Import or Export Border Controlled Drug or Plant

In Australia, the importation and exportation of border controlled plants and drugs carries a maximum penalty of 7500 penalty units and/or life imprisonment.

The Criminal Code Regulations 2002, Schedule 4, sets out the commercial and marketable quantities for each border controlled drug. The Regulations also set out the commercial and marketable quantity for each border controlled plant at Regulation 5E.

The Offence of Importing or Exporting a Border Controlled Drug or Plant

The offence of unlawfully importing border controlled plants or drugs is contained in the Criminal Code Act 1995, Schedule 1, Regulation 307. Regulation 307.3 states:

“A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant.”

An offence under this section carries a maximum penalty of 2000 penalty units and/or 10 years imprisonment.

Regulation 307.2 uses the same wording, but provides for the aggravated offence of importing or exporting a marketable quantity of that drug or plant. An offence under this section carries a maximum penalty of 5000 penalty units and/or 25 years imprisonment.

Regulation 307.1 provides for the aggravated offence of importing or exporting a commercial quantity of that drug or plant. An offence under this section carries a maximum penalty of 7500 penalty units and/or life imprisonment.

What Actions Might Constitute Importing or Exporting a Border Controlled Drug or Plant?

There is no formal definition of importation in the Act, but importation could be interpreted to include any action that leads to the border controlled drug/plant being introduced into Australia from outside.

Similarly, exporting could include any action that facilitates the drug or plant being transported from within Australia to 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 the 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;
• Buying the drug or plant online and having it mailed to an Australian address;
• Packing a quantity of the drug/plant in preparation for it to be conveyed overseas by someone else or via post.

What the Police Must Prove

To convict you of importing or exporting a border controlled plant or drug, the Prosecution must prove beyond a reasonable doubt that you:

• imported or exported a substance; and
• that substance was a border controlled plant or drug;

Many cases are decided on whether the person involved in the importation knew that the item contained a border controlled plant or drug. The prosecution must also prove beyond a reasonable doubt that the person charged knew that the item being imported was a border controlled drug or plant.

To convict you 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 for Importing or Exporting a Border Controlled Drug or Plant

Possible defences to an Importing or Exporting a Border Controlled Drug or Plant include but are not limited to:

• duress;
• factual dispute/lack of intent.

Which Court Will Hear Your Matter?

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

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