(ii) a determined border controlled plant is taken, for the purposes of this Part, to be a border controlled plant;
only in relation to particular offences against this Part, or particular elements of those offences; and
(b) if such a determination so provides, then:
(i) the determined border controlled drug is taken, for the purposes of this Part, to be a border controlled drug; or
(ii) the determined border controlled plant is taken, for the purposes of this Part, to be a border controlled plant;
only in relation to those offences or elements.
Conditions on making a determination
(2) The AFP Minister must not make a determination under subsection (1) unless he or she is satisfied:
(a) that there is an imminent and substantial risk that the substance or plant will be taken without appropriate medical supervision; and
(b) one or more of the following conditions is met:
(i) taking the substance or plant may create a risk of death or serious harm;
(ii) taking the substance or plant may have a physical or mental effect substantially similar to that caused by taking a listed serious drug;
(iii) there is limited or no known lawful use of the substance or plant in Australia, and the substance or plant has been found by a public official in the course of the performance of the official’s duties;
(iv) the substance or plant may pose a substantial risk to the health or safety of the public.
(3) The AFP Minister must not make more than one determination under this section in relation to a particular substance or plant.
301.14 Emergency determinations—serious drug precursors
(1) The AFP Minister may, by legislative instrument, determine that a substance (including a growing plant) is a controlled precursor or a border controlled precursor.
(1A) However:
(a) a determination made under subsection (1) may provide that a determined border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to particular offences against this Part, or particular elements of those offences; and
(b) if such a determination so provides, then the determined border controlled precursor is taken, for the purposes of this Part, to be a border controlled precursor only in relation to those offences or elements.
Conditions on making a determination
(2) The AFP Minister must not make a determination under subsection (1) unless he or she is satisfied that there is an imminent and substantial risk that the substance will be used to unlawfully manufacture a controlled drug.
(3) The AFP Minister must not make more than one determination under this section in relation to a particular substance or plant.
301.15 Emergency determinations—commercial, marketable and trafficable quantities
(1) The AFP Minister may, by legislative instrument, determine:
(a) a quantity of a serious drug as a commercial or marketable quantity of the drug; or
(b) a quantity of a controlled drug or a controlled plant as a trafficable quantity of the drug or plant; or
(c) a quantity of a controlled precursor or a border controlled precursor as a commercial or marketable quantity of the precursor.
(2) However, the AFP Minister may only make a determination of a commercial, marketable or trafficable quantity of a serious drug, controlled precursor or border controlled precursor under subsection (1) if there is no regulation currently in force listing such a quantity of the drug or precursor.
Note: The definitions of commercial quantity, marketable quantity and trafficable quantity in Subdivision B allow for regulations to list such quantities of serious drugs and precursors.
301.16 Emergency determinations—effectiveness
(1) A determination under this Subdivision in relation to a substance (including a growing plant) or a quantity of such a substance has effect:
(a) from the time the determination is registered (within the meaning of the Legislation Act 2003); and
(b) for the period of 12 months from that registration, or such shorter period as is specified in the determination, as extended (if at all) under subsection (2).
(2) If exceptional circumstances prevent the listing (by regulation) of the substance or quantity, to the same effect, the AFP Minister may, by legislative instrument, extend the period during which the determination is in force by a further period or periods.
(3) The AFP Minister must not extend the period under subsection (2) with the effect that the determination would stay in force for longer than 18 months after the time the determination is registered (within the meaning of the Legislation Act 2003).
(4) A determination made under this Subdivision has no effect to the extent that it is inconsistent with a regulation made for the purposes of Subdivision A.
301.17 Emergency determinations—publication
(1) The AFP Minister must, on or before the day on which a determination under this Subdivision is registered (within the meaning of the Legislation Act 2003):
(a) make a public announcement of the determination; and
(b) cause a copy of the announcement to be published:
(i) on the internet; and
(ii) in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory.
(2) An announcement made under subsection (1) is not a legislative instrument.
Division 302—Trafficking controlled drugs
302.1 Meaning of traffics
(1) For the purposes of this Part, a person traffics in a substance if:
(a) the person sells the substance; or
(b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
(c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
(d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
(e) the person possesses the substance with the intention of selling any of it.
(2) For the purposes of paragraph (1)(b), preparing a substance for supply includes packaging the substance or separating the substance into discrete units.
302.2 Trafficking commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
302.3 Trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
302.4 Trafficking controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
302.5 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has:
(a) prepared a trafficable quantity of a substance for supply; or
(b) transported a trafficable quantity of a substance; or
(c) guarded or concealed a trafficable quantity of a substance; or
(d) possessed a trafficable quantity of a substance;
the person is taken to have had the necessary intention or belief concerning the sale of the substance to have been trafficking in the substance.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note 1: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
Note 2: This section does not apply where quantities are combined for the purposes of section 311.2 (see subsection 311.2(3)).
