Why This Matters Before the Christmas Peak
The busiest trading weeks of the year put more customers, more casual staff and more stock on the shop floor, and this is the first Christmas season under the Crimes Amendment Act 2026. The Act widened the circumstances in which a member of the public, including a shop owner or employee, can make a citizen's arrest. That is a new legal option. It is not a new obligation, and every arrest carries legal and personal risk for the person making it and for the business that employs them.
What the Law Now Says
The changes are set out in the Crimes Amendment Bill as reported from the committee of the whole House, which became the Crimes Amendment Act 2026. The main points for businesses are below. The commencement clause allows some provisions to start on dates set by Order in Council, so check the current position before relying on any single change.
| Change | What it means in practice |
|---|---|
| Section 35 of the Crimes Act 1961 now refers to "offences against this Act" rather than "certain crimes" | The penalty threshold in section 35(a) is deleted and section 35(b) is repealed, so finding someone committing any offence against the Crimes Act can justify an arrest without a warrant |
| Sections 39 and 40 give "physical or mechanical restraints" as an example of force | Restraint can be used where the force used is justified, but the general limits on force still apply |
| A person who is not a constable must contact Police as soon as practicable and follow all directions | Police may direct that the person be released or handed over; holding someone without reasonable excuse after that point is no longer justified |
| Defence of property provisions (sections 52, 53 and 56) lose the condition that the defender does not strike or do bodily harm | The test becomes whether the force used was reasonable |
| A shoplifting infringement offence is added to the Summary Offences Act 1981 | Police, not retailers, issue the notices, at $750 where the property is worth $500 or less and $1,500 where it is worth more |
What Police Expect From Anyone Making an Arrest
Police have published citizen's arrest guidance on their retail crime prevention hub. It tells people to call 111 first if there is an immediate risk of harm, and not to intervene where that could put themselves or others in harm's way. Where someone does make an arrest, the guidance says they should:
- be sure they have the correct person, and believe on reasonable and probable grounds that a Crimes Act offence has been committed
- tell the person clearly that they are making a citizen's arrest, and ask for their cooperation
- avoid force, and use only force that is necessary and proportionate, at the minimum required
- never kneel or sit on the person or apply pressure to the neck or head, and be aware of the risk of positional asphyxia
- not question or search the person or their belongings
- call 111 as soon as practicable, follow every Police direction, including a direction to release the person, and be ready to give a statement
- check the person's welfare regularly, taking account of age, disability, intoxication and medical needs
The guidance is blunt about the downside. Using excessive force, making an unlawful arrest, or failing to follow Police directions without reasonable excuse may lead to criminal charges, such as assault, or to being sued in a civil claim.
The Employer's Side of the Equation
The new powers belong to individuals, but staff who make an arrest at work are doing so in the course of the business. Section 36(1) of the Health and Safety at Work Act 2015 requires a business to ensure, so far as is reasonably practicable, the health and safety of its workers while they are at work. Section 36(2) requires it to ensure that the health and safety of other persons is not put at risk from its work.
A business that expects or encourages staff to detain shoplifters is making a decision about a foreseeable risk of violence to its workers and to the public. A business that tells staff never to intervene is also making a decision, and should make sure staff know it. The worst position is having no policy at all, so that a staff member improvises under pressure on a busy Saturday in December.
Fines Cannot Be Insured
If an incident leads to a health and safety prosecution, section 29 of the same Act makes any insurance policy of no effect to the extent it indemnifies a fine or infringement fee under the Act, and offering or accepting such an indemnity is itself an offence. Legal costs are a separate question, and are worth raising with your adviser.
How Your Liability Cover Fits In
Public liability insurance is concerned with claims by third parties, which in a shop means customers, passers-by and, after an arrest, the person who was detained. A citizen's arrest that turns out to be mistaken, or that went further than the law allows, can produce claims that do not look like the usual slip-and-trip or property damage claim. Policy wordings differ in how they treat these, so read your own and ask.
| Situation | Possible claim | Question to put to your adviser |
|---|---|---|
| Staff detain the wrong person | Unlawful arrest or detention, and a reputational complaint | Does my policy cover wrongful arrest or false imprisonment, or is that an optional extension? |
| Restraint goes further than the law allows | Civil claim alleging assault | Is there an assault or deliberate acts exclusion, and how does it treat staff acting for the business? |
| A struggle damages another customer's property or a neighbouring tenancy | Third-party property damage | Is this within my public liability cover, and is my limit adequate? |
| A security contractor makes the arrest | Claims against both the contractor and the store | Does the contractor hold its own liability cover, and does our contract say who is responsible? |
| WorkSafe investigates after a worker is hurt | Investigation and possible prosecution | Do I hold statutory liability cover for legal costs and reparation? |
A Practical Checklist for Retailers
- Decide your policy on intervention, write it down, and brief every staff member, including casual and seasonal workers hired for Christmas
- Make "call 111 and observe" the default where there is any risk of harm, as the Police guidance does
- If any staff may detain someone, make sure they have read the Police guidance and know the limits on force and restraint
- Keep CCTV footage and written notes of every incident, and make sure the person involved records what Police directed
- Review contracts with security providers so it is clear who is allowed to arrest and who carries the liability
- Ask your insurer or adviser how your public liability and statutory liability cover respond to arrests, restraint and detention
Next Steps
The new powers give retailers more options, but they also create new ways for an incident to turn into a claim. Our coverage guide explains how public liability and statutory liability divide the risk, and our retail shops page covers the everyday exposures. To have a referred adviser check your cover before the Christmas trading peak, Get a Quote or email hello@cover4you.co.nz.