Is Pepper Spray Legal in Australia? Criminal Defence Lawyers Australia

Share This Article

Array

Table Of Contents

Key Takeaway
Pepper Spray | Pepper Spray Australia
OC Spray and Capsicum Spray
Homemade Pepper Spray
Mace Spray Australia
Pepper Spray Perth and Across Western Australia
Pepper Spray Melbourne
Pepper Spray Queensland
Pepper Spray South Australia
Is Pepper Spray Legal in Tasmania?
NSW Police Force Handbook

Key Takeaway

Possessing or using pepper spray is illegal in most of Australia, including NSW unless you have a permit, as it’s considered a ‘prohibited weapon’ because it falls under the umbrella of an ‘offensive weapon’ by reason of it being classified as a ‘dangerous weapon’.

Pepper Spray | Pepper Spray Australia

Pepper Spray is considered a weapon. Its use or possession across most of Australia is generally prohibited and controlled for public safety reasons. Specifically in New South Wales, The Weapons Prohibition Act 1998 (NSW) (WPA) improves the public safety by imposing strict controls on the possession and use of pepper spray by sending a clear message across that its use of possession is a privilege conditional on the more important need to ensure public safety.

In fact, the Weapons Prohibition Act in NSW requires, that for anyone who wants to possess or use a pepper spray or any ‘prohibited weapon’ to have a valid permit, which is only issued if there is a genuine reason for possessing or using it.

The Law also imposes strict requirements which must be complied with in order to possess or use a prohibited weapon, such as a pepper spray, in New South Wales.

In addition, the WPA legislation also allows for an amnesty period to allow you to surrender a prohibited weapon in NSW.

For tailored advice on pepper spray or firearm offences, it is recommended to get advice from one of our criminal lawyers in Sydney.

Can You Carry Pepper Spray in Australia?

Is it legal to carry pepper spray in Australia? This really depends on the laws of each State and Territory of Australia. Most States in Australia criminalise the carrying of pepper spray without a permit. For example, in NSW it is illegal to carry pepper spray without valid a permit, and a permit is only issued if there is a genuine reason for carrying it. A good example is a security guard or police officer who will have a genuine reason to carry pepper spray legally in Australia. Therefore, pepper spray cops will be permitted to carry and use a pepper spray.

Can You Buy Pepper Spray in Australia?

It is illegal to buy pepper spray in Australia across its States and Territories, except Western Australia. WA is the only State that pepper spray is legal to buy or own, as it is a controlled weapon which means that it is restricted but not illegal. A pepper spray will cost anywhere between $20 to $50 depending on its size but is only legal to buy in the State of Western Australia.

In contrast, in NSW, for example, it is a crime to buy, sell or manufacture pepper spray unless authorised to do so by a weapons dealer permit. Section 20 Weapons Prohibition Act 1998 (NSW) prescribes up to 7-years imprisonment.

OC Spray and Capsicum Spray

Oleoresin capsicum spray (OC spray) or Capsicum spray, or pepper spray, is a lachrymatory agent which is a compound that irritates a person’s eyes in order to cause a burning sensation, blindness for a temporary time, in addition to pain. It is commonly used by law enforcement, riots, controlling crowds and self-defence. It also affects the lungs by causing it discomfort and burning sensations for a short time. This often then affects the breath.

Is capsicum spray legal in Australia?

Pepper spray is illegal across all States and Territories in one way or another. All States and Territories criminalise the use or possession of pepper spray with exceptions, such as a lawful excuse. Western Australia is the only Australia jurisdiction that allows people to carry pepper spray for self-defence purposes.

Homemade Pepper Spray

Is home-made pepper spray legal?

No. It is illegal to made or manufacture pepper spray anywhere in Australia except for Western Australia where it is a controlled weapon in contrast to a prohibited weapon. Every other State and Territory criminalise the manufacture or making of a homemade pepper spray.

Is Pepper Spray Legal in NSW?

To possess, use or carry a pepper spray in NSW is illegal unless you carry a permit and it’s being used in compliance with the permit. Even with a permit, it is illegal to possess, carry or use a pepper spray unless you are using it for the genuine reason that you were originally issued a permit for.