302.6 Purchase of controlled drugs is not an ancillary offence
A person does not commit:
(a) an offence against this Division because of the operation of section 11.2 or 11.2A; or
(b) an offence against section 11.4 or 11.5 that relates to an offence against this Division;
merely because the person purchases, or intends to purchase, a controlled drug from another person.
Note: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Division 303—Commercial cultivation of controlled plants
303.1 Meanings of cultivate and cultivates a plant
(1) For the purposes of this Part, cultivate includes the following:
(a) plant a seed, seedling or cutting;
(b) transplant a plant;
(c) nurture, tend or grow a plant;
(d) guard or conceal a plant (including against interference or discovery by humans or natural predators);
(e) harvest a plant, pick any part of a plant or separate any resin or other substance from a plant.
(2) For the purposes of this Part, a person cultivates a plant if the person:
(a) engages in its cultivation; or
(b) exercises control or direction over its cultivation; or
(c) provides finance for its cultivation.
303.2 Meaning of product of a plant
For the purposes of this Part, the product of a plant includes the following:
(a) a seed of the plant;
(b) a part of the plant (whether alive or dead);
(c) a substance separated from the plant.
303.3 Meaning of cultivates a plant for a commercial purpose
For the purposes of this Part, a person cultivates a plant for a commercial purpose if the person cultivates the plant:
(a) with the intention of selling any of it or its products; or
(b) believing that another person intends to sell any of it or its products.
303.4 Cultivating commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
303.5 Cultivating marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant; and
(c) the quantity cultivated is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
303.6 Cultivating controlled plants
(1) A person commits an offence if:
(a) the person cultivates a plant for a commercial purpose; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
303.7 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has cultivated a trafficable quantity of a plant, the person is taken to have had the necessary intention or belief concerning the sale of the plant to have been cultivating the plant for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
Division 304—Selling controlled plants
304.1 Selling commercial quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
304.2 Selling marketable quantities of controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant; and
(c) the quantity sold is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
304.3 Selling controlled plants
(1) A person commits an offence if:
(a) the person sells a plant; and
(b) the plant is a controlled plant.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
Division 305—Commercial manufacture of controlled drugs
305.1 Meanings of manufacture and manufactures a substance
(1) For the purposes of this Part, manufacture means:
(a) any process by which a substance is produced (other than the cultivation of a plant), and includes the following:
(i) the process of extracting or refining a substance;
(ii) the process of transforming a substance into a different substance; or
(b) any process by which a substance is converted from one form to another, including the process of extracting or refining a substance.
(2) For the purposes of this Part, a person manufactures a substance if the person:
(a) engages in its manufacture; or
(b) exercises control or direction over its manufacture; or
(c) provides finance for its manufacture.
305.2 Meaning of manufactures a substance for a commercial purpose
For the purposes of this Part, a person manufactures a substance for a commercial purpose if the person manufactures the substance:
(a) with the intention of selling any of it; or
(b) believing that another person intends to sell any of it.
305.3 Manufacturing commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
305.4 Manufacturing marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug; and
(c) the quantity manufactured is a marketable quantity.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 28 years or 5,600 penalty units, or both; or
(b) in any other case—imprisonment for 25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).
305.5 Manufacturing controlled drugs
(1) A person commits an offence if:
(a) the person manufactures a substance for a commercial purpose; and
(b) the substance is a controlled drug.
Penalty:
(a) in the case of an aggravated offence—imprisonment for 12 years or 2,400 penalty units, or both; or
(b) in any other case—imprisonment for 10 years or 2,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(2).
(2) The fault element for paragraph (1)(b) is recklessness.
305.6 Presumption where trafficable quantities are involved
(1) For the purposes of proving an offence against this Division, if a person has manufactured a trafficable quantity of a substance, the person is taken to have had the necessary intention or belief concerning the sale of the substance to have been manufacturing the substance for a commercial purpose.
(2) Subsection (1) does not apply if the person proves that he or she had neither that intention nor belief.
Note: A defendant bears a legal burden in relation to the matters in subsection (2) (see section 13.4).
For the purposes of this Part, a person pre‑traffics in a substance if the person:
(a) sells the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug; or
(b) manufactures the substance:
(i) with the intention of using any of it to manufacture a controlled drug; and
(ii) with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured; or
(c) manufactures the substance:
(i) with the intention of selling any of it to another person; and
(ii) believing that the other person intends to use any of the substance to manufacture a controlled drug; or
(d) possesses the substance:
(i) with the intention of using any of it to manufacture a controlled drug; and