9.1.2.1 – Bench Notes: Importing/Exporting Border
Controlled Drugs and Plants1
Import-Export Offence Overview
1.
Division 307 of the Criminal Code establishes four subdivisions
related to import-export of border controlled drugs, plants and
precursors:

Subdivision A (ss 307.1-307.4): Importing and exporting border
controlled drugs or border controlled plants;

Subdivision B (ss 307.5-307.7): Possessing unlawfully imported
border controlled drugs or border controlled plants;

Subdivision C (ss 307.8-307.10): Possessing border controlled
drugs or border controlled plants reasonably suspected of
having been unlawfully imported;

Subdivision D (ss 307.11-307.14): Importing and exporting
border controlled precursors.
2.
These Bench Notes only consider the operation of Subdivision A.
3.
For information on trafficking offences under the Criminal Code see
Bench Notes: Trafficking Controlled Drugs.
4.
Unless stated otherwise, all references in these Bench Notes to
sections are to the Criminal Code.
5.
Import-export offences also exist under the Customs Act 1901 (Cth).
These offences are not covered in this chapter.
Commencement Information and Amendments
6.
Division 307 was inserted into the Criminal Code by the Law and
Justice Legislation Amendment (Serious Drug Offences and Other
Measures) Act 2005 (Cth). The division commenced operation 6
December 2005.
7.
On 20 February 2010, the definition of ‘import’ was broadened to
include dealing with the substance in connection with its importation
as well as bringing the substance into Australia (Crimes Legislation
Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth) s
9 sch 9 item 1).
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Last updated 7 June 2017.
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8.
Commencing 28 May 2013, the words ‘other than a determined
border controlled drug or determined border controlled plant’ were
added to the substance requirement for the import/export offence
with no defence of lack of commercial intent (see s 307.4; Crimes
Legislation Amendment (Serious Drugs, Identity Crime and Other
Measures) Act 2012 (Cth) s 3 sch 1 item 17; see also below [41][43]).
Importing and exporting commercial quantities of border
controlled drugs or border controlled plants
Overview of offences
9.
Subdivision A of Division 307 of the Criminal Code establishes four
import-export offences.

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 – with no defence relating to lack of
commercial intent.
10. Any reference to Subdivision A in these Bench Notes is to Criminal
Code Division 307, Subdivision A.
Overview of elements
11. The following must be proved by the prosecution beyond reasonable
doubt for all offences in subdivision A:

The person imports or exports a substance;

The person intended to import or export the substance;

The substance is a border controlled drug or border controlled
plant;

The person was reckless as to the substance being a border
controlled drug or border controlled plant (ss 307.1(1)-(2),
307.2(1)-(2), 307.3(1)-(2), 307.4(1)-(2)).
12. Where the accused has been charged with one of the aggravated
offences, the prosecution must also prove that:
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
The quantity imported or exported was a ‘commercial quantity’
(s 307.1(c)); or

