Amendment to Notice of Motion
HON AARON STONEHOUSE (South Metropolitan) [1.10 pm]: Madam President, pursuant to standing order 62(b), I seek leave to move my motion —
[Speeches and comments from various members]
Motion
HON AARON STONEHOUSE (South Metropolitan) [1.11 pm]: I move —
That this house calls upon the McGowan government to amend the Weapons Act 1999 to allow individuals to carry pepper spray for the purpose of self-defence.
As a Liberal Democrat, it should come as no surprise to members that I support the right to self-defence. But as an elected representative charged with reviewing the laws of Western Australia as they pass through this place, I am also obliged to point out inconsistencies when I come across them, and that obligation has never been more obvious to me than in the case of an individual’s right to use reasonable force to protect themselves from attack, loss of property or, in extreme cases, loss of life. The law as it stands here in Western Australia is a mess. The Weapons Act and its associated regulations allow that a person may, in the case of pepper spray, rely upon the defence that they were carrying it under circumstances in which they had “reasonable grounds to apprehend” that an attack upon them might take place. Regulation 7(2) of the Weapons Regulations 1999 states —
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.
That defence has been tested in the Supreme Court, where Justice Wheeler famously remarked —
It was plainly intended that women carrying sprays when they go out in the evening, or older and frailer members of the community carrying them in situations where they felt themselves to be in danger, would not be committing an offence under the legislation.
Yet the Western Australia Police Force continues to insist that the defence be tested in each and every case, effectively ensuring that victims, rather than the original perpetrators, are forced to defend themselves in court.
[Speeches and comments from various members]
Amendment to Motion
Hon MICHAEL MISCHIN: I move —
To delete —
amend
and substitute —
examine and report to the house on amending
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [1.37 pm]: I rise to indicate that I will be supporting the amendment to the amended motion. I think we now have quite a practical motion in front of us. Should it pass, we will be able to debate and discuss it. If the house were to pass this amendment, I think it would be helpful to the community at large to know that the government is trying to seek a more fulsome discussion around this issue that comes up fairly frequently. I will have more to say in a moment. I think the amendment before us is sensible.
[Speeches and comments from various members]
Amendment put and passed.
Motion, as Amended
HON ALISON XAMON (North Metropolitan) [1.43 pm]: We have a bit of a moving feast in front of us but we are now dealing with a motion that, as I just mentioned, will hopefully achieve a positive outcome. I will say from the outset that I have a great deal of sympathy for the Minister for Environment who was expected to stand up and reply, bearing in mind that the minister responsible, or ministers if we want to talk about the Minister for Police as well, are not in this house. It is very difficult to ascertain the best way to respond on the run when the motion is not about one’s portfolio area. I also saw this amendment at exactly the same time as the government. It is the nature of this place that we often have to make decisions on the run, but I certainly have great sympathy for the minister needing to reply on an area that is not his to respond to. Nevertheless, we have a consensus by this house to at least consider the amended motion in front of us and we will then see whether there is support from the house as a whole to move this motion forward. I am glad it has been amended.
To be very clear from the outset, the Greens were not supportive of the original motion put in front of this place. I even had concerns about the amended motion, which was put at the beginning of proceedings today. However, the Greens are well able to support the third version of the motion. One of the reasons that the Greens were absolutely not supportive of the first motion was that it was not narrowed down to pepper spray. It talked about nonlethal means of defence, which includes tasers and a whole range of other things. If we had been talking about that, I had plenty to say about the lethal nature of tasers and the concerns around that particular weapon, and it is a weapon. I am really glad that we are not having to discuss whether we realistically want to have people walking around the streets with tasers who are not our police, bearing in mind that we have already had enough problems with the misuse of tasers by the police force itself. Why on earth would we want to aggravate that situation?
It is important that when we talk about pepper spray, we are clear on where the law actually lies on this matter. I have carried pepper spray in the past. When I was a student at university, there was a serial rapist on campus. If people go back some decades, they may recall a problem with a number of rapes that occurred on a particular campus. At the time, I was the guild president on that campus and my boyfriend—now my husband—bought me pepper spray because I was often having to work very late at night in the guild and attend late lectures, and there was a genuine fear. Members, I am not a big person. I am planning on one day hitting five foot—that is an ambition to which I hold—but until such time as I receive my much-desired growth spurt, I am someone who is easily able to be physically overcome. I have mentioned in this place before that in the past I have been a victim of assault and robbery committed by strangers. I am one of these people who is very conscious of my physical limitations and that means that I become fearful of how I can best defend myself, and my loved ones fear for my safety as well. It is also important to listen to the stories, as outlined by Hon Aaron Stonehouse, about the experiences of others, particularly women, who have also felt fear and taken action to try to prevent or stop disgraceful and dangerous behaviour. When we hear about those people subsequently being charged, there is outrage over their treatment, and rightly so, because it offends the average person’s sense of justice in the sense of the way we want the world to be. For that reason alone, it is useful to properly examine the laws of self-defence. Is it the case that the police are erroneously charging? Is it the case that the defence is not wide enough? I would have thought that we would want to look at whether the law is actually meeting community expectations or, in actual fact, is effectively penalising, criminalising, people who one would expect should have every right to protect themselves? It does raise broader issues. Is the solution to simply make a weapon like pepper spray more widely available, and then what are the implications for that?
