Justice Minister Paul Goldsmith initially wanted to let retailers ban a person from all their store locations for up to five years.
His preference is revealed in his Cabinet paper and Justice Ministry advice, but Cabinet later softened this to three years.
Concerns still remain about the potential for disproportionate impacts on those who are trespassed, after Goldsmith rejected a ministry recommendation for a court-supervised trespass period.
A court would act as a safeguard, particularly for those who could be severely impacted by a trespass order including rural communities with limited access to alternative services, or those with mental health, poverty, or addiction challenges.
Instead the trespass period is proposed to be at the discretion of the property owner, with the ability for a retail or hospitality business to issue a multi-location notice for up to three years.
That is a private property owner’s right, even in stores open to the public, which the Government is backing in an effort to tackle retail crime.
The trade-off is the risk of an order that could unjustifiably limit someone’s access to essential services.
“A five-year [now three-year] multi-location notice across a whole region, or the country, could mean a person is effectively unable to access any supermarket for that whole period with no appeal,” the ministry said in its regulatory impact statement (RIS).
Goldsmith told the Herald changing from five years to three years was “more in keeping” with comparable overseas jurisdictions, which mostly have a maximum period of one year. The current maximum in New Zealand is two years.
He announced the overhaul of trespass laws in July:
A bill to enable these changes is yet to be introduced.
The crux of the matter is the appropriate extent of private property rights. Trespassing someone for a minor matter may be unfair, especially if access to essential goods is involved, but should it be disallowed?
It is allowed at the moment: Tony Hughes was trespassed from his local New World in Havelock North after taking pictures of a clogged fire exit so it could be cleared - which it eventually was.
Currently, the default length of a trespass notice is fixed at two years, which a retailer can revoke at any time.
A longer period would strengthen those property rights, the RIS said, in “a recognition of property owners’ right to exclude individuals indefinitely for non-discriminatory reasons”.
Goldsmith said a longer maximum period would provide more options for retailers.
“A shorter period of exclusion may be appropriate for someone who steals a small amount of goods or who verbally abuses retail workers, while a full five years [now three years] may be appropriate for people who cause serious harm to workers or threaten them with weapons,” he said in his Cabinet paper.
A longer period could also increase the scale of any unfairness, so the Ministry of Justice proposed a flexible period of up to two years, with any extension following a breach left to a court.
This would provide safeguards, the RIS said, to:
Retail NZ said going through the “backlogged” court system would create timeliness issues and extra costs for businesses, undermining what is hoped to be an effective and practical law.
“It’s a tricky one,” Retail NZ chief executive Carolyn Young told the Herald.
“From a retailer’s perspective, giving the retailer the rights and control around who can come into the store is something our members feel strongly about."
She said a store owner should be able to ban someone from their store(s), given their proprietary rights.
“You’d want to make sure that people didn’t abuse the ability to put a trespass ban in place, and that people would be reasonable around what’s appropriate for their business.
“And then there’s the flip side: if it gets beyond a certain threshold, isn’t that more for the courts to determine?”
The Government is targeting retail crime, and has already announced a proposal to expand the powers of citizen’s arrest, despite police concern it would give the public greater arrest powers than them.
There is broad agreement that the Trespass Act needs an overhaul. It is 40 years old, primarily with private homes and farms in mind, and is considered ineffective for retail spaces.
“New Zealand has seen an exponential growth in retail crime over the past five years, with an 86% increase in retail crime of all types,” Goldsmith’s Cabinet paper said, though some of this is attributable to easier reporting systems.
The number of trespass charges and adults charged with trespass fell about 37% in the last decade, according to Justice Ministry data, but the number of trespass charges for retail has been rising since 2022.
Goldsmith’s proposals were based on feedback from his ministerial advisory group on victims of retail crime.
The RIS lamented a lack of time to consult more widely, saying it limited the ministry’s ability to “interrogate the policy problem” and “fully test the options”.
Goldsmith’s preference would be “less effective compared to the status quo”, the RIS said, because longer trespass periods “do not address the core policy problem as identified by the Ministry – the lack of enforceability of an incorrectly served trespass notice”. Goldsmith agreed with a recommendation of issuing guidelines for retailers on how to issue trespass notices.
The proposals would have a disproportionate impact on Māori, children and young people, and those in rural communities, the RIS said.
Public service feedback revealed objections from MSD, Oranga Tamariki, Police, and the Privacy Commissioner, who said the ability to trespass someone from multiple premises would require that person’s information to be shared.
“Without safeguards, the [Privacy] Commissioner does not consider this proposal to be necessary, proportionate, or justified,” the RIS said.
Like Justice, Police supported a court-supervised trespass period, saying it would “reduce complexity and increase the likelihood of successful prosecution“.
MSD said it could lead to “increased demand for hardship assistance and emergency accommodation due to possible financial implications on whānau and families where fines have been imposed”.
Oranga Tamariki asked that children and young people be exempted from the proposals, and instead be dealt with under the agency’s own legislation, which has safeguards to prioritise their wellbeing.
Goldsmith is also looking at lowering the threshold for criminal liability, including whether a trespassed person “ought to have known” they shouldn’t be on the property, rather than their having clearly understood it.
The former would capture someone who is actively trying to disrupt being served a trespass notice.
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.