If you walk into a large store of virtually any kind in Australia, you will see a sign just outside the door saying. “It is a condition of entry to this story that customers allow us to inspect the contents of their bags on leaving the shop”. Typically, when you leave the shop, there is a security guard outside the door who asks to inspect the contents of your bag. Virtually all customers open their bag, the guard looks inside the bag, and then the customers go on their way.
When growing up in Australia, I simply thought that this was the natural order of things. I never really thought about this as a violation of my privacy until I spent some time living in England in the 1990s. In England, such searches do not occur, presumably because either the British interpretation of the law is that they are not legal or the law is different. (I think that we are likely dealing different interpretations of the same common law here). When I returned to Australia, I suddenly became much more aware of bag searches in stores than had been the case before. And I became much more protective of my rights. I found that I was very unwilling to let anyone look in whatever bags I might be carrying.
Legally, the case for allowing such bag searches is flimsy. Without probable cause (which in practice usually means someone will have to have seen you take something off the shelf of the shop and put it in your bag) the shop has no right to detain you or to look in your bag. However, they can ask to look in your bag. You then have the right to refuse. If you refuse the shop can then ask you to not come back to the shop again, but they have no way of actually compelling you to open your bag for them.
However, most people comply with the request. Part of this is the practice is ingrained, and part of this is the very stern sounding sign: It is a condition of entry…We reserve the right….blah blah blah. The sign is legally meaningless, but it does what it is intended to, which is intimidate people. (The sign is probably also illegal under a piece of Australian legislation called the Trade Practices Act, which essentially requires that signs in shops always tell the truth, but I doubt this has been tested in court).
However, returning to Australia, and being annoyed by the bag search practice, and knowing the law, I decided a few years ago to test things. When I was asked by security guards if they could look in my bag, I would reply “No” and keep walking.
What I discovered was quite interesting. There are two large companies that own a large portion of the retail sector in Australia. One is Woolworth corporation (which was once a subsidiary of the American retailer of the same name, but is now Australian owned and has been transformed into mostly an operator of supermarkets. The best UK comparison is with Tesco). The other is Coles Myer, which operates a huge number of different kinds of shops.
Security guards working for Woolworth’s had always been clearly told what their rights were and were not. When I called their bluff, they backed off and I simply walked away without having anyone search my bag. Coles Myer employees were less well briefed. They had a tendency to draw my attention to the sign. When I explained that the sign was legally meaningless, they had a tendency to look at me blankly.
But large stores are not the real problem. The problem actually comes from smaller independent stores that see the example of large stores, do not understand the law themselves, and assume that they have more rights than they actually do. Upon refusing to let staff in independent stores look in my bags, I was on one occasion chased down the street as I walked away. In another case, someone attempted to grab my bag from me. In a third, most egregious incident, I was physically shoved in the chest as I attempted to walk away.
In these last two cases I was physically assaulted, the law was certainly on my side, and at least in theory I could have pressed criminal charges against the guards who assaulted me. However, this is one of those situations where perception is everything. Bag searches are so ingrained as a practice that if I refuse to allow one, I am perceived as the bad guy (and I must have something to hide), and it is very difficult to shift that perception on the part of security guards, other shoppers, even police. I have never actually called the police in an incident like this, but I know other people who have, and the police are genuinely not sympathetic (which is why I have not called the police in such an incident). Bag searches are normal. If you don’t allow them, you reveal that you are probably a thief, and therefore you get little sympathy from anyone else. A part of a fairly fundamental right, the right to privacy, has been given up simply through common practice.
All I can say is it is nice to be back in London where this sort of seach does not happen, at least for the moment.
The point is simply this. Once a violation of your civil liberties becomes ingrained and accepted, it is then very hard to reverse. And when it comes down to it, the perception of the law is more important than the actual law. If people agree to bag searches even though they are not legally required to, then after a while it becomes very hard to not have your bag searched. If the government introduces an ID card “to prevent benefit fraud”, and it becomes common practice for an ID card to also be asked for at other times as well, then it ultimately doesn’t matter whether the new uses of the card are not specified by the law. If a significant portion of the public accept these uses (which they will) then it will become extremely hard for the rest of us to not go along, because we are the ones who will be seen as unreasonable for not doing so.
Update: It has been pointed out in the comments that Woolworth in Australia was never owned by Woolworth in the US. Apparently in the 1920s the founder of the Australian business (which was then a clone of the US business, but which later evolved into something different) simply asked the US business if he could use their name and he agreed. Anyway, my mistake.
I had no idea that was the legal situation! I thought they legally had the right to do that. Well…
But your point about a piece by piece erosion of civil liberties through the ID card is very good indeed. It’s just so hard to fight these things once they are introduced- they need to be strangled at birth, if not before.
I couldn’t care less about bag searches. Regardless of the legal situation, I have no problem with it. It’s an ownership of property issue.