The quantity imported or exported was a ‘marketable quantity’
(s 307.2(c)).
13. Absolute liability applies to these quantity requirements (ss 307.1(3),
307.2(3)). Unlike for trafficking offences, there is no partial defence
where the accused is mistaken regarding the identity or quantity of a
drug (Compare Bench Notes: Trafficking Controlled Drugs, [92][97]).
14. In Smith & Afford v R [2017] HCA 19 at [69], the High Court set out
twelve points of guidance for directions on this offence. However, the
High Court did not refer to the impact of Jury Directions Act 2015
s61, and so judges should consider whether that section requires any
modification to point (7) of that guidance.
The person imports or exports a substance
15. The first element requires the prosecution to prove that the accused
either ‘imported’ a substance or ‘exported’ a substance.
A. Import
16. To ‘import’ a substance includes:
a)
bringing the substance into Australia; and
b)
dealing with the substance in connection with its importation (s
300.2).
17. This definition may be viewed as creating a ‘primary’ and ‘extended’
definition of ‘import’ (see R v Tranter (2013) 116 SASR 452). For
offences committed before 20 February 2010, the definition of import
is restricted to the primary definition of bringing the substance into
Australia (see Crimes Legislation Amendment (Serious and Organised
Crime) Act (No. 2) 2010 (Cth)).
18. Under the primary definition, a person imports a substance when the
substance arrives in Australia and is delivered to a point where it will
remain in Australia (Campbell v R (2008) 73 NSWLR 272; R v Tranter
(2013) 116 SASR 452; R v Toe (2010) 106 SASR 203).
19. This primary definition is limited to the arrival of the goods, and not
their subsequent distribution or use (Campbell v R (2008) 73 NSWLR
272).
20. Where the substance is fully substituted by police, the process of
bringing the substance into Australia for the purpose of the primary
definition is at an end. An accused cannot be charged on the basis of
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his or her conduct which post-dates the time when the substance
was imported (Campbell v R (2008) 73 NSWLR 272, R v Tranter
(2013) 116 SASR 452; R v Toe (2010) 106 SASR 203).
21. Under the extended definition, the act of importing refers to a
process of importation, rather than a specific finite act. This aspect of
the definition of import is further expanded by the inclusion of the
words ‘in connection with’. Therefore, the extended definition will
cover a broad spectrum of conduct occurring both before and after
the time a substance has strictly been ‘imported’ (Brar v R [2016]
VSCA 281 at [47] – [49]; compare Campbell v R (2008) 73 NSWLR
272).
22. The following activities are now likely covered by the extended
definition, but would not fall under the primary definition:
a)
packaging the goods for importation into Australia;
b)
transporting the goods into Australia;
c)
recovering the imported goods after landing in Australia;
d)
making the imported goods available to another person;
e)
clearing the imported goods;
f)
transferring the imported goods into storage;
g)
unpacking the imported goods;
h)
arranging for payment of those involved in the importation
process (see Explanatory Memorandum, Crimes Legislation
Amendment (Serious and Organised Crime) Bill (No. 2) 2010
(Cth); R v Tranter (2013) 116 SASR 452).
23. The extended definition of import in section 300.2 can be broken into
two requirements:
a)
the accused must deal with the substance; and
b)
the dealings with the substance must be in connection with its
importation (R v Tranter (2013) 116 SASR 452).
24. Provided the dealing is in connection with the importation, it does not
matter whether the dealings occur before, during or after importation
(R v Tranter (2013) 116 SASR 452).
25. The first requirement is that the accused must have dealt with the
substance. While the terms ‘deal’ and ‘in connection with’ are not
defined in the Criminal Code, they are words of relatively wide
meaning (R v Tranter (2013) 116 SASR 452; Brar v R [2016] VSCA
281 at [47]-[49]).
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26. The second requirement is that the accused’s dealings are ‘in
