SUBMISSION TO THE INQUIRY INTO CONTROL OF WEAPONS BILL 1998
1 INTRODUCTION 4 PROPOSED TASMANIAN LAW REFORM RE CAPSICUM GAS 2 BACKGROUND TO HCLS's INTEREST IN CAPSICUM GAS 5 CONCLUDING COMMENT 3 HCLS CONCERNS: MYTHS & FACTS
1	INTRODUCTION
1.1	Hobart Community Legal Service Inc. (HCLS) is a voluntary not-for-profit community organisation funded by the Federal Attorney-General’s Department to provide the following roles: free legal casework community legal education law reform and advocacy.
1.2	HCLS conducts its services from shopfront locations in the CBD and Bridgewater Shopping Centre. Services include: welfare rights advocacy child support (carer parents) evening advice prisoner advice visits court support. In these roles, HCLS relies upon a paid workforce of seven (7) persons and a volunteer workforce of about seventy (70) persons.
1.3	HCLS has in recent years expanded its role in the promotion of policy dialogue and advocacy of legislative reform in areas of public interest. With respect to this present Inquiry, we welcome the Bill, and confine the scope of our comments to the specific issue of the treatment in the Bill of capsicum gas. (In this submission, HCLS uses the term capsicum gas or spray to refer to Oleoresin Capsicum (OC) spray or pepper spray, without discriminating about its actual form, although understands that the standard form is a compact personal spray.) 1.4 HCLS has taken an active interest in the question of public and police access to and use of capsicum gas for the past year. This has included corresponding with the Tasmanian Police Minister, issuing a press release, conducting some media interviews, collating relevant information, having some questions raised in the House of Assembly at the time of a report of police use of the gas prior to its authorised use, actively liaising with interested community legal services interstate, and meeting to discuss this issue with the Tasmanian Police.
2	BACKGROUND TO HCLS's INTEREST IN CAPSICUM GAS
2.1	HCLS first became involved in the issue of the use of capsicum gas one year ago. On 12 May 1997, immediately following Pauline Hanson’s visit to Hobart, the Police Association called to be armed with capsicum gas. HCLS responded with a press release (dated 13 May 1997: Attachment A) expressing alarm at such a call (primarily because capsicum gas is widely regarded as entirely inappropriate in group settings such as demonstrations and pickets). HCLS’s Manager was also interviewed on 12 and 13 May 1997 on ABC radio
2.2	HCLS then wrote to the Minister for Police and Public Safety on 23 May 1997, seeking his assurance that capsicum gas would not be issued to Tasmanian Police. His reply advised that he would be trialling its use by Police, commencing in August 1997. Prior to that trial commencing in a selected area of the state, guidelines in its use and after-care would be approved. The Minister also made it clear that "under no circumstances will OC spray be carried or used at demonstrations or industrial disputes". HCLS forwarded a follow-up letter to the Minister on 7 July, seeking, inter alia, the introduction of legislation prohibiting its public sale, possession or use, and advice of the process of review of the trial. The Minister’s response did not agree to either request. Copies of HCLS’s letters to the Minister are at Attachment B.
2.3	In November 1997, there was a media report of some employees in Burnie going home sick after Police used capsicum gas on a person in the watchhouse — the gas apparently getting into the air-conditioning and carrying to other parts of the building. HCLS was concerned that this indicated prolonged usage of the gas, well in excess of any guidelines, and that we hadn’t even been aware that the trial had been completed, evaluated, and police issued with the substance.
2.4	As a result, HCLS sought advice via questions of the Minister in the House of Assembly. Such questions were raised by the Hon John White MHA on 25 and 26 November 1997, and the response confirmed that such an incident had taken place, but elicited little more than that. Our discussions with a journalist at the time revealed that that person had been advised by Police that: no trial had yet been carried out there were no guidelines yet drafted for its use by Police the trial was to be carried out in the Eastern zone, not the north-west where the incident occurred the gas had been on-hand due to a police officer holding the spray following in-service training in its use. HCLS’s position at that time was not to claim that the use of capsicum gas had been an inappropriate response in those circumstances, but that the weapon had not been sanctioned for police use, and the associated necessary guidelines and procedures had not been introduced.
2.5	Following HCLS’s further discussions on this issue, it invited an officer from Tasmania Police to attend and address the April 1998 meeting of its Committee of Management. This enabled HCLS to be better appraised of the present situation regarding Tasmanian Police usage of capsicum gas, as a means of assisting us to clarify a position for taking up advocacy for law reform in this area. Following these discussions, Tasmania Police forwarded us an edited copy of its guidelines for usage for our information.
