Everyone deserves the right to feel safe. If you walk home from your bus stop after work and the way is poorly lit, or if you live in a dodgy neighbourhood, you may feel that you face a real risk of being attacked. You can’t rely on Superman or Batman to come to the rescue at the right moment (unfortunately!), so you may want to arm yourself in some way so you feel more secure about going out alone. But if you are thinking about arming yourself with pepper spray in Australia, you may want to reconsider that approach.
In most states and territories, including NSW, it is illegal to carry or possess pepper spray or mace. These items are classed as prohibited weapons. The only exception is in Western Australia, where pepper spray and mace are defined as controlled weapons, meaning that ownership of them is legal, but is restricted.
This article will outline the legality of carrying these items, and the possible legal consequences of possessing or using them.
Can I carry pepper spray or mace?
In NSW, Section 7 of the Weapons Prohibition Act 1998 states that it is an offence to possess or use a prohibited weapon unless authorised with a permit. Permits authorise the use of a prohibited weapon for sporting, training or instructing purposes, or for educational, historical or commemorative-type purposes. Permits are usually not issued to people wanting to carry items for personal security or recreational purposes.
Schedule 1 of the Act lists items classed as prohibited weapons. Included in that list is mace and any device designed or intended as a defence or anti-personnel spray that is capable of discharging by any means any irritant matter comprising or containing in liquid, powder, gas or chemical form oleoresin capsicum, known as OC. OC is generally the main ingredient used in pepper spray.
So the short answer is no, you cannot carry pepper spray or mace to protect yourself in NSW. This list also covers many more items that you are not permitted to carry to protect yourself. For example, flick knives, kung-fu sticks, batons, Tasers, and even light-emitting anti-personnel devices that are designed to cause temporary incapacity are also classed as prohibited weapons.
It is worth noting that police officers are permitted to carry pepper spray and mace. However, they must use these devices reasonably and appropriately in the right circumstances, or they may face an internal investigation and reprimand.
Using pepper spray or mace
To be in possession of these items is an offence. Using them is also an offence, and can give rise not only to breaching the Act, but also to being charged with additional criminal offences.
For example, if you are in a situation where you are carrying pepper spray, and you are attacked and use it to defend yourself, you may still be charged for possession and use of a prohibited weapon.
You may also possibly be charged for assault, or assault occasioning actual bodily harm. You could have your lawyer raise the argument that you acted in self-defence, which the prosecution would have to negate by showing your actions were not a reasonable response. But even if you are successful in this defence, you are being put through quite an ordeal with being charged by police and facing the stress, time and expense of a court process. The penalties for using pepper spray against someone can be severe.
The penalties for using pepper spray or mace
Unauthorised possession or use of pepper spray or mace is a serious offence. It can be prosecuted on indictment, which means you can face a jury trial in the district court. If you are charged on indictment, then the maximum penalty is up to 14 years in prison.
The offence does, however, tend to be prosecuted summarily in the local court, unless the prosecutor elects otherwise. The maximum penalty if this offence is prosecuted in the local court is two years’ imprisonment.
Remember there can be legal consequences
If you are in a situation where you feel that you face a real risk of being attacked by someone you know, you may want to consider applying for an apprehended violence order against that person. If you fear for your personal safety late at night, for example, carrying pepper spray is not going to be the best course of action. Taking matters into your own hands can have serious legal consequences.