I am entering someone else’s property, so I am consenting to their conditions of entry. If I don’t like it I can stay out. Much like the conditions of someone entering my home: is they don’t smoke and don’t bring their pets. If they don’t like it, they can stay out.
As I’ve always understood it, the most they can do is look inside your bag, i.e. look but don’t touch. If they attempt to actually handle the bag or anything inside it, that’s crossing the legal line. And the presence of a sign saying they may check your bag is no guarantee they’ll actually do so.; I’m pretty sure Dymocks in George St has a bag search policy, yet I’ll be damned if I can remember the last time they actually looked in mine. I don’t know how seriously the shops necessarily take these searches anyway. My bag has, apart from the main body of the bag, about four other side pockets, one of which has another small pocket inside. I could equally well nick some small item and carry it off in one of those (one pocket is large enough to hold a paperback book without it being too noticeable, I could fit an A4-size magazine in another), and yet whenever someone does ask for a peek inside, they only look in the big main part of the bag. If they were concerned about doing the job properly, wouldn’t they look in the other bits as well?
Quite apart from that, if you’ll pardon me saying so, Michael, I find it slightly odd that you’re posting this story on a blog whose subject matter is the erosion of civil liberties, and yet when one of your civil liberties (i.e. the one where you have the right not to be attacked by another person) has undeniably been infringed, you don’t call the law to back you up. Perception is irrelevant. Even if the security guard perceives you as the bad guy for not submitting to a bag check, that still doesn’t give them the right to assault you, and if you don’t call in the law when it’s on your side, then I’m afraid I can’t feel too sorry…
Woolworths Australia has never been owned by FW Woolworth of the US. No relationship. Ever. The founder, Percy Christmas, did ask FW if it was alright to use their name on his clone of their 5 and dime stores, and they agreed. 1924, I believe.
James: They cannot make you do anything without your consent. If you give them consent, then they have the right to do whatever you consented to. If they ask “Can I look inside your bag?”, then clearly they have no rights beyond looking inside your bag. On the other hand, if they specifically ask to “search your bag” then they probably then have the right to do so. (Generally, though, they don’t).
Actually Dymocks in George Street was the store from which I was chased down the street after saying “no” and walking off. This was several years ago, and I haven’t been in the store since. No great loss. It is (or at least was) a crappy bookshop anyway.
Tex: You can regulate people’s behaviour on private property any way you like (as long as they and you obey other laws), but traditionally the only sanction you have if they do not behave in the way you like (assuming they are not breaking any other law) is that you can ask them to leave, and if they don’t you can have them charged with tresspass. Having a situation where by the very act of entering private property you are entering some contractual agreement with the property owner that means that other laws henceforth do not apply strikes me as problematic. (In any event, there are other ways this can be dealt with, such as simply refusing entry to people carrying bags (which occurs in Britain sometimes) or providing a “cloak room” type arrangement where people can deposit their bags before entering and collect them where they leave.
I find it slightly odd that you’re posting this story on a blog whose subject matter is the erosion of civil liberties, and yet when one of your civil liberties (i.e. the one where you have the right not to be attacked by another person) has undeniably been infringed, you don’t call the law to back you up.
I thought Michael explained clearly why he did not call the law to back him up. I also think his perspective is very relevant to this blog, as erosion of civil liberties in western democracies is not immediately obvious to an ‘honest citizen’. For the state to be lay ing down the ‘infrustructure of oppression’, it does not need to be a full blown police state. Gradual conditioning of perceptions and common practice can potentially end in the same place though.
Once a violation of your civil liberties becomes ingrained and accepted, it is then very hard to reverse. And when it comes down to it, the perception of the law is more important than the actual law.
The point goes to the heart of the debate. I know from experience that this is true and that perception and social pressure can result in erosion of legally backed rights.
I’d guess that a fair number of people are aware that store thugs have no right to search your bags, but aren’t willing to risk getting beaten to a bloody pulp to prove themselves right.
It’s the same reason you don’t argue with Nightclub bouncers no matter what sort of stupid crap they try to pull. I’ve seen a punter thrown down the stairs from the 2nd storey at my local, and taken to hospital with a number of broken bones.
Most “security guards” are simply violent thugs who spend all day at work hoping someone will pick an argument with them and give them an excuse to commit assault. Arguing points of common law with them is rarely going to work out well for you.
I don’t know about you Yobbo, but I very rarely encounter a store guard who physically intimidates me. Often they are little old ladies or 16 year old geeks. I wouldn’t be the slightest bit concerned if one was to try bashing me, even if I noticed.
Night club bouncers are different.
What surprises me is how people seem to be eager to have their bags searched. I’ll open my bag if asked, but otherwise will walk straight out the door. Others will stop, go back, and show their bag to the guard.
This I don’t get.
