What Rights do Shop Assistants or Security Guards have to Search my Bag?

It is not uncommon upon leaving a store for a request to be made to check your bags, either by a security guard, or the retail staff.

While being treated like a potential thief is never pleasant, do you have the right to say no?

Since even police will usually need a suspicion on reasonable grounds that you committed an offence, or a warrant to search you, your house or your car, it would be very strange if retailers had extensive rights to demand inspection of your property.

Even if a store has a policy of checking bags, this is not their legal right.

Sometimes shops have a sign displayed near the entry, stating that they reserve the right to inspect bags, containers, prams or whatever other conditions of entry they set.

But security guards or anyone else who works in the shop cannot touch any of your possessions.

According to the Australian Retailers Association Guidelines for the Checking of Bags, and Parcels in Retail Stores personal handbags that are smaller than an A4 piece of paper won’t be checked, unless the storekeeper is certain that shoplifted goods are concealed there.

Staff may ask you to move items in your bag in order to have a better look, but they cannot do it themselves.

If they use force at all, they may be committing a common assault.

If their sign is displayed prominently, it means that anyone who chooses to enter the store is implied to accept the terms of entry.

But if you refuse, all they can really do is ask that you to leave and not to return in the future.

If a customer who has been asked to leave because they refuse to consent to a bag search, the store manager can call the police.

However they should not detain you until the police arrive.

What happens if they want me to stay until the police come?

People who are not police cannot arrest another person except in very rare circumstances.

A ‘citizens arrest’ can only be made if a person is caught out in the middle of committing a serious offence, or just after a serious offence was committed.

This means it must be immediate, not a few days, or even a few hours later.

So, except that if a staff member is certain you have stolen something, for example, they saw you taking it, they should never attempt to keep you from leaving.

If they do so, they may be criminally liable for assault and civilly liable for assault and false arrest.

Imprisonment does not have to be by the use of physical violence – if a staff member makes it clear to you that you are not free to go, this counts as imprisonment.

If you have been detained or had a retail staff member interfere with your goods and you haven’t committed an offence, you are entitled to make a complaint to the police or even sue for damages.

Because the consequences for retailers of a false arrest are so high, the retail Guidelines strongly advise against detaining anyone.

For example, one case that made it to the Supreme Court in Victoria involved an innocent customer accused of shoplifting.

Although Mr Soo was completely innocent, he was falsely identified as a man caught on camera stealing from Myer.

When Myer accused him of stealing from their store, he was held there against his will, the police were called and his home was searched.

In the end, Mr Soo went to court and Myer was ordered to pay him $10,000 in damages.

If you have been accused of shoplifting, you do not legally have to answer the questions of shop assistants.

Police have the right to demand your identity if police suspect on reasonable grounds you may be able to assist with an investigation.

But it is better to avoid answering any more police questions until you have spoken to a lawyer.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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