Youth Justice Regulations 2025

The central concept is the partial abolition of the common law doctrine of doli incapax as it applies to children aged 12 and 13. The Youth Justice Act 2024 replaces the old rebuttable presumption that children aged 10 to 13 were incapable of forming criminal intent with a statutory presumption that is stronger in some respects and more procedural in others. Section 11 of the Act provides that a child aged 12 or 13 cannot commit an offence unless the prosecution proves beyond reasonable doubt that the child knew their conduct was seriously wrong. That knowledge must be a question of fact; it cannot be inferred merely from the fact that the child engaged in the conduct. The knowledge must be that the conduct was seriously wrong in a moral sense, not merely legally prohibited. This sets a higher evidentiary bar than the old common law test in some jurisdictions, which often allowed the presumption to be rebutted by proof of the act itself plus some circumstantial evidence of mischievous discretion.

The regulations engage with the procedural corollary of that presumption. Section 12 of the Act requires a police officer, before deciding to commence a proceeding, to have regard to whether there appears to be admissible evidence to prove the child's knowledge of serious wrongness. The officer must consider the four listed matters as far as practicable. The regulations prescribe the form and content of the record of reasons that must be made if the officer decides to proceed. The form embeds the four matters as mandatory fields. It also collects demographic and background information that may bear on the child's capacity. The concept of "as far as practicable" is a key qualifier: the officer does not need to have exhausted every avenue of inquiry, but must have made reasonable efforts to obtain information about each matter. The form itself provides prompts and examples, such as requesting information from a parent, carer or child protection worker about developmental delays or trauma. The concept of "criminal responsibility" in this context is specific to children in this age group. It is not the same as the general defence of mental impairment or the excuses of duress or necessity. It goes to the child's capacity to form the fault element for the offence, not to a justification or excuse for the conduct.

The regulations directly affect police officers who are considering whether to charge a child for an offence allegedly committed when the child was 12 or 13 years old. Any officer in Victoria who encounters a suspect in this age bracket must now navigate the regulatory framework before issuing a charge sheet. This includes frontline general duties officers as well as specialist youth justice or sexual offences investigators. The officer must be familiar with the four matters in section 12(2) of the Act and must complete Form 1 in full. The form requires the officer to make factual assessments about the child's development, potential disability, child protection history and prior criminal responsibility determinations. This imposes a significant training and compliance burden on Victoria Police, particularly for officers who do not routinely deal with young offenders.

Children aged 12 or 13 who are suspected of committing an offence are the primary subjects. The regulations give them a procedural right to a contemporaneous written record of why the police believe they knew their conduct was seriously wrong. This record can be challenged in court. If the police officer fails to complete the form adequately, or if the reasons are insufficient, the child may have grounds to argue that the presumption has not been properly rebutted and that the proceeding should be stayed or the charge dismissed. The child's parents, carers and legal representatives are affected because they may be asked to provide information about the child's development, disability, cultural background and child protection history. They also receive a copy of the completed form.

Prosecutors and courts are affected because the form must be filed with the charge sheet in the Children's Court. The court will have the form as an early document in the proceeding, which may influence bail decisions, case management and the conduct of committal or summary hearings. Child protection authorities may be indirectly affected because the form requires the police officer to state whether the child has been the subject of any child protection reports, investigations or orders. This creates a cross-agency data point at the charging stage. Finally, organisations that provide legal aid or youth advocacy services will need to train their lawyers to review Form 1 entries critically and to use any deficiencies as part of the defence strategy.

The principal duty imposed by the regulations is on the police officer. Under section 12(3)(c) of the Youth Justice Act 2024, read with regulation 4, the officer must record the prescribed information in the prescribed form when deciding to commence a proceeding. This is not optional. The duty has several components. The officer must actually consider the four matters in section 12(2) of the Act: age, maturity and development; disability or mental illness; prior criminal responsibility decisions; and any other relevant matters. The officer must then form a view about whether there appears to be admissible evidence to prove the child's knowledge of serious wrongness. If the officer decides to proceed, the officer must fill in the form with reasons. The form requires the officer to describe the information available for each of the four matters, and then to articulate reasons why that information supports a conclusion that the child knew the conduct was seriously wrong.