It’s a criminal offence in NSW to possess or use pepper spray unless you are authorised to do so by a valid permit. This offence carries a maximum penalty of 14-years imprisonment, prescribed by section 7(2) Weapons Prohibition Act 1998 (NSW).

This offence also has a 5-years standard non-parole period. This means, that the law recommends as a guide for courts to impose a minimum 5-years Full time jail before an offender is eligible for release on parole back in the community to serve the balance of his/her imprisonment sentence. This only applies if the offence falls in the mid-range of objective criminality for offences of this type, which is an assessment the court makes during sentence.

What if you have a permit to carry pepper spray? Even if you have a permit to use or carry a pepper spray, it will still be a crime to use or carry one if you do so for any purpose other than the purpose that was established as being the genuine reason for having or using it, or if you breach any of the permit conditions. The maximum penalty for this is the same.

The same law applies to possessing or using pepper spray in Sydney, being within NSW.

The Permit System for Pepper Sprays in New South Wales

To obtain a permit to use or possess a pepper spray, an application must be made to the Commissioner outlining the type, and number of pepper spray you ask to be authorised, the purpose for which it is required, and the arrangements for the storage and safe keeping of it.

In addition, the application must also outline your contact details and full name, date of birth, residential address.

The application form prompts for relevant questions to be answered within the application. There is also a permit fee which must be paid. The application fee for an initial or subsequent permit is $127.

Upon making a pepper spray permit application, the Commissioner may carry out investigations and inquiries it considers necessary in order to properly consider the application. After considering the application, the Commissioner may either issue or refuse to issue a permit.

The Commissioner will not issue a permit unless satisfied that:

You’re a fit and proper person, and
Can be trusted to have a pepper spray without danger to public safety or peace,
You’ve completed any such training and safety courses as may be approved in relation to the kind of permit sought, and
If the Commissioner is satisfied that such storage and safety requirements as imposed by the law is capable of being met by you, and
The Commissioner is satisfied that you have a genuine reason for possessing or using a pepper spray. Genuine reason(s) here may include recreational/sporting, historical re-enactment purposes, business/employment purposes, film/TV/theatrical purposes, weapons collection, museum purposes, animal management, or scientific purposes.

The Commissioner will not issue a permit if:

Within the last 10-years of making the permit application, you’ve been convicted of a prescribed offence, including, possession or use of firearm or weapon, drug offence, public order or assaults against law enforcement officer(s), violence offence of stalk/intimidate, kidnap, or infliction of actual bodily harm if the penalty imposed included imprisonment, community service order, good behaviour bond or at least $500 penalty, sexual offence, fraud, stealing, dishonesty, robbery, affray, terrorism, organised criminal groups, or consorting, or
Within the last 10-years of making the permit application, you’ve been or are subject to an Apprehended Violence Order (not a revoked AVO), or
You’re subject to a good behaviour bond, Community Correction Order or Conditional Release Order from any of the prescribed offences, or
You’re subject to a weapons prohibition order, or
You’re a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000, or
Having regard to any criminal intelligence report or other criminal information held, the Commissioner is of the view that you are a risk to public safety and issuing a permit would be contrary to public interest. (If this is a ground for refusing a permit, the Commissioner is not required to give reasons for refusing the permit), or
Despite the above, the Commissioner, if of the view that issuing you a permit will be contrary to public interest, or

If the genuine reason which you were originally issued with a pepper spray permit (to possess or use) ceases to exist, you’re required to notify the Commissioner within 7 days. This must be done in writing, and a failure to comply with his attracts a maximum penalty of $5,500 fine, prescribed by section 12 Weapons Prohibition Act 1998 (NSW).

Pepper Spray for Self-defence?

It is illegal to carry pepper spray across Australia for self-defence purposes, except for Western Australia.

In NSW, it is illegal to carry or use pepper spray for self-defence purposes.

