Police have panned Government proposals to enhance citizens’ arrest powers as a backwards leap from the status quo, while also giving the public more freedom to arrest than cops.
This is revealed in police feedback on the proposals, released to the Herald under the Official Information Act, which outline a plethora of concerns.
Among them is the risk of low-level offending escalating into violence, and a lack of clarity on what counts as reasonable force, which police said could open the door to excessive vigilante justice for “taking a chocolate bar or genuinely forgetting to pay”.
“The public or retailers may take action they believe to be lawful that could result in either their action being legally challenged, or in the escalation of violence leading to physical harm to the public or the suspect – or both,” police said in feedback to the Justice Ministry in December.
Justice Minister Paul Goldsmith announced the proposals this year as a way to tackle the growth in retail theft, which increased by 205% between September 2019 and September 2024 (though some of this is attributable to easier reporting methods).
Currently, a citizen’s arrest can be made at any time of the day if the offence is punishable by at least three years’ imprisonment.
This means that theft is excluded, unless the value of the goods is $1000 or more. For under $1000, a citizen’s arrest is only legal between the hours of 9pm to 6am.
The Government wants to allow citizens’ arrests at any time of the day and for any offence, while clarifying that suspects can be physically restrained and detained where reasonable, and requiring police to be contacted immediately and their instructions followed.
This is a middle ground between the wishes of the Ministerial Advisory Group for Victims of Retail Crime and Ministry of Justice recommendations.
The proposals earned a swift rebuke from Retail NZ and the Employers and Manufacturers Association, while Justice Ministry officials warned of the risk of violence, with no public safety benefit.
Goldsmith has said he “fundamentally disagreed” with his officials’ assessment. The proposals would provide additional tools for the “massive challenge” of retail crime, and every business will have to be careful how they exercise them.
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The public, including retailers, would be able to make arrests with fewer constraints than police, such as when children or young people were involved.
Their inherent vulnerability is taken into account in the Oranga Tamariki Act, which imposes certain conditions on police arrests to help keep children and young people safe.
“It seems counterintuitive that police must have a high bar to arresting a child or young person, but a member of the public with no training and likely no awareness of broader law and impacts on the young person can arrest with no bar,” said police feedback in December.
“Would it ever be considered proportionate to use mechanical restraints on a child or young person who has allegedly stolen a packet of cigarettes? Is a member of the public able to determine this in the moment?”
Police underlined their stance in an aide-memoire to Police Minister Mark Mitchell in February, which said police would be “inadvertently exposed to greater criminal and civil liabilities than the public in exercising the same arrest powers”.
The lack of different treatment for children and young people, compared to adults, has also been criticised by Children’s Commissioner Dr Claire Achmad.
The current law has no such differential treatment, but lowering the limits for making a citizen’s arrest would likely expose more children and young people to such action; theft was the most common offence in youth justice data for 2023/24, making up 34% of proceedings against children (aged 10 to 13) and 29% for young people (aged 14 to 17).
The 9pm-6am restriction the Government wants to ditch was put in place to “maintain proportionate responses to offending”, police said in their aide-memoire.
Police rated the Government’s proposals as “worse than the status quo” on several measures: clarifying the law, public safety, and workability and consistency with other laws, including the Oranga Tamariki Act and health and safety laws.
In particular, they identified the risk of someone interpreting the changes as an open invitation for what police would consider an excessive use of force.
“In many situations, the power to restrain and detain an alleged offender would not be commensurate with the powers used by police,” the aide-memoire said, including when responding to someone resisting arrest.
“Someone could respond in self-defence and unintentionally escalate a citizen’s arrest into a violent response.”
This would increase the chances of someone being detained when there wasn’t enough evidence to bring charges, police said.
“This may undermine trust and confidence in police.”
This was indirectly alluded to when Destiny Church leader Brian Tamaiki, following the announcement of the proposals, said he was “excited” to be empowered where “law and order has failed”.
Nor was there any oversight mechanism, as there is for police with the Independent Police Conduct Authority.
“The power of arrest and the power to use force to effect are the two most substantial powers that define police,” said police feedback in December.
“Rightly, Government places legal restrictions and oversight around that. Yet the [draft Cabinet] paper is silent on reporting and oversight when it comes to the same powers being extended beyond police.
“Relying on retailers to self-select what oversight they have in this space is unlikely to provide the level of assurance needed to ensure this power is not misused.”
Police raised several questions over how to ensure the new powers wouldn’t be abused, including:
Another risk, raised in the February aide-memoire, was that a highly motivated cohort of retail offenders “may escalate violence to pre-empt and deter staff use of force”.
“This is especially concerning in circumstances that would not have become violent otherwise,” the aide-memoire said.
Police said the proposals “could have a significant impact on police resources” and the Government might be targeting the wrong end of the crime pipeline.
“More consideration could be given to prevention initiatives that target the drivers of retail crime, as an alternative to reducing retail crime.”
The Government is yet to introduce a bill that would enable the changes.
It is also planning to introduce a new shoplifting infringement offence, embracing more facial recognition technology, and overhauling trespass law as part of a suite of measures targeting retail crime.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.