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Charged with Drug Importation? What You Need to Know
Drug importation is one of the most serious offences in Australian law. Unlike most drug charges, it is not prosecuted under NSW law at all. It is a federal offence under Division 307 of the Criminal Code Act 1995 (Cth), and the most serious category carries a maximum penalty of life imprisonment.
Many people assume “importation” only means physically bringing drugs across the border in person. The law is far broader. Ordering a substance online and having it posted to Australia, arranging for someone else to bring it in, or simply dealing with a substance in connection with its importation can all amount to the offence, even without setting foot near an airport or a port.
Because this is a Commonwealth offence, it is prosecuted by the Commonwealth Director of Public Prosecutions and heard in the District Court or Supreme Court of NSW exercising federal jurisdiction. Outcomes still vary significantly depending on quantity, role, and personal circumstances.
Australian government agencies, including the relevant department responsible for border protection, regularly update regulatory guidance and legislation affecting imported controlled substances. Individuals should never assume that medications or prescription products obtained from other countries will automatically be approved for entry into Australia.
The Australian Legal Practice represents clients facing Commonwealth drug importation charges across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, and the first consultation is free.
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
What Is Drug Importation?
Drug importation is the offence of bringing a border controlled drug or border controlled plant into Australia, or dealing with such a substance in connection with its importation.
The Criminal Code defines “import” broadly to include:
- Physically bringing the substance into Australia
- Dealing with the substance in connection with its importation, which can include arranging, financing, or receiving it after it crosses the border
Importation offences are not limited to illegal narcotics. In some circumstances, prescription medications, health products, or other regulated substances imported without complying with government requirements may attract investigation.
Whether a person is eligible to import certain products will depend on the applicable legislation, regulatory rule, and any approval process that applies.
The seriousness of an importation charge depends on the quantity of pure drug involved, which the Act divides into three tiers:
- Commercial quantity: the most serious tier, carrying a maximum of life imprisonment
- Marketable quantity: a serious but lesser tier, carrying a maximum of 25 years imprisonment
- Less than marketable quantity: the base offence, carrying a maximum of 10 years imprisonment
Unlike NSW drug offences, which are based on the total weight of a substance including any admixture, Commonwealth importation offences are based on the pure weight of the drug. Importing 2 kilograms of cocaine at 10 per cent purity is treated as importing 200 grams of pure cocaine, not 2 kilograms.
Importation is distinct from two related Commonwealth offences:
- Exportation: taking a border controlled drug or plant out of Australia, governed by the same sections
- Possessing unlawfully imported drugs: a separate offence for a person found with a border controlled drug that has already been imported, even where that person was not involved in the importation itself
Drug Importation Under Australian Law
Importation offences are created by Division 307 of the Criminal Code Act 1995 (Cth). The maximum penalty depends on the quantity involved:
- Section 307.1: importing or exporting a commercial quantity of a border controlled drug or plant, maximum life imprisonment
- Section 307.2: importing or exporting a marketable quantity, maximum 25 years imprisonment
- Section 307.3: importing or exporting a border controlled drug or plant of any other quantity, maximum 10 years imprisonment
- Section 307.4: importing or exporting without commercial intent, a lesser offence available where the accused proves they did not intend to sell the drug and did not believe anyone else intended to, maximum 2 years imprisonment. This defence-based offence is not available for commercial quantities under section 307.1
The regulatory framework governing border controlled substances has been enacted through Commonwealth legislation and continues to evolve as new risks emerge.
Government agencies may introduce a proposal or amend an existing rule where public health or border security concerns arise. Such changes will often affect what products may legally enter Australia and the circumstances in which individuals are eligible to import them.
