A review welcomed by a peak Aboriginal legal body has found the centuries-old principle which presumes children aged 10 to 14 not capable of criminal intent should be formally enshrined in New South Wales law.

While the legal age of criminal responsibility in NSW is 10, the doctrine of doli incapax - Latin for "incapable of wrong" - currently exists under common law and presumes children under 14 cannot distinguish between right and wrong. A 2016 High Court ruling, RP v The Queen, determined prosecutors can rebut this presumption only by proving that the child understood their actions were seriously wrong when the offence occurred.

Following the decision, the number of convictions for children aged 10 to 13 has dropped sharply - a shift supported by experts who argue the age of criminal responsibility should be raised to 14, but criticised by the NSW Nationals and Liberals, who pushed for a review of doli incapax.

The review, led by former Supreme Court judge and parole authority chair Geoffrey Bellew SC and former NSW Police deputy commissioner Jeffrey Loy, recommended creating a new legislative framework to clarify how doli incapax applies in NSW. It said the law should affirm that, unless proven otherwise, a child aged between 10 and 14 is presumed incapable of committing a criminal offence.

The reviewers noted while rebutting the presumption "imposes a high threshold" and is "generally consistent with criminal law principles," it also "provides an important safeguard against the possibility of inappropriate findings of criminal responsibility when a child lacks that knowledge, and recognises the considerable vulnerability of children aged 10-13 years and the significant impact upon such children of a criminal conviction".

In response to the findings, released on Saturday, the Aboriginal Legal Service (ALS) NSW/ACT urged the state government to adopt all the recommendations.

"Any changes to doli incapax would be a huge mistake. The reviewers have heard loud and clear that criminal courts and youth prisons can never meet the complex needs of this small group of young children," ALS CEO Karly Warner said.

"That is why we welcome the recommendations of the review, including keeping doli incapax in its current state and expanding access to diversionary pathways for children aged 10 to 13. We urge Premier Minns and Attorney General Daley to implement them in full."

Attorney General Michael Daley said the government would "carefully examine the report and will publicly detail a pathway to reform in due course".

"We don't want a situation where children are left without any intervention when charges are dismissed or withdrawn, only to come back before the courts because they were not supported to change their behaviour," he said.

According to the NSW Bureau of Crime Statistics and Research (BOCSAR), the proportion of 10- to 13-year-olds prosecuted in court fell from 76 per cent in 2015-16 to 16 per cent in 2022-23 following RP v The Queen.

The review acknowledged community concern around youth crime but noted only a small number of 10- to 13-year-olds engage in serious or persistent offending.

Despite this, the state government has recently introduced tougher bail laws and a new 'post and boast' offence - measures condemned by experts, including the ALS. BOCSAR data released in August showed the number of children in detention in NSW has risen by more than 30 per cent, with almost 60 per cent of detainees being Indigenous.

The review also recommended establishing a voluntary support pathway for children in the criminal justice system, involving referrals, behavioural assessments, and tailored support plans for those with complex needs. It further suggested the government consider court orders enabling therapeutic treatment for children aged 10 to 13 in appropriate cases.

Ms Warner said the science was "irrefutable".

"Children under the age of 14 do not have the capacity to form criminal intent. Treating them like criminals only destroys lives and makes communities more dangerous," she said.

Ms Warner warned weakening doli incapax to allow more young children to be incarcerated would have "tragic repercussions for children, families and NSW communities".

"Throwing children behind bars doesn't work - but we know what does. The Premier must heed the evidence and invest in supports for children and families that will prevent them entering the justice system in the first place," she said.

"To do anything else would fly in the face of the Government's commitments to Closing the Gap in NSW. Our message to the Premier is clear: if you want to make communities safer, listen to the voices of Aboriginal leaders, experts, and now the findings of this review; don't touch doli incapax."