Illicit drugs can be transported into Australia, or made locally in clandestine laboratories.

Drug importation and drug manufacture are serious offences regulated under both federal and state criminal law.

 

Drug importation

Transporting drugs across an Australian border is a serious federal crime, and many different levels of involvement are criminalised under the one offence. “Mules” who physically carry the drugs, and people who organise the transportation, could all be charged with importation.

One of the main offences, “importing and exporting commercial quantities of border controlled drugs or border controlled plants”, is criminalised under section 307.1 of the Criminal Code 1995 (Cth). Under this section, a person commits an offence if they:

  • Intentionally import or export a substance,
  • The substance is a border controlled drug/plant, and
  • The quantity imported or exported is a commercial quantity.

“Export” means moving a drug overseas from Australia, and “Import” means to bring a substance into Australia and dealing with it in connection with its importation. This definition of import includes:

  • Packaging the goods for importation.
  • Transporting the goods into Australia.
  • Recovering the imported goods after landing.
  • Making the imported goods available to another person.
  • Unpacking the imported goods.
  • Arranging for payment of those involved.

There are specific offences depending on the quantities being imported, the intent behind the importation, and the specific substance involved.

 

Drug importation penalties

The maximum penalties for drug importation offences are set out below. Many people convicted of these offences receive a prison sentence.

OffenceMaximum sentence
Section 307.1 Importing and exporting commercial quantities Life imprisonment, a $1,665,000 fine, or both.
Section 307.2 Importing and exporting marketable quantities with commercial intentImprisonment for 25 years, a $1,110,000 fine, or both.
Section 307.3 Importing and exporting (an amount less than marketable) with commercial intentImprisonment for 10 years, a $444,000 fine, or both.
Section 307.4 Importing and exporting without commercial intentImprisonment for 2 years, an $88,800 fine, or both.
Section 307.11 Importing and exporting commercial quantities of precursorsImprisonment for 25 years, a $1,110,000 fine, or both.
Section 307.12 Importing and exporting marketable quantities of border-controlled precursorsImprisonment for 15 years, a $666,000 fine, or both.
Section 307.13 Importing and exporting border-controlled precursorsImprisonment for 7 years, a $310,800 fine, or both.

 

Drug manufacture

Under section 24(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW), it is a crime to manufacture or produce a prohibited drug. This section imposes criminal actions against any person who:

  • Manufactures or produces a prohibited drug, or
  • Knowingly takes part in the manufacture or production of a prohibited drug.

“Manufacture” under section 3 of the Act includes “the process of extracting or refining the prohibited drug”, however these are only examples and manufacturing could cover a far broader range of activities.

 

Drug manufacture penalties

The maximum penalty for manufacturing or producing a prohibited drug depends on the quantity involved.

Quantity Maximum sentence
SmallLocal Court: Imprisonment for 2 years, a $5,500 fine, or both.
District Court: Imprisonment for 15 years (10 years for cannabis leaf), a $220,000 fine, or both.
IndictableLocal Court: Imprisonment for 2 years, a $5,500 fine, or both.
District Court: Imprisonment for 15 years (10 years for cannabis leaf), a $220,000 fine, or both.
CommercialImprisonment for 20 years (15 years for cannabis leaf), a $385,000 fine, or both.
Large CommercialImprisonment for life (20 years for cannabis leaf), a $550,000 fine, or both.

 

Commonwealth offence of manufacturing

The manufacturing of drugs is also an offence under federal law. Under section 305.5 of the Criminal Code a person commits an offence if they:

  • Manufacture a substance for a commercial purpose, and
  • The substance is a controlled drug.

There are similar offences under section 305.3 for commercial quantities, and 305.4 for marketable quantities. If a child under the age of 14 is exposed to the manufacturing of the drug, it is considered an aggravated offence and can result in a higher penalty.

 

What is ‘manufacturing’ under Commonwealth law?

Under Commonwealth law, the definition of manufacturing covers any process by which a substance is produced or converted from one form to another. This includes:

  • The process of extracting or refining a substance, and
  • The process of transforming a substance into a different substance.

A person manufactures a substance if they:

  • Engage in its manufacture,
  • Exercise control or direction over its manufacture, or
  • Provide finance for its manufacture.

 

Commonwealth penalties for manufacturing

The commonwealth penalties for manufacturing a controlled drug vary depending on the quantity and whether the offence is aggravated:

OffenceMaximum sentenceMaximum sentence (aggravated)
Section 305.3 Manufacturing commercial quantities of controlled drugs Imprisonment for life, a $1,665,000 fine, or both.N/A
Section 305.4 Manufacturing marketable quantities of controlled drugsImprisonment for 25 years, a $1,110,000 fine, or both.Imprisonment for 28 years, a $1,243,200 fine, or both.
Section 305.5 Manufacturing controlled drugsImprisonment for 10 years, a $444,000 fine, or both.Imprisonment for 12 years, a $532,800 fine, or both.

 

Frequently Asked Questions

Where will the matter be heard?

Manufacturing or producing a prohibited drug is an indictable offence and will be dealt with in the District Court. However, if the amount involved is less than an indictable quantity, the matter can be dealt with summarily in the Local Court.

Where are illicit drugs imported from?

Prohibited drugs are imported from multiple countries. The most common sources, or “embarkation points”, often depend on the type of drug. Between 2017 and 2018, MDMA was imported from 32 different countries. By weight, most imported MDMA came from the Netherlands. Comparatively, by weight, the United States was the primary embarkation point for cannabis, and Thailand was the primary embarkation point for heroin.

Will I be charged with importation if drugs are slipped into my suitcase?

If you were wholly unaware that drugs were placed in your suitcase, then you are not guilty of importation.

To be charged with drug importation, the prosecution must first prove that you intended to import a substance, regardless of what that substance eventually proved to be. The prosecution must then also prove that you knew, or were reckless, about the substance being a border-controlled drug or plant.

So, if a friend gives you a package of white powder to bring home to Australia, you might not know what that powder is and agree to help them. However, if you think it might be heroin and agree to take that risk, then you could be guilty of drug importation. This is because you were reckless about whether the substance was a border-controlled drug or plant.

What does it mean to ‘knowingly take part’ in manufacturing a drug?

Under NSW state law, taking part in manufacture or production includes participating in any step in the process. It includes providing or arranging finances, providing the premises or permitting your premises to be used for manufacture. The participation must be done “knowingly”, however the prosecution doesn’t need to prove that you actually knew. They can show that the circumstances were such that you should have known.

The definition of “knowingly take part” is broad, and you don’t have to be physically involved. For example, not preventing a family member from manufacturing ecstasy in your basement could result in a charge under section 24(1) or (2) of the Drug Misuse and Trafficking Act.

How can we help?

We are experienced in successfully defending drug importation and manufacturing charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.