Pepper Spray: Is it Legal in Australia?
Pepper spray is illegal in most of the States and Territories in Australia. Although people are asking the Australian Government to make it legal to carry pepper spray for self-defence, only Western Australia has moved to legalise pepper spray as a controlled weapon.
Is Pepper Spray Dangerous?
Pepper spray contains an inflammatory compound capsaicin and it is typically dispersed into the air as an aerosol spray. Capsaicin is found in edible pepper plants such as jalapeños and green chilli. This spray made from chilli peppers or capsaicin cause irritation when it is sprayed into or comes into contact with a person’s eyes or skin and these side effects is normally mild and temporary and last for about an hour.
This eye exposure can cause pain, swelling, redness, burning sensation and itching. If the spray is inhaled it can cause coughing, difficulty breathing, nasal and throat irritation and it can result in a runny nose. However, a person can also suffer from more severe injuries such as corneal abrasions, skin blisters, or wheezing. People with lung conditions, such as asthma can have more severe effects if the pepper spray is inhaled. Children are also more vulnerable and can have severe reactions to pepper spray.
Pepper spray is available in various sizes including hand-held containers or canisters that can be thrown or shot into an area. The canisters are typically used by law enforcement.
Is it Legal to Carry Pepper Spray in Australia?
The Australian Government Department of Home Affairs Pepper classifies pepper spray as a weapon. Schedule 1 of the Weapons Prohibition Act 1998 classifies and lists items as prohibited weapons. Schedule 1 prohibits the use of a device designed to discharge an irritant matter or intended as a defence spray. Section 7(1) of the Weapons Prohibition Act 1998 states a person can only possess or use a prohibited weapon if the person has a permit.
Pepper spray is illegal in most jurisdictions in Australia. The laws on pepper spray are different, although there are some similarities. Western Australia is the only state where pepper spray is seen as a controlled weapon and not a prohibited weapon. It is legal to own pepper spray in Western Australia and it can be owned on restricted bases and only by those with reasonable grounds to do so.
A person can also use pepper spray in Western Australia if they have a lawful excuse to do so, for instance, people who work in dangerous locations. Ownership is legal, but the reason for carrying pepper spray for self-defence has to be justified. However, the law on what constitutes reasonable grounds are vague and it is a matter to be determined by the court.
Police define pepper spray as considered an offensive weapon in Queensland. A person cannot carry pepper spray for self-defence. It is also against the law to carry pepper spray in Victoria, even for self-defence. This state sees pepper spray as an item on the list of articles designed to discharge an offensive, noxious or irritant liquid, powder, chemical, or gas. Pepper spray can cause disability, incapacity, or harm another person.
In Tasmania, the law prohibits people from carrying dangerous items in public places unless they have a lawful excuse that does not include self-defence. Pepper spray is illegal in South Australia. The law in South Australia considers pepper spray as a dangerous article and it is prohibited. New South Wales, the Northern Territory, and ACT list pepper spray as a prohibited weapon. It is an offence to possess, carry or use it.
Can a person buy pepper spray in Australia? A person can only buy pepper spray in Western Australia and it cost about $20 to $50 depending on the size of the canister.
Using Pepper Spray for Self-Defence
It is illegal and a criminal offence to carry pepper spray in Australia for self-defence, except in Western Australia. A person who possesses or uses pepper spray runs the risk of being charged for possessing and using a prohibited weapon and even assault, even if they use it in a violent situation for self-defence or believes it is a lawful defence.
A defence lawyer has to argue that the accused were acting in self-defence without violent intentions. The prosecutor has to prove that the accused’s actions were not a reasonable response in the circumstances. However, many women still choose to carry pepper spray. They will rather face the law than be unprepared during an attack with a violent offender.
Are Police Allowed to Use Pepper Spray?
Police are allowed to use pepper spray if they have a permit. Permits are issued for police or government use. Pepper spray may be used by the police or law enforcement in relevant or reasonable circumstances to incapacitate people. Misuse of pepper spray can lead to a reprimand or an internal investigation. Pepper spray is used by the police to control crowds, during riots, and in self-defence situations.
The Use of Pepper Spray in NSW
Carrying or using pepper spray is illegal and an offence in NSW. Pepper spray is considered a prohibited weapon and a person cannot carry it for personal security. Section 7 of the Weapons Prohibition Act 1998 makes it a criminal act to possess or use a prohibited weapon in New South Wales unless the person is authorised by the law by way of a permit. According to Section 11 of the Weapons Prohibition Act 1998 (NSW), a person will not be issued a pepper spray permit in NSW if the person wants the spray for self-defence.
A permit authorises the use of prohibited weapons for specific purposes such as training, instructing, or sporting. A permit may also be authorised for historical, commemorative, or educational purposes. Permits will not be issued to people who want to carry the items for recreational or personal security purposes.
