Supermarket Self-Checkouts Are Limiting Your Personal Liberties

The New Zealand Supreme Court describes detention as the “most punitive and most liberty-depriving” of the penalties the law can impose. Because of this, they have always been incredibly careful to give a wide interpretation and hefty weight to the right not to be arbitrarily detained.

This is an interpretation the government will be rewriting.

We have a long history of case law upholding the physical freedom of the person, including at the hands of their fellow citizens, who have incredibly limited powers of arrest in our system. This is an important part of our law not just because it prevents people from detaining you justifiably; by not having wide citizens’ arrest powers, it preemptively prevents people from assaulting or detaining you unjustifiably.

Limitations placed on arbitrary detention go a long way to discourage people from even attempting to arbitrarily detain others. It is complicated law that is often gotten wrong; much simpler just to tell people they can’t arrest others at all (or can’t arrest them during the daytime, at least, which is our current status quo). When it comes to citizens enforcing criminal laws civilly, we tend to discourage it. Some things are better left to the police.

You only need to look at the sort of people in New Zealand who feel empowered to carry out vigilante justice and other acts of “community policing” to see why this is so. Destiny Church, a religious cult that hates homosexuality and queer people, feel that they have a good enough grasp on “the transgender issue”, and on our much more real pedophile issue, that that they believe they are best placed to be the arbiter of who precisely those pedophiles are. Not the police, them.

And according to them, the Venn diagram of pedophiles and trans people is one big circle.

The Destiny Church library drag storytime protests and assaults — probably a good example of the sort of arbitrary detention for which you could sue someone under BORA, actually.

This is despite Destiny Church itself being a hotbed of sexual assault and pedophilia, with one youth leader convicted of abusing hundreds of teen boys, using his position within the church to do so. This shouldn’t be too surprising — after all, it’s what the church was built on, with Brian Tamaki’s “spiritual father” being accused (but not convicted) of sexual abuse, as well as the adult children of two former high-profile pastors resigning after attracting sexual abuse accusations back in 2010.

Perhaps Destiny Church should focus on identifying the pedophiles within their own ranks, the pedophiles abusing their own congregation, before they try and “protect” others from trans people.

Another example of New Zealand justice being incorrectly issued by amateur enforcement might be the story of William Burr, who cut off the finger of a teen burglar in what the jury ruled a justified use of force.

It’s interesting that our response to this case will be that we are going to widen our powers of detention and self-defence rather than narrow them.

So it’s not like we don’t allow citizen detention or the use of force in self-defence. Reasonable force is, quite reasonably, allowed. We permit citizen detention and violence in self defence really quite widely — perhaps too widely, the teen with the missing finger might say.

Cases around arbitrary detention are not always so dramatic. Often our detainment laws are simply protecting our citizens against overly-officious security guards or carefully governing the intricacies of police’ right to arrest.

Are you arbitrarily detained, for an example, if the police simply won’t let you pass them by?

(Yes)

How about if a security guard pulls you up to his office and locks you in until the cops get there?

(Yes)

And does it make a difference if you’re innocent or guilty?

(No)

All of these considerations are settled law. Or they were settled law. But this government have taken it upon themselves to rewrite the fundamental rights of New Zealanders, and they intend to do so widely and liberally, using both open and covert methods.

This is one of the more up-front ones. Justice Minister Paul Goldsmith doesn’t only want to widen powers of arrest, he wants to do away with many jury trials for imprisonable crimes too. I’ve written about how this risks treading on our oldest written right: the right to be tried by a jury of your peers. Combined, these two “minor tweaks” to our justice system would be the biggest legislative limitations to our fundamental rights around imprisonment passed by a government since we last wrote the Bill of Rights Act.

(Everyone say thank you Geoffrey Palmer for your rights.)

So why now?

The law might seem settled, but the sentiment around it has not been. The concept that security guards can chase, but not catch, a thief who steals from a store has always held an element of bemusement for kiwis — mixed with an amount of outrage that probably depends on your age bracket.

It seems strange, almost counter-intuitive, to many.

It’s not.

As we’ve covered, the power of search, seizure, and detention of the person are real responsibilities. The highest of all our rights is our physical freedom. And security guards are not granted this power. We have not trusted them to have this power.

I think that is wise.

Avoiding arbitrary detention is something that the police trip over all the time. It’s most of what they do, really. They have dedicated criminal lawyers guiding them, reminding them, defending their cases when they do step out of line, and even all of that does not prevent our police force from regularly incorrectly imprisoning and detaining us, their citizens.

