Importing and exporting border-controlled drugs and plants are serious criminal offences under Division 307 of the Criminal Code Act 1995 (Cth). These offences cover a wide range of conduct, from bringing drugs into Australia to playing a role in the importation process before or after the drugs arrive.

At Angus Cameron and Partners, we have excellent experience in serious federal drug matters, including those investigated by the Australian Federal Police.

These charges can carry extremely heavy penalties, including life imprisonment for the most serious offences. If you have been charged with importing or exporting a controlled drug, it is essential to get experienced legal advice immediately.

The Offences

There are several offences in this area, but the key offences involve importing or exporting border-controlled drugs or plants. The charges are tiered according to the quantity involved:

  • Commercial quantity: the most serious offence, carrying the heaviest penalties.
  • Marketable quantity: an intermediate offence.
  • Any quantity: the base offence, which applies regardless of the amount involved.

The prosecution must specify which quantity level is alleged. You can only be convicted of the offence charged — or a lesser offence — based on what the evidence establishes.

Elements

For all importing and exporting offences, the prosecution must prove the following beyond reasonable doubt:

  • you imported or exported a substance;
  • you intended to import or export the substance;
  • the substance was a border-controlled drug or plant; and
  • you were (at least) reckless as to whether the substance was a border-controlled drug or plant.

For the more serious commercial and marketable quantity offences, the prosecution must also prove the quantity imported or exported.

Importing or exporting

Importing a substance includes bringing it into Australia, but also covers a much broader range of conduct “in connection with” the importation. This extended definition can capture conduct that occurs before the drugs physically arrive in Australia, as well as steps taken after they land. Examples of conduct that may fall within this definition include packaging the goods, transporting them, recovering them after arrival, making them available to someone else, clearing them through customs, or arranging payment for others involved in the process.

Simply providing an address for delivery, or tracking a parcel, is not enough on its own to establish importing. The prosecution must point to something more.

Exporting means taking a substance out of Australia.

Intention to import or export

The prosecution must prove that you intended to import or export a substance — but it does not need to prove that you knew the substance was a border-controlled drug. It is enough that you intended to import or export a package, whatever it contained. The question of whether you knew or suspected it was a drug is addressed separately, under the recklessness element.

Border-controlled drug or plant

Border-controlled drugs and plants are those listed in the relevant schedules to the Criminal Code Regulations 2002 (Cth). This includes commonly known substances such as heroin, cocaine, methamphetamine, MDMA, and cannabis, as well as drug analogues — that is, chemical variants of listed drugs.

Recklessness

The prosecution must prove that you were reckless as to whether the substance was a border-controlled drug or plant. This means proving that you were aware of a substantial risk that the substance was a controlled drug or plant, and that it was unjustifiable for you to take that risk in the circumstances.

You do not need to have known the specific identity of the drug. It is enough that you were aware of a substantial risk that the substance was some kind of border-controlled drug or plant.

Quantity

For the commercial and marketable quantity offences, the prosecution must also prove the quantity imported or exported. The specific quantities that constitute a “commercial” or “marketable” quantity vary depending on the drug and are set out in the Criminal Code Regulations 2002 (Cth).

Defences

Being charged with importing or exporting a controlled drug does not mean you will be convicted. There are several defences that may apply depending on the circumstances of your case.

Lack of commercial intent

For marketable quantity and base quantity offences, it is a defence if you can prove that neither you nor anyone else intended to sell any of the drug. This defence is not available for commercial quantity offences. If the defence is established, you may still be liable for a lesser offence. The burden is on you to prove this defence on the balance of probabilities.

Reasonable belief that conduct was lawful

It is a defence if, at the time of the conduct, you held a genuine and reasonable belief that your actions were lawful — for example, because you believed you held a valid licence or authorisation to deal with the substance. You must point to evidence that supports the existence of that belief.

Insufficient evidence

The prosecution must prove each element of the offence beyond reasonable doubt. In many cases, the most important question is whether the prosecution can prove that you were aware of a substantial risk that the substance was a controlled drug. Where the evidence on this point is weak — for example, where you were used as an unwitting courier — there may be a strong basis to contest the charge.

Improperly obtained evidence

Where evidence has been obtained unlawfully or improperly — for example, through an unlawful search or seizure — there may be grounds to argue that it should be excluded. These arguments are technical and require experienced legal advice.

FAQs

What is a border-controlled drug?

Border-controlled drugs are substances listed in the schedules to the Criminal Code Regulations 2002 (Cth). They include drugs such as heroin, cocaine, methamphetamine, MDMA and cannabis, as well as chemical analogues of those substances.

Do I have to have known it was a drug to be convicted?

Not necessarily. The prosecution does not need to prove that you knew the substance was a border-controlled drug. It is enough to prove that you were aware of a substantial risk that it was, and that taking that risk was unjustifiable in the circumstances. People who claim they did not know what they were carrying are not automatically acquitted — the jury will consider all the circumstances.

What counts as “importing” a drug?

Importing is broader than simply carrying drugs through the border. It includes a wide range of conduct connected to the importation process, such as packaging, transporting, collecting, or distributing the drugs after they arrive. However, simply providing a delivery address or tracking a parcel is not enough on its own.

What are the penalties for importing a commercial quantity of drugs?

Importing a commercial quantity of a border-controlled drug carries a maximum penalty of life imprisonment. Marketable quantity offences carry a maximum of 25 years, and base quantity offences carry a maximum of 10 years. These are among the most serious drug offences in Australian law.

Do I need a lawyer if I'm charged with importing drugs?

Absolutely. These are serious offences carrying severe penalties. The legal issues are complex, and an experienced criminal lawyer is essential to protect your rights and ensure every available defence is properly considered.

Is importing drugs a federal or state offence?

Importing and exporting offences are prosecuted under federal law — the Criminal Code Act 1995 (Cth). They are heard in Victorian courts exercising federal criminal jurisdiction, usually the County Court.

Can I get bail if charged with importing a commercial quantity of drugs?

These are very serious charges and bail can be difficult to obtain, particularly for commercial quantity offences. The court will consider the seriousness of the offence, your personal circumstances, and the risk you pose. We can advise you on the prospects of bail and make an application on your behalf at the earliest opportunity.

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