In today's climate, many people are concerned about being the victim of a crime and may wish to carry or use pepper spray for this purpose.
However, does the law allow this in Australia? The answer to that question is complex and depends on which state you are in.
There are also regulations that must be complied with.
What is Pepper Spray?
Pepper spray is an aerosol spray containing capsaicin, an inflammatory compound. It causes burning, pain and tears when it comes into contact with a person's eyes.
It is often used by police to control riots, crowds and in self-defence.
It is also known as oleoresin capsicum spray (OC spray) or capsicum spray.
Is pepper spray legal in Australia?
No. Pepper spray is illegal in most of Australia, including NSW.
Schedule 1 of the Weapons Prohibition Act 1998 lists all items classified as prohibited weapons. This includes "any device designed or intended as a defence or anti-personnel spray and that is capable of discharging any irritant matter".
Section 7(1) of the Weapons Prohibition Act 1998 states that "a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit".
Western Australia is the only exception to this as pepper spray is deemed a controlled weapon rather than a prohibited weapon. This means that it can be owned on a restricted basis.
What are the penalties for using pepper spray?
The maximum penalty for possessing pepper spray in NSW is 14 years imprisonment.
There is also a 5-year standard non-parole period. The non-parole period is the minimum amount of time a person must serve in gaol before they are released on parole. The standard non-parole period is a guideline for the sentencing court. The actual non-parole period imposed can be more or less than this depending on the court's assessment of the objective seriousness of the offence.
Is it legal for Police to use pepper spray?
Police are allowed to use pepper spray if they have a permit. Permits are only issued for police/government use.
Is home-made pepper spray legal?
No. It is illegal to make pepper spray in Australia. The only exception to this is Western Australia where it is a controlled weapon rather than a prohibited weapon.
Is Pepper Spray Legal in NSW?
Pepper Spray is illegal in NSW. Section 7(2) of the Weapons Prohibition Act 1998 (NSW) makes it a criminal offence to possess or use pepper spray unless authorised to do so by a valid permit.
How to Get a Pepper Spray Permit in NSW?
You can get a pepper spray permit by making an application to the Commissioner. The application must outline the type of spray, amount to be authorised, purpose the pepper spray is required for and how it is to be stored and kept safe.
You also need to provide your contact details, full name, date of birth and residential address. In addition, a number of questions must be answered in the application.
The fee for a pepper spray 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.
You will only be issued with a pepper spray permit if the Commissioner accepts that you:
- are a fit and proper person;
- can and will meet storage and safety requirements;
- will not endanger public safety or peace;
- have completed approved training and safety courses as required;
- have a genuine reason for possessing or using a pepper spray. Genuine reasons include recreational or sporting, historical re-enactment, business or employment, film or television or theatrical, weapons collection, for a museum, animal management or scientific purposes.
Even if you satisfy the above criteria, the Commissioner can still refuse to issue a permit if:
- in the last ten years you have been convicted of a prescribed offence. This includes possession or use of firearm or weapon, drug offences, public order or assaults against law enforcement officer(s), stalk/intimidate, kidnapping, infliction of actual bodily harm if the penalty imposed included imprisonment, community service order, good behaviour bond or at least a $500 fine, sexual offences, fraud, stealing, dishonesty, robbery, affray, terrorism, organised criminal groups, or consorting;
- in the last ten years you have been or are subject to an Apprehended Violence Order (this does not include an AVO that was revoked);
- you are subject to a good behaviour bond, Community Correction Order or conditional release order from any of the prescribed offences;
- you are subject to a weapons prohibition order;
- you are a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000;
- the Commissioner is of the view that you are a risk to public safety and issuing a permit would be contrary to public interest based on any criminal intelligence report or other criminal information held.
Section 12 of the Weapons Prohibition Act 1998 (NSW) sets out the following offences:
- if you are issued with a permit to possess or use pepper spray based on a genuine reason and that reason ceases to exist, you must notify the Commissioner within 7 days in writing;
- using or carrying pepper spray for any purpose other than the genuine reason the permit was issued.
Both offences are punishable by a maximum penalty of $5,500 fine.
There is an amnesty period allowing you to surrender a prohibited weapon in NSW, however it is important that you obtain advice from specialist criminal lawyers in Sydney to ensure you do not expose yourself to any criminal offences.
When is a Pepper Spray Permit Suspended?
A pepper spray permit is suspended if an interim AVO is made against a person. It will remain suspended until the AVO is dismissed or made final.
When is a Pepper Spray Permit Revoked?
A pepper spray permit will be revoked under section 18 Weapons Prohibition Act 1998 (NSW) if: – you supplied false or misleading information in their application for the pepper spray permit;
- you breached the permit compliance requirements;
- the Commissioner believes that the permit holder of the pepper spray is no longer a fit and proper person to have the permit;
- the Commissioner considers another reason is sufficient in the circumstances to revoke it.
