Pepper spray could soon be legal in the NT, but lawyers warn misuse could lead to trouble
The trial, set to begin on September 1, will see the Northern Territory become the second jurisdiction in Australia to legalise the sale and use of pepper spray, joining Western Australia.
Pepper spray, or oleoresin capsicum (OC) spray, is a non-lethal device used to incapacitate people by causing a painful burning sensation and temporary vision impairment.
The details of how the trial will work, who can purchase the spray and how it will be regulated are yet to be decided, but the NT government has said it will look to WA as a model.
So, how does it work in the west?
Under WA legislation, pepper spray is defined as a controlled weapon, as opposed to a prohibited weapon, meaning people can carry and use it — but only under strict conditions.
Even to carry pepper spray requires "reasonable grounds" and, as specialist criminal lawyer Tabitha Raphael explained, that's where things get murky.
The legislation does not specify what constitutes "reasonable grounds", leaving the task of determining what falls into that category up to the courts.
In a landmark case, the WA Supreme Court decided self-defence was a "reasonable ground" for possessing pepper spray — but that doesn't mean it's legal to carry it everywhere you go.
"It's really dealt with on a case-by-case basis," Ms Raphael said.
Ms Raphael said, while OC spray was readily available in WA, there was still widespread misunderstanding of when it was legal to carry it.
"There are a lot of people out there with OC spray thinking it is lawful to have in their possession at all times without knowing the laws," she said.
"The approach is quite strict and you would need to fit a certain criterion before it would [be deemed] self-defence."
Ms Raphael gave the example of a young woman working as a bartender in an entertainment precinct who had experienced harassment or intimidation, walking to her car at the end of a shift.
"She has learned from her past experience that walking to her car after a shift can be dangerous … and [the court] has excused someone like that to possess OC spray in those circumstances or if that were to occur again," she said.
But Ms Raphael said if that woman chose to carry OC spray in the middle of the day while buying groceries, the outcome might be very different.
"Police would need to use their discretion and the court would then decide whether it's lawful or unlawful," she said.
Ms Raphael said the use of OC spray during an altercation could also result in criminal charges.
"If someone is in an altercation when it wasn't necessary, for example, if the other person has ceased attacking or is walking away," she said.
The NT's peak organisation for Aboriginal medical services has condemned the government announcement, describing the policy as "misguided" and "misleading".
Aboriginal Medical Services Alliance Northern Territory chief executive John Paterson said making pepper spray available to members of the public was likely to impact vulnerable people.
"Weaponising people and allowing wider access to a harmful substance like OC spray won't fix violence, it will fuel it," he said.
Dr Paterson said the move would inflame social and health challenges for Aboriginal people who are over-represented in homelessness, domestic violence and incarceration rates.
Dr Paterson urged the government to redirect policies and funding toward solutions that improved safety.
"If we want to stop violence before it starts, we need to invest in what works — safe housing, early childhood services, culturally safe healthcare and wraparound supports that strengthen families and communities," he said.
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