# Arms (Lachrymatory Agents) Amendment Bill

### 1. Title

This Act may be cited as the Arms (Lachrymatory Agents) Amendment Act 2021.

### 2. Commencement

This Act comes into force three months after receiving the Royal Assent.

### 3. Purpose

The purpose of this Act is to legalise lachrymatory agents for personal use.

## Part 1: Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984

### 4. Principal Order amended

This Part amends the Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984 (the principal Order).

### 5. Clause 1A amended (Interpretation)

(1) In clause 1A of the principal Order, insert in alphabetical order:
>
>**Lachrymatory agent** means a gas composed of OC which, when discharged upon the vicinity of a person, stimulates the nerves of the lacrimal gland to produce tears.

(2) In clause 1A of the principal Order, insert in alphabetical order:
>
>**OC** means oleoresin capsicum.

### 6. Schedule 1 amended (Lachrymatory agents)

Replace Schedule 1(8) with:
>
>Every firearm, weapon, and device designed for the purpose of discharging any deleterious, or toxic gas, smoke, or other stupefying or overpowering thing capable of rendering any person either wholly or partially incapable of resistance (other than any device designed and intended solely for any medical, surgical, veterinary, scientific, agricultural, industrial, or other similar lawful purpose).

## Part 2: Arms Act 1983

### 7. Principal Act amended

This Part amends the Arms Act 1983 (**the principal Act**).

### *Subpart One - Lachrymatory Agents As Arms*

### 8. Section 2 amended (Interpretation)

(1) In section 2(1) of the principal Act insert in alphabetical order:
>
>**Lachrymatory agent** means a gas composed of OC which, when discharged upon the vicinity of a person, stimulates the nerves of the lacrimal gland to produce tears.

(2) In section 2(1) of the principal Act insert in alphabetical order:
>
>**OC** means oleoresin capsicum.

### 9. New Section 29A inserted (Application for endorsements in respect of lachrymatory agent)

After Section 29 of the principal Act, insert:
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>### 29A. Application for endorsements in respect of lachrymatory agent
>
>(1) Any person, being—
>
> * (a) an applicant for a firearms licence or a holder of a firearms licence;
>
> * (b) and a person qualified to operate a lachrymatory agent may apply at an Arms Office to a member of the Police for an endorsement permitting that person to have possession of a lachrymatory agent.
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>(2) For the purposes of subsection (1)(b), qualified means certified to operate a lachrymatory agent pursuant to the provisions of the Act.
>
>(3) Every application under subsection (1) shall be made on a form provided by a member of the Police.

### 10. New Section 30C inserted (Power to make endorsement in respect of lachrymatory agent)
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>### 30C. Power to make endorsement in respect of lachrymatory agent
>
>On receiving an application under section 29A, a member of the Police may, subject to any direction from the Commissioner, make the endorsement applied for if he is satisfied that the applicant is a fit and proper person to be in possession of the lachrymatory agent.

### 11. New Section 32A inserted (Condition of Endorsements)

After Section 32 of the principal Act, insert:

>### 32A. Condition of Endorsements
>
>(1) It is a condition of every endorsement made under sections 30 and 30C that the holder of the firearms licence—
>
> * (a) observes, in respect of every lachrymatory agent in their possession, such security precautions as are required by regulations made under this Act; and
>
> * (b) ensures that every lachrymatory agent in his possession is both rendered inoperable by the removal of a vital part and maintained, by reason of the removal of a vital part, in an inoperable condition.
>
>(2) Any member of the Police may, on the direction of the Commissioner, impose, as conditions of an endorsement made by that member of the Police under sections 30 and 30C, such conditions with regard to the use or custody of the lachrymatory agent (being conditions additional to those specified in subsection (1)) as that member of the Police thinks fit.