If your pepper spray permit is revoked, you will be sent a notice of revocation. Your permit will be taken as revoked on the day you receive the notice, unless the notice states a later date.
If your pepper spray permit is revoked or suspended, you must immediately surrender both the permit and any pepper spray you have to a police officer.
Section 19 of the Weapons Prohibition Act 1998 (NSW) makes it an offence not to do so, punishable by up to 12-months imprisonment and/or $5,500 fine.
Pepper Spray for Self-Defence?
You cannot carry pepper spray in Australia for self-defence. The only exception to this is Western Australia.
Section 11 of the Weapons Prohibition Act 1998 (NSW) sets out that you will not be issued a pepper spray permit in NSW if the reason you provide is protection of yourself or another person.
Can a Police Officer Seize Your Pepper Spray?
A police officer can seize your pepper spray if the pepper spray permit has been revoked or suspended.
This power is set out in section 19(2) of the Weapons Prohibition Act.
Is Pepper Spray Legal in WA?
Pepper spray is legal in Western Australia. It is classified as a controlled weapon rather than a 'prohibited weapon'. This means that you can carry and use pepper spray in Perth or other parts of Western Australia if it is for self-defence where you have reasonable grounds to apprehend requiring it.
This may apply to persons who have reason to fear being assaulted or intimidated. For example, if a person who knows them has committed a violent offence against them.
A criticism levelled at the legislation is that it only covers those who have already suffered some degree of violence. That is, it does not protect persons who have not yet been assaulted. This is particularly relevant for women or more vulnerable persons who may feel they require it generally.
How much does pepper spray cost?
A can of pepper spray will cost anywhere between $20 to $50 depending on its size. It can only be purchased in Western Australia.
Is Pepper Spray legal in Victoria?
It is illegal to carry or use pepper spray in Victoria. The only exception to this is if it is approved by the Chief Commissioner or Governor in Council Exemption Order pursuant to the Control of Weapons Act 1990 (Vic) and Control of Weapons Regulations 2021 (Vic).
If you are caught carrying pepper spray in Melbourne, you can be sentenced to jail or receive a hefty fine. The maximum penalty for carrying or using pepper spray in Victoria is 2-years imprisonment or 240 penalty units ($43,617.60). This is set out in section 5AA of the Control Weapons Act 1990 (Vic).
Pepper spray is considered a 'prohibited weapon' in Victoria. The prohibited weapons list includes 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.
Is pepper spray legal in Queensland?
No, pepper spray is not legal in Queensland. The maximum penalty for using or carrying pepper spray in Queensland is 7 years imprisonment or 300 penalty units. This is contained in section 50(1) of the Weapons Act 1990 (Qld).
Schedule 2 of the Weapons Act 1990 (Qld) includes pepper spray in the definition of a 'firearm'. Specifically, it criminalises "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".
Under section 35 of the Weapons Act 1900 (Qld), you must hold a valid license and registration for pepper spray. If you do not do this, you can be sentenced to 2 years' imprisonment or 100 penalty units if you acquire a pepper spray without a valid permit. You must have a genuine reason for possessing pepper 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 of the Weapons Act 1990 (Qld).
Is pepper spray legal in South Australia?
Pepper spray is illegal in South Australia. It is listed as a 'dangerous article' and cannot be possessed or used without a lawful excuse.
A 'dangerous article' includes a 'self-protecting spray'. This is defined as "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" under clause 5 of the Summary Offences Regulations 2016 (SA).
The maximum penalty for having pepper spray in South Australia is 18 months imprisonment or $7,500 fine under section 21C(2) of the Summary Offences Act 1953 (SA).
If the offence is committed in a licensed premises, or while attempting to enter or leave a licensed premises or car-parking area related to the licensed premises the maximum penalty increases to 2 years imprisonment or up to $10,000 fine. This is contained in section 21C(3) of the Summary Offences Act 1953 (SA).
Is Pepper Spray Legal in Tasmania?
No, pepper spray is not legal in Tasmania.
You cannot possess or use pepper spray in a public place without a lawful excuse pursuant to section 15C(1) of the Police Offences Act 1935 (Tas).
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.
The maximum penalty for possessing or using pepper spray in Tasmania is 2 years jail and/or 50 penalty units.
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.
Mace Spray Australia
Mace spray manufactures and sells pepper spray. It is also known as 'oleoresin capsicum' or OC spray which is made from chilli peppers.
Mace spray is sold in aerosols. It can cause temporarily blinding, breathing difficulties and a burning sensation on the skin.
Law enforcement use mace spray to control riots or when dealing with violence. It can also be used by police officers to defend themselves. The effects of a mace spray generally last for about an hour or less.
