First Nations people have been over-represented in NSW prisons and police cells for decades. Custody and imprisonment numbers are driven by historic factors and social disadvantage, but also by contemporary policing practices shown to disproportionately impact First Nations people.
Data on NSW policing activities points to First Nations people being targeted by many common policing practices.
Over the past five years, 17% of all searches conducted by NSW Police involved Aboriginal people. Aboriginal people were also subject to 17.5% of all move-on orders over that time. Yet only 3.4% of the NSW population identified as Aboriginal and/or Torres Strait Islander at the 2021 Census.
Towards Truth’s research on contemporary policing shows how police discretion, official policies and targeted practices contribute to the concerningly large numbers of First Nations people arrested, charged and imprisoned across the state.
Police discretion
Although the law places limits on how police operate, individual officers are given broad discretion to act as they see appropriate within those limits. Police discretion has been repeatedly linked to the over-representation of Aboriginal people in custody in NSW.
The Royal Commission into Aboriginal Deaths in Custody found the choices police made, such as who to stop, arrest, and charge, and where to patrol, were a driver of the high rates of Aboriginal people entering custody. The Commission recommended that police practices be reformed to address this.
Since then, similar findings and recommendations have been made by the Australian Law Reform Commission, police oversight body the Law Enforcement Conduct Commission, and lawyers and academics.
Discretion is part of every step of the policing process. Police make decisions about whether to respond to a suspected offence or breach of bail, whether to stop and question a person, whether to search a person (and what type of search) and whether to use force against a person (and what type of force).
If police believe a person has committed an offence, they may also have a choice about whether to give an informal warning or charge the person. When a person is charged, police can decide whether to issue a court attendance notice or to make an arrest and take the person into custody, where they make further decisions about bail.
How police use their discretion has an immediate impact on people they interact with. It may also have a cumulative individual impact, shaping a person’s future interactions with police by creating a record that is used to justify later police attention. There are also obvious community-wide impacts, such as distrust of police within targeted communities.
‘Pre-emptive’ policing
NSW Police are given powers to carry out certain activities on the basis that they prevent crime. However, the effectiveness of these practices is controversial.
Research shows many of these ‘pre-emptive’ practices are more likely to target First Nations people than non-Indigenous people.
Police have powers to stop and search people without a warrant in certain situations, such as where officers have a ‘reasonable suspicion’ the person is holding drugs, something stolen or something to be used in a crime.
The search can be a strip search when police believe it is ‘necessary’ on ‘reasonable grounds’. While strip searches are legally intended as a last resort, they are increasingly used as a routine policing tool. Government data from 2025 shows more than 22% of strip searches by NSW Police were of Aboriginal people.
Since 2013, NSW Police have had extraordinary powers to search a person, their vehicle and their home or workplace, if they are targeted by a Firearms Prohibition Order (FPO).
An FPO can be made even if the person it targets has never been charged with a weapons offence. These orders never expire and have limited review mechanisms. The fact a person is subject to an FPO may be enough of a reason for police to stop and search them at any time, as often as police choose.
Yet, data shows an extremely small proportion of searches are successful.
A disproportionate number of First Nations people are subject to FPOs: 40% of the orders in force in 2024 were made in respect of First Nations people.
The FPO regime has been criticised by legal and accountability experts, including the NSW Ombudsman, because it lacks transparency, accountability and legal safeguards. The impact on young people is of particular concern, as FPOs can remain in place for life.
FPOs were one of the policing practices found to increase police interactions with people targeted by the Suspect Targeting Management Plan (STMP), which ran from 2000 to 2023. Under the STMP, NSW Police identified people, including children, who they said were at risk of committing future crimes. People subject to the STMP experienced more frequent stops, questioning, home visits, and searches.
A coalition of legal experts, including the Justice and Equity Centre, exposed that Aboriginal young people were disproportionately targeted under the STMP.
A subsequent investigation by the Law Enforcement Conduct Commission (LECC) found:
- the STMP target selection process likely contributed to the ‘gross overrepresentation’ of young Aboriginal STMP targets and that this was unreasonable, unjust, oppressive and may have been improperly discriminatory in its effect;
- despite the ‘extremely high’ proportion of Aboriginal young people subject to the STMP, the NSW Police ‘did not appear to have any practical strategies’ for addressing this; and
- because no particular consideration was given to the circumstances of Aboriginal young people, the STMP ‘could do nothing other than repeat and compound the disproportionate representation of Aboriginal young people in the criminal justice system’.
The Commission determined the STMP ‘amounted to agency maladministration’ and ‘could possibly meet the threshold for serious misconduct’.
However, Police agreed they would stop using the STMP and avoided a formal finding.
Find out more
To find out more about the impacts of contemporary policing practices on First Nations people in NSW, head to the Towards Truth website for research into bail compliance checks, policing public places, police custody and more.
Complementary research on Criminal Offences was released earlier this year. It includes detailed information on the history of the application of criminal law on First Nations people, and specific offences such as offensive conduct and language, consorting laws and driving offences.
