Can you legally arm yourself with pepper spray in Western Australia? The answer is sometimes and maybe. The following article explains what Pepper Spray is, and when it is legally okay to carry and use it in WA.
Pepper spray works as a lacrimator, meaning it stimulates tear production in the eyes, and is commonly available in the form of an aerosol or spray bottle. Capsaicin, the active ingredient in pepper spray, is the same compound responsible for the fiery sensation in chili peppers. Notably, pepper spray contains significantly higher concentrations of capsaicin than chili peppers. Pepper spray effectively ends dangerous situations because no one cares about assaulting other people when their eyeballs are drenched in chili juice.
Pepper Spray in Western Australia
Weapons in Western Australia are governed by the Weapons Act 1999 (WA) and its associated regulations, the Weapons Regulations 1999 (WA). Pepper spray under the regulations is defined as a controlled weapon, as opposed to a prohibited weapon. Section 7 of the Weapons Act 1999 (WA) contains the provisions regarding controlled weapons. Section 7 stipulates the penalties regarding controlled weapons at subsection (1) and (2):
(1) Except as provided in section 10, a person who, without a lawful excuse, carries or possesses a controlled weapon commits an offence.
Penalty: imprisonment for 2 years and a fine of $24 000.
(2) Except as provided in section 10, a person who has a lawful excuse to carry or possess a controlled weapon commits an offence if the person carries or possesses it in a manner that could reasonably be expected to cause someone —
(a) to be injured or disabled; or
(b) to fear that someone will be injured or disabled.
Penalty: imprisonment for 2 years and a fine of $24 000.
At subsection (3) it is stated that a lawful excuse to carry or possess a controlled weapon does not include the excuse that the weapon is carried or possessed for defence. Therefore, if we read this subsection in isolation, we could conclude that possessing pepper spray for defence is not a lawful excuse. However, within regulation 7(2) of the Weapons Regulations 1999 (WA) it is stated regarding an Oleoresin capsicum spray weapon that:
Section 7(3) of the Act does not apply to a spray weapon referred to in subregulation (1) 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.
Although pepper spray is defined as a controlled weapon in the Weapons Act 1999 (WA) there are exceptions contained in the Weapons Regulations 1999 (WA) which stipulate that it is a lawful excuse to carry or possess pepper spray for uses in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise.
The legal grey area arises in determining what constitutes reasonable grounds to carry pepper spray. Whilst some situations may be deemed as reasonable grounds as a person may be in a vulnerable situation, many people may choose to carry pepper spray to protect or defend themselves "just in case".
What makes this legal test so confusing is that it is both trying to be objective and subjective at the same time. It employs the “reasonable person” test where it asks the question, would a reasonable person apprehend circumstances where lawful defence is likely to be necessary? At the same time, it can be read that the “person” has “reasonable grounds”. This means that if the person is especially vulnerable, then they may have reasonable grounds when someone else may not. This means that the right to carry pepper spray is not universal among all people in society.
So what makes one’s believed grounds “reasonable”? If a woman was previously sexually assaulted at a train station, her carrying pepper spray would be arguably reasonable. However, what about the woman’s sister? She is personally aware of the dangers but hasn’t had that experience herself. Would it be “reasonable” for her to carry pepper spray having never had that experience herself? What about all the media articles about women being attacked by sexual predators? Who has the right to tell any woman that it is unreasonable for her to apprehend an attack when in public?
WA Court Cases
Western Australian courts have been presented with cases regarding the reasonable grounds for carrying pepper spray, in a notable case in the Supreme Court of Western Australia – Court of Appeal, where a taxi driver appealed his conviction stating that he had a lawful excuse to carry pepper spray, claiming that as a taxi driver he had reasonable grounds to apprehend that the pepper spray might have to be used in lawful defence. He contended that taxi drivers could be attacked and that having reasonable grounds to apprehend such an attack meant that the pepper spray was carried or possessed for defence.
This apprehension is statistically very valid as the Australian Institute of Criminology has identified that violence is an especially common experience for taxi drivers. In the United States, taxi drivers account for nine per cent of all occupational homicides and have nearly 60 times the average rate of assault.[1] However in that case the Honourable Justice Christopher Pullin states:
The law is not that a person may possess pepper spray and defend a charge under s 7 simply by asserting that it is for personal protection. It is necessary to show that there is an actual purpose of defence arising out of circumstances which are reasonably anticipated.[2]
The taxi driver's appeal was dismissed because he could not reasonably anticipate a circumstance where he would need to possess pepper spray, even though not having it could potentially put him in danger. What makes this case ridiculous is that it appears that the Court simply decides arbitrarily based on their own “feeling” of what situation may be dangerous.