Moreover, in NSW, you will not be issued a pepper spray permit if the purpose or genuine reason for carrying or using a pepper spray is for personal protection or for protection of anyone else, according to section 11 Weapons Prohibition Act 1998 (NSW). However, using a pepper spray without a permit in for self-defence can still be a successful defence from an assault provided it was used to protect yourself and it was a reasonable response in the circumstances perceived by you at the time.

If you use pepper spray against someone in self-defence while intoxicated from alcohol and/or drugs, your intoxication is relevant to your perceptions at the time but is not relevant to the question of whether your response was a reasonable response in the circumstances you perceived at the time.

When is a Pepper Spray Permit Revoked or Suspended?

A pepper spray permit will be suspended upon the making of an interim AVO against the pepper spray permit holder. It will remain suspended at least until the AVO becomes either final or revoked.

A pepper spray permit will be revoked, under section 18 Weapons Prohibition Act 1998 (NSW) if the permit is refused, or the pepper spray permit holder supplied false or misleading information in applying for the pepper spray permit or breaches the permit compliance requirements.

A pepper spray permit will also be revoked if the Commissioner is of the view that the permit holder of the pepper spray is no longer a fit and proper person to have the permit, or for any reason considers sufficient in the circumstances to revoke it.

If your pepper spray permit is revoked, you will receive a notice of revocation via post or personally. The notice takes effect upon the day that the permit holder received the notice, unless the notice states a later date.

If a pepper spray permit holder’s permit is revoked or suspended, he/she is required to immediately surrender the pepper spray to a police officer, including the permit. Breach of this attracts a penalty of up to 12-months imprisonment and/or $5,500 fine, prescribed by section 19 Weapons Prohibition Act 1998 (NSW).

Can a Police Officer Seize Your Pepper Spray?

A police officer can seize a permit’s holder’s pepper spray if the pepper spray permit has been revoked or suspended. This power is reflected in section 19(2) Weapons Prohibition Act 1998 (NSW).

Mace Spray Australia

Mace spray is a brand that manufactures and sells pepper spray, also known as ‘oleoresin capsicum’ made from chilli peppers, and is also commonly called OC spray. The substance is usually manufactured and sold in aerosols with the purpose of temporarily blinding. It other effects include causing breathing difficulties and skin burning sensation.

The effects of a mace spray generally last for about an hour or less and is often used by law enforcement to contain and manage riots or other violent confrontations. It is also used as a form of self-defence by police officers.

Pepper Spray Perth and Across Western Australia

Is pepper spray legal in WA? Pepper spray is legal in Western Australia and is classified as a controlled weapon in contrast to a ‘prohibited weapon’, which means, pepper spray in Perth or anywhere in Western Australia is legal if it is being carried or used for the purposes of self-defence in circumstances you have reasonable grounds to apprehend or lawful excuse.

This can mean, that a person walking alone in the dark at night may have reasonable grounds for carrying a pepper spray in Perth. Other vulnerable, disabled or elderly people can also fall within the same reasonable grounds basis for carrying a pepper spray in WA.

Carrying a cross bow or spear gun in WA does not require a permit but requires a lawful excuse, such as fishing.

An example of there being no reasonable grounds to carry a pepper spray in WA will include a woman walking in daylight amongst members of the public, who has no history ever having been assaulted or any cause to feel the need to defend herself.

The problem with the Western Australia lawful excuse defence of carrying pepper spray is that, often people will need to protect or defend themselves without anticipating it. And if you are unbale to feel the need to carry a pepper spray on reasonable grounds for protection then you will be committing a crime. It will then be left to the courts to decide whether or not your reason was reasonable grounds. There are no clear outlines of the specific circumstances that will amount to reasonable grounds for carrying pepper spray in WA or Perth.

Pepper Spray Melbourne

Is Pepper Spray legal in Victoria?

It is illegal to carry or use pepper spray anywhere in Victoria or Melbourne unless approved by the Chief Commissioner or Governor in Council Exemption Order according to the Control of Weapons Act 1990 (Vic) and Control of Weapons Regulations 2021 (Vic). This offence carries a maximum penalty of 2-years imprisonment or 240 penalty units ($43,617.60), prescribed by section 5AA Control Weapons Act 1990 (Vic).

