Drug Importation Offences

Published: 12 January 2021
Published: 12 January 2021
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Drug Importation Offences – Australia

Drug importation offences can attract some of the highest penalties for drug offences in Australia, which often is reflective of the commercial and coordinated efforts involved in such offences. The maximum penalty for importing a commercial quantity of border controlled drugs is life imprisonment.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about drug importation offences.

If you face a drug importation offence charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Australian Law

Importation Offences: Criminal Code (Cth)

The Commonwealth Criminal Code contains a number of offences relating to drug importation. Division 307 of the Criminal Code (Cth) creates four sub-divisions of drug importation offences:

  • Subdivision A: Importing and exporting border controlled drugs or border controlled plants
    • Section 307.1: Importing and exporting commercial quantities of border controlled drugs or border controlled plants
    • Section 307.2: Importing and exporting marketable quantities of border controlled drugs or border controlled plants
    • Section 307.3: Importing and exporting border controlled drugs or border controlled plants
    • Section 307.4: Importing and exporting border controlled drugs or border controlled plants – no defence relating to lack of commercial intent
  • Subdivision B: Possessing unlawfully imported border controlled drugs or border controlled plants
    • Section 307.5: Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
    • Section 307.6: Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants
    • Section 307.7: Possessing unlawfully imported border controlled drugs or border controlled plants
  • Subdivision C: Possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported
    • Section 307.8: Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
    • Section 307.9: Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
    • Section 307.10: Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported
  • Subdivision D: Importing and exporting border controlled precursors
    • Section 307.11: Importing and exporting commercial quantities of border controlled precursors
    • Section 307.12: Importing and exporting marketable quantities of border controlled precursors
    • Section 307.13: Importing and exporting border controlled precursors

Definition: Import

The word “import” is defined as follows in section 300.2 of the Criminal Code to mean as follows:

“import” , in relation to a substance, means import the substance into Australia and includes:

(a) bring the substance into Australia; and

(b) deal with the substance in connection with its importation.

Dealing with something in connection with its importation captures a broad range of activities, such as packaging, transporting, recovering, unpacking and delivering. While the definition of import covers a broad range of activities, the prosecution needs only to establish involvement in one of those types of activities in order for a person to be found liable for ‘importing’. This reflects the fact that, in many cases, drug importation offences are committed by organised criminal networks that involve many individuals contributing to the plan.

Other Important Definitions

There are a number of definitions contained in the Criminal Code (Cth) relevant to words or terms used in Division 307. The following are important definitions for drug importation offences:

What is the definition of “commercial quantity” in the Criminal Code (Cth)?

The definition of “commercial quantity” of a serious drug, controlled precursor or border controlled precursor is found in section 310.10 of the Criminal Code (Cth). The section then refers to the capacity for regulations to list the quantities of the drug or precursor, or otherwise be determined under emergency declarations by the AFP Minister. With respect to an importation drug offence involving a “commercial quantity”, it is important to note that absolute liability applies under section 307.1(3). As a consequence of absolute liability applying to the element of “commercial quantity”, the defence of mistake of fact is unavailable to that element.

The Criminal Code Regulations 2019 (Cth) sets out the commercial quantities for relevant drugs, plants and precursors.

What is the definition of “marketable quantity” in the Criminal Code (Cth)?

The definition of “marketable quantity” of a serious drug, controlled precursor or border controlled precursor is found in section 310.11 of the Criminal Code (Cth). The section then refers to the capacity for regulations to list the quantities of the drug or precursor, or otherwise be determined under emergency declarations by the AFP Minister. With respect to an importation drug offence involving a “marketable quantity”, it is important to note that absolute liability applies under section 307.1(3). As a consequence of absolute liability applying to the element of “marketable quantity”, the defence of mistake of fact is unavailable to that element.

The Criminal Code Regulations 2019 (Cth) sets out the marketable quantities for relevant drugs, plants and precursors.

What is the definition of “border controlled drug” in the Criminal Code (Cth)?

The term ‘border controlled drug’ is defined in section 301.4 as a substance, other than a growing plant, that is:

  • listed by a regulation as a border controlled drug; or
  • a drug analogue of a listed border controlled drug; or
  • determined by the AFP Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).

