I greatly dislike the new look of KMart and shop there only on rare occasions. Unfortunately, bag checks have become a necessity for many shops, I am happy to give the staff a look but I will not queue again at the shop exit for it and I don’t think there is no legal requirement for me to do so.
There is no legal requirement, but not doing so is considered a breach of agreement/contract. The store, should they chose, could take some form of action against those who chose not to show bags when existing.
While showing bags is a nuisance, unfortunately it is a necessity of business to reduce shoplifting/theft. If everyone were law abiding, then it would not be needed.
Interesting enough I visited Bunnings last Friday to look for something (which they ended up not having) and left the store the same time as two staff leaving for the day. The person on exist checked their bags on departing. So working for Bunnings (being in uniform) does not excuse their bags being checked on leaving so it looks like Bunnings doesn’t trust its own staff either. I suppose if it is good for the goose, it is good for the gander.
There is no contract to breach. Even if they have correctly well displayed “condition of entry” signs, this doesn’t form any sort of legally binding contract. If you refuse to have your bag checked there is no “action” the business can take against you in Court. There is no contract.
The best business could do is ban you from the store - but they can do that for any reason as they’re private property and it has nothing to do with refusing a bag check. They could detain you if they suspect you have stolen something, but they open themselves up to a whole world of pain if they’re wrong,
Accepting tbe T&Cs on entry means one agrees to the conditions (offer) of entry. Agreement of the conditions outlined for entry could be seen as a contract/agreement between parties. I would assume that the sales t&cs for Bunnings would state about the verification of purchases. If they are included in the sale t&cs, it is a legally binding contract.
Yes, the most likely action would be to ban one’s future entry. If one then enters again, one could be charged with tresspass and/or, possibly subject of a court order. This is possibly a path one would not like to test, especially when one can readily show ones bags in accordance with entry t&cs to remove any potential conflict.
There is no enforceable contact created by entering the store that binds a customer to having their bags searched. It’s as simple as that. You are completely mistaken in your belief. There is no cause of action. There are no damages. There is no consideration.
Sales terms and conditions are irrelevant.
Call me cynical, but you’ve just offered legal advice before attacking someone else for doing the same. Are you a lawyer? Or is there some source for your statement?
The source is the 2 semesters of contract law I did at law school while studying my LLB. I am not offering legal advice, I’m offering an opinion. Which is what he was doing (albeit wrongly), I will edit that.
Exactly what are the concerns here?
If I walk out of a store EG Bunnings and ignore the request for a bag or receipt check is that OK?
If we stop checking customers leaving stores on the basis that if you can remove goods unpaid for from a store that is OK?
It follows that to make these two groups happy the community that pays for their goods is happy to pay extra to cover the cost of store thefts and to ensure some store customers never have to produce a docket or bags at the store exit with varying motivations for doing so.
Is the proposition legally sound?
Is it more important that it is acceptable from a community or moral viewpoint?
The community typically accepts minority positions and practices, providing they do not affect or impact or place a cost on the rest of the community.
Hopefully most of us feel guilt and support our communities.
There are always solutions:
Eliminate the problem by supporting a consumer change to the law to require all bags to be left at the front door on entry! We may be lucky for now that most stores do not enforce this practice. I doubt there is any legal argument to the contrary on this one?
The main issue with that is who’s responsibility is it to care for the bags? And what about items you buy in the store that you may not be comfortable with someone checking? Unfortunately that probably doesn’t fix the issue.
To make my position clear, I think if a store wants to check your bag and has signage saying so it’s probably just easiest to comply. I think there are better ways though and I’m interested to hear what everyone is coming up with.
The Sales T&C are important and most of us don’t read these prior to making a purchase. Purchasing a product means one agrees to the sale contract and its conditions. I understand the only way to by the provided sale T&Cs is either go elsewhere for the purchase or for one to get agreement from the retailer for ones own sale T&Cs. The later is highly unlikely unless one is a major customer and may include different payment terms etc.
I have first hand experience of working in a bulk supply operation where product existing the site operations could be inspected and verified to ensure that there were consistent with the sale docket. This inspection and verification we clearly stated as part of the standard sale contract/T&Cs. The sales T&Cs, which were prepared in consultation with applicable advice (we were fortunate that one of the shareholders specialised in contract law), allowed staff at the operations to check product against the docket. At the time I recall be told by another independent person that the T&Cs were reasonable based on site evidence of losses. There was concern at the time that we could be challenged a the argument that police need court enforceable search warrants to do the same thing…but as the site entry conditions specified this action, then they were included in the sales T&C to make them enforceable/allow the company to take action if needed. Other special conditions I can recall related to reclaim of product loaded by not included on dockets. This occurred a number of times in the first few weeks of the new conditions being implemented.
