A watchdog has condemned the Australian Federal Police over the wrongful arrest of an Indigenous boy last year.

The Commonwealth Ombudsman raised concerns that the AFP did not understand racial profiling, after ACT Policing officers stopped a half-full Canberra bus in Woden, and removed an innocent 17-year-old boy at gunpoint on November 11.

“Three police officers entered with guns drawn,” the watchdog said in a report that outlined eight recommendations.

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“Once off the bus, he was brought to the ground, handcuffed and arrested. Less than 90 seconds later the police realised they had made a mistake.”

But even after one officer declared, “it’s not him”, officers searched the boy’s bag.

“Your officers slammed him onto the ground. Your officers pinned him down with their knees. And even after realising they had the wrong boy, they still searched him, a terrified child,” family and supporters said outside the Legislative Council.

The Chief Police Officer said at the time that, based on body-worn camera footage and briefings, he stood by the actions of officers that misidentified the boy who “matched the physical description” of an armed offender after a robbery at Westfield.

But the AFP acknowledged on Tuesday night the Professional Standards Unit review found “the search was a serious breach of the AFP Code of Conduct relating to searching of the young person”.

There were about 20 people on the bus from Woden to Tuggeranong when police halted the vehicle and boarded the vehicle with their guns drawn. File image Credit: @lachie_mills_photography/TikTok

Police apologised to the boy in the moment of the bungled arrest, during subsequent press conferences, and in the statement on Tuesday, but have denied that the boy was racially profiled.

“There was no evidence to suggest race or other discriminatory factors influenced interactions between police and the young person, or that excessive force was used during the arrest,” AFP said on Tuesday.

The watchdog’s report described the force used by police on the boy as “potentially lethal”, but found the force used was consistent with AFP training, given that officers were on a bus, and had assumed they had apprehended the right person.

It slammed police for failing to give proper aftercare to the boy; he got a clap on the back and an apology while he was still being searched, unaware he had been “unarrested”.

Police did not contact the boy’s family, who found out days later, and have since said the traumatised teen still refuses to catch the bus, and experiences anxiety attacks when police cars pass.

Race and recommendations

Of the Ombudsman’s eight recommendations, which included suggestions related to communication, clarity and trauma, five had to do with policy and understandings related to First Nations peoples.

The AFP accepted in principle the recommendation that it “establish a clearly understood definition of ‘racial profiling’ aligned with the objectives of the Racial Discrimination Act 1975 (Cth) and include the definition within sufficiently high level and binding governance materials.”

The watchdog also recommended that “ACT Policing review its use of race as a proxy to describe a person’s physical traits with a view to adopting objective descriptors.”

It further recommended ACT Policing establish information sharing protocols with appropriate First Nations led entities and the Office of the Aboriginal and Torres Strait Islander Children and Young People Commissioner.

It was recommended that ACT Policing continue developing the effectiveness of the First Nations Liaison team by fostering greater internal collaboration and building the team’s authority to consistently inform operational decisions, and that the team has additional resourcing considered.

All the recommendations have been accepted or accepted in principle, with outcomes expected within timeframes ranging from between six months and 18 months.

‘Should have been a flag’

The innocent teen and his family believe he was targeted because of his race.

The watchdog said it found no evidence of racial profiling, but noted that proving racial profiling in a single instance is rare as it is usually proven with a large set of data showing a disproportionate policing response in a community.

Because the officers involved denied the racist practice, there is little to go off.

In Australia, there is no set legal definition of racial profiling, the watchdog clarified.

Police have acknowledged search and aftercare failures after the wrongful arrest of a young Aboriginal boy who believes he was racially profiled. Credit: TikTok/AAP

Internationally, racial profiling has been described as law enforcement relying “to any degree” on race as the basis for suspicion, while the description used in the PRS investigation defined the practice as using race or ethnicity as “the sole basis” for suspicion.

“While the AFP has advised that a wider definition was used in the latter stages of the investigation, we have not seen the new definition. We are concerned that the AFP originally adopted a narrower definition requiring race to be the ‘sole’ factor,” the watchdog said.

The report mentioned failures in the territory to keep up with justice related targets outlined in the The ACT Aboriginal and Torres Strait Islander Agreement 2019-2028, with the elected body saying the situation was “worsening” in the ACT.

Given the well-known history of race-related police failures, intergenerational trauma and systemic commitments made in response, the boy’s known Aboriginality should have alerted police to the boosted awareness required of them, the watchdog said.

“The fact that the alleged offender was thought to be Aboriginal should not have been treated as a mere descriptor, but should have been a flag for the police that there was a need to be alive to First Nations engagement in their interactions with any potential person of interest,” the report said.