The commercial and marketable quantities for common border controlled drugs are set out in Schedule 2 of the Criminal Code Regulations 2019 (Cth):
Drug | Commercial Quantity | Marketable Quantity |
Cocaine | 2.0 kg | 2.0 g |
Heroin | 1.5 kg | 2.0 g |
MDMA (ecstasy) | 0.5 kg | 0.5 g |
Methamphetamine | 0.75 kg | 2.0 g |
Cannabis (leaf, not resin) | 100.0 kg | 25.0 kg |
Cannabis resin | 50.0 kg | 20.0 g |
LSD | 2.0 g | 2.0 mg |
Jurisdiction and court:
- Importation is a strictly indictable Commonwealth offence and cannot be finalised summarily in the Local Court
- The Local Court conducts a committal hearing only, to determine whether the matter proceeds to trial
- The matter is then heard in the District Court or the Supreme Court of NSW, exercising federal jurisdiction under section 68 of the Judiciary Act 1903 (Cth)
- Prosecutions are conducted by the Commonwealth Director of Public Prosecutions (CDPP), not the NSW Police Prosecutor or ODPP
What Must the Prosecution Prove?
The elements the prosecution must prove beyond reasonable doubt depend on the specific charge, but generally include:
- You imported, or attempted to import, a substance into Australia, and did so intentionally
- The substance was a border controlled drug or border controlled plant
- You were reckless as to whether the substance was a border controlled drug, meaning you were aware of a substantial risk that it was, and it was unjustifiable to take that risk
For charges under sections 307.1 and 307.2, the prosecution must also identify the quantity involved as commercial or marketable. The circumstance that the quantity meets that threshold is a matter of absolute liability, meaning the prosecution does not need to prove you knew the precise quantity, only that the quantity threshold was in fact met.
The prosecution does not need to prove you knew the specific identity of the drug, only that you were reckless as to whether it was a border controlled drug of some kind. If the prosecution cannot prove every element, the court must find you not guilty.
Where imported prescription medications or other regulated products are involved, the prosecution may rely on customs records, declarations, shipping documents, and material submitted during the import process.
Whether an application was properly submitted, approved, or rejected may become relevant depending on the allegations and the regulatory framework that applied at the time.
Penalties for Drug Importation
Because importation is a Commonwealth offence, sentencing is governed by the Crimes Act 1914 (Cth), not by NSW state sentencing law. This is an important distinction, as the orders available to the court are different from the CRO, CCO, and ICO framework used for NSW state offences.
Offence | Section | Maximum Penalty |
Importing a commercial quantity | s 307.1 | Life imprisonment or 7,500 penalty units, or both |
Importing a marketable quantity | s 307.2 | 25 years imprisonment or 5,000 penalty units, or both |
Importing less than a marketable quantity | s 307.3 | 10 years imprisonment or 2,000 penalty units, or both |
Importing without commercial intent | s 307.4 | 2 years imprisonment or 400 penalty units, or both |
A Commonwealth penalty unit is currently valued at $330.
Sentencing options available to a court dealing with a federal offender:
- Discharge without proceeding to conviction (section 19B), similar to a non-conviction outcome under NSW law
- Conditional release on recognizance with conviction, without a sentence being passed (section 20(1)(a))
- Imprisonment with release on recognizance after service of a specified period (section 20(1)(b))
- A fixed non-parole period, generally required where the sentence exceeds 3 years (section 19AB)
- A recognizance release order, generally required where the sentence is 3 years or less (section 19AC)
- Full-time imprisonment
Factors that influence the sentence:
- The quantity of pure drug involved
- Your role in the importation, such as organiser, financier, or courier
- Whether you acted for significant financial reward or under obligation to another person
- Prior criminal history
- Genuine remorse and an early guilty plea, which attracts a discount of up to 25 per cent
- Personal circumstances and any cooperation with law enforcement
The court may also consider whether the offending involved a high degree of planning, whether there was a significant financial benefit, and the overall cost of the criminal activity to the community.
While sentencing is determined under Commonwealth law rather than health or consumer legislation, courts recognise the broader impact that unlawful drug importation can have on individuals, consumers, and public health.
The size of the importation is a significant factor in sentencing, but the courts have confirmed it is not the only factor. Being a “mere courier” does not automatically entitle an offender to leniency, though the degree of knowledge, reward, and involvement in the broader operation is relevant to the sentence imposed.
