including GST booking/arrangement fee; suitability and availability, with further work separately agreed. |
Five steps to prepare for the child’s lawyer
- Record the exact birth date, each alleged offence date or range, current age and when proceedings began. Keep every charge and Court Attendance Notice.
- Keep the police station and officer details, interview request, next court date, bail conditions and existing orders. Tell the lawyer immediately if the child is detained or an interview is proposed.
- Preserve existing interviews, statements, non-denial forms, caution and conference records, including who was present. Do not coach a new account or contact witnesses to align stories.
- Gather existing education, development, medical or psychological reports and relevant care/background information, especially from the time alleged. Ask the lawyer what further material should be obtained.
- Identify existing representation and support needs. Ask about the applicable age/date framework, admissible evidence, diversion, court attendance, records and who will handle each next step.
Share sensitive documents through the lawyer’s agreed secure channel. A checklist or website answer cannot decide the child’s knowledge, guilt, eligibility for diversion or final outcome.
Optional initial private consultation — AUD$295
Child-specific free help is listed above. If a private consultation is preferred, bring the complete papers and ask about the applicable age/date rules, police interview, evidence and next court step. Confirm separately any attendance, filing or ongoing representation.
Legal Hotline is not a law firm. The optional AUD$295 including GST booking and arrangement fee is paid to Legal Hotline for its platform service. Eligible bookings include an initial consultation with an independent Australian lawyer at no further lawyer charge. Ongoing work and fees are agreed separately with the lawyer.
Confirm suitability, conflicts, acceptance and availability. The initial consultation does not include court representation or guarantee specialist attendance. The free 1800 951 176 line provides AI-generated general information; it is not the child’s lawyer or a police-station legal-advice service.
Official help and free legal information
For urgent police questioning, start with the Youth Hotline or the child’s existing lawyer. Ask police to assist with contact. Confirm each service’s coverage and capacity; a request does not change an existing court date.
Legal Aid NSW Youth Hotline and Children’s Legal Service
1800 10 18 10: 9am–midnight weekdays; continuous Friday 9am–Sunday midnight and 24 hours on public holidays. Legal advice and child representation services.
Children’s Court — Aboriginal Legal Service and legal-help routes
Public ALS 1800 765 767. The court distinguishes this from the dedicated 24/7 police custody notification route; ask police to facilitate contact.
LawAccess NSW
1300 888 529, 9am–5pm Monday–Friday excluding public holidays. Information/referral and eligible lawyer appointments; staff are not lawyers.
Youth Law Australia
Free confidential online legal information, advice and referrals for under 25s. Do not wait for an online reply if immediate custody advice is needed.
Common questions about NSW age of criminal responsibility
What is the minimum age of criminal responsibility in NSW?
For NSW offences, a child under 10 at the alleged conduct cannot be guilty. Ages 10–13 carry a presumption against criminal responsibility that the prosecution must overcome beyond reasonable doubt, including knowledge of serious moral wrongness. From 14 the age-based presumption ends, but the offence still must be proved. Criminal responsibility does not answer every question about police powers, welfare processes or records.
What changed in March and July 2026?
Current court guidance applies the codified doli incapax test to proceedings commenced on or after 1 March 2026, while older proceedings use the common-law framework. Separate youth-diversion changes, including non-denial statements for specified routes, commenced 1 July 2026. The minimum NSW age remained 10. Ask the lawyer to check the actual proceedings and offence dates rather than treating either date as a universal rule.
Does planning or hiding prove that a 10-to-13-year-old is criminally responsible?
No automatic conclusion follows. Conduct and circumstances can be relevant and may suffice without or despite other developmental evidence, but the prosecution still must prove serious moral knowledge beyond reasonable doubt. The act alone is insufficient; known development, education and upbringing must be considered, and specified diversion material is excluded. The particular child and each alleged offence matter.
Should my child answer police questions?
Ask for a lawyer before an interview or formal statement and an appropriate support person. There is generally a right to silence about the allegation, but specific identification and other legal requirements may apply. For under 18 criminal problems call Legal Aid NSW Youth Hotline 1800 10 18 10: 9am–midnight weekdays, continuously Friday 9am–Sunday midnight and 24 hours on public holidays. Ask police to help make contact; a non-lawyer support person does not replace confidential legal advice.
Does diversion mean no court case or criminal record?
Not necessarily. A warning, caution or youth justice conference depends on eligibility and required steps; a court can refer a matter after proceedings start. Completion and the referral stage matter. A conviction, finding of guilt, police record and disclosure check are different. Do not assume every record is erased or disappears at 18; obtain advice on the specific outcome and proposed check.
Is a lawyer free, and what does the optional AUD$295 cover?
Start with Legal Aid’s child-specific services or, if eligible, ALS. Legal Aid’s policy excludes children’s criminal matters in the Children’s, District and Supreme Courts from means testing, but confirm the actual service and representation. Legal Hotline’s optional AUD$295 including GST fee pays for arranging an initial independent-lawyer consultation, with no further initial lawyer charge for eligible bookings. Availability and suitability matter; later work and court representation are separately agreed. The AI line supplies general information only.
Sources and update record
Checked 23 October 2026 using current Judicial Commission guidance, the full final passed 2025 Bill, full RP judgment, Law Society March/July 2026 guides, Practice Note 11 and official child-help pages. Current consolidated NSW Acts and proclamations could not be retrieved; this is not a fresh full statutory audit. Court/professional guidance corroborates the age test and commencement dates. Police powers, record disclosure, privacy exceptions, all diversion conditions and sentencing rules require case-specific checking. The original personal review date 19 June 2026 is retained separately from this editorial update.
- Judicial Commission — current Children’s Court guidance
- Parliament — complete passed 2025 reform text
- Law Society — March 2026 criminal-responsibility changes
- Law Society — July 2026 diversion changes
- High Court — RP v The Queen 2016 HCA 53 full judgment
- Children’s Court — Youth Koori Court Practice Note 11
- Legal Aid NSW — Children’s Legal Service and Youth Hotline
- Legal Aid NSW — current contacts and hours
- Legal Aid NSW — under 18 police rights guide
- Legal Aid NSW — matters not means tested
- Children’s Court — free legal-help directory
- Youth Law Australia — online help
- Legal Hotline — Australian booking
- Legal Hotline — independent lawyer arrangements
- Legal Hotline — customer terms
General information only, not legal advice. Updated . Checked against the sources above on 23 October 2026.
Review date recorded on the previous version: . This content update does not represent a new personal legal review.