Division 6 Production orders, and other information gathering powers
Definition of production order
86. In this Division, “production order” includes an order that requires a person to make a document available for inspection.
Application for production orders
87(1) Subsection (2) applies if:
(a) a person has been convicted of a serious offence and there are reasonable grounds for suspecting that another person (the second person) has possession or control of a propertytracking document or property-tracking documents in relation to the offence; or
(b) there are reasonable grounds for suspecting that a person has committed a serious offence and that another person (the second person) has possession or control of a property-tracking document or property-tracking documents in relation to the offence.
(2) A police officer may apply to a Judge for a production order against the person.
(3) The application:
(a) may be made ex parte; and
(b) must be in writing and must be accompanied by an affidavit.
(4) For this section, if a police officer applies for a production order for an offence, and includes in the accompanying affidavit a statement to the effect that there are reasonable grounds for believing that:
(a) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from committing the offence; and
(b) property specified in the affidavit is under the effective control of the person mentioned in paragraph (a);
the Judge may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document for the offence.
(5) In deciding whether to treat a document as a property-tracking document for an offence, the Judge may take into account the matters mentioned in section 40(2).
Production orders
88(1) The Judge may, if satisfied that there are reasonable grounds for doing so, make a production order requiring a person to:
(a) produce to a police officer, at a specified time and place, any documents of the kind mentioned in subsection 87(1) that are in the person’s possession or control; or
(b) make available to a police officer for inspection, at a specified time or times and place or places, any documents of that kind that are in the person’s possession or control.
(2) The order has effect despite any law that prohibits disclosure of information.
(3) If a production order requires a person to produce or make available a document that is a computer file, the order is taken to require the person:
(a) to allow the police officer named in the order, or a person acting under the direction of that officer, to use a computer on which the document is held; and
(b) to give the officer any password necessary to allow the officer to have access to the document; and
(c) to allow the officer to use any computer software necessary to allow the officer to have access to the document.
Scope of police powers under production order
89(1) If a document is produced to a police officer, or made available to a police officer for inspection, under a production order, the police officer may do any 1 or more of the following:
(a) inspect the document;
(b) take extracts from it;
(c) print it;
(d) make copies of it; (
e) for an order under section 88(1) (a) — keep the document if, and for as long as, reasonably necessary for this Act.
(2) If a police officer keeps a document, the police officer must:
(a) make a copy of the document, certify the copy in writing to be a true copy and give the copy to the person to whom the order was addressed; or
(b) allow the person:
(i) to inspect the document; or
(ii) to take extracts from it; or
(iii) to make copies of it.
What use can be made of information
90(1) If a person produces, or makes available, a document under a production order, neither:
(a) the production or making available of the document; nor
(b) any information, document or thing obtained as a direct or indirect consequence of the production or making available of the document;
is admissible against the person in any criminal proceedings except a proceeding for an offence against section 92.
(2) A person required by a production order to produce or make available a document is not excused from doing so on the ground that producing the document or making it available:
(a) might tend to incriminate the person or make the person liable to a penalty; or
(b) would be in breach of an obligation (whether imposed by an Act or otherwise) not to disclose the existence or contents of the document.
Variation of production order
91(1) If a production order requires a person to produce a document to a police officer, the person may apply to a Judge to vary the order.
(2) If the Judge is satisfied that the document is essential to the person’s business activities, the Judge may vary the production order so that it requires the person to make the document available to a police officer for inspection.
Failure to comply with production order
92(1) If a production order requires a person to produce a document to a police officer, or make a document available to a police officer for inspection, the person commits an offence if the person:
(a) contravenes the order without reasonable excuse; or
(b) in purported compliance with the order, produces or makes available a document that the person knows to be false or misleading in a material detail without:
(i) telling the police officer that the document is false or misleading, and the way in which it is false or misleading; and
(ii) giving correct information to the police officer if the person has, or can reasonably obtain, the correct information.
(2) An offence against subsection (1) is punishable by:
(a) if the offender is a natural person — a fine of $30 000 or imprisonment for 5 years, or both; or
(b) if the offender is a body corporate — a fine of $150 000.
Search warrant to facilitate investigation
93(1) A police officer may apply to a Judge for a warrant under subsection (4) to search premises for a document if:
(a) a person is convicted of a serious offence, and there are reasonable grounds for suspecting that there is on premises a property-tracking document for the offence; or
(b) there are reasonable grounds for suspecting that a person has committed a serious offence; and there is on the premises a property-tracking document for the offence.
(2) If a police officer applies for a warrant under subsection (4) for an offence and includes in an accompanying affidavit a statement to the effect that there are reasonable grounds for believing that:
(a) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from committing the offence; and
(b) property specified in the affidavit is subject to the effective control of the person;
the Judge may treat any document relevant to identifying, locating or quantifying the property as a property-tracking document for the offence for this section.
(3) In deciding whether to treat a document, under subsection (2), as a property-tracking document for an offence, a Judge may take into account the matters mentioned in section 40(2).
(4) Despite any enactment that prohibits disclosure of information, if an application is made under subsection (1) for a warrant to search premises for a property-tracking document:
(a) the Judge may, if satisfied that there are reasonable grounds for doing so, issue a warrant of that kind in the same way, and subject to the same conditions, as the Judge could issue a search warrant under section 101 of the Criminal Procedure Code; and
(b) subject to this Division, the warrant may be executed in the same way as if it had been issued under that section.
(5) However, a Judge may not issue a search warrant under subsection (4) unless the Judge is satisfied that:
(a) it would not be appropriate to make a production order for the document; or
(b) the investigation for which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the document without warning to any person.
(6) If a police officer enters premises in execution of a warrant issued under this section, the police officer may seize:
(a) any document that is likely to be of substantial value (whether by itself or together with other documents) to the investigation for which the warrant was issued; and
(b) anything that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence.
(7) In this section premises includes any place and any building, receptacle or vehicle.
Production orders and search warrants for foreign serious offences
94(1) If a police officer is directed under the Mutual Assistance Act to apply to the Court for:
(a) a production order under this Act for a foreign serious offence; or
(b) a search warrant under this Act for a property-tracking document for a foreign serious offence;
this Division applies to the application and to any order or warrant issued as a result of the application as if a reference in this Division to a serious offence were a reference to the foreign serious offence.
(2) If a police officer takes possession of a document under a production order made, or a warrant issued, for a foreign serious offence, the police officer may keep the document until the AttorneyGeneral gives a written direction about how the document is to be dealt with, but not for longer than 1 month.
(3) A direction by the Attorney-General under subsection (2) about a document may include a direction that the document is to be sent to an authority of the foreign country that requested the issue of the relevant order or warrant.
