Retail crime imposes real cost on New Zealand retailers, and the pressure to respond is understandable. The difficulty is that the responses most often reached for — intervention by staff, detention of suspects, publishing images — carry legal risk that frequently exceeds the value of the goods.
The starting point is not the criminal law. It is your duty to your own staff.
Your health and safety duty comes first
Under the Health and Safety at Work Act you must ensure, so far as reasonably practicable, the health and safety of your workers. Violence and aggression from customers is a recognised workplace hazard, and it must be managed like any other.
That has a direct consequence for loss prevention policy. A policy that expects or permits staff to physically intervene in a theft increases the risk of assault to those staff. Where a worker is injured intervening under an employer’s policy or expectation, the employer’s position is poor.
The overwhelming consensus in loss prevention is therefore: observe, record, report — do not intervene physically. Stock is insurable and replaceable. Serious assault is neither.
Citizen’s arrest: the power and its limits
The Crimes Act gives limited powers of arrest to people other than police. In broad terms, any person may arrest without warrant someone they find committing certain offences, and there are provisions relating to offences committed at night and to assisting police.
The limits matter enormously:
- The power is narrower than most people assume and depends on the category of offence and the circumstances.
- Only reasonable force may be used, and what is reasonable is judged after the fact.
- Getting it wrong exposes the individual and the employer to claims for assault and false imprisonment, and potentially to criminal liability.
- A person arrested must be delivered to police as soon as reasonably practicable.
The practical position for retail: staff should not be trained or encouraged to arrest or detain. Where a business uses security personnel, they should be appropriately licensed under the private security legislation and trained specifically on the limits.
Trespass notices
Trespass is the most useful tool most retailers have and the one most often issued incorrectly.
Under the Trespass Act, an occupier may warn a person to leave, and may warn them to stay off the premises for a period. A person who then enters or remains commits an offence.
For a notice to be effective:
- It must be given by the occupier or someone authorised by the occupier — make sure staff who issue notices are actually authorised.
- The person must be identified sufficiently, which is the practical difficulty with unknown offenders.
- The warning must be communicated to the person. A notice nobody received does not bind anyone.
- The duration is limited by statute — a warning to stay off has a maximum period, and issuing a “lifetime ban” is not effective beyond that.
Keep a record of who was trespassed, by whom, when, and for how long, along with any evidence of identity. A notice you cannot prove was given is not enforceable.
CCTV, images and privacy
CCTV in retail premises is lawful, but the footage is personal information under the Privacy Act 2020. That means collecting it for a lawful purpose connected to your functions, notifying people that it is in operation, holding it securely, retaining it no longer than necessary, and providing access if requested.
Publishing images of suspected shoplifters is where retailers get into serious difficulty. Posting footage to social media or sharing it in retailer groups involves disclosing personal information, and it can breach the Privacy Act, defame someone who turns out to be innocent, and generate a complaint that costs far more than the goods.
Provide footage to police. Do not publish it. Where retailers share information about offenders through an organised scheme, that scheme needs to be built with privacy compliance designed in.
Facial recognition adds a further layer: biometric processing is now subject to the Biometric Processing Privacy Code, which requires a documented proportionality assessment and specific transparency measures.
What actually reduces loss
- Store layout and sightlines, and keeping high-value stock in supervised areas.
- Staff presence and greeting — consistently the most effective deterrent measured.
- Good CCTV coverage at entrances and points of sale, with footage that is actually retrievable.
- Accurate stocktaking, so you know what is going and from where.
- Reporting every incident to police, which builds the pattern evidence that supports prosecution.
- Clear written policy that staff do not intervene physically, communicated so nobody feels they should.
WorkSafe publishes guidance on managing violence and aggression at work, the Office of the Privacy Commissioner publishes CCTV and biometrics guidance, and Retail NZ produces sector-specific loss prevention material for members.
General information only, not legal advice.