The duty to record is discharged by completing Form 1. The form must be signed by the officer and by an authorising officer, which suggests a supervisory check within Victoria Police. The completed form must be filed in court with the charge sheet and served on the child. This filing duty is created by notes in the form itself, which reference sections 13, 37, 41, 53A, 110 and 117 of the Criminal Procedure Act 2009. Those provisions govern the commencement of criminal proceedings and the service of documents. If the police officer fails to file the form, the proceeding may be irregular and vulnerable to challenge.

The child has a right to receive a copy of the form. That right gives the child and their legal representatives an immediate basis to test the sufficiency of the police officer's reasoning. The child also has the underlying substantive right: the presumption of incapacity under section 11 of the Act. That presumption operates unless and until the prosecution proves beyond reasonable doubt that the child knew the conduct was seriously wrong in a moral sense. The form is the police officer's initial assessment, but it is not conclusive. The prosecution must still lead admissible evidence at trial. However, a well completed form may be used to support the prosecution's case, and a poorly completed form may be used by the defence to argue that the police officer did not properly consider the issue. The form also creates a right for the child to have decisions about their criminal responsibility recorded consistently. If a previous police officer decided not to charge, or a prosecutor withdrew a charge, on the basis of insufficient proof of knowledge, that prior decision must be disclosed in the form and considered.

The regulations themselves do not create any penalty provisions. They are procedural subordinate legislation that prescribes forms and information requirements. There is no offence for failing to complete Form 1 correctly, and no fine or term of imprisonment for non-compliance. Enforcement of the procedural requirement occurs indirectly through the criminal justice system. If a police officer commences a proceeding without having made a proper record of reasons, or without having considered the four matters, the resulting charge may be defective. The child's legal representative can apply to have the charge struck out or stayed on the basis that the statutory precondition to prosecution has not been satisfied. The Children's Court may examine the form and the officer's reasoning when considering the charge. If the form is absent or manifestly inadequate, the court may find that the prosecution has not properly rebutted the presumption of incapacity, and may dismiss the charge at an early stage.

The real teeth lie in the prospect of an abuse of process application. If a police officer deliberately or recklessly completed a false or misleading form, the proceeding might be stayed as an abuse of the court's process. The form is a public document once filed, and it is signed under the officer's name and rank. There is potential for disciplinary action within Victoria Police if an officer fails to comply with the regulations. However, the regulations do not refer to any internal disciplinary framework. The failure to comply might also be raised in civil proceedings, for example in a claim for false imprisonment or malicious prosecution if the charge is later withdrawn or the child is acquitted. But those remedies arise under the general law, not under the regulations themselves. The sunset provision in the Subordinate Legislation Act 1994 means the regulations will expire on 26 August 2035 unless remade. That is a form of structural enforcement: the regulations must be reviewed and re-enacted to remain in force.

The regulations are made under section 766 of the Youth Justice Act 2024, which is the enabling provision for subordinate legislation. They give effect to sections 11, 12 and 13 of that Act. Section 11 sets out the substantive presumption of incapacity for children aged 12 or 13. Section 12 requires the police officer consideration and the recording of reasons. Section 13 deals with the filing and service of the record. The regulations fill the gaps left by the Act: they specify the information to be recorded and the form to be used. They also interact with the Criminal Procedure Act 2009. The notes on Form 1 explicitly refer to sections 13, 37, 41, 53A, 110 and 117 of that Act. Section 13 deals with commencement of proceedings by filing a charge sheet. Section 37 deals with filing of documents in the court registry. Sections 41, 53A, 110 and 117 deal with service of documents on accused persons, including children. The form must be filed with the charge sheet, so the Criminal Procedure Act governs the manner and timing of that filing.