2.6	Over the past twelve months, HCLS has also liaised closely with relevant Community Legal Services interstate in monitoring developments in the use and availability of capsicum gas. This has included regular exchanges of information, and our participation in the Capsicum Spray Monitoring Network.
2.7	HCLS has especially endeavoured to minimise public statements on this issue, including avoiding promoting public awareness of the dangers of capsicum gas, out of concern for the unwanted consequence of prompting increased public purchase and possession. (We have been sufficiently concerned about local print-media advertisements for its sale, as well as the supplier receiving some ‘free advertising’. For example, The Mercury has regularly carried ads in the Public Notices section for its sale, and has carried at least two articles sympathetic to its public use (refer The Mercury, 1 November 1997 and 31 March 1998).)
2.8	As a result, we especially welcome this present Inquiry concerning the Control of Weapons Bill 1998, to the extent that it enables concerns about capsicum gas to be addressed in a substantive, non-emotive and objective manner.
3	HCLS CONCERNS: MYTHS & FACTS
3.1	HCLS has been concerned about assumptions that, as a biodegradable substance derived from a natural product (capsicums or peppers), capsicum gas is not harmful. This is not so, as is shown by Police concerns that the weapon should not be in the possession of those untrained in its use or after-use care.
3.2	On the contrary, capsaicin (the active ingredient in capsicum gas) — like other naturally-derived substances, such as arsenic — is potentially lethal in its own right. Evidence of the grave health risks posed by capsicum gas to such people as those suffering heart and respiratory disease, asthmatics and pregnant women led to the British Home Office abandoning its adoption as a weapon. The 1987 research by the FBI Firearms Training Unit (published in 1989), which led to the spray’s approval for use by FBI agents, was discredited in 1996 when the author of the research was convicted of fraud and of taking a bribe from a major capsicum spray manufacturer. In addition, whilst the commercially-produced spray originally (from 1973) contained 1% active ingredient (oleoresin capsicum), the FBI required a 5% concentration, and this became the standard solution.
3.3	One of the more credible studies of the medical implications of capsaicin — conducted in 1993 by Dr Salem et al — indicated that it may cause mutagenic effects, carcinogenic effects, cardiovascular toxicity, pulmonary toxicity, neurotoxicity and human fatalities. A subsequent study in 1996 by Woodhall Stopford found the following risks associated with capsicum spray’s usage: eye damage (including corneal abrasions for those with contact lenses), precipitation of an acute asthmatic attack or respiratory arrest, pulmonary edema in children and asthmatics, bronchospasm, and hypertensive crisis including increased risk of heart attacks and strokes.
3.4	Nevertheless, the discredited FBI research was the basis of the adoption of capsicum gas by the FBI, and then for its legalisation in California in 1992. At the same time, studies continue to highlight the dangers of capsicum spray usage. These dangers include its potential to contribute to fatalities. Whilst there have been claims that "only one" person has died as a result of capsicum gas usage by enforcement agencies in the USA, there are reports of in excess of 60 deaths as a result of such usage. In the period 1/1/93 to 1/6/95 in the state of California alone, there were 26 deaths among people sprayed with the weapon by the Police. That study drew the following conclusion: "Of 26 incidents examined in this report, the 24 in which cause of death has been determined all involve people who were either high on drugs or suffering from a serious psychiatric disorder. Yet autopsies found lethal levels of drugs, either methamphetamine or cocaine, in only a quarter of the victims. Two victims with histories of serious mental illness had no drugs at all and died of the frightening effects of schizophrenia or because their hearts failed as they fought with police after being pepper sprayed. ... Ten of these 26 cases autopsy reports are silent on the issue of pepper spray, implying that either police never told medical examiner personnel that pepper spray had been used on the suspect or pathologists did not consider or had no reliable tests for pepper spray when determining cause of death. Ironically, pepper spray failed to work when police used it to try to control these irrational and combative victims in 100 percent of the 26 cases examined here." That research summarises its conclusion as follows: "In brief, with scarcely any scientific data to verify its safety — and in the face of serious reservations about profound dangers to high-risk populations like asthmatics and the mentally ill — pepper spray has become one of the most widely used weapons in California.
3.5	Claims by Australian advocates of one-only death are due to the absence of protocols for death by capsicum gas in coronial examinations. As a result, whilst there are reports of more than 60 deaths recorded following people being subjected to capsicum gas by police in the USA, only one coronial report has specifically recorded that the cause of death was associated with such an assault. It has been noted that "no manufacturer of OC products had developed a reliable method of determining the presence of trace elements of pepper spray in a body and [... that] it is difficult to differentiate the effects of chemical artifacts of OC".