connection’ with the importation. This is a term of wide meaning
which may refer to conduct that occurs before the importation,
during the importation or after the importation has concluded.
However, there will come a point at which the alleged dealing is so
far removed from the actual importation that it is no longer ‘in
connection with’ the importation. In determining whether this point is
reached, the court or jury will consider matters such as time,
geography and other like matters (R v Tranter (2013) 116 SASR
452; Brar v R [2016] VSCA 281 at [49]).
27. Whether conduct is in connection with an importation is a question of
fact for the jury in each case (Brar v R [2016] VSCA 281 at [59]).
28. The answer to whether conduct is in connection with an importation
is not assisted by considering whether the dealing took place before,
or in connection with, the arrival of the substance at its ‘final
destination’ in Australia. Such a consideration is a distraction from
the statutory test and risks the wrong application of that test (Brar v
R [2016] VSCA 281 at [50]).
29. Where the substance is fully substituted before the accused has dealt
with it, he or she cannot be convicted of importing the substance,
though he or she may be guilty of attempting to import. This is
because the accused will only ‘deal with’ the innocuous substitute,
rather than with the border-controlled drug (R v Tranter (2013) 116
SASR 452; R v Nolan (2012) 83 NSWLR 534).
B. Export
30. To ‘export’ includes to take from Australia (s 300.2).
31. Unlike the definition of import, the definition of ‘export’ does not
include an extended meaning of dealing with a substance in
connection with its exportation.
32. The focus on the definition is likely to be on when the substance
leaves Australian territory, rather than when it arrives at its final
destination (see R v Campbell (2008) 73 NSWLR 272).
33. The jury must therefore focus on the accused’s conduct in taking the
substance from Australia. Controlled interception which takes place
before the goods are removed from Australia may therefore prevent
the offence being completed. In such cases, a charge of attempting
to export may be appropriate (see R v Campbell (2008) 73 NSWLR
272).
The person intended to import or export the substance
34. The prosecution must also prove that the accused intended to import
or export the substance (s 5.6; see also R v Campbell (2008) 73
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NSWLR 272).
35. A person intends to engage in conduct if he or she means to engage
in conduct (s 5.2).
36. Therefore, the prosecution must prove the accused:
a)
meant to import the substance; or
b)
meant to export the substance.
37. This element does not look at whether the accused was aware that
the substance was a border controlled drug or border controlled
plant. All that is required to establish the intention is proof the
accused intended to import or export a package, whatever it
contained (see Campbell v R (2008) 73 NSWLR 272).
38. At common law, it was appropriate to direct the jury that it could
infer an intention to import narcotic drugs from finding that the
accused held a belief, falling short of actual knowledge, that a
package contained narcotic drugs. Similarly, a jury could infer
intention from satisfaction that the accused was aware of the
likelihood of the existence of the substance and the likelihood that it
was a narcotic drug (Kural v R (1987) 162 CLR 502). This path of
reasoning has been called ‘Kural reasoning’.
39. Kural reasoning remains available for this element (Smith & Afford v
R [2017] HCA 19 at [57]-[61]).
40. As the majority in Smith & Afford v R [2017] HCA 19 stated at [60]:
where it is established in cases like this that an accused perceived
there to be a real or significant chance of a substance being present in
an object which the accused brought into Australia, it is open to infer
on the basis of all the facts and circumstances of the case that the
accused intended to import the substance.
41. To use Kural reasoning in relation to this element, it is not necessary
to show that the accused knew or believed:

