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Part 9 - Production orders
This chapter contains these topics:
Summary
About production orders
Applying for a production order
Issuing production orders
Executing production orders
Document retention and reporting
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Summary
Purpose
This chapter provides information about production orders including:
• the effect of the orders and how they relate to other powers
• who may apply
• whose authorisation is required before applying
• the conditions to be met before applications can be made and orders issued or made
• the procedures for making applications
• the form and content of orders
• what can be done with documents seized under a production order
• requirements for reporting and document retention.
Definitions
This table details the meanings of terms used in this chapter.
Term Meaning
Call associated data
Call associated data has the same meaning as in section 3(1)
of the Telecommunication (Interception Capability) Act 2004.
Document
Document includes call associated data and the content of
telecommunications in respect of which, at the time an
application is made under section 71 for a production order
against a network operator, the network operator has storage
capability for, and stores in the normal course of its business,
that data and content.
Related information
See also:
• Offences relating to orders in Part 1: Search introduction
• Part 10 - Examination orders
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About production orders
What are production orders?
Production orders are orders made under section 74 of the Search and Surveillance Act
2012 requiring a person or organisation (such as a business) to produce documents to
enforcement agencies as evidential material of a specified offence.
Production orders are issued by issuing officers. (These are the same people as for
search warrants).
Production order versus search warrant
You have the choice whether a standard search warrant 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 search warrants as an alternative.
Duration of production order
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).
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Applying for a production order
Who may apply?
Any constable may apply to an issuing officer for a production order. (See further
information about making applications in this chapter).
Approval to apply
You must seek prior approval from your district approver (word document, 69 KB) before
making an application involving call associated data information. (New Zealand Police
has agreed protocols with Telcos for obtaining call data information. See Telecom
inquiries and the Vodafone Protocol in the Police Manual).
If your 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 Search warrants involving media organisations in "Carrying out
search powers with or without a warrant".
In all other cases, obtain written authority to make an application for a production order
from a constable of or above the position level of sergeant where practicable.
Requests from other agencies for Police to apply
Other agencies with investigative functions but without enforcement powers may request
Police to obtain and execute a production order on their behalf. In these cases, follow
the procedures in the Search warrants chapter > Applying for search warrants >
Requests from other agencies for Police to make application.
Grounds for applying for a production order
You may apply for a production order if you have reasonable grounds to:
•
suspect that an offence has been, is being, or will be committed (it must be an
offence for which you could apply for a search warrant), and
•
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.
(s72)
How to apply
You must apply for a production order in writing along with a personal appearance
before, or oral communication with, the issuing officer unless it is impracticable to do so
in the circumstances. In this situation you may apply to:
• make an application orally, e.g. by telephone or personal appearance,
or
• have your application considered without a personal appearance or oral
communication.
(ss73) & 100)
All applications for production orders
must be made using prescribed forms available in
Police Forms > Search and Surveillance > Production Orders.
Oral applications for a production order
An issuing officer may allow an application for a production order to be made orally (e.g.
by telephone or by personal appearance) and excuse the applicant from putting all or
part of the application in writing if satisfied that:
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• 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 (orally, or partly orally and partly in
writing).
(s100)
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, and
- the order.
(s100)
Applications without personal appearance or oral communication
An issuing officer may allow an application for a production order without a personal
appearance or oral communication if satisfied that:
• the question of whether the order should be issued can be properly determined on the
basis of the applicant's written communication, and
• the information required for the application has been supplied to the issuing officer,
and
• there is no need to ask any questions of, or seek any further information from, the
applicant.
(ss73 & 100)
Information required in production order applications
Applications for a production order must include:
• the applicant's name
• the provision authorising the making of an application for a search warrant in respect
of the suspected offence
• a description of the offence that it is suspected has been, is being or will be
committed
• the facts relied on to show reasonable grounds to suspect an offence has been, is
being or will be committed
• a description of the documents for which production is sought
• the facts relied on to show reasonable grounds to believe the documents sought are in
the possession or under the control of the person against whom the order is sought
• whether the person should be required to produce those documents that are in their
possession or under their control when the order is made:
- on one occasion only, or
- on an ongoing basis (i.e. at the time the order is made
and which come into their
possession or under their control at any time while the order is in force).
(s71(2))
Using hearsay evidence
Hearsay evidence can be used to outline the grounds on which the application is made, if
it is highly reliable. Indicate its reliability by stating:
• the informant's credibility
• the informant's reliability and whether they have given reliable information in the
past. An appropriate way to say this is: "In the past, Informant A has supplied Police
with information that has proved to be reliable."