### 12. New Section 33C inserted (Revocation of endorsement in respect of lachrymatory agent)

After Section 33B of the principal Act, insert:
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>### 33C. Revocation of endorsement in respect of lachrymatory agent
>
>(1) If, in the opinion of a commissioned officer of Police, any person whose licence bears an endorsement made under section 30C—
>
> * (a) would not, on an application made under section 29A, be entitled to have that endorsement made on that person’s firearms licence; or
>
> * (b) has failed to observe any condition of that endorsement,—
>
>that commissioned officer may, by notice in writing signed by that commissioned officer, revoke that endorsement, and that person shall upon demand surrender that person’s firearms licence to a member of the Police for cancellation of the endorsement.
>
>(2) Any member of the Police may, on the direction of the Commissioner, impose, as conditions of an endorsement made by that member of the Police under sections 30 and 30C, such conditions with regard to the use or custody of the lachrymatory agent (being conditions additional to those specified in subsection (1)) as that member of the Police thinks fit.
>
>(3) The provisions of this section are in addition to the provisions of sections 27 to 28.

### 13. Section 43 substituted (Selling or supplying firearm or airgun to unlicensed person)

Section 43 of the principal Act is repealed and substituted with the following section:

>### 43. Selling or supplying firearm, airgun or lachrymatory agent to unlicensed person
>
>(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000 or to both who—
>
> * (a) sells or supplies a firearm (other than a pistol, military style semi-automatic firearm, or restricted weapon) or lachrymatory agent to any person who is not the holder of a firearms licence or a dealer’s licence or a permit issued for the purposes of section 16(1); or
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> * (b) sells or supplies an airgun to any natural person who is under the age of 18 years and is not the holder of a firearms licence.
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>(2) In any prosecution for an offence against subsection (1) in which it is proved,—
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> * (a) in the case of a prosecution for an offence against paragraph (a) of that subsection, that the defendant sold or supplied a firearm or lachrymatory agent to any person, the burden of proving that that person was the holder of a firearms licence shall lie on the defendant; and
>
> * (b) in the case of a prosecution for an offence against paragraph (b) of that subsection, that the defendant sold or supplied an airgun (not being a specially dangerous airgun) to a person under the age of 18 years, the burden of proving that that person was the holder of a firearms licence shall lie on the defendant.
>
>(3) It is a good defence to a prosecution for an offence against paragraph (a) or paragraph (b) of subsection (1) if the defendant proves,—
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> * (a) in the case of a prosecution relating to the possession of a firearm (not being a pistol, military style semi-automatic firearm, or restricted weapon) or lachrymatory agent by any person,—
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> * (i) that the firearm or lachrymatory agent was in the possession of that person for use under the immediate supervision of the holder of a firearms licence; and
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> * (ii) that at all times while that person was in possession of the firearm or lachrymatory agent, that person was under the immediate supervision of the holder of a firearms licence; or
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> * (b) in the case of a prosecution relating to the possession of an airgun (not being a specially dangerous airgun),—
>
> * (i) that the airgun was in the possession of that person for use under the immediate supervision of either a person of or over the age of 18 years or the holder of a firearms licence; and
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> * (ii) that at all times while that person was in possession of the airgun, that person was under the immediate supervision of either a person of or over the age of 18 years or the holder of a firearms licence.
>
>(4) A defendant may, in the case of a prosecution relating to the sale or supply of a firearm, airgun or lachrymatory agent to any person, discharge the burden of proof placed on him by subsection (2) by proving that he took reasonable steps to ascertain whether that person was the holder of a firearms licence or was of or over the age of 18 years, as the case may require.

### 14. Section 43A substituted (Mail order sale of firearm or ammunition)

Section 43A of the principal Act is repealed and substituted with the following section:

>### 43A. Mail order sale of firearm, lachrymatory agent or ammunition
>
>(1) Every person commits an offence and is liable on conviction to a fine not exceeding $1,000 who sells by mail order a firearm, lachrymatory agent or any ammunition for a firearm or restricted weapon otherwise than pursuant to a written order—
>
> * (a) signed by the purchaser; and
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> * (b) bearing an endorsement signed by a member of the Police and stating that the member of the Police—
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> * (i) has inspected the purchaser’s firearms licence; and
>
> * (ii) is satisfied that the purchaser is a fit and proper person to purchase that firearm, lachrymatory agent or ammunition.
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>(2) Nothing in this section applies in relation to— any pistol, restricted weapon, or military style semi-automatic firearm; or any ammunition for a firearm to which paragraph (a) or paragraph (b) or paragraph (c) of section 22(1) applies.

