The Situation
What They Said
“Open your bag. We can search you whenever we like.”
Stop and search encounters are among the most common interactions between civilians and police in Australia, and they are among the most frequently misunderstood in terms of what power police actually hold. Many people assume that police have a general power to search anyone at any time, particularly in public spaces. This is wrong. Police powers to stop and search a person — without a warrant — are strictly conditional: in almost every Australian jurisdiction, police must have 'reasonable suspicion' that the person possesses something unlawful, or that a search is otherwise authorised by a specific statutory provision, before they can demand a search.
The standard of 'reasonable suspicion' is a legal test, not a subjective feeling. It requires objective grounds — observable facts, information from a reliable source, or other articulable circumstances — that link the specific person to the specific suspicion. A general discomfort with someone's appearance, presence in a particular area, or lack of apparent purpose does not meet the standard. Studies have consistently found that First Nations Australians and people from non-Anglo backgrounds are subjected to stop and search at disproportionately higher rates, often without the legal justification the law requires.
Police also have specific powers in designated areas — such as 'safe night precincts' in some states where searches without individual suspicion are permitted under specific legislation — but these are exceptions that must be announced and signposted. A person who is approached by police and told 'open your bag' has the right to ask the officer to identify the legal basis for the search request before complying.
The Fallacy
Blanket Police Authority Fallacy
The officer's claim that 'we can search you whenever we like' is a false assertion of unlimited power. Police authority to search is governed by statute and the common law — it is not general, discretionary, or unlimited. Every police search of a person without a warrant requires either reasonable suspicion specific to that person, or a specific statutory power that has been properly invoked. 'Whenever we like' has no basis in Australian law.
This claim works as a control tactic because most people in the moment do not know the law well enough to challenge it, and because the power differential between a uniformed officer and a civilian makes pushback feel dangerous. But the legal reality is that compliance with an unlawful search request can have consequences: evidence found in an unlawful search may be excluded from any subsequent proceeding, and the officer may have committed an unlawful search — which is actionable.
The fallacy also conflates the officer's authority to ask with a legal obligation to comply. Even where police have no lawful power to search, a person who voluntarily consents to a search removes the legal protection. This is why it matters to know the law: asking the officer to identify their legal authority is not obstruction — it is the proper exercise of the person's right to understand what they are being asked to submit to.
What the Law Says
Your Legal Foundation
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and equivalent state/territory legislation
Stop and Search Without Warrant Provisions — Power to Search Requires Reasonable Suspicion
“A police officer may stop, search and detain a person and the person's clothing and any property under the immediate control of the person without a warrant if the police officer suspects on reasonable grounds that the person has in their possession any stolen property, or any thing used or intended to be used in or in connection with the commission of a relevant offence.”
Police powers to search a person without a warrant are state and territory legislation — the principles described here apply consistently across Australian jurisdictions, though the specific provisions vary. In all jurisdictions, a warrantless search of a person requires reasonable suspicion specific to that individual. The officer must be able to articulate the grounds for the suspicion if asked — it cannot be based on a hunch, generalised profiling, or the person's presence in a particular area alone.
Common Law — Unlawful Search Principles
Established Principle — Search Without Authority Is Unlawful
“A search of a person without lawful authority — meaning without a warrant or a specific statutory power meeting its threshold — is an unlawful act. Evidence obtained through an unlawful search may be excluded from evidence in court proceedings.”
Under the Evidence Act 1995 (Cth) and state equivalents, courts have a discretion to exclude evidence that was obtained in contravention of Australian law. An unlawfully conducted search can result in any evidence found being inadmissible in subsequent proceedings. This is not just a theoretical protection — courts exercise this discretion regularly when police exceed their search powers.
Australian Human Rights Commission Act 1986 (Cth); State Anti-Discrimination and Police Oversight Legislation
Police Accountability Provisions — Complaints About Police Conduct
“A person who believes they have been unlawfully searched, or subjected to discriminatory or disproportionate police conduct, may make a complaint to the relevant police oversight body in their state or territory.”
Each state and territory has a police oversight body — such as the Law Enforcement Conduct Commission (LECC) in NSW, the Independent Broad-based Anti-corruption Commission (IBAC) in Victoria, or the Crime and Corruption Commission in Queensland. A person who experiences an unlawful search can make a formal complaint, and this record contributes to accountability and can be relevant to any subsequent legal proceedings.
What Scripture Says
God's Word on This
Romans 13:1-2 (NIV)
“Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.”
This passage is often misread as demanding unlimited compliance with police authority. But the authority Paul affirms is legitimate, lawfully constituted authority — not authority exercised outside its legal bounds. When police exceed their lawful powers, they are themselves departing from the authority God has instituted. A person who calmly and respectfully asks police to operate within their lawful authority is not rebelling — they are holding authority to its proper standard.
Psalm 82:3-4 (NIV)
“Defend the weak and the fatherless; uphold the cause of the poor and the oppressed. Rescue the weak and the needy; deliver them from the hand of the wicked.”
Research consistently shows that unlawful and disproportionate stop-and-search practices fall most heavily on the most vulnerable and least powerful members of society. Scripture calls on all people — and structures of authority — to protect these members, not to burden them further. Knowing your rights in a search encounter is an act of self-defence against the pattern this verse condemns.
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What They'll Say Next
Common Counter-Arguments
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They might say: “This is a designated safe night precinct — we don't need suspicion to search you here.”
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They might say: “If you've got nothing on you, just open the bag and we can all move on. Why make this difficult?”
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