Law on Police Use of Pepper Spray in NSW - Criminal Defence Lawyers Australia

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By Poppy Morandin & Jimmy Singh.

The deployment of pepper spray on protestors following the Black Lives Matter rally in Sydney, has sparked concerns regarding the way in which the NSW Police Force uses such a tool.

The day was largely characterised as a peaceful protest, following the public assembly’s last-minute authorisation from the NSW Court of Appeal.

The following incident happened at Central Station at around 6pm that night.

Allegedly, according to an account by one attendee “suddenly the protestors were being ushered under the bridge by police.”

“We ran to the other side of the bride to see what was happening – there were between 30 and 40 police officers waiting. Barricading.”

“We watched as protestors who tried to turn back around were confronted by police on the other side too.”

“Then they started to notice the people on top of the bridge…then they started to encourage us to go down the stairs…where they were cornering protestors.”

“We got news that they had 200+ people trapped in Central Station. They were not letting them leave. They were not letting anyone in. And then they unleashed capsicum spray on them. People that they had caged in a human cage.”

Another attendee, who was close to the line of police, posted that “the police DID NOT warn protestors they were going to use pepper spray.”

Sniff Off has supported such accounts noting that “after speaking with multiple people at Central Station…it seems that police herded people into the Eddy Ave concourse, blocked off access to the platforms to protestors and commuters alike for over 30 minutes then pepper sprayed them.”

Apparently, there was also reports of “police blocking access to toilets after deploying pepper spray, making it harder for people to rinse out their eyes and recover.”

“All of a sudden one officer started spraying indiscriminately into the crowd. I didn’t see anything that could’ve provoked this. After this, people did first aid on one another and the police pulled back. Eventually, police yielded and let protesters out of the main exits.” said a journalist from Pedestrian.tv.

At least five people were directly impacted by the spray, with images portraying fellow protestors assisting them by pouring water and milk over their faces.

Police Minister David Elliot has responded by stating that the pepper spraying wasn’t “unprovoked” and was an “appropriate response.”

Acting NSW Police Commissioner Mal Lanyon reported that a number of protestors were acting aggressively towards police.

“Police attempted to quell the situation and move those persons on. One of the males chose to act aggressively towards police at which time he was placed under arrest,” he said.

“Subsequent to that arrest and because of the ongoing violence of the persons that were there, OC [pepper] spray was deployed to actually curb that violence and the potential of it.”

Table Of Contents

Law on the Possession and Use of Pepper Spray in NSW
When can Police Use Pepper Spray in NSW According to Law?

Law on the Possession and Use of Pepper Spray in NSW

Pepper spray is generally considered a ‘prohibited weapon’ in NSW under schedule 1 of the Weapons Prohibition Act 1998 (NSW) which prohibits “any device designed or intended as a defence or anti-personnel spray and that is capable of discharging any irritant matter”.

Section 7(1) Weapons Prohibition Act 1998 (NSW) says that “a person must not possess or use a prohibited weapon unless the person is authorised so do so by a permit.”

There is a maximum penalty of 14-years jail for breaching section 7(1). If dealt with in the local court, which is more common, then the maximum penalty is 2-years jail.

One of the exceptions that allow a person to possess and use pepper spray in NSW is of it’s done with a permit.

Such a permit will only be issued for police or Government purposes.

On that note, it is legal for police to use and possess pepper spray, but their use must be within the confines of the law.

If the pepper spray is not used within the conditions of the permit then the same maximum penalties applies.

Section 7(2) clarifies, that a person who holds a permit to possess or use it is guilty if he/she possess or uses it for a purpose other than in connection with the purpose established by that person as being the genuine reason for possessing or using the weapon, or contravenes any condition of the permit.

When can Police Use Pepper Spray in NSW According to Law?

Part 18 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) allows police officers in NSW to exercise force when purporting to use a power given to them under the law.

A police officer can only use force ‘as is reasonably necessary’ to exercise a relevant function within their powers according to Section 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

For example, in the case of protesters committing an offence, police are permitted under the law in NSW to give a ‘move on’ direction to the crowd pursuant to Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

This section essentially allows police to give directions to move on the members of public if police have reasonable grounds to believe that a persons’ behaviour or presence in the place is obstructing traffic, constituting harassment, intimidation, causing or likely to cause fear to a person of reasonable firmness, among other factors.

A wide range of compliance and restraint techniques may be deployed by police seeking to exercise their powers, including devices and weapons such as capsicum/pepper spray.

However, the direction given by police has to be reasonable in the circumstances for the purpose of reducing or getting rid of the obstruction, harassment, intimidation, fear, or to prevent another crime such as possessing or supplying prohibited drugs.

Within NSW Police’s Tactical Options Model (TOM), tactical options, in ascending order of severity regarding force, include officer presence, communication, ‘contain and negotiate’, tactical disengagement, weaponless control, capsicum spray, baton, taser and firearm.

According to the TOM, in assessing what tactical option is undertaken considerations of the number of other parties present and their age, gender, size, fitness, and skill level compared to that of the officers’ present are required.

Officers must continually reassess the situation to appropriately escalate or de-escalate the amount of force used, with instructions to use the minimum amount of force required.

Have a question on the police use of pepper spray? Get in touch with us to speak to an experienced Sydney criminal lawyer today.

Published on 12/06/2020