Tasmanian Liberals look at reversing legal principle in youth offender crackdown
Felix Ellis — who was the police minister until the election was called — has floated the potential of reversing the burden of proof in the "doli incapax" principle as part of the review of youth justice laws.
Doli incapax means "incapable of crime", requiring that prosecutors prove that children aged 10 to 14 charged with a criminal offence have a full understanding of the moral wrongfulness of their actions.
It is a recognition that children generally have a lesser-developed sense of moral wrongness than adults.
Mr Ellis said the Liberals would look at reversing the principle, so that defence lawyers would instead need to prove that the child did not have a full understanding of the moral wrongfulness of their actions.
He described the principle as a "legal loophole" and said it meant youth offenders had "escaped accountability".
"One of the very key areas that we are looking at strongly, is reversing the onus and burden of proof for doli incapax," Mr Ellis said.
"What we are seeking to do with this review is to ensure that we are protecting the community, and to make sure that the doli incapax principle is still fit for purpose."
He said there had been a "shift" in this burden of proof in recent years — although the principle is explicitly written into Tasmania's criminal code.
It was also upheld by a High Court decision in 2016.
In 2022, the Tasmanian Law Reform Institute recommended that the presumption of doli incapax be retained.
The child sexual abuse commission of inquiry also noted that doli incapax may not be protecting children enough against "the harmful effects of the criminal justice processes".
Tasmania's Commissioner for Children and Young People made a similar observation in 2023.
A Liberal party spokesperson confirmed the party was still committed to raising the age of criminal responsibility from 10 to 14 by 2029, as per a commission of inquiry recommendation.
But lawyer Pip Monk — who regularly represents children charged with criminal offences — said the reversal of doli incapax was the "direct opposite" of this age of criminal responsibility policy.
Ms Monk said the change would have a "significant cost" to Tasmanian Legal Aid, which would need to fund reports for each person aged 10 to 14 it represented. She said it would also add delays to the youth justice system.
"Our courts are not currently clogged with young people who have committed serious offences, but are getting off because of doli incapax."
The Liberals also plan to make breaching bail an offence for youths, including introducing a bail test.
Mr Ellis said community safety would be made the main consideration.
This charge previously existed before the government changed it.
Youths currently have "relevant contraventions", which do not appear on their criminal record but allow police to bring them back to court to reconsider their bail.
The new charge, and the reversal of doli incapax, would require legislation to pass parliament, which could be unlikely if it did not have the support of Labor.
The Liberals also promised to make the Divert and Connect program court-mandated, establish a youth hub in Glenorchy and consider aggravating factors in sentencing for youth.
Tasmanian Labor has promised to develop plans for a standalone youth court, while the Greens want to end the practice of processing children and young people through police watchhouses and other adult facilities
Greens Bass candidate Cecily Rosol said "crackdowns" on youth crime did not work.
"If we want to see long-term change in the behaviour of young people we need to be making sure … they have safe housing, that they have safe families to live in, that they have good education, and that they have what they need to flourish," Ms Rosol said.
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