3.6	As cited above, there is strong evidence that capsicum spray is especially dangerous when used against such people as those with respiratory problems, children and pregnant women. This has generally led to constraints being placed on its introduction into the arsenal available to enforcement authorities, so that its use is specifically prohibited in assemblies such as demonstrations and industrial pickets or protests. In this regard, HCLS especially welcomes the assurance by the Minister for Police and Public Safety, in his letter dated 11 June 1997, that "Under no circumstances will OC spray be carried or used [by Tasmania Police] at demonstrations or industrial disputes". However, we note that, in too many instances, once adopted as a limited-use weapon, such restrictions have been eased. Also, this remains an inadequate safeguard as there can be no certainty about the health status of, and associated serious risks posed to, individual potential victims.
3.7	It is also often claimed (although it is noted that Tasmania Police has been careful to avoid advancing this argument) that adding capsicum gas to the Police arsenal will provide a substitute for the use of firearms. This was clearly a major rationale in its introduction into the Victorian Police Force. The fallacy of the claim has been more readily conceded once the weapon has been adopted. A study by William Bailey concludes that there is "no indication that less-than-lethal weapons reduce police-citizen killings". Capsicum gas, quite simply, is no such substitute primarily because of its limited range and comparatively unpredictable results (that is, its potential to provoke a more dangerous situation or to produce no effect).
3.8	Whilst Tasmania Police has developed well-regulated provisions in the use of capsicum spray, experience elsewhere raises quite legitimate concerns that, in relatively short course, such provisions will be relaxed and/or breached. In the latter respect, the normal lack of after-use evidence means that it becomes a favoured weapon in instances of improper use. There have been a number of documented reports of such abuse, such as the misuse of mace by NSW Police just to secure a person’s finger-printing. Reports of it being used against homeless people or to hasten compliance with requests to board Police vehicles, against students in demonstrations and anti-racism protesters, etc, are also not uncommon.
3.9	With respect to the public availability of capsicum gas, the primary argument is that it is an important means of self-defence from attacks, whether assault (physical and sexual) by persons or attack by dangerous animals. HCLS is concerned at the fallacy and short-sightedness of such claims. We argue to the contrary that: it is more likely (given pre-meditation and propensity to be armed) that perpetrators rather than victims will be armed with such publicly-available weapons (whether against people, for example, for robbery or sexual assault, or against animals, such as guard dogs) given the unpredictable results of usage, spraying an attacker could provoke a worse reaction even with due safeguards and controls, there remains the potential for enforcement officers using it in non-sanctioned circumstances due to the normal lack of after-use symptoms or evidence in cases of sexual assault, there is the possibility in a court hearing of the accused asserting that a victim’s non-possession of a sanctioned means of defence indicates lack of reasonable precaution and amounts to contributory negligence use by a perpetrator of sexual assault would be favoured over weapons such as knife to the extent that it is unlikely to leave any evidence of its use and thus assist a defence of compliance or non-resistance by the victim.
4	PROPOSED TASMANIAN LAW REFORM RE CAPSICUM GAS
POLICE USE
4.1	HCLS has concerns at moves to arm Tasmania Police with capsicum gas. We are not entirely satisfied that the Tasmanian Government has articulated convincing reasons for its adoption and for the perceived circumstances of its usage by the Police. HCLS is of the opinion that there should be a stronger and sounder rationale spelt out in this regard. This needs to be reinforced by improved clarification to the public of the guidelines for its usage and of monitoring procedures.
4.2	HCLS also has concerns about the potential for misuse and for serious injury and death, and has made reference to supporting documents and reports. These concerns include whether or not the guidelines and procedures for its issue and use are adequately applied and monitored to ensure that there is virtually no risk of its misuse in giving rise to adverse long-term consequences, permanent damage or death.
4.3	HCLS has noted the efforts taken by Tasmania Police in formulating clear procedures in its use, and in the conduct of in-service training in its use and in after-use treatment of victims. In addition to our reservations about its merit in controlled situations, as presently proposed, we are concerned about the likelihood that procedures will be relaxed and breached.
4.4	HCLS understands that the Tasmania Police trial has been deemed successful, but is based on only two reported uses of capsicum gas: one involving a person and one a dog. This is clearly inadequate, especially as it is likely that the bulk of evidence has been derived from less than perfect trials and reports from interstate and overseas (furthermore, many of the reports drawn upon in supporting the safety and success of capsicum gas have been sourced back to the industry itself, and/or have been subsequently discredited, whilst there is an increasing body of research weighing strongly against the use of capsicum gas).