Schedule 1 of the Weapons Prohibition Act 1998 also lists all the prohibited weapons and items which include any device that is designed or intended as a defence spray that discharges an irritant matter.
Pepper Spray Permit in NSW
A person can apply for a pepper spray permit. The application must clearly state:
- The type of spray
- The amount of spray to be authorised
- The purpose of the pepper spray
- How the pepper spray will be stored
- Where the pepper spray will be stored
- Contact details
- Full Name
- Date of birth
- Residential address
The applicant needs to complete additional questions in the application and pay the fee of $127 for the pepper spray permit. The Commissioner will verify all the information on the application and might want to launch further investigations or inquiries if perceived necessary whilst considering the application. The Commissioner may issue or refuse to issue a permit after considering the application.
A person will only be issued with a pepper spray permit if the Commissioner accepts that the person:
- Is a suitable candidate
- Meets the specific storage and safety requirements
- Will not endanger the public or the peace
- Has completed the relevant safety courses and approved training as required
- Has a legitimate reason for possessing or using pepper spray
Some of these legitimate reasons can include:
- Recreation or sport
- Historical re-enactment
- Business or employment
- Theatre, film, or television purposes
- Weapons collection
- For a museum
- Animal management
- Scientific purposes
The Commissioner has the authority to still refuse to issue a permit even though a person meets the above criteria if:
- The person has been convicted of a prescribed offence in the last ten years
- The person has been or is subject to an AVO
- The person is subject to a good behaviour bond, a Community Correction Order, or a conditional release order from any of the prescribed offences
- The person is subject to a weapons prohibition order
- The person is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000
- The Commissioner deems a person a risk to public safety and issuing a permit would not be in the public’s interest based on a criminal intelligence report or other criminal information
Section 12 of the Weapons Prohibition Act 1998 (NSW) stipulates a person issued with a permit to possess or use pepper spray based on a genuine reason has to notify the Commissioner in writing within 7 days if the reason for needing pepper spray ceases to exist. A person will commit an offence if a person fails to do so.
It is also an offence to use or carry pepper spray for any purpose other than the genuine reason set out in the permit that was issued. The maximum penalty for possession or both of these offences is a fine of $5,500. A person has the opportunity to surrender a prohibited weapon in NSW during an amnesty period.
A pepper spray permit will be suspended if an interim Apprehended Violence Order or AVO is made against a person. The permit will remain suspended until the AVO is made final or dismissed.
Revoked Pepper Spray Permit in NSW
Section 18 Weapons Prohibition Act 1998 (NSW) states a pepper spray permit will be revoked if a person supplied false or misleading information during the application process for a pepper spray permit. It will also be revoked if:
- A person breached the permit compliance requirements
- The Commissioner does not believe the person is fit to have a permit anymore
- The Commissioner considers another reason is sufficient in the circumstances to warrant a revoked permit
A person will receive a notice of revocation when their pepper spray permit is revoked. The permit will be revoked the day the person receives the notice unless the notice states another date. A person has to immediately surrender the permit and all the pepper spray items on the day the pepper spray permit is revoked or suspended. The person has to hand the items over to a police officer. A police officer is authorised to seize a person’s pepper spray if the permit has been revoked or suspended.
Section 19(2) of the Weapons Prohibition Act gives the police the power to seize the prohibited weapon and the permit. Section 19 of the Weapons Prohibition Act 1998 (NSW) makes it an offence punishable by a 12 months’ imprisonment and/or $5,500 a fine or both if a person does not hand over the prohibited weapon.
Penalties When Using Pepper Spray
A person charged with possessing or using pepper spray can face a maximum penalty of fourteen years imprisonment with a five year standard non-parole period if the case is heard in the District Court. However, this type of offence is usually prosecuted in the local court where the maximum penalty is two years imprisonment.
A person can face serious legal consequences for carrying or using prohibited weapons like pepper spray. The Australian Government Department of Home Affairs states that the potential penalties for the possession or use of pepper spray are:
- A person can lose their pepper spray
- Receive an on-the-spot fine
- Prosecution
- Hefty financial penalties
Defence against a Charge of Carrying Pepper Spray
A criminal defence lawyer may be able to use several defences when a person has been charged with possessing or using a prohibited weapon. Self-defence or protection may be considered to be reasonable reasons to carry harmful sprays. The perceived level of risk has to however justify carrying or using the pepper spray.
A criminal defence lawyer can use the following defences in a case:
- If the person has been attacked or threatened on a previous occasion and if the attack was in the same area where the defendant was found in possession of the pepper spray
- If the person were found with pepper spray in a dangerous or high-risk area, especially at night
- The age or gender of the person or any other factors that might make a person more vulnerable to an attack.
- If the person has a good character and has no previous weapon offences or a history of aggressive or violent behaviour
It is important to speak to a lawyer about your defence if you or a family member faces any charges for carrying a prohibited weapon. For expert advice contact Lyons Law Group.
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