Proceeds of Crime Production Orders


Production Orders

A production order is a Magistrate made order under the application of an AFP Officer for documents. The documents requested have a broad ambit,[1] and are predominantly aimed at identifying, locating or quantifying property for POCA proceedings.

The test is that the Magistrate is satisfied by information on oath that the person is reasonably suspected of having possession or control of such documents.[2] A production order can only require the production of documents which are in the possession, or under the control, of a corporation or are used, or intended to be used, in the carrying on of a business.[3]

Common law privileges such as the privilege against self-incrimination and/or legal professional privilege are not excuses to producing the requested documents, as these privileges are expressly abrogated by the POCA.[4]

Notwithstanding the abrogation of these privileges, a direct use immunity applies to produced documents.[5] This means that documents produced pursuant to a section 202 Production Order are not admissible in evidence in criminal proceedings against the person (being the person who produced the document and by doing so incriminated themselves). The only exception to this direct use immunity is offences for producing false or misleading information or documents.[6]

Failure to comply with a production order is an offence punishable by imprisonment.[7]

[1] S 202(5) Proceeds of Crime Act 2002 (Cth).

[2] S 202(2)(a) Proceeds of Crime Act 2002 (Cth).

[3] Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.

[4] S 206 Proceeds of Crime Act 2002 (Cth).

[5] S 206(2) Proceeds of Crime Act 2002 (Cth).

[6] Criminal Code Act 1995 (Cth) Schedule 1, sections 137.1 and 137.2 as mentioned in s 206(2) Proceeds of Crime Act 2002 (Cth).

[7] S 211 Proceeds of Crime Act 2002 (Cth).

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* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact us for legal advice tailored to your situation. *

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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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