What Happens If a Minor Is Charged With a Criminal Offence in Australia?
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Quick Answer
In NSW, children aged 10 to 17 who are charged with a criminal offence are generally dealt with by the Children’s Court, not the adult court system, under the Children (Criminal Proceedings) Act 1987 (NSW).
Before a charge is laid, police can also divert a child through a warning, caution, or youth justice conference instead of court. The process, the child’s rights, and the record that follows all differ from an adult matter.
The Age of Criminal Responsibility
NSW sets a firm minimum age of criminal responsibility, with a rebuttable presumption above it:
- A child under 10 cannot be charged with a criminal offence. This is a conclusive presumption under section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).
- For children aged 10 to 13, a presumption called doli incapax applies. The prosecution must prove the child knew the conduct was seriously wrong, not merely naughty or mischievous.
- From 1 March 2026, this presumption has been codified in section 5 of the Act, following the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025 (NSW).
- Under the codified test, courts can find the presumption rebutted from the circumstances of the offending itself, such as planning or steps to avoid detection, without separate evidence about the child’s background.
Age alone does not decide guilt for a child in this bracket. Whether they understood the conduct was seriously wrong does.
Diversion Before Court
Police are not required to charge a child. The Young Offenders Act 1997 (NSW) sets out a hierarchy of options for less serious matters:
Option | When It Applies | Effect |
Warning | Minor, non-violent offences | Given on the spot, no admission required, no conditions |
Caution | Child admits the offence and consents | No further proceedings once given |
Youth justice conference | More serious matters, or where cautions are exhausted | Child meets with the victim and agrees an outcome plan |
Court | Where diversion is not appropriate or fails | Matter proceeds to the Children’s Court |
A child must get legal advice, usually through the Legal Aid Youth Hotline, before admitting an offence for a caution or conference. Warnings are destroyed from police records once the child turns 21.
Rights During Police Questioning
A child cannot be formally interviewed by police without a support person present, such as a parent, guardian, or other independent adult. This requirement is set out in Part 9 of LEPRA and the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW).
Police must assist a child to contact the Legal Aid Youth Hotline or, for Aboriginal and Torres Strait Islander children, the Custody Notification Line. A child has the same right to silence as an adult, and evidence obtained in breach of these requirements can be excluded from later proceedings.
The Children's Court Process
The Children’s Court deals with most matters where the person was under 18 at the time of the offence. Proceedings are closed to the public, and the child’s name cannot be published or broadcast under section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
The Court sits with less formality than adult courts. Lawyers remain seated when addressing the judge, and police witnesses do not wear uniforms.
Two categories generally sit outside the Children’s Court’s jurisdiction: most traffic offences where the child was old enough to hold a licence, and the most serious charges, known as serious children’s indictable offences, such as murder or serious sexual assault, which are committed to the District or Supreme Court.
Sentencing Options and Criminal Records
If a child is found guilty, the Children’s Court has a wide range of sentencing options, including dismissal, good behaviour bonds, probation, community service, and, only as a last resort, detention in a youth justice centre.
Whether a conviction is recorded depends on age:
- Under 16: a conviction cannot be recorded
- Aged 16 to 18: the Court has discretion whether to record a conviction
Where no conviction is recorded, the matter generally cannot be used as evidence in any later criminal proceedings, under section 15 of the Children (Criminal Proceedings) Act 1987 (NSW). Where a conviction is recorded, it becomes spent after 3 years without further offending, under the Criminal Records Act 1991 (NSW), with limited exceptions for serious offences.
When a Matter Leaves the Children's Court
A serious children’s indictable offence starts in the Children’s Court but is committed to the District or Supreme Court for trial or sentence. From that point, the child is dealt with under the same sentencing regime as an adult, though the court still takes the person’s age into account.
Final Thoughts
A minor charged with a criminal offence in NSW is not automatically taken through the adult court system. Diversion options exist before charge, the Children’s Court applies different procedures and confidentiality rules, and the recording of a conviction depends on the child’s age. Serious charges remain the exception where adult processes and penalties apply.
Frequently Asked Questions
At what age can a child be charged with a crime in NSW?
From age 10. A conclusive presumption under the Children (Criminal Proceedings) Act 1987 (NSW) means a child under 10 cannot be charged.
What is doli incapax?
A presumption that applies to children aged 10 to 13, requiring the prosecution to prove the child knew the conduct was seriously wrong before they can be found guilty. It was codified in NSW law from 1 March 2026.
Can a child avoid going to court altogether?
Yes, in many cases. Police can deal with less serious matters through a warning, a caution, or a youth justice conference under the Young Offenders Act 1997 (NSW), avoiding court entirely.
Does a parent or guardian have to be present during police questioning?
Yes. A child cannot be formally interviewed without a support person present, and police must help the child contact the Legal Aid Youth Hotline.
Is the Children’s Court open to the public?
No. Proceedings are closed, and the child’s name cannot be published or broadcast.
Will a criminal charge give a child a criminal record?
Not automatically. A conviction cannot be recorded for a child under 16, and is discretionary for a child aged 16 to 18. Where no conviction is recorded, the matter is generally not usable as evidence in later proceedings.
Are all charges against a minor dealt with in the Children’s Court?
No. Most traffic offences and the most serious charges, known as serious children’s indictable offences, are dealt with outside the Children’s Court, generally in the District or Supreme Court.
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