Time again we see posts on this board about the topic of alcohol and firearms. We have all seen the posts and we know that they last for a while before dying down without any actual conclusion.
I’ve pulled together some information for everyone so that people understand the position in each of the different states.
This is not legal advice, but rather some home research that I hope people find useful, I’m not a lawyer, I’m a paralegal (we do legal research for lawyers). Any opinions are just that, my opinions. It’s your responsibility when you’re shooting to make sure you’re following the law and while I’ve tried to do the best job I can here I can’t guarantee I’ve got everything right.
Also this is not a post to either say it’s ok or not ok to have a rum before going shooting but rather an attempt to add a bit of information into the debate.
As everyone would be aware, pretty much every major shooting organisation states that alcohol and firearms don’t mix. That’s all I’m going to say on what you probably should do – the rest of this post is about what the law says you can/can’t do.
When I’ve quoted the laws, I’ve taken out the possible penalties to keep the length down. The one exception is WA which I’ve left because they have a harsher penalty if you commit the offence while the gun is loaded.
I’ve also made comments about cleaning your guns and reloading in your own home. Please don’t comment “how would they know?”, I’m just trying to interpret what the law says
INTRODUCTION
Every state and mainland territory in Australia makes it an offence to be drunk or drugged while shooting. This is in the law in a few different styles of wording:
• under the influence of intoxicating liquor or a drug (Victoria),
• under the influence of alcohol or any other drug. (New South Wales, Tasmania, ACT),
• under the influence of liquor or a drug (Queensland),
• affected by alcohol or drugs, or alcohol and drugs (Western Australia),
• so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the firearm (South Australia),
• under the influence of alcohol or a drug (Northern Territory).
They are all pretty much identical, except for maybe SA which I will discuss below.
Additionally, every state (except for maybe Queensland) specifically makes it an offence to provide someone in an intoxicated (I’ll use that term to mean “under the influence of alcohol or drugs”) state with a firearm.
Different states have different definitions of what a firearm is. It appears that Queensland is specifically different as it also extends to include a few extra items as that state relies on the term “weapon” instead of firearm.
The Big Question you’ve all been dying for: “At what Blood Alcohol Content (BAC) are you considered to be intoxicated for firearms?”.
To the best I can research, the answer is... there is no specific BAC.
No state has the power as far as I can find in their firearms laws to breath test you (if you are driving with your guns you can still be breath tested – if you’re under the driving limit you could still be ‘intoxicated’ with regards to your guns – if you’re over the driving limit you could still be not intoxicated regarding firearms – good luck with that one in court though).
It’s been a painfully frustrating effort to find an exact meaning of “intoxication”, because most of the time a court thinks about it, it’s because someone is trying to use it as a defence. In 2010 the Supreme Court in Queensland (R v Clough) stated that it had the same effect as in the dictionary:
"1. inebriation, drunkenness.
2. Pathol. Poisoning
3. the act of intoxicating.
4. overpowering action or effect upon the mind"
&
"1. the action of poisoning; (an instance of) the state of being poisoned……
2. The action of inebriating or making someone stupid, insensible or disordered in intellect, with a drug or alcoholic liquor; the condition of being so stupefied or disordered…”
So it comes down to if a reasonable person could tell that you appear inebriated, drunk, mentally overpowered, insensible or disordered in intellect, stupefied or disordered.
The fact that there are so many different descriptions essentially means that if you appear to be affected by alcohol you are considered to be intoxicated.
Note: this is different to the “bar cutoff laws” which usually use the term unduly intoxicated (i.e. pissed). The question is are you seen to be affected.
Can you lose your licence even if you’re not charged?
Yup.
In NSW in 2001 the police believed that a security guard was affected by alcohol. Reading the fellow’s appeal against losing his licence, the police didn’t charge him because they didn’t think he had committed a crime. But he still lost his licence. The court said:
“35 It is an offence to handle or use a firearm while under the influence of alcohol. Mr Jedrasiak was never charged with that offence. I have found that he was mildly affected by alcohol when carrying a firearm. While I accept his evidence that he was not drunk and would “never pull a gun out on someone or shoot them” I am satisfied that being mildly affected by alcohol when carrying a firearm will increase the risk of an injury occurring. One aim of s 16 of the Firearms Act is to minimise that risk.
…
38 Weighing up these factors I consider that Mr Jedrasiak is no longer a fit and proper person to hold a firearms licence. Despite his good character, he considers it acceptable to drink alcohol and then perform duties which involve carrying a firearm. The objects of the legislation will not be promoted if people with those views and practices hold firearms licences.”
VICTORIA
What does the law say?
132 Offences about the carriage and the use of firearms
(1) A person must not carry or use a firearm if that person is under the influence of intoxicating liquor or a drug.
&
133 Disposal of a firearm to person who is intoxicated
A person must not dispose of a firearm to a person whom the person disposing of the firearm reasonably believes to be under the influence of intoxicating liquor or a drug.
Summary
You can’t carry or use a firearm intoxicated or give an intoxicated person a firearm. This would likely include even cleaning your firearms when you were intoxicated – although the use of the word ‘carry’ does not make this 100% certain. Safest bet would be to keep your safe shut while under the influence.
You also can’t give your firearms to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession).
NEW SOUTH WALES
What does the law say?
64 Restrictions where alcohol or other drugs concerned (cf 1989 Act s 16)
(1) A person must not handle or use a firearm while the person is under the influence of alcohol or any other drug.
(2) A person must not supply or give possession of a firearm to another person:
(a) if the person knows or has reasonable cause to believe that the other person is under the influence of alcohol or any other drug
Summary
You can’t handle or use a firearm intoxicated or give an intoxicated person a firearm. Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
You also can’t give your firearms to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession).