The Criminal Code Regulations 2019 (Cth) set out all of the border controlled drugs for Australia, other than those that may be subject to emergency declaration by the AFP Minister. With respect to the meaning of “drug analogue”, it is defined in section 301.9 of the Criminal Code (Cth).

What is the definition of “border controlled plant” in the Criminal Code (Cth)?

The term ‘border controlled plant’ is defined in section 301.5 to be a growing plant:

  • listed by a regulation as a border controlled plant; or
  • determined by the AFP Minister as a border controlled plant under section 301.13 (which deals with emergency determinations of serious drugs).

The Criminal Code Regulations 2019 (Cth) set out all of the border controlled plants for Australia, other than those that may be subject to emergency declaration by the AFP Minister.

What is the definition of “border controlled precursor ” in the Criminal Code (Cth)?

The term ‘border controlled precursor ’ is defined in section 301.6 to be a substance (including a growing plant) that is:

  • listed by a regulation as a border controlled precursor; or
  • a salt or ester of a precursor that is so listed; or
  • an immediate precursor of a precursor that is so listed; or
  • determined by the AFP Minister as a border controlled precursor under section 301.14 (which deals with emergency determinations of serious drug precursors).

The term “immediate precursor” is defined in section 301.6(2) to mean “a chemical or compound (other than another precursor that is so listed) that is an immediate precursor in the manufacture by a chemical process of the listed precursor.”

The Criminal Code Regulations 2019 (Cth) set out all of the border controlled precursors for Australia, other than those that may be subject to emergency declaration by the AFP Minister.

Drug Importation Offences: Elements

For every criminal charge in Australia, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

For a drug importation offence, the elements will depend on the specific offence charged. For instance, for a charge of importing commercial quantities of border controlled drugs under section 307.1 of the Criminal Code (Cth), the prosecution sets out to prove the following:

  1. The person charged imported a substance;
  2. The substance is a border controlled drug; and,
  3. The quantity imported is a commercial quantity.

Whether one or more of these elements is a real issue in a trial will depend on the circumstances of the case. For instance, a prosecution case based only on circumstantial evidence may involve no question of identity, but it may be disputed that the person charged was actually seeking to import, as that word is defined, the drug. In other cases, there may be no dispute that the person charged was seeking to import something but disputes that what they were seeking to import was a drug.

In cases where multiple defendants are charged, as is common for drug importation offences, Australian law makes it possible for more than one person to be found guilty of the same offence. For instance, a person may be found guilty if they are shown to have taken part in a criminal conspiracy or formed part of a joint illegal enterprise, such as by being a courier of goods or assisting to package or dispose of certain things.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.


Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as drug important offences, they generally thinking about what makes them ‘not guilty’ of the offence. Because of the presumption of innocence, whenever a person faces a drug importation offence in Australia, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. What that means in practical terms is that it is for the prosecution to disprove any defences that may be raised on the evidence.

For drug importation offences, the prosecution must not only prove the elements of the offence beyond reasonable doubt, it must also disprove all defences that may apply beyond reasonable doubt.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act under a mistaken belief as to a relevant fact. The prosecution has an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for drug importation offences

Some defences available under the Criminal Code (Cth) do not apply to certain drug importation offences. For example, for a charge of importing commercial quantities of border controlled drugs under section 307.1 of the Criminal Code (Cth), absolute liability applies to the element that the quantity is a ‘commercial quantity’. The effect of that element being absolute liability is the defence of mistake of fact under section 9.2 of the Criminal Code (Cth) is unavailable on that issue.

For the offences of importing marketable quantities of border controlled drugs under section 307.2 or importing border controlled drugs under section 307.3, a defence arises if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug. However, in such a case, a person may still be found guilty of an offence under section 307.4, which is designed to capture importations of border controlled drugs unmotivated by commercial intent, such as personal use cases.

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a drug importation charge should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.


Penalties & Sentences

Maximum Penalty

The maximum penalty for drug importation offences varies depending on the particular offence alleged to have been committed.

The maximum penalty for importing and exporting commercial quantities of border controlled drugs or border controlled plants under section 307.1 is life imprisonment or 7,500 penalty units, or both.

The maximum penalty for importing and exporting marketable quantities of border controlled drugs or border controlled plants under section 307.2 is 25 years imprisonment or 5,000 penalty units, or both.

The maximum penalty for importing and exporting border controlled drugs or border controlled plants under section 307.3 is 10 years imprisonment or 2,000 penalty units, or both.

