Minister for Justice Paul Goldsmith spoke to media about a new initiative that plans to ease laws around citizens’ arrests. Video / Dean Purcell
A legal expert says the ability to restrain a shoplifter under the Government’s strengthened citizens’ arrest powers appears “very problematic” and could be akin to “assault”.
However, University of Canterbury professor Jeremy Finn acknowledges aspects of the proposed expansion to the arrest powers seem “sensible” and are “long overdue”.
It comes as Justice Minister Paul Goldsmith says comments from one member of the Government’s retail crime ministerial advisory group warning retailers could die if the changes were enacted are “unhelpful”.
On Wednesday, Goldsmith detailed how the Government sought to amend the Crimes Act to expand what is commonly referred to as citizens' arrest powers, which enable any member of the public to arrest someone committing a crime.
Under the current legislation, a citizen’s arrest could only be made at night. If it was between 6am and 9pm, the goods being stolen needed to be worth at least $1000.
The proposed amendments stripped away the time-of-day limitations and removed the need to consider the value of the goods.
Goldsmith branded the changes as further empowering retailers amid rising levels of retail crime, which he admitted the Government had not yet solved.
Retail crime ministerial advisory group chairman Sunny Kaushal has long called for these powers to be introduced. Photo / Ben Dickens
The changes spawned from advice from the retail crime ministerial advisory group, chaired by former Dairy and Business Owners Group chairman Sunny Kaushal who had long called for similar powers to be introduced but had been denied by the previous Labour Government.
While the practical application of the proposed changes was unclear, Goldsmith acknowledged it could allow retailers or members of the public to restrain an offender, including by tying them up.
Finn, also a member of the New Zealand Law Society’s criminal law committee, questioned whether tying up a shoplifter until police arrived aligned with the requirement to only use reasonable force during an arrest.
“Tying somebody up, that’s an assault, that’s not using reasonable force to make the arrest,” he said.
“You could certainly restrain if the person unrestrained would be a danger to other people because that’s using reasonable force to defend against threats to a person.
“But if you’ve arrested somebody and they’re just sitting quietly in a chair in the corner, I would have thought any attempt to physically restrain them, unless you can point to a particular statutory authorisation, I would have thought that’s very problematic.”
Finn believed the citizens' arrest powers as they were in current legislation were “rarely used” and said clarifying the time-of-day and goods value restrictions was “probably sensible”.
“It’s getting rid of a very outmoded distinction that’s been problematic for a long time.”
He did point to several possible fish hooks in the changes, including situations when a shoplifter was under the age of criminal responsibility or when shoppers had mistakenly pocketed items, particularly in self-service businesses.
Finn acknowledged the legal arguments were distinct from the concerns some retailers had raised about intervening in an attempted theft.
“At what point is it worth risking life and limb?”
Speaking to the Herald, Goldsmith accepted restraining an individual during a citizen’s arrest was allowed under the proposed changes, but only in “extreme cases”.
“The expectation is to contact the police as quickly as possible and take instructions from them, so it’s not in any way intended to be anything other than that.”
He said he hadn’t received any legal advice assessing the proposed restraining power at this stage.
After details of the amendments were announced, strong criticism followed from the Labour Party and several unions, who warned it would put untrained and lowly paid retail staff at risk.
Retail NZ chief executive Carolyn Young feared the powers would end up contributing to the death of a retail employee. Photo / Supplied
Another unexpected opponent was Retail NZ chief executive Carolyn Young, who was a member of the ministerial advisory group that had advised the Government to strengthen the citizens' arrest powers.
“It is highly likely that the risk of violence would increase if retail staff, security guards or members of the public attempted to detain offenders,” she said.
“This is extremely dangerous – people will get hurt or even killed. Frontline retail workers, who are often young people in their first job, do not go to work to do law enforcement.”
Asked about Young’s view, Goldsmith told the Herald: “I don’t think that’s a helpful comment.”
However, Goldsmith was comfortable with her remaining in the advisory group and expected its members would have “robust views and different perspectives”.
Retail crime was one of several key election issues in 2023, particularly as the previous Labour Government struggled to manage a persistent trend of ram raids in urban areas like Auckland and Hamilton.
Janak Patel was killed in 2022 while he was managing an Auckland dairy. Photo / Supplied
Concern reached a peak in 2022 when Auckland dairy manager Janak Patel was killed by Frederick Gilbert Hobson, a homeless, meth-addicted 501 deportee who had attempted to steal from the Rose Cottage Superette in Sandringham.
Patel had pursued the knife-wielding Hobson with a hockey stick during the incident before he was fatally stabbed.
His funeral was attended by then Prime Minister Jacinda Ardern and National MP Mark Mitchell, who currently serves as Police Minister in the coalition Government.
Sandringham business association chairman Jithin Chittibomma told the Herald he opposed the new powers becoming law and feared the Government had not learned from Patel’s death.
“At the end of the day, the whole point was that Janak’s death shouldn’t repeat.
“[Janak] retaliated in that situation and he lost his life. How is expanding on self-defence going to avoid his death?”
Sandringham business association's Jithin Chittibomma is opposed to the Government's changes. Photo / Sylvie Whinray
He also noted how many retailers in Sandringham were older or were unlikely to intervene if a crime was occurring.
Chittibomma instead supported implementing mandatory prison or community service sentences for those who committed retail theft.
Adam Pearse is a political reporter in the NZ Herald Press Gallery team, based at Parliament. He has worked for NZME since 2018, covering sport and health for the Northern Advocate in Whangārei before moving to the NZ Herald in Auckland, covering Covid-19 and crime.