The operations I was involved were unusual that the customer/contractor went to the site office to make the purchase prior to loading (in some ways it could be similar to the ute loading driveway loop found at most Bunnings). This was to ensure that payment was made before time taken to load the products.
The special purchase inspection/verification special condition was raised for two reasons as there was significant product loss (around 20%) from the operations which in essence was the businesses profit. Firstly we believed that the losses stemmed from more product being loaded than bought - either intentionally or unintentionally. The second we believed that some customers took the liberty to request larger loads than docketed or were collecting products which they had not purchased (this view occurred as we received a complaint about one of the products from a customer who we had no dealing with, only one of the contracted product deliver drivers)
Within about 2 months of this measure, as well as a legally enforceable drivers/site code, site access conditions and updating site personal agreements), the losses reduced to about 5% which was within the tolerance acceptable to the company. It is also worth noting that the company also claimed costs for breach of site access conditions to damage to property and equipment caused by unauthorised use of plant and equipment on site (a truck driver decided to try and load his own truck with a FE loader causing damage to the loader and property…
While it highly unlikely Bunnings would take such avenues for a customer which refuses to allow inspection of purchases or bags on existing a store, it is possible that for repeat offenders or those willing to make unnecessary conflict, they may explore what options are available to prevent a occurrence. I will be interested in next time I visit Bunnings if they display/have any special sale conditions which may be above and beyond those usually used in a retail store.
It has been about 10 years since I was involved with the above company, but it appears that there has been no changes which would not allow a company to make similar special conditions of the contract of sale.
It would be interesting to know if there is any cases where such conditions have been adopted and challenged.
This would only solve the taking of own bags into the store. There are two scenarios I can think of where items leaving would be inspected…
- the first being that one takes a bag or some other container from outside the site, into the store when shopping. (which have the change of being inspected in accordance with the entry conditions on exit which is currently the case like you have outlined)
- verification of purchases made in the store (say with Bunnings at the power tools area and then existing the main exit - this currently requires proof of purchase/docket to be shown at exit to validate all the purchases made).
The second one is still likely to occur even if one leaves one’s bags etc so that they don’t enter the store. Maybe to resolve this, the stores should be changed so that one has to exit the store through a manned register, such as power tool section is separated from the rest of the store and once a power tool is purchase, one leaves the store…and unmanned/self serve checkouts removed as they are a point where goods could sneak out of the store without being purchased. I can’t see Bunnings remodelling all their stores to satisfy those who may chose not to accept the entry conditions and then continue to enter thinking they can be ignored.
(The self service checkouts reminds me of what my sister who worked in Coles for a short time told me, she said that the Coles she worked at sold significantly more carrots than they bought/had in stock. It is known that some customers buy expensive product and when self weighing the product select carrots as the unit price is far cheaper - this Coles example unfortunately shows that some customer’s can’t be trusted).
I am one for having bags checked if it reduces the additional cost imposed on goods by a company covering theft within the store. I also think that if you have done nothing wrong, then there is no real issue and it is easier to be polite and accept, than to protest and cause a scene. The later possibly causes elevated blood pressure and may ruin a perfectly good day.
While I find the bag/docket checks a little annoying and potentially frustrating when one is in a hurry, I understand and accept why they are needed. I also chose not to take anything into the store which I or someone else may find embarrassing through the inspection of my bags. Maybe I am more tolerant than most.
At the end it is possible easier to accept the status quo.
However, when in Paris recently, I did avoid entering stores where bags and contents were inspected/removed for inspection and hand scanning with a metal detector on entry to the store (some stores were not dissimilar to what which occurs at an airport). After the first one I thought that this was too much and inconvenient and decided the pain/effort to do so was not worth the visit to the shop. I also don’t particularly enjoy the ones at the airport but grudgingly accept these ones as they are a mean to an end.
They are irrelevant to bag checks which is what we’re talking about. You can’t be bound by sales T&C just by walking into a store, especially if you don’t make a purchase. They have nothing to do with whether you can be detained for a bag check. Nothing.
