Importing or Exporting a Border Controlled Drug or Plant

In Australia, it is an offence to import or export border controlled plants and drugs. This offence carries a maximum penalty of 7,500 penalty units and/or life imprisonment.

The Criminal Code Regulation 2002 (Cth), Schedule 4 sets out the commercial and marketable quantities for each border controlled drug. The Regulation also sets out the commercial and marketable quantity for each border controlled plant.

Aggravated offences

The quantity of border controlled plant or drug imported or exported will affect the seriousness of the charge and the penalty imposed. When a marketable or commercial quantity of a drug or plant is imported or exported, the offence is aggravated.

Regulation 307.2 provides for an aggravated offence of importing or exporting a marketable quantity of a drug or plant. An offence under this section carries a maximum penalty of 5,000 penalty units and/or 25 years imprisonment.

Regulation 307.1 provides for the aggravated offence of importing or exporting a commercial quantity of a drug or plant. An offence under this section carries a maximum penalty of 7,500 penalty units and/or life imprisonment.

What is importing or exporting a border controlled plant or drug?

There is no formal definition of importation in the Criminal Code Act. However, from a common-sense perspective, importation could easily be read to include any action that leads to the border controlled drug/plant being introduced into Australia from outside.

Similarly, exporting could include any action by any individual that facilitates that drug/plant being transported from within Australia outside Australian borders.

According to the Australian Customs Service, the most common means of importation include post, air passengers and air cargo.

Examples of importation or exportation include:

• Taking a drug or plant on a plane with you, either on your person or in your luggage; when coming into Australia from overseas, or when leaving Australia.
• Purchasing a drug or plant online and having it mailed to an Australian address.
• Packing a quantity of the drug or plant in preparation for it to be conveyed overseas by someone else or via post.

What must be proven?

To find person guilty of importing or exporting a border controlled plant or drug, the prosecution must prove beyond a reasonable doubt that they:

• Imported or exported a substance; and
• That substance was a border controlled plant or drug;

To convict a person of importing or exporting a marketable or commercial quantity of a border controlled plant or drug, the Prosecution must also prove beyond reasonable doubt that the quantity of drug was above the marketable or commercial quantity.

Possible defences

The legislation provides a defence to the offences under Regulation 307.2 and 307.3 where the accused did not intend or believe that another person intended to sell the drug or plant.

It is important to note that if a person wishes to rely on this defence, the burden is on them to establish that they did not intend or believe another person intended to sell the drugs/s or plant/s in question.

This defence is not available for an offence under section 307.1, being importing or exporting commercial quantities of border controlled drugs or plants.

Which court will hear the matter?

Under Commonwealth law, all of the above offences are strictly indictable offences. That means that they must be finalised in the District or Supreme Courts.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.