what the substance was;

what the substance looked like;

how it was wrapped;

what the substance otherwise contained;

where it was located or concealed (Smith & Afford v R [2017]
HCA 19 at [63])
42. When directing the jury about Kural reasoning, the judge must make
clear that:
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
The second and fourth fault elements involve different questions
and must be considered separately (Smith & Afford v R [2017]
HCA 19 at [68]);

Kural reasoning involves a process of inferential reasoning, and
that proof of knowledge or belief provides part of the basis for
drawing an inference of intent. Knowledge or belief that there is
a real or significant chance of the substance being present is not
a substitute for, or the equivalent of, proving intent (Smith &
Afford v R [2017] HCA 19 at [65] – [66]).
The substance is a border controlled drug or border
controlled plant
43. Each offence under Subdivision A requires the accused to have
imported or exported a ‘border controlled drug’ or ‘border controlled
plant’. These terms are defined exhaustively in ss 301.4 and 301.5 (s
300.2).
44. A border controlled plant is a growing plant which is either:
a)
listed by a regulation as a border controlled plant; or
b)
determined by the Minister as a border controlled plant under
section 301.13 (s 301.5).
45. A border controlled drug is a substance (other than a growing plant)
which is either:
a)
listed by a regulation as a border controlled drug
b)
a drug analogue of a listed border controlled drug
c)
determined by the Minister as a border controlled drug under s
301.13 (s 301.4).
A. Listed by a regulation as a border controlled drug or
border controlled plant
46. Listed border controlled drugs and plants are those drugs and plants
listed by a regulation made for the purposes of ss 301.4(1)(a) or
301.5(1)(a) (s 300.2).
47. The current listed border controlled drugs are found in the Criminal
Code Regulations 2002 (Cth) Schedule 4 column 1 (Criminal Code
Regulations 2002 (Cth) reg 5D).
48. The current listed border controlled plants are found in the Criminal
Code Regulations 2002 (Cth) reg 5E (Criminal Code Regulations 2002
(Cth) reg 5E(1)).
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B. Determined by the Minister as a border controlled drug or
border controlled plant
49. The Minister may determine that a substance is a border controlled
drug or border controlled plant via an Emergency Determination (ss
301.13(1)(a), (b)).2 The Minister is not permitted to make more than
one determination under this section in relation to a particular
substance (s 301.13(3)).
50. A determination under s 301.13 operates from the time it is
registered for a period of 12 months (or such shorter period specified
in the determination) (s 301.16(1)).
51. Where the accused is charged under s 307.4 with importing or
exporting a border controlled drug without commercial intent, the
border controlled drug or plant must be either a listed drug or plant
or a drug analogue of a listed drug and not a determined border
control drug or determined border controlled plant (see the definition
in s 300.2).
C. A drug analogue of a listed border controlled drug
52. The definition of ‘drug analogue’ in the Criminal Code sets out ways
in which a substance can be related to a listed border controlled drug
or a ‘primary analogue’ of the listed border controlled drug (see s
301.9(1)). These conditions relate to similarities in the chemical
structure between a substance and a listed controlled drug.
53. If one of the chemical relationships defined in s 301.9(1) exists, then
the substance is a drug analogue of a listed border controlled drug. A
substance cannot be a ‘drug analogue’ if it is already a listed
controlled drug (s 301.9(2)).
The person was reckless as to the substance being a border
controlled drug or border controlled plant
54. The prosecution must prove that the accused was reckless as to the
substance being a border controlled drug or border controlled plant
(ss 307.1(2), s 307.2(2), s 307.3(2) and 307.4(2)).
55. A person is reckless as to the imported or exported substance being
This system of emergency determination replaces the previous system of listing
substances as border controlled drugs or plants temporarily through interim
regulations (which were for a maximum period 12 months) or urgently through
emergency determinations (which for a maximum period of 56 days). These
changes came into force 28 May 2013 under the Crimes Legislation Amendment
(Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth) s 3 sch 1
item 16.
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a border controlled drug or border controlled plant if:
a)
He or she is aware of a substantial risk that the substance is a
border controlled drug or border controlled plant; and
b)
Having regard to the circumstances known to him or her, it is
unjustifiable to take the risk (s 5.4(1)).
56. A person is also reckless as to the substance being a border
controlled drug or border controlled plant if:

he or she believes that the substance is a border controlled drug
or border controlled plant; or