4.5	In the event that the Police are armed with capsicum spray, then HCLS advocates the adoption of provisions that require the Attorney-General to annually report to Parliament on its use by Police, along with other offensive weapons. This is especially important in the first few years, to enable closer scrutiny of the levels of usage, the circumstances of its use, and the effects of that use.
PUBLIC ACCESS
4.6	HCLS is alarmed at the increasing public promotion of capsicum gas for possession and use by the public. We have refrained from public campaigning on this issue to avoid promoting public attention to capsicum gas and consequentially increased demand for it. (Exceptions have been our initial public response to the Police Association’s call for Police to be armed with the gas as a defence against demonstrators, and our subsequent raising of Parliamentary questions about the apparent Police use of the gas in the absence of the trial, of parallel guidelines on its use, and of the Government’s formal decision to arm Police with it.)
4.7	HCLS views arguments of its potential use as a protective weapon as being far outweighed by its potential use as an offensive weapon. HCLS asserts that public defensive use of capsicum gas is likely, in some instances, to exacerbate an assault; that the normal absence of evidence of usage against a sexual assault victim may be used to profess non-resistance or compliance; and that a victim’s failure to carry the substance may become a defence on the basis that the victim failed to take adequate precautions.
4.8	HCLS submits that it is essential that capsicum gas not be classified merely as a ‘dangerous’ weapon. To do so would enable — under S 8(2)(d) — public possession for reasons of ‘self-defence’. We have noted the necessity for training in its use; of its dangerous, even fatal, nature; and of the wide potential for its abuse. Any breach of the Bill’s provisions for its possession with lawful excuse is simply too late, and possession outside of the provisions of S 8(2) too difficult to enforce.
4.9	HCLS further submits that capsicum gas must not be classified as a ‘controlled’ weapon. This would mean — under S 7(3)(a) — that a wide range of persons in public places, night clubs, hotels and other entertainment venues, and potentially in transport and commerce, etc., could carry the weapon. We note with concern recent reports of the rapid growth in numbers of people employed in private security occupations, and view the inevitable consequences of capsicum gas being deemed a ‘controlled’ weapon with very great alarm.
4.10	HCLS is therefore of the opinion that under no circumstances should anybody other than authorised commissioned police officers be able to be issued with capsicum spray. This would include that private security agencies are precluded from its possession and usage.
4.11	HCLS further notes that there may be particular issues to be addressed in the attribution of capsicum gas as a potential contributing factor in a person’s death. We therefore urge that the Tasmanian Government give attention to the adoption of procedures in coronial reports whereby recent exposure to capsicum gas, and its assessed contribution as a cause of death, are recorded and included in the annual report by the Attorney-General referred to in 4.5 above.
4.12	HCLS therefore strongly supports the listing of capsicum gas as a prohibited weapon in the Government’s Control of Weapons Bill. We believe that it should not be available to the public. This includes our strong opposition to its listing as a controlled substance. We note with approval that the Bill proposes to prohibit similar weapons such as mace (a demonstrably even more dangerous weapon than capsicum gas). Ideally, to minimise the potential for private stockpiling, capsicum gas should be immediately prohibited from public sale, pending promulgation of the anticipated Act.
5	CONCLUDING COMMENT
5.1	HCLS draws attention to the evidence of the dangers of capsicum gas, including its potential to result in death. It has commented on the basis of contrary claims about deaths related to its use, and of the limited and unpredictable nature of use of the substance against persons. It has also noted the arguments about the particular dangers of capsicum gas being available to people untrained in its use and in after-use care.
5.2	HCLS has noted the inadequacy of the Tasmanian trial, with only one reported usage against a person. The trial could be cited as evidence that the skilled capacity of Tasmania Police to handle sensitive situations without resort to an additional weapon, is matched by a comparative absence of situations which justify its usage. We have advocated the need for a stronger and sounder articulation of the reasons for equipping the Police with capsicum spray — and that such access be limited to authorised commissioned police officers — but have acknowledged that the guidelines appear to ensure adequate safeguards for any such approved usage.
5.3	HCLS agrees with the Minister of Police and Public Safety that capsicum gas must be specifically precluded from use in instances of demonstrations. In the event of Police being armed with the substance, HCLS has advocated the need for annual reporting on its usage by the Attorney-General, and for special attention by the Coroner for the recording and reporting of deaths in which capsicum gas has been used.
5.4	HCLS supports the Control of Weapons Bill 1998, and strongly supports the listing of capsicum gas as a prohibited weapon. We express our appreciation for the opportunity to comment on the Bill and on the matter of capsicum gas in particular.