The regulations also interact with the Children, Youth and Families Act 2005. The form requires the police officer to state whether the child has been the subject of any child protection reports, investigations or court orders. This is a cross-reference to the child protection system under that Act. The information may be sensitive and subject to confidentiality provisions in the Children, Youth and Families Act. The police officer is not authorised to access child protection records without proper consent or a lawful authority. The form asks for this information "if known", which limits the duty to information already in the officer's possession or readily obtainable. The interaction with the Charter of Human Rights and Responsibilities Act 2006 is significant. The presumption of incapacity for 12 and 13 year olds arguably protects the child's right to a fair hearing under section 24 of the Charter and the right of a child to such protection as is in their best interests under section 17(2). The form requirement also engages the right to privacy under section 13, because it collects personal and sensitive information. The police officer and the court must ensure that the information in the form is used only for the purposes of the criminal proceeding and is not disclosed more broadly than necessary.

The regulations do not directly interact with the common law on doli incapax, because the Youth Justice Act 2024 replaces that common law for this age group. However, the regulations may be relevant in interpreting other provisions of the Act that refer to a child's knowledge or capacity. They may also interact with the Evidence Act 2008 (Vic) when the prosecution seeks to lead evidence of the child's knowledge. The form is the officer's statement of reasons, not evidence itself, but it may be used to refresh the officer's memory or as an exhibit.

The Youth Justice Regulations 2025 are version 001, meaning they have not been amended since they were made. They were made on 26 August 2025 by the Lieutenant Governor as the Governor's deputy, with the advice of the Executive Council, under section 766 of the Youth Justice Act 2024. They came into operation on 30 September 2025. The endnotes confirm that there are no amendments made by any statutory rules, subordinate instruments or Acts. The table of amendments is empty. The regulations are subject to the Subordinate Legislation Act 1994 and will sunset on 26 August 2035, ten years after the day of making. Any future amendments would need to be made by another statutory rule. Given that the Youth Justice Act 2024 is itself relatively new (it received Royal Assent as Act No. 32/2024), the regulatory framework is in its early years. Future amendments might occur if the Act is amended to change the age threshold, the four matters, or the procedural requirements. The regulations might also be amended to update the form to reflect practice changes or to add other information fields. For now, the instrument remains in its original form.

There is no litigation history recorded in or referenced by the regulations themselves. The regulations are only a few months old as at the date of this analysis. No court has yet interpreted or applied Form 1. However, it is possible that challenges may arise in the future. A child aged 12 or 13 who is charged with an offence may argue that the police officer failed to have proper regard to the four matters, or that the reasons recorded in the form are insufficient or internally inconsistent. The child may apply to the Children's Court for a ruling that the presumption of incapacity has not been rebutted. The court would then examine the form and any other evidence. If the form is found to be deficient, the court may strike out the charge. This would create a body of case law on what constitutes adequate reasons. There may also be challenges to the validity of the regulations themselves, for example on the ground that they exceed the scope of section 766 of the Act or that they impose an unreasonable burden on police. But such a challenge would face the high threshold for invalidating subordinate legislation. The Charter of Human Rights may be invoked if a child argues that the collection of gender identity, cultural background or child protection information violates privacy rights. The Supreme Court of Victoria could be asked to review the lawfulness of the regulations. For now, there is no recorded litigation, and the regulations operate as drafted.

The form appears straightforward but contains several traps. First, the requirement to record the child's gender identity, cultural background and Aboriginal or Torres Strait Islander status is mandatory to the extent the information is known. A police officer who does not ask or who records this information incorrectly may face a challenge that the form is incomplete. The form includes an "Other" option for gender identity with a details field. The officer must be careful not to use this field in a way that is discriminatory or that stereotypes the child. The information about child protection history is particularly sensitive. If the officer requests that information from the Department of Families, Fairness and Housing, the officer must ensure they have lawful authority to access that data. A breach of privacy laws could lead to the form being excluded as evidence.

Second, the officer must separately assess each offence if multiple offences are alleged at age 12 or 13. The form has a note to this effect. A police officer who completes one form with a single set of reasons for multiple offences is not complying. Each offence requires its own analysis of the child's knowledge of serious wrongness. This multiplies the paperwork burden for investigations involving multiple charges, such as a series of thefts or assaults.