I have encountered physically intimidating store guards fairly frequently. I don’t like it when I do. The other two types Patrick describes are both common, yes. 16 year old geeks are often very irritating when you say no. They are insecure and don’t like being questioned. The little old lady types tend to be found in large department stores and/or in malls, where there is another layer of more menacing security to back them up if need be. If a store does it this way, I will give them some credit for making an effort to be relatively unintimidating. Also, they are never bothered if you question them.
“What would you do if I refused to open my bag?”
“Well, nothing, really”
“You could ban me from the shop”
“Oh, I wouldn’t do that. You seem a nice young man”.
(Approximate transcript of a real conversation).
Tex has a point, though not an unanswerable one. If you enter into a contract with a shopowner, one term of which is that you agree to submit to a bag search if required, then maybe that term is enforceable. Normally, however, it wouldn’ be enforceable by self-help physical compulsion, only by legal proceedings for damages in the event of breach. And if you haven’t actually stolen anything, it isn’t obvious what damage the store would have suffered as a result of your breach.
On the other hand, if you HAVE stolen something, they probably don’t need the assistance of a contractual term anyway, because they can probably effect a “citizen’s arrest” (although that can be risky in law as well as practically).
Returning to the contract argument, there are a couple of serious potential legal difficulties for the shopowner. The first is how the shopowner proves that the shopper consented to the bag search term. Sometimes even very prominent signs have been held not to put a customer on notice sufficiently clearly that their continuing with the transaction will be held in law to amount to consent to entry into a contract on those terms. For example, I personally have no idea whether any particular department store in Darwin displays such signs. It’s a fair guess that quite a few of them do, but I can’t say I’ve ever noticed. Clearly I haven’t consented to be bound by a term about whose existence I’m unaware. On the other hand, if you ARE aware of such a restriction through being a regular repeat customer, you probably WILL be held to be bound by the term.
A second problem for a storekeeper is whether any contract has been entered into at all merely by a customer being allowed to enter a store. In most cases the answer will be that there hasn’t been a contract at that stage, and therefore contract law is simply irrelevant as a basis for enforcing a term (like a bag search requirement). Instead, the legal analysis is that the storeowner has given you a revocable licence to enter his premises on specified terms. He is free at any time to revoke that licence and evict you (and prohibit you from re-entering), especially if you indicate at any time that you’re not prepared to abide by the conditions of entry. However, as Michael observed, generally the only legally available sanction will be physical eviction. If you fail to leave immediately, you’ll be committing a trespass. It isn’t lawful to physically impose a search on an unwilling customer. That said, if the security guard is a nightclub bouncer doing a bit of “sunlighting”, I think I’d probably choose to defer insisting on my legal rights in preference to having my arms and legs broken.
Michael’s obervations are very accurate. Here in the states, one of our fundamental civil liberties is the right to keep and bear arms, but, especialliy in the northeast, because people no longer routinely bear arms, the perception is that it’s okay to infringe on those rights by statute.
Lamont
I just had an experience in a Melbourne shopping centre, where I walked into a store, realized it was not the store I should have been in, and walked out immediately. Upon exit, I apparently set off the electronic scanner, but didn’t notice (it is a rather noisy mall) and went into the store next door. The first store employee then followed me into the next store and asked me to go back through the scanner. I explained my side of it (that I had walked straight in and straight out, refused to go back with her, and walked away. She was quite polite. I was then chased down the mall by the store owner (presumably) and told to come back and go through the scanners again. He was much more aggressive, inferred that I was a thief by saying I was ‘obviously running away’ and demanded I go back with him or he would call security. Fine, I said, call security. In the meantime I’ll continue shopping. He then pursued me into the next store, still demanding I ‘do the right thing’. By this time a security guard had turned up, and we had quite a scene in the HMV store, mostly driven by the store manager (the security guard got the facts from both of us, but did not tell me to do anything at all). The store manager said he would call the police. I told him to by all means. I was getting quite heated by now and so was he, so unfortunately it got personal on both sides. Eventually I went to another store and bought some stuff, I noticed that the security guard followed me around a bit but eventually he backed off and I was able to find my son, do my business and leave the mall.
This incident showed to me that store owners do not know their rights and responsibilities as they should. Firstly he does not have the right to pursue me into the general mall and harrass me with accusations and threats. All he can do is ask me to leave the store, which I had already done. Secondly it taught me a lesson and that is TO KEEP CALM. I’m afraid I lost my temper after being accused of running away and it did exacerbate his antipathy to me and mine then to him etc and so it escalated more than it should have. So at least I learned something, but I was dammed determined to stand up for my rights and as it turned out in the end, nobody could do a thing to me. The police would not come if there is no reasonable assumption (i.e. the store manager/store video caught me in the act). The security guard had no powers of arrest or detention, the store manager had even less.
I’ve opened my bags before at bag checks and generally found employees to be polite and friendly. But to be pursued when I had not even shopped in the store, just walked in about 3 feet and walked out again, and then treated like a wrongdoer and harrassed and intimidated, was what made me stand up and I’m very glad I did.