he or she is aware that the substance is a border controlled
drug or border controlled plant or will be a border controlled
drug or border controlled plant in the ordinary course of events
(ss 5.4(4), 5.2(2), 5.3).
57. The jury must determine whether it is unjustifiable to take a risk on
the facts known to the accused (s 5.4(1)(b)). However, the accused
does not need to have believed that it was unjustifiable to take the
risk. The test is objective not subjective.
58. The question of whether a risk is unjustifiable requires the jury to
make a moral or value judgment relating to the accused’s advertent
disregard of risk (R v Saengsai-Or (2004) 61 NSWLR 135).
59. The jury must assess the likelihood of the risk eventuating, and
determine whether the risk is one that should not have been taken
(Lustig v R (2009) 195 A Crim R 310).
60. This element can be proved where the accused was aware that there
was a substantial risk that a substance was one kind of border
controlled drug or border controlled plant but was in fact a different
border controlled drug or border controlled plant. The prosecution
does not need to prove that the person was reckless as to the
particular identity of the border controlled drug or border controlled
plant imported as opposed to the substance being a border controlled
drug or border controlled plant (s 300.5; see, eg, R v Hill (2011) 212
A Crim R 359; Weng v R (2013) 279 FLR 119).
61. While courts have not directly addressed the issue, the better view
appears to be that this element only requires that the accused was
reckless as to the identity of the substance in question and the
prosecution does not need to prove that the accused was reckless as
to its status as a proscribed substance. However, given the lack of
caselaw on this point, judges should seek submissions from parties in
cases where this issue is relevant.
62. The partial defence of mistake as to identity of drug, plant or
precursor under s 313.5 does not apply to offences under Division
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307 (compare Bench Notes: Trafficking Controlled Drugs, [92]-[97]).
Commercial/marketable quantity
63. Where a person is charged under s 307.1 or 307.2 with importing or
exporting a commercial or marketable quantity, the prosecution must
prove that the quantity imported or exported was commercial or
marketable (ss 307.1(1)(c), 307.2(1)(c)).
64. For border controlled plants and border controlled drugs other than a
drug analogue, a commercial or marketable quantity is the lesser of:
a)
The quantity listed in a regulation as a commercial or
marketable quantity for these offences (ss 301.10 item 1(a),
301.11 item 1(a)). For the current list see Criminal Code
Regulations 2002 (Cth) s 5E(1) (for plants) and Schedule 3 (for
drugs) (Criminal Code Regulations s 5D, 5E); and3
b)
The quantity determined by the Minister under an Emergency
Determination in s 301.15 as a commercial or marketable
quantity (ss 301.10 item 1(b), 301.11 item 1(b)). Such a
determination can only be made if there is no quantity
regulation already in force (s 301.15(2)).
65. A commercial or marketable quantity of a drug analogue of a border
controlled drug is the commercial or marketable quantity of the listed
border controlled drug of which it is an analogue (ss 301.10 item
3(a), 301.11 item 3(a)). If a substance is a drug analogue for two or
more listed border controlled drugs, a commercial or marketable
quantity is the smallest commercial or marketable quantity of the
listed border controlled drugs of which it is an analogue (ss 301.10
item 3(b), 301.11 item 3(b)).
66. The amounts listed in the Criminal Code Regulations 2002 (Cth) are
based on the pure amount of the drug (Weng v R (2013) 279 FLR
119; R v King (1978) 24 ALR 346; see also s 312.1(1)(a)).
67. For guidance as to how to determine quantity in specific
circumstances, see Provisions Relevant to Determining Quantity,
[61]-[81] below.
Absolute liability as to quantity
68. Absolute liability applies to the quantity requirements. This means
that there is no associated fault element (ss 307.1(3), 307.2(3),
In the past, a listing of commercial quantities of controlled drugs was found in s
314.1 of division 314 to the Criminal Code. This division has now been repealed,
effective 28 May 2013.
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10
307.3(3)).
Provisions relevant to determining quantity
69. The following provisions may be relevant in determining if the
quantity requirements are satisfied:

Combining different parcels on the same occasion – s 311.1

Combining parcels from multiple offences – s 311.8

Combining parcels from organised commercial activity – s 311.2

Calculating quantity of drugs in mixtures – s 312.1

Calculating quantity of several drugs in mixtures – s 312.2
A. Combining quantities of plants or drugs
70. If on a single occasion, a person imports or exports several parcels of
border controlled drugs or border controlled plants, the person may
be charged with a single offence against Part 9.1 in respect of all or
any of those different parcels (s 311.1(1)(f)).
71. The quantity of drugs is the sum of the quantities of drugs in the
several parcels (s 311.1(2)).
72. Where different kinds of border controlled drugs or border controlled
plants are involved see [78]-[81] below.
73. Despite this method of aggregation, a person may still be charged
with separate offences in respect of several parcels of drugs, plants
or precursors imported or exported on a single occasion (s 311.1(4)).
B. Combining quantities from multiple offences
74. Under s 311.13, the prosecution can aggregate the quantities
imported or exported from multiple occasions into a single offence if
the prosecution can prove that:
a)
The defendant committed several offences against Subdivision A
on different occasions;
b)
Each offence was committed within 30 days from another
offence; and
c)
In total, the relevant quantity of a border controlled drug or
border controlled plant or both, or of a combination of border
controlled drugs or border controlled plants or both, was
imported or exported during the commission of the offences (s
311.13)
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75. This provides a means for the prosecution to prove that the accused
imported or exported a commercial or marketable quantity on the
basis of a series of offences, each of which was less than the relevant
threshold quantity.
76. The following general rules apply to combining parcels from multiple
offences:

The particulars of the individual offences alleged to have been
committed on different occasions must be set out in the charge
(s 311.22(1)).

