Walking alone to your home on a poorly lit road in the dead of night can give anyone the jitters. The question then becomes how will you prepare and arm yourself in potentially dangerous locations? If your mind immediately goes to pepper spray or mace, think again.
Pepper spray (sometimes referred to as oc spray) is a form of aerosol made with “oleoresin capsicum”, which comes from chilli peppers. It is used by law enforcement or by a police officer in relevant circumstances to incapacitate people by causing temporary blindness, difficulty breathing and a burning sensation on the skin. Mace is a specific brand that makes pepper spray but is often used to describe any form of defence spray.
Where Is Pepper Spray Illegal In Australia?
It is illegal in most states of Australia apart from Western Australia. Pepper spray is classified as a weapon by The Australian Government Department of Home Affairs. Potential penalties relating to pepper spray include: on the spot fines and potential prosecution.
In New South Wales, the Northern Territory and the ACT, pepper spray is a “prohibited weapon”. This means that it cannot be carried and you will be charged if it is found in your possession.
In Queensland, police define pepper spray as an “offensive weapon”. This means that you are prohibited from carrying it for self-defence.
In Victoria, it is illegal 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”. Pepper spray is included in these items as it has the capacity to harm another person and cause disability.
In Tasmania and South Australia, individuals are prohibited from carrying “dangerous articles” in public places. Pepper spray, in these states, is considered a “dangerous article”.
However, the only exception is Western Australia. Here, pepper spray is considered a “controlled weapon” rather than a prohibited weapon along with items like crossbows, spear guns or swords. Pepper spray can also be used in Western Australia if you have a “lawful excuse”. This means that ownership is legal, however, not everyone can start carrying pepper spray for self-defence without a justified reason.
Why Can’t I Carry Pepper Spray In NSW?
In NSW, Section 7 of the Weapons Prohibition Act 1998 states that possessing or using a prohibited weapon is illegal unless you have a permit. A permit authorises the use of prohibited weapons for various purposes like training, sporting, or instructing. Historical or educational purposes may also authorise the use of such weapons. Permits are not normally issued to people who want to carry such items for recreational or personal security purposes.
In NSW, Schedule 1 of the Weapons Prohibition Act 1998 lists prohibited weapons and items which includes “any device designed or intended as a defence or anti-personnel spray and that is capable of discharging any irritant matter”.
New South Wales has a list of items that are classified as prohibited weapons. This is Schedule 1 of the Act with mace being included in this list. Any device that is capable of discharging any irritant matter in any matter is also included.
In short, you can’t carry pepper spray for personal security purposes in NSW. It should be noted that police officers can carry mace or pepper spray; however, they are required to use such devices appropriately and reasonably. Otherwise, they may face a reprimand and internal investigation.
What Are The Penalties If I Use Or Carry Pepper Spray?
Unauthorised use or possession of pepper spray is an offence. Having pepper spray in your possession as a first offence is unlikely to attract a goal sentence.
If you are charged with possession and use, the maximum penalty for possession or use of a prohibited weapon, like pepper spray, in NSW is 14 years imprisonment. However, this offence is usually prosecuted in a local court and the maximum penalty would be two years of imprisonment.
Keep in mind that there are serious legal consequences for carrying prohibited weapons like pepper spray. If you are worried that someone you know may attack you, you should consider getting an apprehended violence order against that person or contacting domestic violence services.
Can I Use Pepper Spray For Self Defence?
No. Possessing pepper spray in the majority of Australian states is a criminal offence.
The use of pepper spray is also considered an offence even if you are using it to defend yourself. By possessing and using these sprays, you run the risk of being charged for possessing and using a prohibited weapon and even assault.
Your lawyer can argue that you were acting in self-defence without violent intentions, and the prosecution has to negate this by proving that your actions were not a reasonable response or in appropriate circumstances. Even if your lawyer manages to defend you successfully, you still have to go through the ordeal of getting charged by police.
However, despite being illegal in most parts of Australia, many women choose to carry pepper spray, preferring to take their chances with the law than to be unprepared during an encounter with a perpetrator with violent intentions.
If you’re involved in a criminal case related to pepper spray incident, call us today, the most trusted criminal lawyers in Sydney.