The maximum penalty for importing and exporting border controlled drugs or border controlled plants – no defence relating to lack of commercial intent under section 307.4 is 2 years imprisonment or 400 penalty units, or both.

The maximum penalty for possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants under section 307.5 is life imprisonment or 7,500 penalty units, or both.

The maximum penalty for possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants under section 307.6 is 25 years imprisonment or 5,000 penalty units, or both.

The maximum penalty for possessing unlawfully imported border controlled drugs or border controlled plants under section 307.7 is 2 years imprisonment or 400 penalty units, or both.

The maximum penalty for possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported under section 307.8 is life imprisonment or 7,500 penalty units, or both.

The maximum penalty for possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported under section 307.9 is 25 years imprisonment or 5,000 penalty units, or both.

The maximum penalty for possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported under section 307.10 is 2 years imprisonment or 400 penalty units, or both.

The maximum penalty for importing and exporting commercial quantities of border controlled precursors under section 307.11 is 25 years imprisonment or 5,000 penalty units, or both.

The maximum penalty for importing and exporting marketable quantities of border controlled precursors under section 307.12 is 15 years imprisonment or 3,000 penalty units, or both.

The maximum penalty for importing and exporting border controlled precursors under section 307.13 is 7 years imprisonment or 1,400 penalty units, or both.

Minimum Penalty

While some drug offences in Australia law can carry mandatory minimum sentences, such as drug trafficking in Queensland when a serious organised crime circumstance of aggravation applies, drug importation offences do not have any mandatory minimum penalty.

Sentencing in Australia

For a drug importation offences in Australia, the Crimes Act 1914 (Cth) sets out a laundry list of mandatory sentencing considerations for courts. Section 16A of the Crimes Act 1914 (Cth), the law states that the court must have regard to the following considerations when sentencing for drug importation offences:

Matters to which court to have regard when passing sentence etc.–federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Note: Minimum penalties apply for certain offences–see sections 16AAA, 16AAB and 16AAC.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character–that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence–any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 ; or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903 ;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence:

(i) that fact; and

(ii) the timing of the plea; and

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;

(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(ja) the deterrent effect that any sentence or order under consideration may have on other persons;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(ma) if the person’s standing in the community was used by the person to aid in the commission of the offence–that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

The possible penalty outcomes for drug importation offences are wide, although for cases involving commercial quantities of border controlled drugs the penalties imposed generally involve substantial terms of imprisonment. The significant issues that affect the sentencing outcome relates to the quantity of the drug, plant or precursor, as well as the motivations driving the importation.


Significant Cases

Drug importation offences have seen a number of significant legal decisions over time, including in the High Court of Australia and Queensland Court of Appeal. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with drug importation offences.

High Court of Australia

In Handlen & Paddison v The Queen [2011] HCA 51, the High Court of Australia considered whether criminal liability as an accessory differed to liability through joint criminal enterprise. The reason the question was important in that case is because the trial had been conducted on the assumption that the appellants could be held found guilty on the basis of joint criminal enterprise. However, at the time the alleged offences were committed, liability as an accessory by aiding, abetting, counselling or procuring was the only alternative basis to conviction as a principal offender.

The High Court allowed the appeal and quashed the convictions. In essence, criminal liability as an accessory requires the prosecution to prove that the conduct of the person charged facilitated the commission of the offence. On the other hand, criminal liability for joint criminal enterprise requires proof that the person charged was part of an agreement to have the offence committed.

Queensland Court of Appeal

In R v Elfar; R v Golding; R v Sander [2017] QCA 149, the appellants had been convicted of the offence of the importation into Australia of a commercial quantity of a border controlled drug, namely cocaine, in contravention of section 307.1(1) of the Criminal Code (Cth). Each was sentenced to a term of 30 years’ imprisonment, but different non-parole periods were fixed: Elfar’s period was 20 years, Golding’s period was 18 years and Sander’s period was 16 years. The case dealt with the way compulsory examinations by the Australian Crime Commission (now Australian Criminal Intelligence Commission) may impact on the fairness of a criminal trial. The Court of Appeal dismissed each appeal against conviction.


The following drug offences are possible charges that may be substituted for, or charged in addition to, a charge of possessing a dangerous drug:

Drug Importation Offences - Criminal Law Expertise

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