Should Pepper Spray be Legalised in Australia?

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Pepper spray

As the statistics prove, violence against women shows no signs of abating, and there have long been calls for Australia to make it legal for women to carry pepper spray for self-defence. But currently, Western Australia is the only State which makes that legal, and even so, the boundaries around who can actually carry it are not entirely clear.

Moves to legalise pepper spray

In 2018, the Australian Party called on the Federal Government to allow the importation of pepper spray, and for the States and Territories to legalise it to be used in self-defence.

The motion was defeated 46-5. As it currently stands, pepper spray is illegal to import into Australia, unless you’re police or the government. It’s also illegal to carry everywhere except Western Australia.

OC / pepper spray

To clarify, this is the same substance used by police, sometimes called OC because it is made  “oleoresin capsicum”, which comes from chilli peppers. It is also sometimes called ‘Mace’ but Mace is a brand name that’s become a generic term.

Pepper Spray is used to incapacitate people by causing temporary blindness, difficulty breathing and a burning sensation on the skin, side effects which usually last only an hour or so. Police are only permitted to use pepper spray ‘reasonably’ and in appropriate circumstances.

Police are against legalisation

In Australia, Police have argued that they don’t support the general public to carry pepper spray for personal use, because it could be used against police officers during encounters.

But that argument has to be balanced with the very real issue of women’s safety, and women’s right to feel safe, whether they are waiting at a poorly lit bus stop at night, walking to their car in the dark, or victims of domestic violence.

Violence against women

Time and again, we hear of horrendous violence against women: Jill Meagher, Eurydice Dixon, Hannah Baxter are a small handful who made headlines in recent years. Many go unnamed. This year 37 women have been killed violently across the nation.

Would being armed with pepper spray have saved them? It’s a question we will never know the answer to, because in Australia it’s a conversation those in leadership seem to be reluctant to have, despite pouring millions of dollars into domestic violence services and social awareness campaigns.

What does the law say?

Across each jurisdiction, the law is different, although there are similarities.

In Queensland, pepper spray is illegal. It is considered an “offensive weapon” and cannot be carried for self-defence.

In Victoria, it is against the law to “carry any article designed or adapted to discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause disability, incapacity or harm to another person,”  including for self-defence.

In Tasmania, people must not carry “dangerous articles” in public places unless they have a lawful excuse (which doesn’t include self-defence).

In South Australia, pepper spray is considered a “dangerous article”, and in the Northern Territory, it is a “prohibited weapon”; while it is a “prohibited weapon” in the ACT, making it an offence to possess or use it.

In Western Australia, the law is different again. Pepper spray is considered a ‘controlled weapon’ and, along with items such as crossbows, spear guns or swords which can also be used if you have a “lawful excuse” — for example, for fishing, or for the purpose of martial arts.

In the case of pepper spray, the law says it is legal “if it is carried or possessed by a person for the purpose of being used in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise.”

This does not, however, mean every woman can carry it; only those with ‘reasonable grounds’ to do so, which may include those with regular night shifts who need to walk to and from areas, or those in what may be categorised as potentially dangerous locations.

The elderly and vulnerable, or someone with poor eyesight, or who is a victim of sexual assault, might also have lawful reasons for carrying pepper spray, but there is no list of what constitute ‘reasonable grounds’. Rather, it is a matter of fact to be determined by the court, which can take into account all relevant circumstances.

In New South Wales

In NSW, pepper spray is considered a “prohibited weapon” and can’t be carried for personal security.

In that regard, section 7 of the Weapons Prohibition Act 1998 makes it a criminal offence to possess or use a prohibited weapon unless authorised by law to do so, whether by way of a permit or otherwise.

Permits may be obtained to use 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 for recreational purposes.

The maximum penalty for possessing a prohibited weapon is 14 years in prison if the case is referred to a higher court such as the District Court, or two years if the case remains in the Local Court.

Pepper spray for self-defence

Surprisingly, Australia is not alone in its stance, despite the fact that in 2019, Global estimates published by WHO indicated that about 1 in 3 (35%) of women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime.

Pepper Spray is illegal in many countries, including the UK, Denmark, Greece, Ireland and Sweden to name a few.

It is legal in Italy, France, the Czech Republic, Spain, Austria, Poland, Russia, Switzerland, Germany, and Portugal. Some of these countries mandate that pepper spray is only permitted with a license. In the USA you can purchase it at a department store, no questions asked.

Despite the fact that it is illegal in most parts of Australia, a significant number of women choose to carry pepper spray anyway, preferring to take their chances with the law, than to be unprepared during an encounter with a perpetrator with violent intentions.

For so many years, women have been told not to walk alone, especially at night. Women have been told to avoid dark and isolated areas, to be alert to their surroundings (whether in the dark or in broad daylight), to carry a whistle or a mobile phone at all times.

But the problem with this ongoing rhetoric is that it keeps putting the sole responsibility on women to keep themselves safe, rather than putting the onus on our leaders to consider enacting laws which could actually empower and protect them.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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