A Pepper spray in Victoria or Melbourne is considered a ‘prohibited weapon’ listed in the list of prohibited weapons under the law in Victoria. The prohibited weapons list refers to any noxious discharge article, including capsicum spray as an article designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause disability, incapacity or harm to another person.

Pepper Spray Queensland

Is pepper spray legal in Queensland?

It is illegal to possess or use a pepper spray unless you have a valid license and registration under the Queensland’s licensing and registration scheme. The maximum penalty is 2-years imprisonment or 100 penalty units if you acquire a pepper spray without a valid permit, according to section 35 Weapons Act 1900 (Qld).

Otherwise, in Queensland a person is prohibited from unlawfully possessing a weapon, such as pepper spray. Breach of this carries up to 7-years imprisonment or 300 penalty units, as prescribed by section 50(1) Weapons Act 1990 (Qld).

Peppers spray under Queensland law includes a ‘firearm’ as being a thing ordinarily described as a weapon that, if used in the way for which it was designed or adapted, is capable of being aimed at a target and causing death or injury by discharging a noxious, corrosive or irritant piqued, powder, gas, chemical or other substance, according to the dictionary definition in schedule 2 of the Weapons Act 1990 (Qld).

In Queensland, the Weapons Act 1990 (Qld) requires that you also show a genuine reason for possessing a peppers spray in order to be issued a license.

Genuine reasons for possessing a weapon such as pepper spray includes sports or target shooting, recreational, occupational, collection or study of weapons, or another reason prescribed by the regulations, according to section 11 Weapons Act 1990 (Qld).

Pepper Spray South Australia

Is pepper spray legal in South Australia?

Pepper spray in South Australia is a ‘dangerous article’ and illegal to possess or use unless you have a lawful excuse. It carries up to 18-months imprisonment or $7,500 fine prescribed by section 21C(2) Summary Offences Act 1953 (SA).

If you commit this offence while in a licensed premises, or while apparently attempting to enter or leave a licensed premises or carparking area related to the licensed premises, the maximum penalty is 2-years imprisonment or up to $10,000 fine, prescribed by section 21C(3) Summary Offences Act 1953 (SA).

A ‘dangerous article’ includes, a ‘self-protecting spray’, being “a device or instrument designed to temporarily or permanently immobilise, incapacitate or injure a person by the emission or discharge of an offensive, noxious or irritant liquid, powder, gas or chemical’, according to clause 5 of the Summary Offences Regulations 2016 (SA).

Is Pepper Spray Legal in Tasmania?

In Tasmania, it is illegal to have or use a pepper spray in a public place without a lawful excuse because a pepper spray is considered a ‘dangerous article’ according to section 15C(1) Police Offences Act 1935 (Tas) which prescribes a maximum penalty of up to 2-years imprisonment and/or 50 penalty units in Tasmania.

The only exception to this is police officers acting in the performance of their duties, or a person who has been excluded in writing by the Commissioner, according to section 15C(1A) Police Offences Act 1935 (Tas).

Carrying a pepper spray under a lawful excise does not include self-defence in Tasmania.

What does a lawful excuse mean in Tasmania? A lawful excuse includes the participation in a lawful sport, recreation or entertainment, lawful collection, display or exhibition, religious observance or the pursuit of a lawful occupation, duty or activity using it.

NSW Police Force Handbook

The NSW Police Force Handbook is an outline guide for police officers to refer to and comply with. It outlines some of the most important pieces of law most often used by the NSW Police Force in everyday policing. It is also used as a measure of ensuring accountability and safety for the public when police officers use their powers.

The handbook also refers to other guides, such as the Code of Practice for CRIME in regard to the requirements for officers when stopping, searching or detaining people. The handbook outlines internal police practices that are not otherwise expressed in legislation.

Moreover, the handbook also outlines the extradition laws for interstate offences and arrests.

Amongst other things, the police handbook is also a great guide for police officers when considering bail at the police station.

You can find a copy of the handbook here.

Published on 06/01/2022