In 2019, a 14-year-old boy appeared in a court in New South Wales.
He is the subject of the Gun Ban (FPO), which means police have the ability to search him or his home at any time without a warrant.
But he was also trapped in 22 catches. The order could be placed on him, but since he was a minor, the court said there was no jurisdiction to hear his application to remove it.
The order will not expire either. Only the police commissioner can lift it.
This 14-year-old is not alone. Data obtained by Australia through a Freedom of Information Request shows that of the 8,717 people who suffered FPOs in New South Wales in April, at least 12 were under the age of 18. There were 26 of the previous year, some of whom may have canceled orders since they were 18 years old.
In the past fiscal year, there have been 84 searches for children and adolescents. Of the 125 people under the age of 18 who ordered the order, 54% identified themselves as Indigenous.
If a police commissioner thinks someone is not suitable for possessing a gun, even if they have never been charged with a weapon crime or any crime, an FPO can be created.
The program's enhanced search capabilities, which was called "Extraordinary" after the introduction of the then NSW Police Commissioner Andrew Scipione in 2013, meant police could search for people using the FPO or their home or car at any time, i.e. "reasonably requested" to determine whether they committed a crime through fillearm, diflearm parts or firearm parts or ammunition.
This broad discretion, along with the “very low” speed of successful searches, has raised concerns that these powers are used as surveillance tools. Overall, about 42% of people are currently identified by the FPO as Aboriginal and Torres Strait Islander, according to police data, accounting for 3.4% of the state’s population.
Lauren Stefanou, acting chief legal officer for Aboriginal Legal Services in New South Wales, said the FPO “not only grants police the power to sweep police, but also provides police with blank checks to monitor, stop, search, arrest and charge Aboriginal children and adults”.
Legal aid, in its 2023 submission to the New South Wales Sentencing Commission, said it was concerned that the FPO appears to be targeting young people increasingly.
They tell the story of a young Aboriginal boy with intellectual disabilities. He was sentenced for charges related to toy guns and FPOed him. The day after the order, his house was searched by 10 officers at 6 a.m. No firearms were found under legal aid, but two family members were charged with resisting police.
In another case, a young Aboriginal man appeared with an airsoft in a children's court. He said he was searched about five times in a month after the FPO. Nothing was found.
For example, the Law Society argues that the FPO should not be applicable to groups under the age of 18 because the right to search "exposes children to widespread violations of civil liberties."
Samantha Lee, a supervisory attorney at Redfern Law Center, said she had young clients bound by the FPO without committing gun-related crimes, while others were searched for being in the car with someone with the FPO.
"I know some people just don't want to go out because they think they'll park in the street," she said. "They just feel they'll be powered by coerced police forever."
The fact that the FPO never expires appears to be reflected in police data, which suggests that 11 people over 101 in New South Wales have existing FPOs, including three people aged 110, 116 and 118.
NSW police said several changes to young people related to FPO approval have been introduced this year, including an independent review of the gun registration commander, when the FPO was sought for those under the age of 18.
The operating procedures were also modified to include internal review of the FPO every five years and three years of review of the juveniles “to ensure the reasons for the original FPO remain valid.”
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NSW Police Minister Yasmin Catley said she had asked police to brief the police but said: "The FPO's execution is an operational issue for the NSW Police Force."
Data obtained by Australian guardians show that police searches in 2023-24 found guns or gun accessories, only 1.36% of 8,651 searches.
The previous year, the rate was even lower, at 0.1% - only 9 times when gun-related items were found in 9,731 searches.
Jonathan Hall Spence, the leading attorney for the Center for Justice and Equity, said the success rate was low and questioned the effectiveness of FPO search rights.
“This may indicate that these powers are not properly targeting people at high risk for gun-related crimes, but rather monitoring and targeting people in communities that are already over-quality,” he said.
Hall Spence noted that the suspect’s Target Management Plan (STMP) is part of a controversial active policing strategy in New South Wales involving monitoring of young people.
After the investigation by the Law Enforcement Conduct Commission (LECC), STMP was discontinued. The LECC found that the policy was “invasive and destructive” and that the target selection process “could lead to overrepresentation of the general representative of young Aboriginal STMP targets.”
The LECC report also noted that the policy encourages police to use “intensive” proactive policing strategies, including the use of FPOs, to “increase their interactions with targets.”
NSW Greens MP Sue Higginson said she was concerned about the “lifelong impact” of the FPO on children and young people and asked the LECC to check their use.
A 2016 report by the NSW Ombudsman found that police were sometimes able to use FPO search power “when it is unlikely to impose general search warrant power”, and the meaning of “reasonable demands” is unclear.
As of October 2015, police searched more than 200 people who did not accept orders during the search, usually when they were with people from the FPO. According to the Ombudsman, these searches may be illegal. The report also recommends that the FPO expire in five years.
Hugo Law Group and Canberra's criminal defense attorney Tom Taylor said the FPO could be a "Trojan horse" to search for searches that cannot be allowed under a search warrant.
He said that while orders have effective utility, they are also used as blank checks for surveillance due to the ambiguity of legislation and lack of supervision.
“It can scroll without any judicial oversight to do personal searches,” he said. “The boundaries of people they can search for and where the places they can search for are blurred.”