• whether the information has been confirmed by other means.
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If further information about an informant is required
Follow these steps relating to informant information if you are required to supply further
information concerning the grounds on which the order is sought.
Step Action
1
Do not name a confidential informant in the application or include any
information that could lead to their identification.
2
Explain to the issuing officer that you do not want the identity of the
informant revealed.
3
While an issuing officer may require you to supply further information
concerning the grounds on which the order is sought, they must
not, in any
circumstances, require you to disclose the name, address, or other identifying
detail of an informant
unless, and only to the extent, that such information is
necessary for them to assess:
• the credibility of the informant, and/or
• whether there is a proper basis for issuing the order.
4
Note current Police guidance on providing sufficient information to judges
issuing warrants about informants is contained in Law Notes issued in respect
of R v Williams [2007] NZCA 52 (see Law Notes - 30 May 2007) and R v
Dunedin District Court, so the warrant issuer can assess reliability.
5
Be prepared to withdraw any production order application if the issuing officer
demands details that identify the informant.
Which issuing officers should you approach?
Always check the current list of authorised issuing officers in your district as they will
change from time to time.
It is recommended that an issuing officer from a District or High Court is selected
depending on where resultant proceedings are likely to be heard. If outside court hours
or no court is available, take the application to another issuing officer.
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Issuing production orders
Who issues production orders?
An issuing officer (as for search warrants) may make a production order against a
person if satisfied on application that the grounds for making a production order are
met.
(s74)
Form and content of production orders
A production order must be in the prescribed form and require the person against whom
it is made (
person A):
• to give the applicant, or a person identified in the order, any documents described in
the order that are in their possession or under their control at the time the order is
made or at any time while the order is in force,
and
• if any of those documents are not, or are no longer, in the possession or under the
control of person A, to disclose, to the best of their knowledge or belief, the
documents' location to the applicant or person identified in the order.
The production order
must set out:
• the name of person A
• the grounds on which the order is made
• the documents required to be given
• whether the documents must be produced on one occasion only, or on an ongoing
basis for the duration of the entire order
• the time by which, and the way in which, the documents must be produced.
The production order may describe the documents required to be given by reference to a
class or category of document.
Note: If the production order is made against a body corporate or an unincorporated
body, the order may specify an individual (by name or by reference to a position held in
the body) who is to comply with the order as the body’s representative.
(s75)
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Executing production orders
Execution without being in possession of the order
If it is not possible or practicable to have the production order in your possession when
executing the order you may execute instead:
• a facsimile or a printout of an electronically generated copy of the order
• a copy made by the person to whom the order is directed, at the direction of the
issuing officer and endorsed to that effect.
(ss77 and 105)
Documents produced under production order
If any document is produced in compliance with an order, you may do one or more of
the following:
• retain the original document if it is relevant to the investigation. In this situation you
must, as soon as practicable, give a copy to the person who produced it
• take copies of the document, or of extracts from it
• if necessary, require the person producing the document to reproduce, or to assist
any person nominated by the Commissioner or their delegate to reproduce, in usable
form, any information recorded or stored in the document.
(ss78 & 79)
Custody of produced things
See Part 12: Procedures applying to seized and produced things chapter for information
about:
• the custody of produced things
• obtaining access to or the release of produced things
• when ownership is disputed
• return and disposal of produced things.
Responding to an assertion of privilege
See Privilege relating to production and examination orders in Part 13: Privilege and
immunities under the Act.
When are orders invalid?
A production order is invalid if:
• having regard to the information in the application, the grounds for lawful issue of the
order were not satisfied at the time of issue
• the order contains a defect, irregularity, omission, or want of form that is likely to
mislead anyone executing or affected by the order as to its purpose or scope.
If an order is invalid, neither section 204 of the Summary Proceedings Act 1957 nor
section 379 of the Criminal Procedure Act 2011 applies to that order.
(s107)
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Document retention and reporting
Retention of documents
When a production order is issued,
the applicant:
must retain...
until the later of the following...
whether in electronic form or otherwise:
• the date of completion of any
• the order
proceedings in which the validity of the
• a copy of the application (if made in
order may be in issue,
or
written form)
• the date of destruction or transfer of
• copies all documents tendered in
the order and other documents under
support of the application
the Public Records Act 2005 or any
other enactment or rule of law.
(ss73(2)(d) & 101)
Reporting of production orders
There are no reporting requirements for production orders.
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