Here in the NT, our brains trust publishes the following guidance:
Still ambiguous in some respects. Ultimately it seems to me where staff have a job to do and they are polite, and the store is set up sensibly, then most reasonable people would probably comply even though there is little requirement to. If staff are rude about insisting on checks, overbearing or officious or if the store layout is done muppet style (Hi KMart) then its more likely they will be told to rack off and they may have to consider the offset of their attitude vs any fallout they create.
Another point if you live in a small town, being banned from a store might be a bigger problem - for example my next nearest Bunnings is literally 15 hours drive each way …
Pretty much the same every where. Queensland govt advice to store owners as follows is clear on the conditions of entry. Similar to the early link for NSW.
The opinions online concerning circumstances where the store has reason to suspect or know that someone is stealing are different again. The diversity and qualifications applied to the information suggest it is a complex topic. The following appears to be as close I can find to a reliable source.
“When entering a shop or another public venue your entry may be conditional on making your bags available for inspection if asked. You shouldn’t enter if you don’t agree.”
Why ignore good free advice?
I like this part:
Shopkeepers and staff can’t forcibly search your bags or detain you during an inspection. If they use force you should speak to the manager or ask to call the police.
If you’ve been accused of shoplifting the shopkeeper may hold you until the police arrive. If you’ve been unlawfully held you may be able to take legal action against them. Get legal advice.
Seems like they can’t force a search or detain you on the one hand, if you do submit (key word) to a search they can’t touch you or your bag, but if they accuse you of shoplifting they can ‘hold you’ but if they are wrong you have been unlawfully held - I can imagine some people interpreting that as assault, which may be considered worthy of actions to neutralise the threat. It’s not a given that someone who reacts to such a threat is guilty, they may just take offence - depending on the attitudes involved this is not inconceivable.
It seems like a very grey area - that is likely with some people to turn other colours including red, black and blue Legal advice may not be the only kind needed - medical or even spiritual advice may come into play …
One thing does seem fairly evident - the people giving guidance on these matters seem rather nebulous and non-specific about the advice, probably because … lawyers …
When it says ‘detain’ that doesn’t actually mean they can touch you either, unless they’re a licensed security guard. Regular shop staff may physically block you from leaving but that’s the limit, or they’re up for assault regardless of whether you were shoplifting or not. It goes both ways though; if you touch or attempt to push past them you’re up for the same.
I reckon restricting someones egress from a building, against their will, whether using or not using physical restraint or threatening other legal or physical measures to detain would be some kind of deprivation of liberty or false imprisonment. I’m not a lawyer either - but that is how I would interpret such an action by anyone short of a LEO - if this happened to me it would be touch and go that I might need a lawyer though
Another thing one might also consider is the proximity of surveillance and who controls it - usually the store, but in some localities there are also fixed police cameras … this might influence ones situation, for or against depending on the circumstance.
In Queensland, one can make a citizen arrest. The power is outlined here:
Other sources indicate that only reasonable force can be used. What is reasonable force is the real question. I assume that it is the level of force a reasonable person thinks is okay based on the nature of the criminal action or likely risks. In the case of a potential shoplifter, if it doesn’t result in the injury to someone being detained is this reasonable force?
Legal Aid Queensland information is also useful…
It says that you can make a citizen arrest someone who you find committing an offence or who you reasonably suspect has committed an offence. If one does not show their bags on exit from a store, could one suspect that they have something to hide and thetefore reasonably suspect an offence may have been committed?
This is why personally I would not like to test what is reasonable. It is far easier to accept the conditions of entry and show your bags for inspection on exit than to test what this means if the store actions your refusal. It is quite obvious where the risks lay.
I’m sure a team of shiny lawyers and a judge would assist in answering those kind of questions in retrospect, from the safety of their wigs
Life is certainly much simpler without lawyers and judges !!
Reasonable force is just that. If someone put their hands on your arm to stop you then punching them in the face is probably going to be unreasonable - but pushing them away probably is reasonable. If a Qantas flight attendant tries to grab your phone (even when they have no right to do so), body slamming them is probably going to be found unreasonable. The real issue is that it’s up to the interpretation of the magistrate at the time the case is heard, so it can vary a bit.
If you want to make a citizens arrest, once you get to physically restraining someone it gets very risky for you personally.
As far as probable cause goes, I’d be surprised if refusing a bag check would be sufficient. I believe it would require something further to link it.
In all cases, you err on the side of “I’m probably going to get screwed by the system” and use the least amount of force as possible. Or if you’re smart and not the owner of the business, just let them walk away.