Production Orders

Question 1

What is a Production Order?

Answer 1

Production Orders are made under S74 of the S+S Act requiring a person or organisation (such as a business) to produce documents to enforcement agencies as evidential material of a specified offence.

Question 2

Production Order vs SW?

Answer 2

You have a choice whether a standard SW or Production Order should be sought for use in any given case.

While compliance costs are incurred by a business issued with a production order, these costs are offset against the avoidance of the disruption that would otherwise occur by physical entry and search of the premises under a search warrant.

Very often production order powers will be less intrusive and involve less cost, than using a SW as an alternative.

Question 3

How long can a Production Order be in force for?

Answer 3

A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made - s76)

Question 4

Who may apply for a production order?

Answer 4

Any enforcement officer may apply for one under S71(1).

Question 5

Who can issue Production Orders?

Answer 5

Production Orders are issued by issuing officers, the same as for SWs.

Question 6

Who provides approval to apply for a Production Order?

Answer 6

Your district approver for:

Information from a telecommunications provider for information such as call associated data, or content.

Question 7

What must the district approver consider before granting approval?

Answer 7

• The grounds for applying for a PO are met.
• The resource benefit of making an application is advantageous to Police and the investigation.
• The information sought does not make unreasonable or unnecessary demands on the telecomms provider against whom the order is made, particularly if those documents sought are forward looking.

Question 8

If you application relates to a news media organisation you must … ?

Answer 8

If you application relates to a news media organisation you must:

• Obtain approval from a Police executive member in the case of PNHQ or a District Commander for a district matter; and
• Follow the guidance on SW, production orders and examination orders involving media organisations in the search chapter in the police manual.

Question 9

What grounds are required to apply for a PO?

Answer 9

You may apply for a production order if you have reasonable grounds to:

1. Suspect that an offence has been, is being or will be committed (must be an offence for which you could apply for a SW).
2. Believe that the documents sought by the proposed order constitute evidential material in respect of the offence and are in the possession or under the control of the person against whom the order is sought, or will come into their possession, or under their control while the order is in force (section 72)

Question 10

How can you apply for a PO?

Answer 10

You must apply for a PO in writing along with a personal appearance before, or communication orally with, the issuing officer unless it is impractical to do so in the circumstances.

In this situation you may apply to:

• Make an application orally (by phone or in person)
• Have your application considered without a personal appearance or oral communication.

Question 11

An issuing officer may allow an application for a PO to be made orally and excuse the applicant from putting all or part of the application in writing if satisfied that?

Answer 11

• Requiring a written application would result in a delay that would compromise the effectiveness of the search; and
• The question of whether the order should be issued can be properly determined on the basis of an oral communication or personal appearance; and
• All required information is supplied to them.

Question 12

What actions must be completed by both the issuing officer and the applicant if an oral application is allowed?

Answer 12

If an oral application is allowed:

• The issuing officer must record the grounds for the application as soon as practicable.
• The applicant must complete the application form capturing the information conveyed to the issuing officer as soon as practicable and in any event within 24 hours.

Question 13

When can hearsay evidence be used in a PO application?

Answer 13

Hearsay evidence can be used if it is highly reliable.

Indicate it’s reliability by stating

• There is sufficient information to prove the reliability of what has been stated.
• The informant’s reliability and whether they have given reliable information in the past.
• Whether the information has been confirmed by other means.