Her Honour Justice Christine Wheeler in another case in the Supreme Court of Western Australia concluded that it was noteworthy that the “circumstances” which are to be considered under that regulation are not circumstances existing at the time of the possession or carriage; rather, they are circumstances which “may” arise in future.[3] This essentially means that Regulation 7 doesn't mention the need for immediate self-defence and rather it considers apprehension of potential future situations, making its wording intentionally broad. Justice Wheeler further elaborates at [17] that:
It is necessary for the person carrying the spray to establish that there is an actual purpose of defence in circumstances which are reasonably anticipated. Looking, for example, at the circumstances of this appellant, the threat which he anticipates is obviously one which may arise from time to time at the motel. If he were to carry the spray in the supermarket in the middle of the day, there would be no reason to anticipate any threat in those circumstances and it would not therefore appear that the inference could be drawn that his purpose in doing so was for defence.
This law, although more lenient than other Australian jurisdictions, is still deficient as there may be various circumstances in which one would still reasonably feel the need to carry pepper spray without the reasonable apprehension of a threat, such as women, the elderly, or more vulnerable individuals who may feel they require it generally.
The law provides no criteria for how to determine whether a certain situation reasonably anticipated is dangerous. Are citizens required to know what situations are statistically likely to be dangerous for assaults? In my opinion, if someone is questioned by the police for carrying pepper spray “just in case” it should be incumbent on the police to persuade the court that there is no chance of that person needing the pepper spray during that day, or night.
Legal Status: Sale
There is no provision in the Weapons Act 1999 (WA) that prohibits the sale and supply of controlled weapons except for a provision regarding children. The Weapons Act 1999 (WA) at section 8(A) stipulates that the selling and supplying of controlled weapons to children is an offence which has a penalty of imprisonment for 2 years and a fine of $24,000. A child is defined in the act as a person under 18 years of age.
As a controlled weapon it can be legally sold and purchased over the counter in Western Australia, as a result there are many Western Australian based manufacturers of pepper spray and Western Australian online retailers. Western Australian pepper spray such as Guardian Defense Pepper Spray retail for $35 online for a 30ml vial of pepper spray.
Conclusion
The current legal status of pepper spray in Western Australia is complex and leaves room for ambiguity. While it is defined as a controlled weapon under the Weapons Act 1999 (WA), there are exceptions that allow for its possession and use in lawful defence in circumstances where there are reasonable grounds to apprehend a potential threat. However, determining what constitutes reasonable grounds can be subjective and difficult to assess objectively. The judge assessing the circumstances is going to bring their own subjective understanding of the world into their determination.
The law should be amended to allow vulnerable individuals to carry pepper spray for their personal safety if they consider it appropriate. While they may not be in immediate danger when leaving their homes, unforeseen circumstances can arise throughout the day. The current requirement of reasonable grounds for carrying pepper spray places an unfair burden on individuals, as it assumes they must predict specific threats or have prior personal experiences to justify carrying it. This approach fails to account for the vulnerability and fear that certain groups, such as women, the elderly, or other vulnerable individuals, may experience even without specific incidents in their past.
The law should consider the broader concept of self-defence and prioritize empowering individuals to protect themselves. Instead of solely relying on the "reasonable person" test, which can be arbitrary and subjective, the legal system should shift the burden of proof to authorities to demonstrate that a person carrying pepper spray poses a genuine threat or has no chance of needing it. This approach would provide more autonomy to individuals and ensure that vulnerable people have the means to defend themselves in potentially dangerous situations.
There may be those who argue that making pepper spray less illegal will cause criminals to carry it as a means of attack. However, this is already possible with it being legally accessible for purchase. Changing the law would mean that those who are law abiding would feel comfortable to carry this for self-defence without fearing the criminal implications.
Overall, softening the law around pepper spray in Western Australia would provide a necessary level of protection and reassurance to vulnerable individuals, allowing them to carry a means of self-defence and potentially prevent or mitigate harm in unexpected and dangerous situations.
Please note that this article is intended for informational purposes only and should not be considered as legal advice.
[1] Claire Mayhew, Violent Assaults on Taxi Drivers: Incidence Patterns and Risk Factors, no.178, Australian Institute of Criminology (Report, November 2000) <https://www.aic.gov.au/sites/default/files/2020-05/tandi178.pdf> [2] Wright v McMurchy [2012] WASCA 257, [51] Pullin JA. [3] Hall v Collins [2003] WASCA 74, [14] Wheeler J. [4] Morgan v Cramer [2019] WASC 68, [41] Hall J.