### 15. Section 45 substituted (Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for the lawful, proper, and sufficient purpose)

Section 45 of the principal Act is repealed and substituted with the following section:

>### 45. Carrying or possession of firearms, airguns, lachrymatory agents, pistols, restricted weapons, or explosives, except for the lawful, proper, and sufficient purpose
>
>(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—
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> * (a) carries; or
>
> * (b) is in possession of—
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>any firearm, airgun, lachrymatory agent, pistol, restricted weapon, or explosive.
>
>(2) In any prosecution for an offence against subsection (1) in which it is proved that the defendant was carrying or in possession of any firearm, airgun, lachrymatory agent, pistol, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper, and sufficient purpose shall lie on the defendant.

### 16. Section 47 substituted (Being in charge of firearm, airgun, pistol, or restricted weapon while under the influence of drink or drug)

Section 47 of the principal Act is repealed and substituted with the following section:

>### 47. Being in charge of firearm, airgun, lachrymatory agent, pistol, or restricted weapon while under the influence of drink or drug
>
>Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $3,000 or to both who, while in charge of any firearm, airgun, lachrymatory agent, pistol, or restricted weapon, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the firearm, airgun, lachrymatory agent, pistol, or restricted weapon.

### 17. Section 49 amended (Being in charge of firearm, airgun, pistol, or restricted weapon while under the influence of drink or drug)

In section 49 of the principal Act after subparagraph (i) the following subparagraph:
>
> * (j) a lachrymatory agent

### 18. Section 49A substituted (Unlawful possession of firearm or airgun after revocation of firearms licence)

Section 49A of the principal Act is repealed and substituted with the following section:
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>### 49A. Unlawful possession of firearm, airgun or lachrymatory agent after revocation of firearms licence
>
>Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $4,000 or to both who, being a person whose firearms licence has been revoked, is in possession of a firearm, airgun or lachrymatory agent at a time when that person is not the holder of a firearms licence, and is not a person authorised, expressly or by implication, by or pursuant to this Act, to be in possession of that firearm or airgun.

### 19. New Section 53B inserted (Unlawful possession of firearm or airgun after revocation of firearms licence)

After Section 53 of the principal Act, the following section is inserted:
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>### 53B. Careless use of lachrymatory agent
>
>(1) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who causes bodily harm to any person by using a lachrymatory agent except for the purpose of self-defence.
>
>(2) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, being a person who has in his charge or under his control a loaded lachrymatory agent, leaves that lachrymatory agent in any place in such circumstances as to cause bodily harm to any person without taking reasonable precautions to avoid such danger.
>
>(3) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or to both who, without reasonable cause, discharges or otherwise deals with a lachrymatory agent in a manner likely to cause bodily harm to any person or with reckless disregard for the safety of others.

### 20. New Section 58A inserted (Reporting of unwarranted harm caused by lachrymatory agents)

After Section 58 of the principal Act, the following section is inserted:

>### 58A. Reporting of unwarranted harm caused by lachrymatory agents
>
>(1) Every person who causes harm outside the exceptions in Section 53A(1)(a) towards any person by the use of a lachrymatory agent, shall, as soon as reasonably practicable, report the incident in person—
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> * (a) at the nearest Police station; or
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> * (b) to a member of the Police.
>
>(2) Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000 or to both who contravenes subsection (1).

(10) Section 39 of the principal Act is amended by omitting “firearm, pistol, or restricted weapon is lost or stolen” and substituting “firearm, postol, lachrymatory agent, or restricted weapon is lost or stolen”.