The current legality around self-defence in Western Australia was outlined in a particular article put out by Lorraine Finlay of the School of Law at Murdoch University. She pointed out that currently in Western Australia, pepper spray is a controlled weapon. She pointed out also that in Western Australia, unlike the situation in other states and territories, it is legal for a person to carry pepper spray provided they have a lawful excuse. It is important to understand that. It is not currently illegal to carry pepper spray. However, it depends on the circumstances under which people do that. The article states that a lawful excuse for carrying pepper spray is if it is “for the purpose of being used in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise.” This would cover a woman who was walking home alone late at night after work, and elderly and vulnerable people. However, it would not generally be considered to cover a person who was walking home in broad daylight with no history of having been a victim of assault. The article goes on to say that the law needs to be clarified. The article also cites Kellie Toole from the School of Law at Adelaide University, who specialises in self-defence law, as saying that self-defence items can create risk for users and others through accidental or deliberate misuse. This is a similar dilemma to the ongoing issue in the United States with gun laws. The issue is that victim safety can easily balloon into vigilantism, and opening the door to one type of force may open the door to other forms of force.
I still have a pepper spray canister somewhere, but the cap has come off, so it cannot be used. I am making the point that for a while I was carrying around a weapon, and I could have ended up spraying myself in the face because the nozzle has gone out of whack. There are also issues around what it means to have these sorts of implements. If the police want to knock down my door and try to take my dead pepper spray away from me, I look forward to seeing them.
The article goes on to cite both Ms Finlay and Ms Toole as saying that the main issue is to try to prevent crime. That is ultimately where we need to go. The solution is not to increasingly weaponise people but to try to prevent crime in the first place.
In considering whether it is useful to allow individuals to carry a weapon such as pepper spray for personal safety reasons, one concern is whether it will have the effect that we want it to have. We need to remember that we are talking about private citizens being armed with what are dangerous weapons. Pepper spray is not safe. Sometimes people do not respond to pepper spray. I have seen footage of people who are pepper sprayed and are hardly affected. However, other people have died from the use of pepper spray, primarily people suffering from respiratory problems or severe asthma. Therefore, it is not true to say that pepper spray is a nonlethal weapon in all instances, because it may cause death. The problem is that it is impossible to ensure that pepper spray is used only for self-defence. How can it be ensured that a person’s attacker will not also use pepper spray? The victim of a bag snatcher may end up being pepper sprayed as well. How can it be ensured that once purchased by a person, the weapon is only ever made available for use by that person? How can it be ensured that the weapon is not lost or stolen or accessed by another person? How can it be ensured that children cannot get hold of it? How can it be ensured that if the owner tries to use it for self-defence, it cannot also be used by their attacker? That is a particular concern that I have. How can it be ensured that the owner will only ever use it for self-defence against the risk of serious physical injury and not for vigilantism? How can it be ensured that the owner will not use it in retaliation for being provoked but not threatened? I am sure some members have had occasions in their lives when they wished they could have pepper sprayed someone. There have been cases even in Perth, such as the recent case of the woman who went to a Greek restaurant in Northbridge and pepper sprayed all the people in the outside area. That happened not long ago. In fact, I believe a member of Parliament was dining there at the time. There have also been instances over east with people in train carriages being pepper sprayed. In fact, in 2016 at Sherwood railway station in Armadale, two groups of people got into a fight and pepper sprayed each other. That affected bystanders as well. I also think about the broader messages it may send to women who do not use pepper spray. If a woman is walking home alone from the Fringe Festival and does not have pepper spray and is subsequently assaulted, will it be suggested that she did not adequately defend herself? This is the sort of nonsense that may arise. Bear in mind that women are already being told that they are not supposed to walk alone anywhere.
Hon Samantha Rowe interjected.
Hon ALISON XAMON: I will take that interjection. The interjection suggested that women would be better by themselves, to which I say, tongue in cheek, that a curfew for men is something that is suggested. It is a joke!
There are questions about how it will affect policing if police are called to incidents in which the offender is armed with pepper spray. I hope that would not mean that the police would then be likely to resort to other means such as tasers or, even worse, firearms.
I think there is great sympathy for the idea that people who do not possess the physical capacity to defend themselves in the same way as other people—such as people with a disability, slightly-built women and the elderly—should not be prosecuted or penalised for taking measures that they believe they need to take to defend themselves and ensure that they are not subject to violence. The issue is how to ensure that the increasing amount of weaponry within our community does not have adverse effects and gets into the wrong hands and effectively escalates our community into becoming even more violent than it is now. I believe that the motion as amended at least gives us an opportunity to explore these inherent tensions and ensure that the people whom the community would not expect to be subject to legal proceedings are not subject to legal proceedings, and at the same time we do not effectively open a door that could create an even more violent and dangerous society. I hope this motion as amended is passed, and I look forward to hearing the response from the Attorney General. It would be even better if the Attorney General wanted to take some submissions on this matter, because a lot of experts in the area of mitigating crime could probably make a valuable contribution to this debate.
[Speeches and comments from various members]
Question put and passed.