Legal experts warn capsicum spray rollout to security guards and transit officers a ‘litigation minefield’

Legal experts warn security guards and transit officers armed with capsicum spray could be wading into a ‘litigation minefield’.

Mr McMaster said without clear legislation, regulatory amendments and reporting guidelines the government was wading into dangerous legal territory with its capsicum spray move. Picture: Trevor Veale

The rollout of capsicum spray to Territory security guards will become a “litigation minefield”, legal experts warn.

Criminal Lawyers Association of the Northern Territory president Shane McMaster said the introduction of Oleoresin capsicum spray to Transit Safety Officers as well as security and crowd controller licence holders was a “concerning” proposal.

The expansion of the restricted weapon came in the wake of Declan Laverty’s death, alongside tough bail changes and additional security funding for private businesses.

Mr McMaster said experience showed the use of weapons “inevitably” escalates difficult and tense situations, as some may feel targeted by the spray and justify carrying other weapons to counter it.

Criminal Lawyers Association of the Northern Territory president Shane McMaster said there were major concerns about the expanded use of capsicum spray.

“Far from reducing the level of weapons offending there is good reason to think it may increase it,” he said.

“We are sure the government does not want to encourage an arms race on the streets of Darwin.”

Mr McMaster said the lack of clarity around training, operational health and safety, regulation and legislation was a major issue.

Police have to be qualified and retrained annually to carry the restricted weapon, while its use by cops and corrections is monitored and regulated.

There are specific guidelines it should not be used if less forceful methods are available, if they are children, infirmed or appear to be suffering from a mental illness.

If there are allegations of misuse by police or prison workers, complaints can be referred to the NT Ombudsman.

Despite repeated requests to the NT Government, no clarity has been provided about these oversight mechanisms for transit officers — who are government-employed — or the private sector security guards and crowd controllers.

Infrastructure Minister Eva Lawler said the use would be “an absolute last resort”, but said the department was still working on the guidelines for use.

Despite not having confirmed rules for their use, Ms Lawler said the eight-hour training to use the restricted weapon would be rolled out in less than a month, in early April.

“Transit safety officers are government employees, so for us, it’s one that we can move on more quickly than we can around the security officers,” she said.

Does this mean the NT Government has finalised it's reporting, oversight and complaints mechanisms for the OC Spray? If capsicum spray is misused where can Territorians go for justice?

— Zizi Averill (@ZiziAverill) March 27, 2023

The Chief Minister’s office clarified the spray would not be issued until the operational procedures were also finalised, but did not provide a timeline.

“The Territory Labor Government is working through the final stages of the rollout of OC spray for Transit Safety Officers,” a spokeswoman said.

She said workers would be trained on the use, carriage, storage and reporting of OC spray, including decontamination of affected people.

Infrastructure Minister Eva Lawler said the use would be “an absolute last resort”, but said the department was still working on the guidelines for use. Picture: (A)manda Parkinson

The eight-hour course would also run through the appropriate use of force, de-escalation and conflict resolution.

However, Mr McMaster said without clear legislation, regulatory amendments and reporting guidelines the government was wading into dangerous legal territory.

“It presents a potential litigation minefield for the security guards and the government who will inevitably be charged and, or sued over the improper use of the OC spray,” he said.

The United Workers Union, which represents security guards, said the lack of clarity around worker’s rights and responsibilities with the weapon was concerning.

“Pepper spray can be a very helpful self defence tool for crowd officers and security however in inadequately trained hands and if the use of the spray is poorly regulated, it can do more harm than good for the worker,” NT Secretary Erina Early said last week.