### 21. Miscellaneous Amendments

(1) Section 24 of the principal Act is amended by omitting any instance of “firearm or airgun” and substituting “firearm, airgun or lachrymatory agent”.

(2) Section 27 of the principal Act is amended by omitting any instance of “firearm or airgun” and substituting “firearm, airgun or lachrymatory agent”.

(3) Section 27A of the principal Act is amended by omitting “firearm or airgun” and substituting “firearm, airgun or lachrymatory agent”.

(4) Section 28 of the principal Act is amended by omitting any instance of “firearm, pistol, or restricted weapon” and substituting “firearm, pistol, lachrymatory agent, or restricted weapon”.

(5) Section 28 of the principal Act is amended by omitting any instance of “firearms, pistols, or restricted weapons” and substituting “firearms, pistols, lachrymatory agents, or restricted weapons”.

(6) Section 40 of the principal Act is amended by omitting any instance of “firearm, airgun, pistol, or restricted weapon” and substituting “firearm, airgun, pistol, lachrymatory agent, or restricted weapon”.

(7) Section 42(1)(e) of the principal Act is amended by omitting “firearm, airgun, pistol, or restricted weapon” and substituting “firearm, airgun, lachrymatory agent, pistol, or restricted weapon”.

(8) Section 54 of the principal Act is amended by omitting any instance of “firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive” and substituting “firearm, airgun, pistol, lachrymatory agent, imitation firearm, restricted weapon, ammunition, or explosive”.

(9) Section 66 of the principal Act is amended by omitting any instance of “firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive” and substituting “firearm, airgun, pistol, lachrymatory agent, imitation firearm, restricted weapon, ammunition, or explosive”.

(10) Section 69 of the principal Act is amended by omitting any instance of “firearm, airgun, pistol, restricted weapon, imitation firearm, ammunition, or explosive” and substituting “firearm, airgun, pistol, lachrymatory agent, restricted weapon, imitation firearm, ammunition, or explosive”.

(11) Section 74 of the principal Act is amended by omitting any instance of “firearm, airgun, pistol, restricted weapon, imitation firearm, ammunition, or explosive” and substituting “firearm, airgun, pistol, lachrymatory agent, restricted weapon, imitation firearm, ammunition, or explosive”.

Explanatory Notes

General Policy Statement

This bill will make Pepper Spray available and easier to obtain for everyday New Zealanders.

Section by Section analysis

Section 1 is the title section

Section 2 is the commencement section. It provides for the bill to come into force 3 months after it receives Royal Assent

Section 3 is the purpose section.

Section 4 outlines the Act this bill amends.

Section 5 defines Pepper Spray in a legal perspective.

Section 6 rewords the order allowing for the possibility of Pepper Spray reform.

Section 7 changes the act being ammended.

Section 8 defines Pepper Spray in the Arms Act 1983.

Section 9 defines the licencing requirement for Pepper Spray.

Section 10 allows Police to accept or decline the endorsement for Pepper Spray on a Firearms license.

Section 11 defines the rules relating to the Pepper Spray endorsement.

Section 12 defines instances that may lead to the revocation of a Pepper Spray endorsement

Section 13 defines the penalty for supply of Pepper Spray to an unlicenced person.

Section 14 defines the ban on mail-orders on Pepper Spray

Section 15 sets the penalty for the possesion of Pepper Spray for an unauthorised reason.

Section 16 sets the penalty for being in possession of Pepper Spray whilst under the influence of Drugs and Alcohol.

Section 17 adds Pepper Spray to the list of weapons that are unauthorised when under the influence of Drugs or Alcohol.

Section 18 sets the penalty for being in possession of Pepper Spray have the revocation of a Firearms License.

Section 19 sets the penalty for the misuse of Pepper Spray in a situation where it causes Bodily Harm except for in self defence.

Section 20 allows for the reporting of harm caused from the use of Pepper Spray and the penalty that would occur from this farm.

Section 21 is a series of miscelaneous ammendments to the legislation allowing for the use of Pepper Spray by licensed individuals.