I for one can’t wait for corporations to be able to do this to us too.

Instead of assaulting people to regain stolen goods, security guards right now will follow a thief so they can lead the cops to them, or they will catch their plate as they drive off or grab some other means of identification. This is more than enough to catch most shoplifters. Many are already known to these stores, and/or to police.

Now security personnel are expected to put themselves in physical danger to protect the property of the company. This opens the door not just to security guards too enthusiastically using their powers and harming (suspected) criminals in the struggle, but also could result in the security guards themselves getting hurt in the course of their duties. Retaliatory force is something we see often; one man, after racking up 100 criminal charges and a previous arrest, physically fought his two arresting officers.

Police are trained and equiped to handle this, including having backup they can call instantly with the full power of the law behind them.

Our security guards do not.

Like has occurred with police, often, I expect there will be many occasions where a detaining security guard finds themselves on the wrong side of this complicated law. When the police err and falsely detain someone, it costs them in compensation and reparations. Presumably, then, supermarkets expect to more than cover the costs of such lawsuits of their own, through disincentivising theft at the cost of our physical liberties.

And I find that very interesting, because this entire situation has actually been created by supermarkets incentivising thefts — by making it really, really easy, physically and psychologically, for them to do so.

The introduction of self-checkouts changed shopping, and also resulted in a marked increase in supermarket shoplifting. Woolworths experienced a 326% rise in thefts over 6 years after the installation of their self-checkouts. We have known that supermarkets with self-checkouts are significantly more likely to experience theft since it was studied and reported on in 2014. Supermarkets likely knew even longer. But they have proceeded with the rollout anyway.

Where previously the exit of the supermarket was barricaded by narrow checkouts with at least one, if not two, people at the end of each aisle’s exit, there is now an open-space exit full of busy shoppers all not paying attention to you, and one, maybe two staff monitoring and serving all of them.

This legitimately lowers the barriers to theft, because there are less people to catch or confront you and the layout creates a physically easier escape route. But this was never really how checkout operators disincentivised theft.

The cause is much more psychological; one-on-one, people are more reluctant to steal. With manned checkouts, there is nothing stopping a thief from using the exact same techniques shoplifters use so successfully at self-checkouts, which is often just to walk out of stores with the unpaid goods in their cart. But without the social aspect, with only the single security guards standing there with his arms folded, far fewer people are disincentivised from breaking this social taboo — because that is a lot of what guides our law. Not actual threat of enforcement, but of social enforcement.

Now there isn’t cashier to glare at you, shoplifters hardly need to think twice.

If security can’t stop you and the exit path is clear, why not?

Supermarkets know this. They recognised this was a real cost of their decision to replace human operators with robotic machines that we don’t care about and who don’t care about us. Without the social element constraining people, without even the appearance of a physical barrier, shoplifters have begun stealing from them more boldly and brazenly.

And supermarkets have accounted for this loss, just as they know that this change will lead to assaults and arbitrary detentions that they will have to pay damages for.

They’ve just decided that’s worth it.

They asked their accountants, “Is this saving us enough in staffing costs that it’s worth the increased stock losses?”

And accounts said yes, it was cost effective. But now they don’t want to pay those higher costs — they would just like the lower staffing costs only, please and thank you.

Enough time has passed that self-checkouts have become the new normal. Stories have spread far and wide of thieves stealing groceries in plain daylight, taking bold actions they were always able to before but usually didn’t (or at least didn’t so often). Supermarkets have been promoting this narrative widely, lobbying government to limit our rights so they don’t have to lose so much of the money they already decided was worth losing.

And NACTFirst, with their existing anti-rights agenda, heard them loud and clear.

Of course, it’s hardly worth noting that this is another positioning of property rights before human rights, in line the recent Regulatory Standards setup Seymour is trying to sneak in changes via. That’s almost tangential.

These limitations on the physical person may have aspects that relate to burglaries or self-defence or benefits for the common citizen, but that is not who will benefit, and it‘s not why this bill is being proposed, nor why it will pass.

It will pass because the supermarkets want it to.

It will pass because we are a neoliberal country, and under neoliberalism, property rights come first.

It will pass because if we protest at this law change, the right will lie to us about how thefts are making our goods more expensive, when it’s provably corporate profits, not company losses, that impacted margins in recent years

It will pass because it must.

It’s the rule of the rich, after all.