The same parcel of controlled drugs must not be counted more
than once (s 311.22(2)). For example if an accused deals with a
substance in connection to its importation one day and then
physically brings the substance into Australia the next day, only
the quantity imported on one of these occasions can be
counted.

Despite the ability to combine parcels from multiple offences,
there is nothing to prevent a person from being charged with
separate offences for each different occasion (s 311.22(3)).
77. Where different kinds of border controlled drugs or border controlled
plants are involved see [78]-[81] below (s 311.13 note 1).
C. Combining quantities based on a business of importing or
exporting border controlled drugs or border controlled plants
78. A commercial or marketable quantity can be made out if the
prosecution proves:
a)
The defendant was engaged in an organised commercial activity
that involved repeated importing or exporting of border
controlled drugs or border controlled plants, or both; and
b)
The relevant quantity of border controlled drug or border
controlled plant or both, or a combination of border controlled
drugs or border controlled plants or both, was imported or
exported in the course of that activity (s 311.4(1)).
79. The phrase “organised commercial activity”, which is used in s 311.4,
is not defined in the Code.
80. The prosecution does not need to specify the exact dates of each
occasion or the exact quantity imported or exported on each
occasion (s 311.4(2)).
81. This provision provides a more flexible basis than s 311.13 for
aggregating quantities over a prolonged process of importing or
exporting, where it is conducted as a business.
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82. For a comparison between establishing quantity under a similar
provision of the Criminal Code and Giretti Trafficking see Bench
Notes: Trafficking Controlled Drugs, [70], [77].
83. See also Bench Notes: Trafficking in a Drug of Dependence for
discussion of what constitutes a ‘business’ as it relates to Giretti
Trafficking. These concepts are potentially transferrable to this
provision.
84. Where different kinds of controlled drug are imported, see [76]-[80]
below (s 311.4 Note 1).
D. Calculating quantities of drugs in mixtures
85. When a border controlled drug is within a mixture, the prosecution
must prove that the mixture contains the relevant quantity of the
border controlled drug in pure form (s 312.1(3)(a)).4
E. Calculating quantities where different kinds of substances
are involved
86. If the accused is charged with a single offence involving importing or
exporting more than one kind of border controlled drug or border
controlled plant, then the quantity imported or exported is a
marketable or commercial quantity if the sum of the requisite
fractions of the marketable or commercial quantity of each of those
drugs or plants is equal to or greater than one (s 312.2(2)).
87. The ‘requisite fraction’ is determined by dividing the actual quantity
of the substance by the smallest marketable or commercial quantity
of that substance (s 312.2(3)).
88. For example, where a person is accused of importing 9.5kg of Opium
and 3kg of Oxycodone, the Code Criminal Code Regulations 2002
(Cth) Schedule 4 column 2 items 165 and 168 provide that:

A commercial quantity of Opium is 20kg;

A commercial quantity of Oxycodone is 5kg;
Therefore:

The requisite fraction of Opium is 0.475 of a commercial
quantity

The requisite fraction of Oxycodone is 0.6 of a commercial
Section 312.1(1)(b) purports to provide another means by which the
prosecution can prove the quantity requirement, however it refers to division 314
which is now repealed (effective 28 May 2013).
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quantity