Third, the four matters in section 12(2) of the Act must be considered "as far as practicable". This is a subjective qualifier, but it may be tested in court. If it becomes clear that the police officer could easily have obtained information from the child's school or a parent but did not, the court may find the consideration was not as far as practicable. The officer should document what steps were taken to gather information. The form has an optional additional notes section for this purpose, but it is not mandatory. Failing to use it may be risky.

Fourth, the form must be signed by both the charging officer and an authorising officer. The authorising officer is presumably a supervisor. This creates a chain of responsibility. If the authorising officer signs without proper review, both officers may be exposed to criticism. The form is a public document once filed, and it can be used in cross examination.

Fifth, the requirement to serve the form on the child is strict. The notes reference various sections of the Criminal Procedure Act 2009 dealing with service. If the form is not served, the child may argue that the proceeding is irregular. The service obligation applies to the child personally, not just to their lawyer. For a 12 or 13 year old, service may be on a parent or guardian, but the police must comply with the service rules.

Sixth, the presumption under section 11 of the Act is that the child cannot commit an offence. The form is the police officer's record that they believe there is admissible evidence to rebut that presumption. But the presumption is not rebutted by the form itself. The prosecution must still lead evidence at trial. A well completed form may bolster the prosecution case, but a poorly completed form may be turned against the prosecution. Defence lawyers will scrutinise the form for any omission or inconsistency.

For a police officer, compliance begins at the first point of contact with a child who is suspected of an offence committed when the child was 12 or 13. The officer must immediately consider the presumption. Before any decision to charge, the officer should gather information relevant to the four matters in section 12(2) of the Youth Justice Act 2024. This includes obtaining the child's age and date of birth from official records. The officer should speak to the child's parent or carer, if practicable, about the child's maturity, development, any disability or mental illness, and any child protection involvement. The officer should check police records for any prior decisions by other officers or prosecutors about the child's criminal responsibility. If the child has been interviewed, the officer should review the interview to see what the child said about their understanding of the conduct.

The officer must then complete Form 1. Each field must be filled in. For the four matters, the officer should describe the information available in sufficient detail. Vague statements such as "no information available" may be acceptable if the officer genuinely could not obtain it, but the officer should record what steps were taken. The reasons section is critical. The officer must explain why the evidence appears to be admissible and why it proves beyond reasonable doubt that the child knew the conduct was seriously wrong in a moral sense. This requires more than a bare conclusion. The officer should refer to specific facts: what the child said, how they behaved, any prior similar conduct, and any expert opinion. The officer should then sign the form and obtain the authorising officer's signature.

The completed form must be filed in the Children's Court with the charge sheet. A copy must be served on the child. The officer should keep a copy in the investigation file. If the child is charged with multiple offences, separate forms or a single form with separate reasons for each offence must be used. After filing, the officer may be required to give evidence about the form and the reasoning process. The officer should be prepared to explain why each matter was considered and why the decision to charge was made.

For legal practitioners representing a child, compliance review involves examining the form as soon as it is received. Check that all fields are completed, that the four matters are addressed, and that the reasons are logically connected to the evidence. If any information is missing, the lawyer should consider applying for the charge to be struck out or for an order that the prosecution provide further particulars. If the form discloses sensitive information about the child's gender identity, cultural background or child protection history, the lawyer should ensure that the court limits access to that information. If the form is not served, the lawyer should raise the defect at the first mention date. The lawyer should also be aware that the form is not conclusive and that the prosecution still bears the burden of proof at trial. The form can be used in cross examination of the police officer if the reasons appear formulaic or internally inconsistent.

For Victoria Police as an organisation, compliance requires training all officers who may encounter juvenile suspects. The form and the four matters must be incorporated into standard operating procedures. A template or checklist may be helpful. The authorising officer must be properly briefed on their role. The police station should have copies of the form readily available. Data protection protocols must be followed for the sensitive information collected. The regulations do not prescribe any retention period for the forms, but the usual criminal investigation file retention rules will apply.