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.