The combined requisite fractions are 1.075 of a commercial
quantity and the person may therefore be charged with
importing a commercial quantity of a combination of Opium and
Oxycodone.
89. When a border controlled drug is within a mixture of substances, the
requisite fraction is calculated on the basis of the quantity of the
controlled drug in pure form (s 312.2(5)(a)).5
Defences and alternative verdicts
90. The following defences/alternative verdicts apply to Division 307:
a)
Lack of commercial intent (ss 307.2(4), 307.3(3));
b)
Reasonable belief that conduct was excused by or under state
law (s 313.2);
c)
Proof of alternative offence (s 313.3).
91. The other defences and alternative verdicts under Division 313 are
not applicable to Division 307 (compare Bench Notes: Trafficking
Controlled Drugs).
A. Lack of Commercial Intent
92. Where the accused is charged with importing or exporting a
marketable quantity, or importing or exporting a border controlled
drug or plant, the accused has a defence where he or she proves that
he or she neither intended, nor believed that another person
intended, to sell any of the border controlled drug or border
controlled plant or its products (ss 307.2(4), 307.4(3)).
93. ‘Sell’ is defined as including:
a)
Barter and exchange
b)
Agree to sell (s 300.2)
See Bench Notes: Trafficking Controlled Drugs [15]-[19] for more
detail on the definition of ‘sell’.
Section 312.2(5)(b) purports to provide another means by which the requisite
fraction can be calculated, however it refers to division 314 which is now repealed
(effective 28 May 2013).
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94. The defendant bears the legal burden of proving a lack of commercial
intent on the balance of probabilities (ss 13.4, 13.5).
95. Where the accused proves the defence of lack of commercial intent,
the prosecution may seek to rely on the offence under s307.4, where
the defence of lack of commercial intent does not apply, as a factual
alternative (s 307.4).
96. The lack of commercial intent defence is not available for the offence
of importing or exporting a commercial quantity of a border
controlled drug or a border controlled plant (s 307.1).
97. Determined border controlled drugs or determined border controlled
plants are explicitly excluded from the operation the import-export
offence with no defence of lack of commercial intent (s 307.4(1)(b)).
Therefore, no offence under Subdivision A has been committed
where:

The quantity imported or exported was less than commercial
(c.f if the quantity is commercial and no defence of lack of
commercial intent is available: s 307.1);

The defendant had no commercial intent (see ss 307.2(4),
307.3(3)); and

The substance s/he have imported or exported was a
determined border controlled drug or determined border
controlled plant (s 307.4(1)(b)).
However, the accused may still be liable for a possession offence
under Subdivision B or Subdivision C of Division 307 (Weng v R
(2013) 279 FLR 119).
B. Reasonable Belief that Conduct was Excused by or Under
Commonwealth, State or Territory Law
98. No criminal responsibility exists if:
a)
At the time of the conduct constituting the offence, the person
was under a mistaken but reasonable belief that the conduct
was justified or excused by or under a law of the
Commonwealth or of a State or Territory; and
b)
Had the conduct been so justified or excused – the conduct
would not have constituted the offence (s 313.2).
99. This defence provides an exception to the general rule under the
Criminal Code that a person can still be criminally responsibility for
an offence even if he or she is mistaken about or ignorant of the law
(s 9.3).
100. While there is no case law on the operation of this defence, it
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appears designed to cover those situations where a person
mistakenly believed that they held a valid licence or other
authorisation to deal with the border controlled substance (See
Explanatory Memoranda, Law Justice Legislation Amendment
(Serious Drug Offences and Other Measures) Act (Cth) 2005).
101. The defendant bears the evidential burden of proof in relation to this
defence (s 13.3(3); the note in s 313.2). To satisfy this burden, the
defendant must adduce or point to evidence that suggests a
reasonable possibility that they had a reasonable belief the conduct
was justified (s 13.3(6)).
102. The defence under s 313.1 - which absolves the accused of liability
where the conduct occurs in a state or territory and the conduct is
justified or excused by or under a law of a State or Territory – does
not apply to Division 307 offences (compare Division 302 trafficking
offences – see Bench Notes: Trafficking Controlled Drugs [85]-[86]).
103. However, the general defence under s 10.5 does apply to Division
307. This general defence operates so that a person is not criminally
responsible for an offence if the conduct constituting the offence is
justified or excused by or under a law of the Commonwealth (see s
10.5).
C. Proof of Alternative Offence
104. If the jury is not satisfied that the defendant is guilty of the alleged
offence but is satisfied, beyond reasonable doubt, that the defendant
is guilty of another offence against Part 9.1, they may find the
defendant not guilty of the alleged offence but guilty of the other
offence (s 313.3).
105. The maximum penalty of the ‘other offence’ must not be greater than
the maximum penalty for the alleged offence and the defendant must
have been accorded procedural fairness in relation to that finding of
guilt (s 313.3).
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