Minister for Justice Paul Goldsmith on plans to broaden citizens’ arrest powers. Video / Dean Purcell
The Government wants to broaden citizen’s arrest powers so they apply to any Crimes Act offence at any time of day, and clarify “reasonable” force as including bodily harm in certain circumstances.
They currently only apply to offences of a certain severity, with different thresholds during working hours.
There is no specific protection for children or young people, which the Chief Children’s Commissioner says neglects their right to be free from all violence.
Children and young people are inherently vulnerable and have a right to be free of all violence, so what should a retail worker be able to do if they catch a child shoplifting?
Young people don’t have special protections against a citizen’s arrest at the moment, but the questionis in the spotlight as the Government moves to broaden those powers to help tackle retail crime.
It comes as Police Commissioner Richard Chambers is reassuring the retailers that police will respond to shoplifting under $500 - depending on priorities - following confusion from a now-axed directive that set thresholds for investigating theft.
Asked if the new citizen’s arrest powers would enable restraining children until police arrive, Justice Minister Paul Goldsmith previously told the Herald: “Yes, potentially.”
This has drawn sharp disagreement from Chief Children’s Commissioner Dr Claire Achmad, who is adding her voice to a chorus of concern from several public sector agencies including Oranga Tamariki, Justice, Police, Crown Law, the Ministry for Disabled People, and Te Puni Kōkiri.
“All children have a right to be free from all forms of violence. New Zealand has agreed to make this right real for all children, in all circumstances, at all times,” Achmad told the Herald in a statement.
Chief Children’s Commissioner Dr Claire Achmad. Photo / Mark Mitchell
Enabling a citizen’s arrest with reasonable force against children [which the current law allows] was contrary to New Zealand’s commitments to children’s rights, she said.
“It’s clear the proposed changes would put children and young people at risk of harm – they are incompatible with New Zealand’s children’s rights commitments and duties, and shouldn’t proceed further.
“I’m keen to understand what evidence has been used to inform the [proposals], given the potential harm of citizen’s arrests, including risks to bystanders if a situation escalates.”
But these offenders are already in the care of Oranga Tamariki, or an organisation contracted to Oranga Tamariki. Citizen’s arrests can be made by anyone, which presents a difficulty in legislating for safeguards to protect children and young people from harm.
So what should a retail worker be able to do if they catch a young person shoplifting?
“A retail worker should be able to take steps to resolve the situation such as calling the behaviour out and asking for a return of goods,” Achmad said. “I do not support the use of force as it carries too much risk of harm for the young person and the worker.”
Justice Minister Paul Goldsmith. Photo / Dean Purcell
Goldsmith did not specifically respond to questions about safeguards for young people or evidence behind the proposals, saying people will be able to have their say through a select committee process.
“Any use of force that is beyond reasonable will expose people to potential civil or criminal liability,“ he said.
“The public will need to exercise caution when effecting arrests, and police will use their discretion if they think someone has gone beyond the bounds of what is permitted by the law. ”
Goldsmith described the current situation as people stealing a full trolley of goods from a supermarket, and “all someone can do is escort them to their car”.
“In order to achieve different outcomes, we need to try different things.”
Police estimate the annual costs of retail crime at $1 billion, while Retail NZ estimates it at $2.6 billion a year. In 2023, there were a total of 121,000 reported incidents, of which 90% were theft.
Widening citizen’s arrest powers
Currently, a citizen’s arrest can be made for any offence under the Crimes Act:
Committed at night (between 9pm to 6am); or
Committed at any time of day, if the offence is punishable by a $3000 fine.
Most types of retail offences are captured, according to Justice Ministry briefings, but daytime theft of items worth less than $1000 is not.
Reasonable force is defined in the law as excluding striking or causing bodily harm, but case law indicates that proportionate pushing or even mechanical restraints, for example, can be reasonable in circumstances such as self-defence.
Reasonable force? A business owner (left) in the Mid City Mall in downtown Auckland attempts to apprehend a man who had tried to steal an item from the Moona Store. Photo / Supplied
The Government wants citizen’s arrests to be applicable at any time of day for any offence in the Crimes Act, and for reasonable force to potentially include striking or bodily harm, in the right circumstances.
“The reasonableness of any force used will be somewhat dependent on factors like age, size, behaviour, use of violence, willingness to co-operate, etc,” Goldsmith’s Cabinet paper said.
The Cabinet paper said the proposals were “likely” to impact on children and young people, particularly Māori and Pasifika who have ”proportionately more youthful population groups”.
In each of the years between 2019 and 2023, young people (14 to 17) accounted for more than 10% of retail crime proceedings.
Theft was the most common offence in youth justice data for 2023/24, making up 34% of all police proceedings against children, and 29% for young people.
Achmad had concerns not only for those being citizen’s-arrested, but also those doing the arrests, given more than a quarter of retail workers are aged 15-24.
“So this is a real concern for children and young people’s safety in their work environments,” she said.
Retail theft has been rising, and broadening citizen's arrest powers is part of the Government's plan to tackle it. Photo / 123RF
Widespread public sector concern
Documents released to the Herald reveal the extent of concerns among public sector agencies.
In a Cabinet paper, Oranga Tamariki said the use of force on children shouldn’t be open to just anyone, but to “vetted and trained police or children’s workers to manage these high risks, avoid harm and prevent an escalation of violence in the community”.
Echoing Achmad’s concerns, Oranga Tamariki said the proposals raised “serious ethical and legal concerns regarding children’s rights, and could lead to violations of due process, or, in a worst-case scenario, use of these powers by an abuser to coerce children and perpetuate abuse and violence on them”.
Crown Law noted the proposals do not mirror Oranga Tamariki law, which sets out a special process for police arrests due to “the need to protect children and young people given their age and vulnerability”.
In a November 2024 briefing, the Ministry of Disabled People said the proposals would increase the risk of interventions against disabled people - including the neurodivergent, or those with mental health conditions or learning disabilities - when they haven’t committed any offence.
Similarly, Te Puni Kōkiri said expanding citizen’s arrest powers would widen the circumstances where action, fueled by bias or discrimination against Māori, could be taken.
Oranga Tamariki - Ministry for Children is one of several agencies (along with Police, Justice, Crown Law, Te Puni Kokiri, and the Ministry of Disabled People) in the public sector with concerns about the Government's citizen's arrest proposals. Photo / Jason Oxenham
‘Slapping a frail elderly person’
The Mag’s wishlist included enabling a citizen’s arrest on reasonable suspicion of an offence, including “trivial harm” in the definition of reasonable force, allowing for personal search powers, and blunting the ability to seek a judicial determination of whether the proposals are contrary to the Bill of Rights Act.
Justice officials slammed these, noting Mag’s own stakeholders - including Retail NZ - shared Justice and Police concerns including the risk of:
Unjustifiably detaining innocent people;
Enabling, or even requiring, trivial harm such as “slapping a frail elderly person who is securely detained ... On a strict reading of your proposals, it appears as if force is only reasonable when it causes more than trivial, but not serious harm. That is, force must cause trivial harm to be reasonable,” said a Ministry of Justice letter to the Mag;
Vigilantism and increased likelihood of escalating interpersonal violence, endangering customers and employees;
Displacing offending to more vulnerable locations, such as small retailers with no dedicated security.
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.