QUEENSLAND
What does the law say?
59 Possession or use of weapon under the influence of liquor or a drug prohibited
(1) In this section—
weapon includes—
(a) an antique firearm, spear gun, longbow or sword; and
(b) a replica of a thing mentioned in paragraph (a); and
(c) a slingshot or shanghai; and
(d) an explosive.
(2) A person must not have physical possession of or use a weapon if the person is under the influence of liquor or a drug.
Summary
You can’t physically possess, this would seem to mean have in your hands, car or anywhere outside of your safe, as opposed to possession in the wider sense (ie own). Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
Bear in mind the wider definition of a weapon, this includes “explosives”. So you can’t reload in Queensland when you’re intoxicated. The other states might be the same if you look at their explosive laws, but I’m only looking at the firearm laws here.
TASMANIA
What does the law say?
120. Restrictions relating to alcohol and drugs
(1) A person must not handle or use a firearm while the person is under the influence of alcohol or any other drug.
(2) A person must not sell or give possession of a firearm to another person if –
(a) the person knows or has reasonable cause to believe that the other person is under the influence of alcohol or any other drug
Summary
You can’t handle or use a firearm intoxicated or give an intoxicated person a firearm. Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
You also can’t give your firearms to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession). It’s hard to tell, but it appears that you can’t technically make a deal to sell a firearm to a drunk person (even if you don’t let them take it till they’re sober), but I don’t think it’s very likely you would be in trouble for that.
WESTERN AUSTRALIA
What does the law say?
23. General offences
(1) A person who permits possession of any firearm or ammunition to be taken by another person where there are reasonable grounds for believing that he knows, or ought to know, that the other person is affected by alcohol or drugs, or alcohol and drugs, or that the other person is of unsound mind, commits an offence.
(2) A person who uses, carries or is otherwise in actual physical possession of a firearm whilst affected by alcohol or drugs, or alcohol and drugs, commits an offence.
Penalty:
(a) if the firearm is loaded, imprisonment for 2 years or a fine of $8 000; or
(b) otherwise, imprisonment for 18 months or a fine of $6 000.
Summary
You can’t handle or use a firearm intoxicated or give an intoxicated person a firearm. Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
You also can’t give your firearms to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession).
It’s worth noting that the wording in Western Australia is “permits possession of any firearm or ammunition to be taken by another”... this sounds wider than the other states. Not putting your keys away where an intoxicated licence holder could find them may be enough to count as an offence in WA. You might think that this would be a hard stretch for you to be charges with... but just wait until you drunk (licensed) mate Jimbo grabs your gun drunk and does something silly and the cops come out...
SOUTH AUSTRALIA
What does the law say?
[b]29—Handling firearms when under the influence [/b]
(1) A person who handles a firearm while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the firearm is guilty of an offence if—
(a) a round is in the breech or chamber or the magazine of the firearm; or
(b) the person is handling or is carrying with him or her ammunition that can be used in the firearm.
(2) A person who transfers possession of a firearm to a person who is so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the firearm is guilty of an offence if—
(a) a round is in the breech or chamber or the magazine of the firearm; or
(b) the person to whom possession of the firearm has been transferred is handling or is carrying with him or her ammunition that can be used in the firearm.
(3) Without limiting subsection (1) or (2), a person is incapable of exercising effective control of a firearm if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired.
Summary
You can’t a “handle a firearm while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the firearm.”
Not sure about this one people but I think we have found our least restrictive state. It would appear that you have to be both “under the influence” AND “incapable of exercising effecting control”. Be careful though, a court would probably make the decision that being under the influence establishes that you are “incapable”.
You also can’t give your firearms to someone who is also intoxicated / incapable. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession).
NORTHERN TERRITORY
What does the law say?
86 Persons under influence of alcohol or drugs
A person must not have a firearm in his or her actual possession while under the influence of alcohol or a drug.
87 Delivery of firearms to certain persons
A person must not give possession of a firearm or ammunition to another person if the person knows or has reasonable cause to believe that the other person is:
(a) under the influence of alcohol or a drug
Summary
You can’t handle have a firearm in your actual possession. Like Queensland this would probably mean in your hands, car or otherwise out of your safe. Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
You also can’t give your firearms or ammunition to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession).
NT may have a separate law saying you cant have your ammunition in your possession while drunk.
AUSTRALIAN CAPITAL TERRITORY
What does the law say?
242 Restrictions where alcohol or other drugs concerned
(1) A person must not possess, carry or use a firearm while the person is under the influence of alcohol or any other drug.
(2) A person must not sell or give possession of a firearm to another person—
(a) if the person knows or has reasonable cause to believe that the other person is under the influence of alcohol or any other drug
Summary
Same as Tassie...
You can’t handle or use a firearm intoxicated or give an intoxicated person a firearm. Keep ya safe shut if you’re intoxicated. This would include even cleaning your firearms when you were intoxicated.
You also can’t give your firearms to someone who is intoxicated. If you’re both intoxicated you could be facing more than just one charge (one for possession / one for giving possession). It’s hard to tell, but it appears that you can’t technically make a deal to sell a firearm to a drunk person (even if you don’t let them take it till they’re sober), but I don’t think it’s very likely you would be in trouble for that.
WRAP UP
Hopefully this helps everyone by getting some facts out there the next time this conversation pops up.
Again, it’s not legal advice, we are each responsible for our gun ownership and none of us want bad headlines which make the non shooters spooked.
Let me know if there’s anything I was too brief in covering. Hope someone appreciates this, it took time haha
Peace out - I'm off for a beer because my guns are locked away.
~AM
