Regulatory Impact Statement: Use of pepper spray in custodial settings

Purpose of document

Problem definition

Pepper spray in aerosol form is currently authorised for use as a non-lethal weapon by the Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations).

Three issues have been identified with the existing framework governing the use of pepper spray:

1. Decisions on the introduction of new pepper spray delivery mechanisms are currently made at an operational level, which could result in the future authorisation of a new delivery mechanism that was not anticipated by the Minister when pepper spray was introduced. This means the Regulations are too broad and lack clarity.
2. Decisions around authorising the use of pepper spray, particularly in planned incidents, are not always being made at a high enough level of authority to provide assurance and separation from the frontline.
   
   Corrections could provide more clarity regarding the appropriate use of pepper spray in all situations, but this is especially important in situations involving passive resistance. International human rights guidance states that pepper spray should not be used in cases of passive resistance, whereas the Corrections Act authorises the use of force in response to active or passive resistance to a lawful order. It is critical for all parties to have a clear and consistent understanding of their rights and responsibilities and for the Act and the Regulations to be consistent.

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