Possible Defences Against Drug Importation
Several defences can result in an importation charge being dismissed, reduced, or withdrawn.
- No involvement in the importation: You did not import the substance and had no role in dealing with it in connection with its importation
- Lack of knowledge or recklessness: You were not aware of a substantial risk that the substance was a border controlled drug, and it was not unjustifiable to proceed in the circumstances
- Lack of commercial intent: For charges under sections 307.2 or 307.3, you can raise, on the balance of probabilities, that you did not intend to sell the substance and did not believe anyone else intended to. This does not result in an acquittal but reduces the charge to the lesser offence under section 307.4
- Duress: You reasonably believed a threat had been made that would be carried out unless you committed the offence, that there was no reasonable way to render the threat ineffective, and that the importation was a reasonable response to the threat
- Necessity: The conduct was necessary to avoid an imminent and greater harm
- Mistaken identity or intervening act: You were not the person involved, or an intervening act, such as a substitution or swap of luggage, breaks the connection between you and the substance
In some matters, the defence may also examine whether government procedures were correctly followed, whether the relevant department complied with applicable legislation, and whether any regulatory requirements affecting the importation process were properly applied.
These issues will not arise in every case, but they may become important where prescription medications or other regulated products are involved.
Every defence is assessed on the specific facts, including surveillance evidence, forensic examination of the substance, and any admissions made during a police interview.
Your Options When Charged with Drug Importation
Option | What It Means |
Negotiate with the prosecution | Where the evidence of knowledge or involvement is weak, representations to the CDPP can result in a charge being withdrawn, downgraded to a lesser quantity tier, or amended to remove disputed facts |
Plead not guilty | Contest the charge at a defended hearing or trial, where the prosecution must prove every element, including knowledge or recklessness, beyond reasonable doubt |
Plead guilty and seek the best outcome | An early guilty plea attracts a sentencing discount of up to 25 per cent; character material, cooperation with authorities, and evidence of a limited role can reduce the sentence and non-parole period |
Why Choose The Australian Legal Practice for Drug Importation Charges
- Principal-level representation. You deal directly with an experienced senior lawyer, not a junior
- 24/7 availability on (02) 8084 9929. Importation matters often begin with an urgent arrest or search at an airport, port, or home address
- Three Sydney offices: Burwood, Sydney CBD, and Parramatta, with experience across Local Court committals, District Court, and Supreme Court matters
- Free initial consultation so you can understand the process before your first court date
- Experience distinguishing genuine involvement from being an unwitting courier, and identifying weaknesses in knowledge and recklessness evidence
- Familiarity with Commonwealth sentencing law under the Crimes Act 1914 (Cth), which differs materially from NSW state sentencing
- Integrated advice on bail applications, which are often urgent and complex for Commonwealth drug matters
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Frequently Asked Questions About Drug Importation
No, not finally. Importation is a strictly indictable Commonwealth offence. The Local Court conducts a committal hearing to decide whether the matter proceeds, but the charge itself is heard in the District Court or Supreme Court of NSW.
The prosecution does not need to prove you knew the precise quantity. For commercial and marketable quantity charges, the quantity threshold is a matter of absolute liability. However, your actual knowledge of the quantity can still be relevant to sentencing.
Being a courier does not automatically entitle you to a lower sentence. Courts look closely at the reward received, the degree of obligation or coercion involved, and how much you knew about the operation. Two couriers on the same importation can receive different sentences based on these differences.
Importation involves bringing the drug into Australia or dealing with it in connection with that importation. Possessing unlawfully imported drugs is a separate offence for someone found in possession of a border controlled drug after importation, even if they were not involved in bringing it into the country.
It depends on the quantity and category of the offence. Serious importation charges, particularly those involving a commercial quantity, are treated as show cause matters under the Bail Act 2013 (NSW), meaning you must show why your detention is not justified. Early legal representation is critical to a bail application.
Speak to a criminal defence lawyer today on (02) 8084 9929 or book a free consultation online.
