NSW police's ‘extraordinary' search powers a ‘blank cheque' to target Indigenous youth, lawyers say
In 2019, a 14-year-old boy appeared before a tribunal in New South Wales.
He was the subject of a firearm prohibition order (FPO), which meant police had the ability to search him or his home at anytime without a warrant.
But he was also stuck in a catch-22. The order could be placed on him, but because he was a minor, the tribunal said it had no jurisdiction to hear his application to remove it.
Neither would the order ever expire. Only the police commissioner could lift it.
This 14-year-old is not alone. Data obtained by Guardian Australia via a freedom of information request show there were at least 12 people under the age of 18 among the 8,717 people subject to an FPO in New South Wales in April. There were 26 the year before, some of whom may have since turned 18 or had the order lifted.
In the past financial year, there were 84 searches of children and teenagers. Of the 125 people under 18 who have been served with an order, 54% identified themselves as Aboriginal.
An FPO can be made if its deemed by the police commissioner that someone is not fit, in the public interest, to possess a firearm – even if they have never been charged with a weapons offence or any crime.
The scheme's enhanced search powers, described as 'extraordinary' by the then NSW police commissioner Andrew Scipione after they were introduced in 2013, mean police can search someone with an FPO or their premises or car at anytime, 'as reasonably required', to determine if they have committed an offence by having a firearm, firearm parts or ammunition.
This broad discretion, along with an 'extremely low' rate of successful searches, has led to concerns that the powers are being used as a tool of surveillance. Overall, according to police data, about 42% of all people who are currently subject to FPOs have identified themselves as Aboriginal and Torres Strait Islander people, who account for about 3.4% of the population in the state.
Lauren Stefanou, the acting principal legal officer with the Aboriginal Legal Service in NSW, says FPOs 'not only grant police sweeping powers, they give police a blank cheque to surveil, stop, search, arrest and charge Aboriginal children and adults'.
In a 2023 submission to the NSW Sentencing Council, Legal Aid said it was concerned FPOs seemed to be increasingly used against young people.
They recounted the story of a young Aboriginal boy with an intellectual disability. An FPO was made against him after he was sentenced for charges related to a toy gun; the day after the order was made, his home was searched at 6am by 10 officers. No firearms were found, according to Legal Aid, but two family members were charged with resisting police.
In another case, a young Aboriginal man had appeared at children's court over an air rifle. After the FPO, he said, he was searched about five times in one month. Nothing was found.
Groups such as the Law Society have argued FPOs should not apply to those under 18 because the search powers 'expose children to extensive infringements of their civil liberties'.
Samantha Lee, a supervising solicitor at Redfern Legal Centre, says she has had young clients who were subject to an FPO without ever having committed a gun-related crime, and others who had been searched because they were in a car with someone who had a FPO.
'I know some people that just don't want to go out of their home because they think they'll be stopped in their car, in the street,' she says. 'They just feel like they will always be subject to coercive police powers.'
The fact that FPOs never expire appears to be reflected in the police data, which reveal the unlikely scenario that there are 11 people in NSW over the age of 101 with an existing FPO, including three people aged 110, 116 and 118.
NSW police said several changes had been introduced this year related to FPO approvals for young people, including an independent review by the commander of the firearms registry when an FPO was sought for someone under 18.
Operating procedures have also been amended to include an internal review of FPOs every five years and a three-year review for juveniles, 'to ensure the grounds for the original FPO are still valid'.
The NSW police minister, Yasmin Catley, said she had requested a briefing from police on the matter but said 'the execution of FPOs is an operational matter for the NSW police force'.
Data obtained by Guardian Australia shows police searches in 2023-24 found firearms or firearm accessories in only 1.36% of 8,651 searches.
The year before, the rate was even lower, at 0.1% – only nine occasions when a firearm-related item was found out of 9,731 searches.
Jonathan Hall Spence, the principal solicitor with the Justice and Equity Centre, says the low rate of successful searches calls into question the efficacy of FPO search powers.
'That may suggest that these powers are not properly being targeted towards people at high risk of firearms-related offences, and instead are being used in a much broader way to surveil and target already overpoliced communities,' he says.
Hall Spence points to the Suspect Targeting Management Plan (STMP), a part of a controversial proactive policing strategy in NSW that involved the monitoring of young people.
The STMP was discontinued after a Law Enforcement Conduct Commission (LECC) investigation. The policy 'was intrusive and disruptive', the LECC found, and the target selection process 'likely contributed to the gross overrepresentation of young Aboriginal STMP targets'.
The LECC report also noted the policy encouraged police to use 'intensive' proactive policing strategies, including the use of FPOs, to 'increase their interactions' with the target.
The NSW Greens MP Sue Higginson says she is concerned about the 'lifelong impacts' of FPOs on children and young people, and has asked the LECC to examine their use.
A 2016 report by the NSW Ombudsman found police were sometimes able to use FPO search powers 'in circumstances where general search warrant powers were unlikely to apply' and the meaning of 'as reasonably required' was unclear.
Up to October 2015, police searched more than 200 people who were not subject to an order at the time of the search, often when they were in the company of someone with a FPO. Those searches may have been unlawful, according to the ombudsman. The report also recommended that FPOs expire after five years.
Tom Taylor, a criminal defence lawyer in Canberra with Hugo Law Group, says FPOs can be 'a Trojan horse' for searches that would not be permitted under a search warrant.
He says that while the orders have a valid utility, they are also used as a blank cheque for surveillance due to the ambiguous wording of the legislation and lack of oversight.
'It can be used on a rolling basis to conduct the searches of individuals without any judicial oversight,' he says. 'The boundaries of who they can search and what places they can search are blurred.'
Do you know more? Contact ariel.bogle@theguardian.com or sarah.collard@theguardian.com
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